>> From the Library of Congress in Washington, D.C. ^M00:00:05 [ Silence ] ^M00:00:24 >> Maria Pallante: Good afternoon. My name is Maria Pallante. I'm the Register of Copyrights and I would like to welcome you to Copyright Matters. This is a lecture series and a community forum that serves as educational training for the staff of the U.S. Copyright Office and as a public forum for members of the broader copyright community. The series brings together congressional leaders, authors, market experts and legal scholars around issues of critical importance to the copyright debate. Before I go any further, I'd just like to thank a few people from my staff for all of the hard work they put into making this event happen, especially Syreeta Swann, Aaron Watson, and Cecelia Rogers. Thank you, guys. Today's program recognizes the 50th anniversary of Nimmer on Copyright, the preeminent copyright treatise that was authored by Melville Nimmer beginning in 1963, and by David Nimmer following his father's death in 1985. Nimmer on Copyright is as beloved by copyright experts as it is respected, and it is both an honor and a privilege that David agreed to celebrate the occasion here in Washington, D.C. in this scholarly and historic venue at the Library of Congress. We have an outstanding panel of speakers. We have an equally outstanding audience today. And I will say that if we don't agree on everything I do know that we all agree that copyright law is important. In fact, I suspect in celebrating the history of Nimmer on Copyright, we may learn a little bit about the future of copyright law. Before we turn to the panel of experts today, I'd like to introduce Joseph Salvo who is the President of the Copyright Society of the USA. Joe is General Counsel of HIT Entertainment and Vice-President and Assistant General Counsel of Mattel Legal, which you should recognize if you are a fan not only of copyright law but of Barney, Thomas the Tank Engine, Bob the Builder, and Angelina Ballerina [laughter]. His legal work includes television, film, audio, video, and consumer products. He was previously counsel with Sony Music, Arista Records, and Sony BMG where he worked with artists such as Bruce Springsteen, Celine Dion, Whitney Houston, Yo-Yo Ma, and John Mayer. He is serving a two-year term. Joe Salvo, President of the Copyright Society. ^M00:02:44 [ Applause ] ^M00:02:53 >> Joe Salvo: Thank you very much. I am -- I -- my name is Joe Salvo and I clearly have the privilege of standing before you here as President of the Copyright Society. I'd like to thank the Register and the Library of Congress for inviting the Copyright Society and me personally to attend this wonderful event in this truly magnificent building. For those of you that are not familiar, the Copyright Society is a non-profit, membership funded organization, comprising slightly over 1,000 individual members, scores of law firms and many, many companies drawn from the copyright industries. Our ranks include both lawyers and non-lawyers, and we are spread across nine official chapters across the U.S., and we have two additional outposts, as I like to call them, in Los Angeles and Texas. The Copyright Society was founded in 1953, so we're celebrating our 60th year this coming year. And amongst other things, in addition to our annual meeting and our mid- winter meeting -- the annual meeting [of the Copyright Society] is coming up shortly -- we publish the Journal of the Copyright Society of the USA, and on your way in you got a document that shows the table of contents for our next edition, which is a tribute to David and Melville Nimmer's Nimmer on Copyright. The mission statement on our website -- which I think we may go back after I looked at it this weekend and try to sex it up a little bit -- indicates that we are quote, "dedicated to advancing the study of copyright law and related rights in literature, music, art, theater, motion picture, television, computer software, architecture and other works of authorship distributed via traditional and new media." I think it used to say that we were dedicated to the study of copyright law, but obviously things are a little more complicated these days and so we're trying to keep up with that. Interestingly, the Society's early work involved working closely with the then Register of Copyrights Arthur Fisher who, starting in the 1950's, in recognition that the 1909 Act had served its purpose and was in need of some serious overhaul, commissioned a series of studies on the current state of copyright and the issues that were extant at the time. And I am very proud to say that a number -- many of the members of the [Copyright Society] at that time took a very active role in that exercise. And as many of you know, those studies ultimately begat the 1976 Act, which was the careful product of over 20 years of deliberation, bipartisan discussion and compromise, well-reasoned debate, constituency input and sound thinking.. Just like legislation today. [laughter] And while some may take issue with the continued viability and relevance of some of the portions of the '76 Act, there's no question that that piece of legislation has stood up remarkably well over the test of time with 35 years of pretty active use. And interesting to me is the fact that the current Register has issued a clarion call to the copyright community once again challenging us to take up the cause, to consider the current state of the law, to carefully look at what needs to change in the face of evolving digital platforms, new business models and novel legal issues that they pose, and to carry the banner of what she has called The Next Great Copyright Act. And for those of you that have not had an opportunity to read this thought provoking piece, I really recommend it to you. You can find it on the Copyright Office website at www.copyright.gov. The reason I raise all this, and tying it back to why we're here, is simply to make the point that copyright has long been a living, breathing, ever changing area of the law that has captured the hearts and minds of those of us that practice in the area. And in a plug for our organization, one of the ways that I certainly keep up is through my membership in the Society, attending the annual events, reading the journal and trying to keep up with the latest developments that way. However, the real road map to the ever changing nature of the Copyright Act with all of its nuances and idiosyncrasies and sometimes arcane rules, the true Rand McNally of the Copyright Act, if you will, is the very treatise we're here to celebrate today, Nimmer on Copyright, and its two remarkable authors, Melville and David Nimmer. And I've not -- I did not have the privilege of knowing, David, your father; and I just met David earlier at the reception today, so I can't really talk too much about the family, but let me share with you one or two observations from my own world. You know as a young law student, I quickly learned about any number of law treatises that were out there as part of my course of study. Obviously, Williston on Contracts, Prosser and Keaton on Torts, Powell on Property, etcetera. It was in that context that I first heard of the Nimmer on Copyright treatise. But, it wasn't until I began the practice of law in the very, very glamorous world of a first year litigation associate, buried deep in the bowels of the Weil, Gotshal Law Library on a late Friday evening, tasked with getting some legal research done on a copyright case so that it could be on the partners desk that Monday morning, that the true genius and the gift of the treatise really sank in. Not only were the actual workings of the statute and the attending case law all clearly and succinctly laid out so that even a first year associate, like myself, could understand what it was all about, but the footnotes provided a veritable treasure trove of case law to mind. Long before there was Lexis, or Nexis, or Westlaw, or Law.com, there was Nimmer on Copyright guiding neophytes like myself through the statute. And, you know, at the risk of setting myself up for [a] potential infringement suit, David, I will simply confess that when I set about creating my own syllabus for my own entertainment law class 10 years ago, I borrowed shamefully, or shamelessly, I should say, from the index, because of the great organization and approach that it takes to copyright. So the only