Catching up with David Nimmer
We recently caught up with David Nimmer, who was gracious enough to give us a bit of his time when he recently visited the Bay Area.
CK: What are the best and worst things about doing the treatise?
DN: The worst thing is that it is like constantly climbing a mountain three times a year and when you reach the summit starting over. The best thing is – I love it!
CK: What would your father say about the copyright act as we know it today?
DN: I wrote a 185 page article on this last year in the UCLA Law Review, called “Codifying Copyright Comprehensively.”
CK: The article was published as part of the annual tribute to Professor Melville B. Nimmer. The citation is 51 UCLA L. Rev. 1233 (available on LEXIS). The article is an entertaining and thought-provoking must-read for students of copyright law. It includes a number of “Melville B. Nimmer” postulates, one of which appears to state an answer to the above question:
“The flexibility and pristine simplicity of a corpus of judge-made copyright law implanted upon a statutory base consisting of general principles is vastly preferable to a body of detailed rules reminiscent of the Internal Revenue Code.” 51 UCLA Law Rev. at 1267.
Later in the article, David Nimmer comments that:
“The sad moral is that ultra-complicated statutory schemes fail to serve the interests of even those who draft them and lobby for their adoption. The progression of amendments . . . has bequeathed to the Copyright Act an incoherent body of rules purporting to lay down minute governance for every situation cognizable at enactment, but failing of necessity to contemplate most situations, even ones that in fact started to arise a matter of mere weeks later. Far more preferable would be for Congress to have enunciated less and for courts to have followed it more.” 51 UCLA Law Rev at 1367.
CK: What about the Napster investor liability litigation?
DN: See my 185 page article. I have analysis there of the Napster case, in which I concluded that the 9th Circuit got it wrong, that Napster should not have been liable. In terms of outcome of the investor liability case, as a treatise writer I deal with a deluge of decisions, so I focus on predicting the past, not the future.
CK: In the article, Professor Nimmer argues that Napster could have qualified for the 512(d) safe harbor under the DMCA – the exception for “referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer or hypertext link.” He faults the 9th Circuit’s decision finding Napster liable:
“Yet the panel itself found liability in part on the tacit basis that ‘infringing activity is apparent.’ That ruling would seem to punish Napster’s management for lacking clairvoyance that the many open issues of first impression would ultimately be resolved adversely to the company.” 51 UCLA Law Rev at 1366.
CK: If you were to broker a peace between Silicon Valley and Hollywood, what would you do?
DN: I would demand that everyone go to Tahiti and spend three days in role-playing taking the opposite side, and with ample Mai-Tai’s, and see what perspective develops. I would volunteer for that.
CK: Any other thoughts?
DN: There’s a saying in Jewish mysticism that means “there are many portals to God”. In this context, there needn’t be a one-size solution. Come at it non-dogmatically, versus dictating a new global solution.
CK: Thanks David, you are one cool treatise writer. This article is my new bedside reading.
TrackBack URL for this entry:
Listed below are links to weblogs that reference 'Catching up with David Nimmer' from Silicon Valley Media Law Blog.
