A Disappointing Omission

As an intellectual property litigator and the head of Simpson Thacher’s intellectual property group, I was delighted to see an entire issue of the Harvard Law Bulletin devoted to this subject. The Law School should be commended for its innovative efforts and expanded resources devoted to this critically important field. When I read the issue, however, I was surprised and disappointed not to find a single mention of the professor who, at least since Professor Kaplan retired, has been the school’s most prominent and respected copyright scholar–Arthur R. Miller.

Arthur has been a leading light in the copyright field for decades. He served, along with Melville Nimmer, as a member of CONTU [the National Commission on New Technology Uses of Copyrighted Works]. He has written and lectured extensively in the field, has served as counsel in important copyright cases and, along with Charlie Nesson, was responsible for the creation of what is now the Berkman Center. The list could go on and on.

When I was a law student in the 1970s, Arthur was teaching Harvard’s only copyright course (which I, unfortunately, lacked the foresight to take). When the first copyright case of my career evolved into a 10-year struggle over the protection of computer software, culminating in Lotus v. Borland before the U.S. Supreme Court in 1996, Arthur Miller was the expert we consulted, first as an adviser and ultimately as co-counsel, to ensure that our arguments were consistent with fundamental copyright principles. I consulted him again more recently when he and I were retained by the electronic database industry to file an amicus brief in the Supreme Court supporting publishers (unsuccessfully) in the Tasini case. Any veteran copyright litigator could cite similar experiences with Professor Miller. I do understand that, within the current political environment in academic intellectual property circles, those, like Arthur, who tend to respect the rights of copyright owners–even on the Internet–are somewhat out of favor, but to do a comprehensive review of intellectual property law at HLS without even mentioning him is, in my view, akin to producing “Hamlet” without the young prince.

Editor’s noteWe regret Professor Miller’s absence from the intellectual property issue. For an interview with Professor Miller, go to www.law.harvard.edu/news/miller.

Crisis Check

Your article in the Summer 2004 issue “Up on Downloading: HLS Professors Propose Solutions to Music Industry Crisis” was very interesting, but the entire discussion may have been based on an invalid premise: that the music industry’s “revenues [have been] devastated by illegal music downloading and copying.” In a study done by Felix Oberholzer-Gee of Harvard Business School and Koleman Strumpf of the University of North Carolina at Chapel Hill, published in March, “The Effect of File Sharing on Record Sales: An Empirical Analysis,” the authors examined a large dataset, analyzing .01 percent of the 1 billion downloads per week. (It’s too hard for this former physics major who lapsed into political science to figure out how many downloads that is–a lot, I think.)

The authors found that “[t]he economic effect [of downloading] is . . . small. Even in the most pessimistic specification, 5,000 downloads are needed to displace a single album sale.”

They concluded that “[d]ownloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.”

Before major changes are proposed to the nation’s copyright laws, perhaps Professors Nesson, Fisher and Zittrain should invite to their next symposium some of those who have studied this foundational question scientifically.

Archibald Cox Remembered

Archibald Cox on the phone

Professor Archibald Cox, 1912-2004

The passing of Professor Emeritus Archibald Cox is a genuine loss to the entire Harvard community. He was as versatile a teacher as the law school has produced in its storied history. I was the recipient of his labor law lessons long before he was made famous by his Watergate heroics. Fortified by his definitive labor law text and trademark bow tie, he brought his unique blend of sagacity and dry wit to the classroom. We all were better off for having had him as a professor, political conscience and friend.

Incomplete Tribute

I was shocked to see no mention in your coverage of Professor Cox’s pre-eminence as a labor law scholar and teacher. He was a star in the nation in the labor law world.

Corresponding Wisdom

I was fortunate enough to be one of Professor Cox’s students. He was not much older than most of us and very quickly became a favorite professor. His dignity, sense of humor and rectitude left a mark on his students. We can only hope that his actions as special prosecutor in the Watergate affair left a similar mark on the nation.

I had occasion to correspond with Professor Cox from time to time. At the time of the hearings on the nomination to the Supreme Court of Judge Robert Bork [the former solicitor general who carried out President Nixon’s order to fire Special Prosecutor Archibald Cox], I inquired why Professor Cox did not choose to testify in opposition to the nomination. His response again demonstrated the greatness of this man. I am attaching a copy of that letter. His sensitivity that his personal feelings might affect his objective judgment should be another lesson to us all.

From Archibald Cox’s reply to Felix Kent“This weekend it looks as if the Bork nomination is dead. I thought it best to stay silent. I doubt that anyone whose encounters with another man may have had an intensely personal aspect can reliably separate his judgment from the conscious or unconscious personal marks that ought not to enter the picture.”

Endowed by their Creator

I am responding to Professor Tribe’s assertion in “A Marriage Contrast” (Summer 2004) that the Ninth and Tenth Amendments enshrine the principle “that each state is free, so long as it does not violate any federal right or privilege in doing so, to endow its own citizens with rights broader and deeper against that state than they enjoy as citizens of the United States against the national government.”

I cannot agree that a state can endow anyone with rights. Under our constitutional system, people have rights; states have only powers. State constitutions may enumerate rights which the people retain, but such enumeration does not mean endowment by the state. The states cannot give what they do not have. The amendments therefore cannot have been adopted to free the states to do something which they manifestly cannot do. Our constitutional documents affirm this. The people are endowed with rights “by their Creator,” not by their state.

The Ninth Amendment simply warns that the enumeration in the first eight amendments of certain particular rights “shall not be construed to deny or disparage others retained by the people.”

The Tenth deals with powers, not rights. Powers neither granted to the national government nor denied to the states are reserved to the states, if the state constitution so provides, and if it does not, to the people.

The Constitution neither grants to the national government nor denies to the states the power to regulate marriage. Marriage in Massachusetts therefore is a matter of state law, and the question is whether the Supreme Judicial Court has correctly determined that the Massachusetts Constitution does not empower the commonwealth to prohibit same-sex marriage.

The suggestion that a state can endow its citizens with a broad range of rights necessarily implies that it has the power to withhold those rights. This simply is not my understanding of our constitutional structure.

Another Viewpoint

Your summer 2004 issue includes a nice debate over whether the courts or the legislature should give us same-sex marriage. Has it occurred to anyone there that same-sex marriage may not be a good idea at all?

How Could Women Students Not Have Faced Discrimination?

I was amazed by Richard Schnadig’s letter to the editor in the Spring edition of the Bulletin, where he claimed that women in his class did not face any difference in treatment based on their sex.

Mr. Schnadig cannot possibly believe that HLS existed within some sort of feminist utopian bubble (and it is hard to imagine that such a feminist utopia can exist when the professors are all or nearly all male).

Mr. Schnadig graduated from HLS in 1964, a mere ten years after HLS had agreed to admit women. Before 1964, there was no federal law prohibiting sex discrimination, and newspaper ads for jobs were segregated by gender. The Supreme Court had held that a woman could be constitutionally denied a law license, prohibited from working as a bartender unless the bar was owned by her husband or father, and in 1961 had upheld a statute automatically placing men on juror rolls, but placing only those women who had asked to be included on the rolls. Much sex specific legislation was still in effect In 1959, Justice Ruth Bader Ginsburg graduated in the top of her class, was unable to find a job at a law firm in New York, and was told that Justice Frankfurter said he would not hire her because she was a woman. In 1977, the first female president of the HLS law review, Susan Estrich, was told by Judge Skelley Wright that Justice Brennan did not want to hire her because she was a woman. To claim that female HLS students did not face discrimination is simply ridiculous.