other thing I would like to therefore say in conclusion is to congratulate you, David, for 50 years of excellence in scholarship, for the wonderful legacy you and your father have left us, and to thank you for your incredible work in keeping us all up to date and serving as the quintessential reference source for all things copyright. Long may you reign. ^M00:09:47 [ Applause ] ^M00:09:56 >> Maria Pallante: And so now it's my great pleasure to ask the panel to please come up. There are stairs on either side. Take your seats. ^M00:10:05 [ Footsteps ] ^M00:10:14 And while they're getting situated, I'd like to introduce to you the Associate Register of Copyrights and Director of Policy and International Affairs Karyn Temple Claggett, who was named to that position in January of this year after serving as Senior Counsel in the Copyright Office for two years. From 2009 to 2011, Karyn was Senior Counsel to the Deputy Attorney General of the United States where she assisted with the formulation of Department of Justice policy on IP and other sensitive legal issues and helped manage the department's task force on intellectual property. Previously, Karyn was an attorney for the Recording Industry Association of America and also an associate with the Washington law firm, Williams and Connolly. She began her legal career as a law clerk to the Honorable Nathan -- Nathaniel Jones of the U.S. Court of Appeals for the 6th Circuit and after that joined the U.S. Department of Justice's Civil Division through its prestigious honors program, and, on a personal note, one of the most talented members of the legal team at the Copyright Office. Karyn. ^M00:11:19 [ Applause ] ^M00:11:27 >> Karyn Temple Claggett: Thank you very much, Maria. Good afternoon, everyone. We have a very exciting panel today that is going to talk to you about their own experiences with Nimmer on Copyright as we celebrate its 50 years. And as I was preparing for the panel, I wanted to think about what would represent my own personal experience with Nimmer, and I came up with this in our current environment; and that was if I had a penny for every time that I consulted Nimmer on Copyright in my legal career, none of us would be facing furloughs because the entire national debt would be able to be paid down. [laughter] So for me personally, that represents my own experience with Nimmer on Copyright. Now the members of our distinguished panel really need no introduction, but I do want to briefly, for you, discuss their very impressive backgrounds. I'll start of course with David Nimmer. He teaches copyright at -U C L A and represents clients through Irell and Manella in the entertainment, publishing, and high technology fields. Best Lawyers magazine named him Los Angeles Litigation Intellectual Property Lawyer of the Year just this year in 2013, and he was also selected as a Southern California Lawyer Super Lawyer by Los Angeles Magazine in 2006 through 2012. David of course has a close and personal relationship with Nimmer on Copyright, having worked on it with his father and authoring the treatise since 1985, as well as a series of influential articles and contributions to books. Thank you, David. Then I wanted to introduce Jon Baumgarten. Jon, on the end here, is a longtime friend of the U.S. Copyright Office. He was appointed general counsel of the Copyright Office in January 1976, a very auspicious year for our office, by U.S. Register of Copyrights, Barbara Ringer. As general counsel, he was a leading participant in the final formulation of the 1976 General Copy Act revision and thorough overhaul of all Copyright Office regulations and practices under the new law. Jon, I have a feeling your war stories will be particularly relevant to us over the next couple of months. Mr. Baumgarten returned to private practice in 1980 where he continued a distinguished career representing individuals, companies, leading trade associations and international consortia for more than four decades until his retirement from the firm of Proskauer Rose in 2011. I also want to introduce Peter Menell. Peter is Robert L. Bridges Professor of Law at the University of California at Berkeley School of Law. He is also one of the U.S. Patent and Trademark Offices inaugural Thomas Alva Edison visiting professionals where he serves as an expert advisor. After graduating from law school, he clerked for the Honorable John O. Newman of the U.S. Court of Appeals for the 2nd Circuit and joined the law faculty at the University of California at Berkeley in 1990 where his research and teaching have focused on intellectual property and digital technology among other cutting edge issues. In 1995, he co-founded the Berkeley Center for Law and Technology where he serves as Director. He has authored or co-authored more than 50 articles and 8 books, including, numerous articles on copyright law with David Nimmer and has contributed to Nimmer on Copyright. Then, we have Bob Brauneis right here. Bob is a Professor of Law and Co-Director of the Intellectual Property Law Program at the George Washington University Law School. He is the co-author of the casebook Copyright: A Contemporary Approach and the author of numerous articles on copyright, trademark and other legal topics. After graduating from Harvard Law School, he served as a law clerk to then Judge Stephen Breyer of the U.S. Court of Appeals for the 1st Circuit, now Justice Breyer, and to Justice David H. Souter on the Supreme Court. Professor Brauneis is a member of the managing board of the Munich Intellectual Property Law Center and co-chair of the D.C. chapter of the Copyright Society of the USA. And finally, last but not least is Shira Perlmutter. Shira, like Jon Baumgarten, has very close ties to our office so welcome back. Shira is the Chief Policy Officer and Director for International Affairs at the United States Patent and Trademark Office. In that position, Shira serves as a policy advisor to the Undersecretary of Commerce for Intellectual Property, and oversees all domestic and international IP policy related operations of the P T O including congressional and legislative engagement, education and training and economic analysis. Before joining the U S P T O, Shira was Executive Vice-President for global legal policy at the International Federation of the Photographic Industry; I F P I. Prior to that, she held the position of Vice-President and Associate General Counsel for Intellectual Property Policy at Time Warner and was also a consultant for the World Intellectual Property Organization in Geneva. In 1995, Shira was first -- the first person appointed to hold what is my current position, as the Associate Register for Policy and International Affairs at the U.S. Copyright Office. So between Maria Pallante and Shira, I certainly have enormous shoes to fill. Shira is a research fellow at Oxford University, a lecturer at Kings College University of London and also served as a law professor at the Catholic University of America. She is a co-author of a leading casebook on international intellectual property law and policy and has published numerous articles on copyright issues. So those were indeed just a highlight of the panelists' truly storied careers. So it's clear as you can see that we have one of the most talented and impressive panels to discuss and celebrate Nimmer on Copyright today. So with that I want to turn it over first to David. David, can you give us some background about the early drafting and development of Nimmer on Copyright? And I know that you also have a slide presentation to share with the audience. ^M00:17:52 [ Noises ] ^M00:17:57 >> David Nimmer: Thank you so much. In all -- of all the unlikely places, it was in Los Angeles, California in 1923 that my father was born. So how did that backwater of culture produce the person who has given us the treatise that we have today? Well as an early teen, my father was infatuated, as so many before him, with the film industry. And so when he was a young student at Los Angeles High School, he and his friends snuck into the back lot of Columbia pictures where they were soon apprehended by a guard who did not know whether to turn them over to the police, to simply kick them out, or to give them a tour of the studio. So he decided to do the last and I think my father was smitten ever since then. Well he went to Harvard Law School to follow his desire and somehow