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mittee's job would be to offer comments and suggestions, but not to make policy. 187 Fisher hoped to keep the policy making process insulated within the Copyright Office to avoid the partisan wrangling that infected prior legislation.

The Librarian of Congress appointed a panel of twenty-nine copyright experts, the majority of whom were active in the American Bar Association. 189 The panelists' ideas about their appropriate role differed from the Register's, and they soon began requesting that they convene in a forum that would permit the thrashing out of policy. 190 The Copyright Office acceded to requests to convene meetings of the panelists for substantive discussions 19 but insisted upon its prerogative to formulate recommendations for legislation. without further consultation. 192

The ABA established a shadow committee, including many of the panelists in its membership. The committee embarked on an effort to formulate substantive proposals at the same time as it monitored the Copyright Office's revision efforts. 193 While the Copyright Office struggled to digest the studies and the panelists' suggestions and to write a report in relative seclusion, the panelists themselves were meeting with interested parties in ad hoc groups and symposia to

187 See LIBRARY OF CONGRESS, Annual Report of The Librarian of CONGRESS FOR The Fiscal Year Ending June 30, 1956, H. Doc. No. 5, 85th Cong., 1st Sess. 60 (1956) (hereinafter Register's 1956 REPORT]; American Bar Association Section of Patent, Trademark and Copyright Law, 1957 Committee Reports 53 [hereinafter 1957 ABA SEC. REP.].

188 See sources cited supra note 187; see also Register's 1959 Report, supra note 186, at 72:

Much care and effort went into the framing of the 1909 law, but essentially it was the product of compromises arrived at in conferences with interested groups, each of which surveyed the field of copyright from its own special and partisan point of view. Similar efforts between 1924 and 1940 to enact a general revision of the 1909 law ended in unreconciled controversies and failure. General revision is being approached today in a somewhat different manner. 189 See 1957 ABA SEC. REP., supra note 187, at 55.

190 See id. at 55-67; American Bar Association Section of Patent, Trademark and Copyright Law, 1959 Committee Reports 132-35; American Bar Association Section of Patent, Trademark and Copyright Law, 1958 Committee Reports 92-93, 99-100; American Bar Association Section of Patent, Trademark and Copyright Law, 1958 SUMMARY OF Proceedings 40.

191 See REGISTER'S 1959 REPORT, supra note 186, at 77.

192 See Extending the Duration of Copyright Protection in Certain Cases: Hearing on H.R.J. Res. 627 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 87th Cong., 2d Sess. 8 (1962) (prepared statement of John Schulman, American Patent Law Ass'n).

193 See 1957 ABA SEC. REP., supra note 187.

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articulate substantive consensus.

194

Shortly before the Copyright Office completed the Register's Report to Congress, outlining recommendations for a revision bill, Register Fisher died. His successor, Register Abraham Kaminstein, abruptly shifted gears. While Fisher appeared to have viewed the history of inter-industry compromise as a weakness of prior revision efforts, Kaminstein seemed to read the record differently. He argued that such compromise was the keystone of achieving copyright revision and that the goal of enacting a modern copyright statute was worth herculean efforts to encourage compromise among interested parties.195

Register Kaminstein began working toward conciliation 19% and narrowly averted a crisis that threatened to derail the revision program. 197 The substance of the Register's Report was poorly received by the Bar, 198 a number of whose members insisted that they

194 The core of the consensus appears to have been the provisions that the Dallinger, Vestal and Shotwell bills had in common. See 1957 ABA Sec. Rep., supra note 187, at 57-58; Schulman, The Road to Progress in Revising the Copyright Law, 9 BULL. COPYRIGHT SOC'Y 433, 436-39 (1962).

195 See, e.g., LIBRARY OF Congress, Annual Report of the LibrARIAN OF CONGRESS FOR THE FISCAL YEAR Ending June 30, 1962, H. Doc. No. 5, 88th Cong., 1st Sess. 70-71 (1962) (hereinafter Register's 1962 Report).

