University of Baltimore Law Forum Volume 14 Article 7 Number 2 Spring, 1984
1984 Common Carrier Liability under the Copyright Act of 1976 Howard W. Simcox Jr.
Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons
Recommended Citation Simcox, Howard W. Jr. (1984) "Common Carrier Liability under the Copyright Act of 1976," University of Baltimore Law Forum: Vol. 14 : No. 2 , Article 7. Available at: http://scholarworks.law.ubalt.edu/lf/vol14/iss2/7
This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Common Carrier Liability Under the Copyright Act of 1976
n just twenty years, the cable tele systems were distributing their pro vision industry in America has By Howard W. Simcox Jr. grams to viewers for a profit without I grown from an infant enterprise, paying for performance rights. serving only isolated communities with The copyright owner of a television limited programming, to a multi-mil television reception. To improve recep program profits by licensing television lion dollar giant, serving both urban and tion, cable companies would install stations to broadcast the program in re rural areas alike. In addition to provid powerful receiving antennae on the out turn for compensation. The amount of ing communities with distant broadcast skirts of subscribing communities. If re compensation often varies with the size signals, cable television now offers ception was still poor, then the cable of the broadcaster's pDtential audience. round-the-clock movies, sports, news, company would hire a communications In 1968, the copyright owners of sever music, and even exclusive weekly serials. common carrier to receive and strengthen al television programs sued a CATV Currently attracting over 250,000 new distant broadcast signals and retransmit company for copyright infringement in subscribers each month,l cable, or them to the cable system's main receiv Fortnightly Corp. v. United Artists Televi community antenna television (CATV), ing antenna or "headend" for subse sion. 4 The copyright owners argued has proven itself to be a viable alterna quent distribution to the subscribing that, under the Copyright Act of 19095 tive to advertiser-supported broadcasting. community via cables running directly then in effect, the CATV systems in into the homes of paying customers. fringed the owners' exclusive right to The cable industry's rapid growth has Ordinarily, the common carrier would "publicly perform" their copyrighted not been untroubled, however. Since broadcast television signals without programs. The Supreme Court rejected the early days of cable television, ever obtaining the permission of the this argument and held that the CATV CATV systems prospered, not by origi television stations and without ever systems, in distributing broadcast sig nating their own programming,2 but by compensating the copyright owners for nals containing copyrighted programs, distributing the broadcast signals of in the right to transmit their programs.3 did not "perform" the copyrighted dividual television stations to dist:mt This practice infuriated television copy works and so were not liable for communities that suffered from poor right owners, who realized that cable infringement.6
Copyright owners claim that common carriers infringe their exclusive performance rights by retransmitting copyrighted television programs.
2S-The Law Forum/Spring, 1984 Eight years later, however, Congress audiovisual work" is a performance. or (iii) in some manner uses its imposed liability for such distributions Thus, the showing of a typical tele~ communications channels for its own when it enacted the Copyright Act of vision program, which qualifies as an purposes, then the exemption is inappli~ 1976 (Act),7 which contains an exemption "audiovisual work,"!6 is a performance cable and the carrier becomes liable from liability for CATV retransmissions under the Act. under § 106( 4) for copyright infringe~ of broadcast signals, provided the Ordinary television broadcasts are ment. CATV system pays a compulsory considered "primary transmissions," licensing fee to the Copyright Royalty and television stations avoid "public 8 The Passive Carrier Exemption Tribunal. These fees are then apportioned performance" liability under the Act by The primary issue raised in EMI and among copyright owners who have paying licensing fees directly to copy~ WON was whether the respective com~ established entitlement with the Copy~ right owners. CATV systems and carri~ mon carriers qualified for the passive 9 right Royalty Tribunal. Under this ers that retransmit ordinary television carrier exemption under § 111(a)(3) of scheme, Congress has provided for the signals to their subscribers are exempted the Act. In determining whether the ex~ continued growth of the cable industry from performance infringement provided emption's three requirements were met, and, at the same time, has ensured they comply with § 111 of the Act. the courts examined all of the circum~ compensation to copyright owners. Subsections (c), (d) and (e) of § 111 stances surrounding the challenged Recently, copyright problems arose apply to CATV systems. These sub~ retransmissions. with respect to another party necessary sections establish the compulsory In 1982, Eastern Microwave, Inc. to the cable industry, namely, the licensing scheme discussed above. (EMI), a licensed communications communications common carrier. A Subsection 111(a)(3) applies to common carrier!8 retransmitting the broadcast common carrier is an intermediary paid carriers and contains the so~called passive signal ofWOR~TV in New York City,!9 by CATV systems to receive and carrier exemption, which states: sought a declaratory judgment against transport television signals from distant Doubleday Sports, which owned the broadcast stations to the CATV system's copyright to the New York Mets' games main receiving antenna or h.eadend for broadcast seasonally on WOR~TV.20 subsequent distribution to individual The suit sought to establish that EMl's subs~ibers.lO Copyright owners claim Only by maintaining retransmissions qualified for the passive that common carriers infringe their its role as a passive carrier exemption. EMI contended that exclusive performance rights by re~ it had, in retransmitting WOR~ TV's transmitting copyrighted television ttmessenger for hire" broadcast signal, exercised "no control programs. This issue was raised in two can the common over the content or selection of the recent cases involving communications primary transmission or over the common carriers: Eastern Microwave, carrier avoid recipients of the secondary transmission Inc. v. Doubleday Sports, Inc. (EMI)" and and that its activity is limited to WON Continental Broadcasting Co. v. copyright liability. providing wires" and other avenues of United Video, Inc. (WON).!2 communication solely for the use of its In EMI, the United States Court of customers, the CATV systems.21 Appeals for the Second Circuit reversed The lower court found against EMI The secondary transmission of a the United States District Court for the for several reasons. First, the court primary transmission embodying Northern District of New York and found that, by choosing the WOR~ TV a performance ... is not an infringe~ found that the carrier was exempt from signal for satellite retransmission, EMI ment of copyright if.. .. copyright liability.!3 In WON, the exercised "selection" of the primary United States Court of Appeals for the transmission.22 Additionally, the court (3) the secondary transmission is Seventh Circuit reversed the lower held that, by contracting with particular made by any carrier who has no court and held that the common carrier CATV systems that wished to receive direct or indirect control over the was not exempt from liability under the the retransmissions, EMI exercised content or selection of the primary Act.!4 "control" over the recipients of its transmission or over the particular This article examines these two cases secondary transmission.23 Finally, the recipients of the secondary trans~ and the conflicting resolutions by the court held that, by aggressively market~ mission, and whose activities with second and seventh circuits of the ing its ability to retransmit WOR~TV's respect to the secondary trans~ carrier exemption issue and concludes signal by satellite, EMI evidenced that it mission consist solely of providing that carriers that retransmit broadcast was not providing its communications wires, cables or other communi~ signals to CATV systems should be channels "solely for the use of others," cations channels for the use of exempt from liability for copyright but was instead "selling" the broadcast others .... !7 infringement. signal as a product for its own benefit.24 The Act does not define the term On appeal, the Court of Appeals for The Copyright Act of 1976 "secondary transmission." However, if the Second Circuit reversed the district a carrier can meet the qualifications of court's decision.25 The appellate court Section 106(4) of the Copyright Act this section, then its transmission is not recognized that EMI had the ability to of 1976 gives a copyright owner the an infringement of copyright. If, how~ exclusive right to publicly perform ever, the carrier (i) exerts control over Howard W. Simcox, Jr. is a third copyrighted works. Under the Act's the content or selection of the original year student at the University of Balti broad definition of "perform,"!5 the broadcast signal, (ii) exerts control over more School of Law. showing of a "motion picture or other the recipients of its own retransmission, Spring, I984/The Law Forum-29 Illustration by Ted Jarkiewicz