he did manage to become a copyright lawyer upon his graduation. And so he always had a bug for the entertainment industry. Here he is with one of his idols who gave him an autographed picture. I used to kid him that he had a thing for female heads of state who he met through his copyright dealings. Here he is with Golda Meir and there with Indira Gandhi. But in any event let me go back a little bit to talk about how he began to approach copyright law and to place his mark upon the treatise that bears his name. First is a question. What is copyright law? Where does it come from? Does it come from the courts or does it come from the legislature? Is it like the common law? Or is it more like the internal revenue code? Well, we can go back to an early case -- let's see, in order to do this it's necessary for me to have my pointer. Can we click on the piano there to have the musical portion? Yeah, yeah, good. Click on there. ^M00:20:00 [ Music ] ^M00:20:09 Good, so there is a piano player roll that was decided by the U.S. Supreme Court even before the 1909 Act took effect, that that did not implicate copyright owner's rights. It's not a copy because it's not visually perceptible. There are those little marks on the piece of paper but those don't tell the human being what is there. So early on the U.S. Supreme Court said that's not a copy. That does not implicate the copyright owner's rights. And my father wrote up that case of course, along with all the cases that came down. He was fascinated by them. Some of them seemed rather counterintuitive such as the one we just saw from 1908. And when he was at Harvard Law School, he participated in a competition. At that point, there was no class in copyright law at Harvard Law School, rather like Yale Law School today [laughter]. And so what he did, is he decided to enter into a competition and he won the national first prize and a Nathan Birkin award. And when he left, he managed to secure a place as house counsel on the staff of Paramount Pictures. And while in that capacity, he wrote a series of articles as a practitioner that were published in the U C L A Law Review about copyright and its progression. He then took a position on the faculty at U C L A and he continued to write up the cases until finally he produced his landmark one volume treatise in 1963. Well, meanwhile in the year of my birth and onwards, this organization started its process of looking at the 1909 Act and trying to revise it. And so a series of studies began in 1955 and continued over the years. Well, I was right here a few blocks away on Capitol Hill in 1965 when my father gave testimony. [The testimony] sounded very boring at the time, when I was 10-years-old, but when I went back and read it somewhat later, it was rather quite cogent. Just think of this testimony three decades before Napster came into fruition; as he testified to Congress, within three decades developments and technologies may permit the quality duplication of entire books. Okay, he was not quite exactly right, but entire works for a pittance. If such duplication is not effectively proscribed, who will be willing to purchase a book? In such circumstances, book publishing may largely disappear and what then happens to the educational and cultural state of the nation? So this was his testimony. You might think he was like a Luddite trying to turn the clock back but that's not so. History tells us the smashing of machines as a means of avoiding technological displacement is a futile gesture. Moreover, we should not do so even if we could. It's in the interest of society that modern reprography methods be exploited, not suppressed. And then waxing poetic, he quoted Lincoln to say that, "The dogmas of the quiet past are inadequate to the stormy present." And in that spirit, he proposed an equitable and convenient means of licensing reprography; really an -- a legal device that was taken up by the Supreme Court many decades later. In that same year, a draft bill was presented and it was essentially the entire bill that became our act which was enacted only 11 years later. So what happened? Well, in the intervening 11 years we had a hold on it. But my father said at the time that if the Congress were to enact a new copyright law in exactly the current form, I for one would consider this a magnificent achievement and enduring contribution to the attainment of the great society that was currently unfolding under President Lyndon Johnson. Well the hold came from cable television and jukeboxes, but when a compromise was finally worked out 11 years later, the Copyright Act was adopted. And so the question that we return to is: where does it slot in? Well when my father wrote up this new act, in his introduction he said, "I regret the departure from judge made copyright law. It's been replaced with a body of detailed rules reminiscent of the internal revenue code." So that's the dual legacy of copyright. But throughout, my father was insistent in being faithful to the law. And so here's an example of a case that he wrote up. In 1948, some music was put out. It was not put out at that point in sheet music form. Rather it was put out in a record. And if you could put the cursor over the record, we can have the sound cue. Yeah, in the middle, there. Good. Yeah. ^M00:24:45 [ Music ] ^M00:24:59 As I say, that was put out in the form of a recording and if you'll recall that case from 1908, it's not visually perceptible. Meaning that this is not a copy, meaning it does not serve to invest copyright protection. So as a result of that we had Z Z Top putting out La Grange is 1973 -- if you'd go to the sound cue in the middle of that. In the middle of that disc. ^M00:25:23 [ Silence ] ^M00:25:28 Can you get there [laughter]? >> [Inaudible response]. >> Yeah, good. ^M00:25:36 [ Music ] ^M00:25:49 Well, that was ruled non-infringing. Not because there's a "how, how, how" exception to copyright law [laughter]. But because of that 1908 case that I mentioned, [which held] that at the time this work was released it did not secure copyright protection. So my father wrote up this case as correctly decided notwithstanding that it might seem unjust. Now when he did so, he was careful to add the following: "In no sense should this be understood as a plea for the morality of record duplication. But in the hierarchy of moral values, surely higher than even the injunction against record piracy, lies the principle of fidelity to law." In other words, he was not simply result driven by what is the appropriate outcome in this particular case, but was concerned to be true to the essence of the law and the way it was drafted. One more note about my father. He served here on the CONTU, the Commission of New Technological Uses -- I'm sure you recognize a lot of the people here. He served as Vice-Chair and that was the body that brought us protection within the copyright realm for computer software. It was decided to clothe computer software with protection under Title 17. But my father remarked at the time, "We may need a line of demarcation to distinguish between programs which control the air-conditioning in a building and those which produce works which themselves qualify for copyright protection. It's not because we need this for immediate implementation but it might prove useful in the years to come." Now, so my father wrote that in the report that was issued in 1978 that became the basis of the 1980 law. But in 1980, computer software was adopted. It had some very remarkable and unforeseen sequels when the Digital Millennium Copyright Act was passed in 1998. It protected all software with a new form of protection. I found myself defending the manufacturer of a universal garage door remote who was sued under the Copyright Act -- under the D M C A. So this was a case that I never would have anticipated. It's easy to imagine that the manufacturer of a universal remote would be sued. For me at least it was impossible to imagine that the Copyright Act would be the locus of that cause of action. And so my father's wisdom came back to me. We might need a line of demarcation to distinguish between programs which control opening up a universal garage door remote on the one hand, and those software that create let's say World of Warcraft, and other copyrightable works. And so because the Register of Copyrights has talked about the Next Great Copyright Act, and