196 The Register's Report was written without participation by the panel of experts. Preliminary rumblings indicated that the panelists would resist its conclusions. Before filing the Report, Kaminstein circulated it to the panel's members and solicited their comments. See HOUSE COMm. on the Judiciary, 87th Cong., 1st Sess., CopyRIGHT LAW REVISION: REPORT OF THe Register of CopyrighTS ON THE GENEral Revision OF THE U.S. Copyright Law xi (Comm. Print 1961) (hereinafter CLR PART I). He added a conciliatory preface characterizing the Report's conclusions as tentative, and insisting that the Copyright Office's “purpose in issuing this report is to pinpoint the issues and to stimulate public discussion, so that the widest possible agree. ment can be reached on the principles to be incorporated in a revised statute.” Id. at ix. See also American Bar Association, Section of Patent, Trademark and Copyright Law, 1961 SUMMARY OF PROCEEDINGS 122-23 (address by Register Kaminstein inviting members of the bar to participate in the drafting process). Kaminstein announced plans for a series of meetings with interested groups to discuss the report, and promised that the Copyright Office would consider all views expressed before drafting a bill. See LiBRARY OF CONGRESS, ANNUAL Report of the Librarian of CONGRESS FOR THE FISCAL YEAR Ending June 30, 1961, H. Doc. No. 255, 87th Cong., 2d Sess. 65-66 (1961) (hereinafter Register's 1961 Report].

197 Industry representatives and members of the copyright bar disliked the Register's proposals for reform, which differed significantly from the consensus that they had reached in their ad hoc meetings. The intensity of their opposition threatened to overwhelm the revision effort. See Library of Congress, Annual Report OF THE LIBRARIAN OF Congress for the Fiscal Year Ending June 30, 1963, H. Doc. No. 255, 88th Cong., 2d Sess. 71-72 (1963) (hereinafter Register's 1963 Report); sources cited infra notes 198-200.

198 See, e.g., Register's 1963 REPORT, supra note 197, at 71; Schulman, supra note

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would prefer the current outmoded statute to one following the Register's recommendations. 199 Kaminstein announced that the Copyright Office was willing to abandon unpopular proposals.200 He expanded the membership of the panel of experts and arranged meetings with interested parties to encourage them to compromise with one another. 201 The result was, in essence, a return to the conference process. Six years of study had produced the Register's Report. Another five years of conferences produced a bill that reflected the consensus of the conference participants and bore little resemblance to the Register's recommendations. It took an additional eleven years in Congress for the interested parties to compromise on extraneous issues and late-breaking problems. When the parties finally compromised on nearly every provision in the bill, Congress enacted the 1976 Copyright Act.202

B. Private Parties and Vested Interests

The stormy history of past revision efforts led the Copyright Office to conclude that the only copyright bill that would pass was one built on a network of negotiated compromises. The Copyright Office concentrated much of its energy on identifying affected interests and including their representatives in the negotiations. But, of course, it wasn't possible to invite every affected interest. Some interests lacked organization and had no identifiable representatives. In the 1905 conferences, the Library of Congress had tried unsuccessfully to recruit representatives of composers to participate. Music publishers purported to speak for composers and were the only representatives available. In the conferences convened in the 1960s, painters and sculptors did not attend 203 and the Copyright Office's

194, at 434-38; see also Ringer, Viewpoint of the Copyright Office on General Revision of the Copyright Law, 11 BULL. Copyright Soc'Y 37, 37 (1963) ("Practically all of (the proposals) were criticized by somebody, and some of them were criticized by practically everybody.").

199 See. e.g.. CLR PART 2, supra note 6, at 321-24 (written comments of Irwin Karp); id. at 387-94 (written remarks of John Schulman).

200 See REGISTer's 1963 ReporT, supra note 197, at 71-72; Kaminstein, The General Revision Program, 10 BULL. Copyright Soc'y 81 (1962).

201 See, eg.. Register's 1963 REPORT, supra note 197, at 72; Register's 1962 RePORT, supra note 195, at 70, 74.

202 See Litman, supra note 15, at 873-79.

203 See HOUSE COMM. ON THE JUDICIARY, 88TH CONG., IST SESS., COPYRIGHT Law Revision PART 3: PRELiminary Draft for Revised U.S. Copyright Law and Discussion and Comments on the Draft 269 (Comm. Print 1963) (hereinafter CLR PART 3] (remarks of Irwin Karp, Authors' League of America).

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efforts to seek them out proved unavailing.2 204 Choreographers, theatrical directors, and computer programmers sent no representatives because they had no representatives to send. Other interests that would have profound effect on copyright did not yet exist at the time of the conferences. Just as there had been no commercial broadcasters to invite to the conferences in 1905, there were no video cassette manufacturers, direct satellite broadcasters, digital audio technicians, motion picture colorizers, or on-line database users to invite in 1960.

