Letters
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.
Henry B. Gutman '75
New York City
Editor's note: We 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.
David A. Drachsler '68
Alexandria, Va.
Archibald Cox Remembered
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.
Philip K. Curtis '71
Atlanta
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.
Paul H. Tobias '58
Cincinnati
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.
Felix H. Kent '49
New York City
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.
Harry Downs '55
Atlanta
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?
Ronald L. Wallenfang '69
Milwaukee
We Want to Hear from You
The Harvard Law Bulletin welcomes letters on its contents. Please write
to the Harvard Law Bulletin, 125 Mount Auburn St., Cambridge, MA 02138.
Fax comments to (617) 495-3501 or e-mail the Bulletin at
bulletin@law.harvard.edu. Letters
may be edited for length and clarity.
Next: Ask the Professor