because Representative Goodlatte is now starting the process of investigating what should go into a new copyright act, I thought I would gather some of my -- the principles that I learned from reading my father's works. When Congress wants to amend the act, it should: enunciate principles, not stultifying detail; not predict the future of technology; and listen to a broad range of voices such as CONTU. I think those lessons would stand us in very good stead as we go forward in this very exciting dynamic process as of 2003. But, I'll end with the following. My brother is the family videographer and I told you that my father always had a bit of the Hollywood bug in him. In 1969 when we were in London, my father directed my brother as the filmmaker into making a home movie of his own creation called "The Great Copyright Caper". It stars my father and myself, and I thought I would bring it to you to enunciate his final vision for copyright law. ^M00:29:38 [Music] ^M00:29:58 >> Federal copyright began in the United States in 1790 and it only protected maps, books, and charts. As works flourished it was applied to other works of imagination such as plays, motion pictures, television, and even computer software. Mel Nimmer was the King of Copyright. He was in the forefront of all these fields, and he was also a big Bing Crosby fan. ^M00:30:28 [ Music and Singing ] ^M00:32:53 [ Applause ] ^M00:33:01 >> Karyn Temple Claggett: Well, David, thank you very much for those really wonderful words of advice, as well as that very exciting and moving film [laughter]. I think that -- I think that you said your family actually did it so I think that they actually probably have a career in film [laughter] as -- in addition to having a lasting legacy of Nimmer on Copyright. I now wanted to turn it over to Jon Baumgarten. Jon I know that you knew Professor Nimmer personally and have been at the forefront of both government and private practice copyright policy for many years. What can you tell us about the role of Melville Nimmer and his treatise in your career, as well as the development of copyright law since its publication in the 1960's? >> Jon Baumgarten: Thank you Karyn. As you can tell from the introduction a while back, in many ways, [we are] talking about copyright and association with the Copyright Office at the Library of Congress. And I want to express my great appreciation to Maria and her colleagues for involving me in the opportunity to honor Nimmer the person and Nimmer the treatise. I want to say a brief word that makes it sort of extra special about David. Now copyright lawyers of my generation; we didn't, particularly on the east coast, we didn't really know David. We knew of him, and we followed his maturity through the prefaces to Nimmer on Copyright. We first learned of David as a child who had to learn the family injunction not to bother daddy while he's working on the book, and later as someone who was, in a later edition, someone whose -- who was attending what his father always referred to as an institution in New Haven [laughter]. And being able to share this podium with David and with others of his family and the audience is -- gives this an extra dimension of pleasure to myself. I had the great privilege of knowing David's mother and meeting her several times. She was indeed a very gracious lady. I -- a bit of an impromptu comment that I hadn't planned on making, but hearing about Mel being apprehended on the back lot and apparently your running away with a purloined manuscript from a British museum [laughter] reminded me of my own story. I practiced in New York for about 10 years before I got here. I got here in January of '76 and my family at the time was back in New Jersey and we were extraordinarily busy here, but there wasn't much to do but think about copyright. So one day -- I think Mary Beth will remember this story -- I was living in a motel at the time, didn't have a car. So I decided I would do what I frequently did. I'd take Nimmer home to my motel and spend the time reading it again. In those days you could actually carry -- [laughter] it was two volumes by then -- you could take the first volume home. Well, you know, nobody in security knew me, so I started to walk out the door -- we were then in Crystal City -- and I was immediately apprehended by security and they called -- some of you may recognize this name -- they called Waldo Moore... >> Yeah. >> Jon Baumgarten: ...and I remember Waldo getting on the phone and calling upstairs. It was either to Mary Beth or Lou Flax saying, "We got one, we got one!" [laughter] So I guess the moral of the story is if you hang out too much with the Nimmers you may get busted [laughter]. So be careful. Addressing adequately the role of Mel Nimmer in my own career and in the development of copyright law is no simple task. For it has been in a single word pervasive in both contexts. But in the short time allotted to me let me try to distill it for you. At the personal level, I first met Mel in the late '60s, through an introduction by my copyright professor and copyright mentor at N Y U, the great Walter Derenberg, who many of you will not remember the name of, but was indeed the dean of American Copyright and Trademark Law at the time. And who knew everyone. The copyright bar was rather small in those days, but Walter was in touch with virtually everyone. They always came to visit N Y U and it was in one of those meetings I was introduced to Mel. But I was already familiar with the treatise because through the kindness of a friend who worked for Matthew Bender at the time, and perhaps, Mr. Stein. I shouldn't say this but I think the statute of limitations has been -- money was quite an object in those days and my friend managed to get me at a substantial break, a copy of Nimmer on Copyright. I was devouring that treatise word for word, footnote for footnote, stimulated by Walter Derenberg's tales of copyright litigation and copyright negotiations while my classmates were relying basically on classroom notes and the few opinions, and occasionally Alan Latner's wonderful and very short book on copyright. But from that early time, the treatise was my Bible. By the way, in that class of Walter Derenberg's was somebody else who many of you might recall and that's the great Judy Saffer, of ASCAP and B M I fame, [who] I know is a good friend of many of you here. But from that point in my meeting Mel to his untimely passing in 1985, I encountered him in various contexts: professional and social; in my private practice and his; in my role as Copyright Office General Counsel; in his role as Assistant Chairman of CONTU; and I encountered him very much as his disciple, although I was only one of hundreds of disciples if not thousands; and I hope as a friend. One event that has always stood out in my mind was a beautiful Spring day in '76 or '77 when Mel took me on a long walk on the beach from the house in Santa Barbara and we spent what seemed like several hours walking along the beach dissecting the past copyright law and the soon to be new copyright law. ^M00:40:06 It was just a very special day; the sun, the ocean, the copyright, and Mel [laughter]. >> Karyn Temple Claggett: The perfect vacation [laughter]. >> Jon Baumgarten: I live now across the street from the beach so I take a lot of long walks. I don't think quite so much about copyright anymore [laughter]. It's more my tennis serve, and my golf swing. But I do think about that time. But it was during this period, although not that precise moment, that Mel honored me by asking that I review and comment upon the manuscript for what was to become the 1978 comprehensive revision of the treatise. I've always taken great pride in the preface to that treatise. David had part of that preface up, but it's towards the end of the preface he says that -- Mel said -- that he derived great benefit from my comments. And then he added, "...even in the few areas where we disagreed." Well you could disagree with Mel Nimmer, and you could be appreciated for it, as long as the disagreement was on the merits, was carefully thought out, and was seriously presented. And it was actually in many ways a joy to have disagreements with him because the substance that emerged was intellectually thrilling. As expressed in the treatise, as well as, in academic discussion and adversarial presentations, Mel's approach was