Nor could the rest of us be there. The amorphous "public" comprises members whose relation to copyright and copyrighted works varies with the circumstances. Many of us are consumers of copyrighted songs and also consumers of parodies of copyrighted songs, watchers of broadcast television and subscribers to cable television, patrons of motion picture theatres and owners of videotape recorders, purchasers and renters and tapers of copyrighted sound recordings. Although a few organizations showed up at the conferences purporting to represent the "public" with respect to narrow issues, 205 the citizenry's interest in copyright and copyrighted works was too varied and complex to be amenable to interest group championship. Moreover, the public's interests were not somehow approximated by the push and shove among opposing industry representatives. To say that the affected industries represented diverse and opposing interests is not to say that all relevant interests were represented. 206

The conference participants began as the members of the Library of Congress's panel of experts and were all established members of

204 See Copyright Law Revision: Hearings on H.R. 2223 Before the Subcomm. on Courts. Civil Liberties and the Administration of Justice of the House Judiciary Comm., 94th Cong., 1st Sess. 1844 (1975) (hereinafter 1975 House Hearings) (testimony of Barbara Ringer, Register of Copyrights).

205 See. e.g., House Comm. ON THE JUDICIARY, 88th Cong., 1ST SESS., COPYright Law Revision Part 5 76-77 (Comm. Print 1965) (hereinafter CLR PART 5] (remarks of John Schulman, Chairman of American Bar Association Committee 304); id. at 64 (remarks of Charles F. Gosnell, American Library Ass'n); id. at 70 (remarks of Nicholas E. Allen, Music Operators of America); CLR PART 3, supra note 203, at 42527 (written comments of George Schiffer, on behalf of community television antenna systems).

206 A participant in the process observed after reading a transcript of several of the meetings that the public interest had received only passing attention, little effort had been made to inform the public of the progress of the effort, and that the majority of conference participants were, unsurprisingly, copyright lawyers. See Goldberg, Copyright Law Revision Part 2—A Review of the Record, 10 BULL. Copyright Soc'Y 214, 216-17 (1962).

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the copyright bar. Other representatives joined the conferences as particular conflicts arose. Register Kaminstein invited representatives of current beneficiaries of the statute to participate in discussions of cutbacks in their statutory benefits.207 Lawyers on the panel solicited participation from their other clients.208 As with the conferences on earlier legislation, however, participants were almost exclusively those who already had a sizable economic investment in copyright matters under current law. Although these participants undoubtedly interacted with copyrighted works outside of their professional capacity, they failed to bring that perspective to bear on the conference negotiations.

Perhaps the most patent example of the partisan perspective that dominated the negotiations is illustrated in the treatment of the issue of private use, an issue that has become increasingly vexing in the years since the 1976 Act took effect. Presumably, all industry representatives made private use of copyrighted works in their individual capacities. Yet, the issue of the appropriate scope of permissible private use of copyrighted works received little explicit attention during the revision process. Representatives were too busy wrangling over commercial and institutional uses to talk about the behavior of individuals in their homes. 20 The aggregate agendas developed in the conferences of private parties reflected systematic, if unintentional, bias against absent interests.210 The fact that

207 The Register was not always successful in causing such interests to attend. Kaminstein speculated that his failure to turn up librarians or scientists to serve on the panel was partly due to the fact that few librarians or scientists were members of the bar, and partly due to the fact that their representatives were too busy to attend. See CLR PART 5, supra note 205, at 81 (remarks of Abraham Kaminstein, Register of Copyrights).

208 See, eg., CLR PART 3, supra note 203, at 184-85 (remarks of Harriet Pilpel). 209 There were fleeting proposals during the conferences, for example, to extend the copyright owner's exclusive performance right to cover private as well as public performances, or give the copyright owner control of individual book borrowing, but they received little attention.

210 I explore the systematic nature of that bias more fully below. An illustrative example is the treatment of charitable benefit performances. The revision bill that emerged from the conferences included a privilege for charitable benefit performances so long as performers, promoters and organizers received no compensation. See H.R. 4347, 89th Cong., 1st Sess. § 109(4) (1965). In 1967, sponsors of agricultural fairs got involved in copyright revision and managed to secure a privilege for performance of musical works during agricultural fairs, without regard to any fees paid performers or promoters. See S. 543, 91st Cong., 1st Sess. § 110(6) (1969); see..e.g., Copyright Law Revision: Hearings on S. 597 Before the Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. 621-23 (1967) [hereinafter 1967 Senate Hearings) (testimony of Rep. Kenneth Gray); id. at 625-27 (testimony of William Hartsfield, Southeastern Fair Ass'n). In ensuing sessions of Con