characterized by several traits; all positive and all deserving to be emulated. To name just a few: he was forever probing and consistently analytic; the surface of things, whether case law, legislation or regulation was commonly simply a starting point for thought, not an end; [and] he was deeply contextual, consistently exploring the business settings and implications of the question before him, as well as the social and public policy groundings and impact and the potential solutions to open issues; solutions, by the way, [which] he was not hesitant to offer. He had a real knack for anticipation. He would often set up issues again in full context that had not yet emerged, and frequently offered reasoned answers for when they would come forward. It was not unusual for, some years later, those issues to later arise in court, and his early expositions would commonly stand his own conclusions in very good stead before the judges. In my practice and professional development, I've tried to follow Mel's approach, although as some of you here will undoubtedly know, it may have tried you from time to time to read my footnotes, and my side thoughts, and opinion letters, and also to be charged for them -- I guess [laughter]. But for the most part things worked quite well -- worked out quite well for all of us in the development of copyright law. And I'm grateful to Mel, to his memory, to the treatise and his publisher for the impact he had on my career. With respect to copyright law generally as opposed to my personal development, I think it's best viewed as this: Nimmer the professor, Nimmer the advocate, and Nimmer the treatise was much more than a scholar, was much more than a litigant, was much more than a commentator. He was indeed an organic part of the development of copyright law in this country, [and in] many ways as influential, and as important as any case, any legislation or any regulation. And I think honoring that memory today is a wonderful thing. I'm glad to be part of it. Thank you. ^M00:44:37 [ Applause ] ^M00:44:45 >> Karyn Temple Claggett: Thank you. ^M00:44:46 [ Applause ] ^M00:44:47 Thank you so much Jon. I think when you described the sun, sand, beach and Mel Nimmer you probably described, I think, the copyright geek's heaven [laughter], in some sense, so thank you for that really moving and personal description of your experiences. Now I wanted to turn over to Peter. Peter we're holding this celebration because the treatise has reached its half-century mark. How do you see the role of Nimmer on Copyright having evolved over the past 50 years? >> Peter Menell: Well let me go back a little further just because I think that the treatise stands out, not just among copyright reference works, but among all treatises. When people talk about, you know, influential treatises, you know Nimmer is really in the whole pantheon of legal reference tools. You know it's really one of the pinnacles, and I think that it really builds on David's introduction, that the copyright law dating back to 1790 is really distinctive from really any other body of law -- or it certainly has features that enabled Mel Nimmer and David Nimmer to have the impact that they do. The 1790 formulation wasn't much longer than what David put up on the screen. It was very terse, and it envisioned from this nascent nation, courts as partners with a legislature; that Congress had mapped out a very clear set of principals, but not with the degree of detail that we would need. Even to this day, there's no reference in the statute to substantial similarity as a statutory reference point. But that was something that judges developed over centuries and that's something that a treatise writer who focused entirely on one body of law and could provide that ongoing refreshing could have a particular influence. But I think we should at least note that Mel Nimmer was not the first such treatise writer and I go back to the first treatise writer -- copyright treatise writer -- George Ticknor Curtis. Curtis was quite interesting, and the familial connection going on in the Nimmer field had another familial connection because his brother was Benjamin Robins Curtis who was on our Supreme Court and one of the dissenters in the Dred Scott case. But maybe even more significantly, George Ticknor Curtis' father-in-law was Justice Joseph Story. And one can imagine what those family meetings were like [laughter] in which Judge Story -- Justice Story, who we associate with the Fair Use Doctrine and many other important principles of copyright would be talking to his son-in-law about copyright. I like that image because I can just imagine how David and his father must have interacted. I'm sure David being the proto-Napster user of his era [laughter]. But you know you can see how you almost have to have a family tradition to build something that great. And then we go on from Joseph Story to Learned Hand, or Pierre Leval, and one sees in the jurists area, we see a common law style, and in the treatise we see this effort to evolve the law, recognizing, as one of the principles David put up, that one can't anticipate fully technological change -- and copyright has always been the product of technological change. So when I think about the treatise, I like to imagine what it must have been like because I obviously wasn't in David's household at that time. But you know the task of trying to codify, catalog all copyright law was immense and when Mel Nimmer was doing this, we were in the midst of what was going to be the Copyright Act of 1965. And I've spent a lot of time with Mel Nimmer through reading transcripts of all of the legislative history surrounding that law. David and I have talked about it, and now it's part of the treatise, that that legislative history has been brought into the appendices. And it's so important to see that Mel Nimmer was at those meetings, was one of the most active commenters, and so I see the treatise as really trying to codify the law during that formative period leading up to the '76 act, and then after the '76 act, to try to implement this grand new law, which was really the first decade after '76 -- was trying to really think how you take a law like this and make it work within the court system -- within the Copyright Office, which he did. Now that brings us to a very sad part of the story. And for me, although it's obviously unimportant in the scheme of the treatise, for me it's very personal. ^M00:50:04 So I was a law student in 1985, and I was looking forward to taking during the winter term at Harvard, Melville Nimmer's copyright class. He was scheduled to teach that January of 1986. And I remember very sadly getting a note from the dean saying that he'd passed away that November. Now I did have the pleasure to take the class with Bob Gorman, who's also here. So I can kind of, you know, feel like I got the copyright law from one of the master's, but it wasn't for another decade, until I met David and we've since had this wonderful friendship. But I've -- you know -- I've always been aware of the Nimmer treatise as this sort of touchstone for understanding this body of law that is really like no other. It's so much richer in its legislative development and its judicial explication. And that brings us to the modern history of the treatise which I'll say is the period that David has shepherded. And this has been a period in which we've seen how evolution of technology has really stressed and pushed the copyright system. Now I go back to a report -- I've pointed this out to David -- in which in 1965 the drafters of what became the 1976 act talked about how they wanted to create a framework that could last for 10, 20 or 50 years. We're now at that 50-year point and obviously the statute's creaky, but it's been because of works like the Nimmer treatise, and in particular the Nimmer treatise, that has allowed the statue to get as far as it has. And David has masterfully picked up where his father left off. He has brought together the practical components, the academic components, and the principles that were there and it continues I think to be a beacon in trying to understand these issues. But as Maria Pallante has recently called for, we are at the end of even what people in 1965 thought was an appropriate length. That the statute is creaky and we all now are I think at a point in history where we'll need to go forward but it doesn't mean the end of the Nimmer treatise. I don't think we're ever going to reach that point. I think it's really being able to take that wisdom because we're not going to reinvent copyright. We're going to build on this foundation and be able to trace those threads through all the way back, I think to 1790. >> Karyn Temple Claggett: Thank you, Peter. ^M00:52:50 [ Applause ] ^M00:52:57 Peter, I know, talked a lot about the evolution of Nimmer on Copyright, and one of the other themes that I think that we've heard from this evening is the influence that Nimmer on Copyright has had I think on people personally, but as well, in terms of the copyright discourse and the public. So Bob I wanted to turn it over to you. You and Barton [Beebe] have looked into the influence that the Nimmer on Copyright treatise has had on courts and court cases in copyright. What have you found in that respect? >> Bob Brauneis: Well, we found some PowerPoint slides among other things [laughter]. So I'm going to... >> Karyn Temple Claggett: Exactly. >> Bob Brauneis: Thank you so much Karyn for the introduction, and thank you Maria for inviting me to be a part of this wonderful event. I'm really glad to be here and have this opportunity. So Barton Beebe and I -- and Barton unfortunately could not be here today -- decided we would take a look at the influence that Nimmer on Copyright has had and we looked at it in the end in two different ways. One of them -- we looked at it from a statistical point of view, to see whether we could gather some data on the use of the treatise by federal courts, and then secondly, we actually polled, in a variety of ways, some legal scholars, and came up with some specific issues on which the treatise has had some influence. But let's take a look first at the statistical data. Apparently, Kaspersky 2.0 believes that the databases are out of date [laughter]. Okay. So first: the big numbers. Right? The forest. We looked at the citation of Nimmer in federal court opinions for the first 50 years of its existence: from 1963 to 2012. We found 3,181 of them. Some -- those of you who were at the reception earlier heard Mr. Stein from Lexis/Nexis say that there were 17 Supreme Court opinions citing Nimmer. Somehow we found 19. We'll have a discussion afterwards about [laughter] where those two Supreme Court opinions came from or went to [laughter]. So those are impressive numbers in themselves, right? But to drill down just a little deeper, we took a look at the citation rate over every year, right? From 1963 to 2012, and it looks like a nice chart, right? It's kind of going up, and we -- the number of citations per year would start out in the 60's and the 10 range by the 2010's are up in the 120 to 140 range. Well, all well and good, but you might say the number of copyright cases decided by federal courts each year have also increased. So if we want to take a look at the percentage of copyright opinions each year that cite Nimmer on Copyright, what would that chart look like? Well, here's what it looks like. Interestingly enough I think Melville Nimmer, the father, gets the [laughter] prize. In 1982, Nimmer on Copyright was cited in 97.6% of all published copyright opinions; a record that it has not yet surpassed, and would be a little hard for any treatise to surpass a record of well neigh -- 98% of published copyright opinions. On the other hand there are many, many people who, come 2013, would see a citation rate of 72.4% of all published copyright opinions and say, "You can't beat that." And in fact, there is no other author, no other treatise, no other article, that in copyright law comes anywhere near to that rate of frequency. So that all looks pretty great. How about comparing it to some other treatises however? Well first, we took a look at treatises in copyright law. Some alternative treatises in copyright law which in true comparative advertising tradition, we've decided to call Brand P and Brand G [laughter]. So Nimmer stands at 3,181. How do Brand P and Brand G work out [laughter]? Brand P comes in at a respectable 192, and Brand G, just slightly behind at 190. So Nimmer seems to be doing pretty well there. How about over the years though since Brands P and G are newer brands. Well we graphed them out over the years and although it is true that Brand P and G have gained in their popularity, they're doing about as well as Nimmer was doing in say 1975. It's still clear that Nimmer's doing very well, right, on that score. Well for some real competition, we had to look to other areas, and so here comes the figure that looks like Nimmer has a real competitor. Okay? Here's McCarthy on Trademarks, which edges out Nimmer over that period by eight citations [laughter]. I don't know who those eight courts were -- but it's right up there. And we also looked at Chisum on Patents; doesn't quite do the same thing. >> [Inaudible response]. >> Bob Brauneis: Now let's take a look at over time and you see that in about the mid- 1990s, the McCarthy treatise started being cited more often in federal court cases than the Nimmer treatise. Why is that? Well, now let's take a look at a chart of the percentage of cases that cites to these sources. That's the same redline you saw before with the Nimmer treatise but here's the McCarthy and Chisum superimposed on it. And you see that McCarthy has sort of reached Nimmer's status, but in the last 10 years or so, has run in very close parallel to the Nimmer treatise, and so the only reason why it turns out that McCarthy has more citations total, is that we've got more total cases. ^M01:00:09 Now this looks at not 1963 to 2012 and 1980 to 2012; so the last 22 years. How many published opinions have mentioned the issues of copyright, trademarks, and patents, respectively of course, realizing that a single opinion could discuss both, or all three areas in fact. And it turns out that copyright is lagging behind. So in order to get Nimmer back up there I supposed we would have to increase the number of opinions, increase litigation [laughter] in the copyright area. One other way of looking at this though, is to suggest that in an area where the law is clearer, there are fewer disputes that make their way to published opinions. So in some ways I'd like to think that it may be a measure of success, a much deeper measure of success of the Nimmer treatise, that we don't see the same numbers of copyright opinions that we do in trademarks and patents, because perhaps, the Nimmer treatise has done part of the job in clarifying the law and making it less likely that disputes are going to reach that published state. So, one other perspective on this right. We've taken a look at just the statistical citation rate perspective. How about particular areas of influence? I did a poll of the law professors who are on one of the copyright listservs. I got back dozens and dozens of suggestions about how the Nimmer treatise was influential in particular areas and it would take us all evening to go through all of those, so rather than try to cover dozens of small issues I thought that I would take a look at a cluster of common-law sorts of issues around infringement analyses and fair use. And think about not just particular issues in the way that you might say, "Oh, you know, Nimmer says that joint authorship has to -- doesn't have to include independent both copyrightable of work, and Goldstein does say that, and which court comes out which way or the other." But really to take a deeper look at how our whole way of thinking about infringement and infringement analysis has been shaped by the articulation of some very basic concepts in the Nimmer treatise. So let's start back with the terminology that Melville Nimmer articulated of the difference between fragmented literal similarity and comprehensive non-literal similarity. Melville Nimmer didn't invent the idea sort of, of having pattern similarity. That's how Zachariah Chaffey put it, and the Nimmer treatise of course cites Chaffey. But the crystallization of that terminology I think was quite influential, cited in 84 federal cases and has certainly shaped my way of thinking about different sorts of similarity in infringement analysis. What about the idea-expression distinction? I think a very important and much cited sentence is the idea that the distinction constitutes not so much a limitation on the copyrightability of works; so it's not as though we can point to things, as [Title 17 U.S.C. §102(b)] might suggest we could, and that's an idea but that's expression, as it is a measure of the degree of similarity that must exist between a copyrightable work and an unauthorized copy in order to constitute the latter an infringement. [Nimmer on Copyright] is an extremely influential lens, through which to view this process, again, of infringement analysis and the place of the idea-expression distinction in it. What about the relationship between the reproduction and performance rights on the one hand, and the derivative work or adaptation right, on the other hand? Again, the Nimmer treatise says that this concept of substantial similarity is going to unify the exclusive rights. That if a later work doesn't incorporate sufficient of the preexisting work as to constitute an infringement, of either the reproduction right or the performance right, then it likewise will not infringe the right to make derivative works, because no derivative work will have resulted. Again, I think a very influential and sort of deep structure way of thinking about the relationship between the rights and their place in infringement analysis. Moving forward well into the David Nimmer era, how do we analyze computer programs right? In this new era of infringement analysis, a very influential right, basic decision, Computer Associates versus Altai, in which the court says, "Professor Nimmer suggests and we endorse, a successive filtering method for separating protectable expression from non-protectable material. See generally three Nimmer..." and then the section number. And of course, that grew -- in that case the treatise description of that grew -- out of an article. Peter Menell, of course, was also cited in the Altai case, and that to the present- day right, really informs our thinking about how to approach computer programs from an infringement analysis point of view. My last example, I think, is perhaps the most complicated one, and that's the example of fair use. And these two sentences first have us focus in the fair use analysis on what would, under the 1976 act, be called the fourth factor. "Whether the defendant's work tends to diminish or prejudice the potential sale of the plaintiff's work." But then in the second sentence goes into this notion that the determination has to focus on the "function of each work regardless of medium." And a kind of superficial, I think, history of the influence of this statement would say, "Oh yeah, the court kind of swallowed that in Harper and Row, but then in Campbell versus Acuff-Rose they took the broader view." And that's how it went, right? My comment may suggest that I think that is a somewhat superficial view, and that in fact this -- these two sentences continue to have a lot of weight. That you can't read Campbell versus Acuff-Rose correctly without understanding that the court did not reverse, but it remanded, and suggested that the lower courts should look into the extent to which the use by 2 Live Crew might affect a potential market for a straight ahead rap version of "Pretty Woman". And then to look at the development of a transformative use, after the Acuff-Rose decision. And to see that what started out maybe as something in which derivative -- excuse me -- in which transformative use was closely tied to the idea of developing a derivative work, and transformative use would be sort of a measure of the extent to which a derivative work contributed lots of creativity of its own in comparison to creativity borrowed from the underlying work; it's gone a lot further than that. And I want to suggest that the best way of understanding of how transformative use has gone further is to go back to that word function in the second sentence there in Nimmer on Copyright, and that it turns out that courts are not using the term function, but they're using the term transformative use in a way that I think is actually closer to the function idea that was first expressed in the Nimmer treatise. So what that suggests to me, is that sort of over the long haul, Robert Maynard Hutchens, who was the President of the University of Chicago but before that he was the dean of David's alma mater, Yale Law School, long before David was there. He described western philosophy as the great conversation. Right? The great conversation of philosophers over centuries. Well we haven't had centuries yet, in that sense to see a great conversation on quite the same scale in copyright law. But to the extent that we can describe a great conversation happening in copyright law, it takes place on this level and the Nimmers, Melville and David, are right there in the center of it, and the rest of us if we can just be in the room and listen, and occasionally try to raise our hands from the back rows we consider ourselves very, very lucky. So thank you. ^M01:10:26 [ Applause ] ^M01:10:35 >> Karyn Temple Claggett: Thank you, Bob. Those were truly some very impressive statistics. I'm sure that there are a number of people in the room who will take your clarion call to create a number of additional copyright cases [laughter] to ensure that Nimmer on Copyright remains the treatise that is cited the most in all legal decisions. Now I wanted to turn it over the Shira. Shira we've been talking about the influence that Nimmer on Copyright has had domestically, and I wanted to see if you could discuss how the treatise has actually influenced international viewpoints on copyright law. >> Shira Perlmutter: Thanks Karyn. I first wanted to say that I'm deeply honored to be here on this distinguished panel, and also it's a real pleasure to be back at my old home at the Library of Congress, and to see so many old friends here in the audience, and on the panel. I was thinking about the international aspects and I would divide it into two separate elements, and one is the influence that the treatise has had in the United States with respect to international copyright thinking, and the other is the influence that it's had outside the United States with respect to understandings of U.S. law. And I am indebted first of all to both Jon and David for all of their historical information and a number of very interesting ideas, and also to Michael Shapiro and Garrett Lavin from my office for their thoughts and research on this. It's a little bit harder to research than some of the U.S. issues. So I think it's important to start at the beginning where the international connections for the treatise began, and that was Mel Nimmer's great interest and involvement in the international scene. We saw some of the pictures with the great leaders of the world and this was at a time -- his involvement in international copyright began at a time when very few Americans were focusing on the law outside our border. Mel traveled and lectured all around the world, and in particular in 1965 to 1966, he was a consultant to the predecessor to WIPO: VERPI, as it's affectionately known, [laughter] on the feasibility of U.S. adherence to the Bern convention, which resulted in an article in the Stanford Law Review which was influential later on in the Berne implementation process here in the U.S.. In 1967 he participated in the Berne revision effort in Stockholm, and in 1971 in the Berne and U C C revision in Paris, and I was delighted to find out that not only was Mel Nimmer there for these events, but David Nimmer was there, as well, although I think not actually in the room negotiating for the United States [laughter]. And of course, David has continued the international side of copyright ever since he started working with his father. So to start with, the influence in the United States with respect to international law; in my discussions with Jon, he was pointing out that the early editions of the treatise were the first, analytical, as opposed to descriptive, and clear and operational approach to international copyright for American lawyers. This enabled them to learn about not just what the treaties said, but how they functioned, what the nature of territoriality was and what it meant, and how national treatment and reciprocity worked. And I know on a personal note, a starting point for me in the 1980's working with the treatise, was preparing very lengthy, probably much too lengthy opinions for clients who were looking at -- who were asking questions about -- the protectability of U.S. works in other countries that had been first published abroad and vice versa; the protectability of works published in the U.S. elsewhere. This of course preceded the current large crop -- large and excellent crop -- of current treatises that are specific to the international issues. And I think it's not an exaggeration to say that they early treatise, in its treatment of the international setting, led to a generation of American lawyers who were able to work in an international context, whether in the private or the public sector, and that meant that they were able to help U.S. copyright owners develop their markets abroad. They were able to help judges and law clerks grapple with the growing number of cases with transnational dimensions, and they were able to help the United States government play a major role in international copyright policy development. In terms of the influence of the treatise in other countries with respect to U.S. law; in the '60s and '70s, there's no question that international copyright was dominated by non-U.S. experts; primarily European, of course. And American's at that time -- I was thinking of a good term for it - - were probably best seen as copyright primitives. If you looked at our history we were tainted by our past as pirates of British literature; we were tainted by our reluctance to join the international treaty community, and in particular the bases for suspicion were our pursuit of the U C C and the failure to join Berne or Rome; our system of formalities; our work made for hire doctrine; our failure to adopt moral rights; and then of course the infamous manufacturing clause. And again, thanks to Jon for those points. And among the first exceptions to that perception of the U.S. was Mel Nimmer and Barbara Ringer, who became known through their participation in the international conversations about copyright, and it was impossible not to be impressed with their erudition, with their scholarship, with their world view and perspective on humanity, and with the clarity and articulateness with which they express themselves. So as -- again as Jon has pointed out they really -- the two of them helped turn around those perceptions of the ugly American from a copyright perspective, and set the table for us to gain respect and have a voice and a role. Now the treatise itself, from early on, including outside the United States, was seen as the authoritative resource on U.S. law. And its influence of course over the years was enhanced by the growing importance of U.S. law in the international debates, and the mere fact of the existence of this tremendous and unmatched resource; the likes of which is not found in most other countries. So again, [Nimmer on Copyright has been] very influential in terms of spreading the understanding of our system elsewhere, at a critical time. In the last five decades of the growing complexity of copyright law, the growing complexity of international law, and of course the rising globalism of all of these issues of the copyright marketplace, the Nimmer treatise has kept up in complexity, in depth, and in internationalism. And it has of course been cited by numerous foreign courts. I don't have numbers and slides, but I know there are many, and they range from, for example, the well-known Dead Sea case in Israel, to a very recent, from last November, case, the Star India case from the New Delhi High Court, which relied on the treatise at length. Also, it's been cited as black letter law in many studies including, two recent ones that I'm aware of -- actually not that recent anymore -- but a 1999 study on secondary liability by two Dutch academics, and also a 2002 study by a representative, a copyright expert, from the Australian government, as well. And then I also wanted to point out that the treatise has weighed in on a lot of very important international issues. Most recently, on the subject of the making available right as implemented in the United States, which I know Peter has also worked on, and it's very helpful to have that kind of very clear, and thorough, and scholarly elucidation of the law. And just on one last note, I know in our dealings with other governments and the U.S. dealings with other governments, it's always very interesting to have other governments cite to us sections from the Nimmer treatise [laughter] to tell us why they disagree with our position as to what foreign law should be [laughter]. So on that note, I'll close [applause]. >> Karyn Temple Claggett: Thank you very much, Shira. ^M01:19:32 [ Applause ] ^M01:19:39 So this has really truly been a very, very exciting conversation. We are coming to a close. I did want to open it up very, very briefly to see if anyone from the audience had any questions for the panel. >> [Inaudible response]. >> Karyn Temple Claggett: We only have a few minutes, so they'll probably be only one or two very lucky individuals who have questions that we'll be able to direct to the panel. So there's somebody walking through the aisles. If you have questions, please raise your hand, and we will see if we can get those answered for you today. Any questions? ^M01:20:10 [ Silence ] ^M01:20:15 If there are no questions... >> [Inaudible response]. >> Karyn Temple Claggett: Wait. Professor Hughes. Hugh Hansen. Sorry. >> Hugh Hansen: I just -- a brief comment is I was at the -- not at the beginning of this two volume treatise -- there's two volumes when I was [inaudible]. But I was absolutely enthralled with it and what I did was, actually read it into, you know, cassettes, and it was before there were even cars with cassette players in it, and I had one constructed under my glove compartment. And I listened to Nimmer on Copyright through this probably -- I don't know, fair use I'm hoping, but the [laughter] -- and I was actually enthralled with it. It was actually I think the best thing I've ever read legally in my life, and I just thought I'd throw that out. Congratulations for David for keeping up the tradition. >> Karyn Temple Claggett: Thank you. Do we have one last question? From Maria [Pallante]. >> Maria Pallante: David I just wondered what your father would think of copyright law in 2013. >> David Nimmer: [Laughter] Okay the -- well one irony that always strikes me, which my wife always reminds me of, is that towards the end in the 1980s, I told him, my mother told him, and other people told him, his colleagues at U C L A told him: "you know, you can use this new technology called a personal computer to compose on." He said, "Ah, what do I need that for? I have this typewriter here. I have this typewriter there. That's good enough." [Laughter] So -- yeah, I'm astonished that he was able to keep everything in his mind the way he did. I think he would be very pleased to see the development of the law. So many things would be mystifying. I mean I'm mystified by the garage door opener case; how that happened to get to sneak into copyright law. And there's so many cases like that. Back in 1980, the decision was made: "well what do we do with software? It's not really like a novel. It's not like a movie, but it's not like a trade secret either and it's not really patentable. So there's not a good solution; let's protect it by copyright law." And that meant that other doctrines of copyright law would affect software, such as the need to have C in a circle [©]. Okay, now these 30 years later what we're seeing is, case after case is decided about software, and that sets the tone for copyright law. So that sets what the rule is for motion pictures and for books. So I kind of think that he would like to pull the escape hatch now that he put in, saying -- in CONTU -- saying "it's time to reconsider." But I'm just guessing [laughter]. >> Karyn Temple Claggett: Okay. Well I actually think that that ends our time. I think that's a very good note to end the panel. I want to thank all of the panelists for their participation today. It truly was a very exciting event. We were able to really get a personal look at how Nimmer on Copyright has influenced people individually, as well as both domestically and internationally. So again, thank you, to all of the panel, for appearing today and we celebrate Nimmer on Copyright, 50 years. Thank you very much. >> David Nimmer: Thank you. ^M01:23:28 [ Applause ] ^M01:23:40 >> This has been a presentation of the Library of Congress. Visit us at loc.gov.