retransmit only one signal via satellite importation of distant broadcast sig roneously indicated that a carrier, by and that the "initial, one-time" selection nals,35 their dependency on the com offering its services at a rate unaffordable of WOR-TV's signal was not "control mon carrier, as the transporter of those to all CATV companies,42 would lose over the content and selection of the signals, increased. Recognizing that the the exemption for exercising "selec primary transmission."26 The court also cable industry would not flourish as in tion" over the recipients of its retrans found that EMI did not exercise tended without a continuous supply of mission. Finally, the district court left "control" over the particular recipients broadcast material,36 Congress created unresolved the question of what type of of its retransmission by contracting with the common carrier exemption, which advertising by a common carrier to various CATV systems. EMI, the court ensures that qualified carriers will not attract customers would exploit a noted, was required, as a licensed be subjected to the unwieldy process of copyrighted program for commercial communications carrier, to accept all negotiating with individual copyright benefit, rather than provide services reasonable requests for its service.27 owners for the performance rights to "solely for the use of" subscribers.43 Finding that "no reasonable requests for 37 each retransmitted program. If carriers risked their exemption by its services was ever refused by EMI," engaging in activities such as choosing a the court concluded that there was no By establishing the particular re signal, setting particular rates or adver showing of "control" within the mean quirements of the § 111 (a)( 3) exemp tising, then carriers seeking to avoid ing of the § 111 (a)( 3) requirement.28 As tion, however, Congress made clear its copyright liability would have only two to the third and final requirement under intention that the carrier's role was to be restricted to that of a non-contributing, options left. First, a carrier could § 111(a)(3), the court found that EMl's attempt to secure licenses from every advertising of its ability to transmit a passive intermediary between the broad copyright owner of every retransmitted particular signal was a "normal business caster and the CATV system. Thus, a program. Even if the carrier were activity,"29 which did not disrupt the carrier seeking the exemption may not successful in obtaining such licenses, fact that EMI was offering its communi add or subtract material from the licensing fees would amount to a cations services solely for the use of broadcaster's primary transmission, or 38 second royalty payment to the copy CATV systems that could not afford be selective in choosing its customers. right owner, even though the number of their own relay equipment.3o Accord Only by maintaining this role as a home viewers remained constant. Since ingly, the court held that EMl's passive "messenger for hire," can the the amount of royalties paid by a retransmissions were exempt from carrier avoid liability. This scheme CATV system under the Act is infringement under § 111(a)(3).31 ensures a steady variety of broadcast designed to fluctuate with the number The common carrier exemption, material, which in tum encourages the of home subscribers, additional licen located in the same section of the Act as growth of the cable industry, as 39 sing payments by carriers would disrupt the cable television compulsory licen Congress intended. the scheme.44 Second, a carrier that is sing plan,32 was enacted to further the Had the lower court's decision in EMI unable or unwilling to obtain licenses purposes of the compulsory licensing been upheld on appeal, then Congress' would have no choice but to cease plan.33 Congress, in enacting the cable intention would have been thwarted. 40 operations to avoid liability. This television compulsory licensing scheme, The lower court would have withheld would impair the growth of the cable devised a compromise which provided the exemption from EMI for having industry, which is the opposite of what compensation to copyright owners "selected" a particular broadcast intially Congress intended.45 while ensuring the continued growth of signal to retransmit. This ruling would, the cable industry by removing the need in effect, have required all carriers to To fully effectuate Congress' intent for individual contracts between CATV retransmit "every television broadcast to maintain the flow of programming to systems and copyright owners.34 of every television station in the CATV systems, the common carrier ex In the 1960's, as CATV systems be country" in order to remain exempt.41 emption must remain available to carri came principally concerned with the Additionally, the district court er- ers that initially select a particular 30-The Law Forum/Spring, I984 broadcast signal to transmit, contract The district court rejected this argu the retransmission of the nine o'clock with all CATV systems able to meet ment, however, and held that under news program.56 their service rates or advertise their § 111(a)(3), the "primary transmis On appeal, however, the United ability to offer a particular signal. Had sion" is not the entire broadcast signal, States Court of Appeals for the Seventh the carrier in EMI added its own com but is limited to "the copyrighted Circuit reversed this decision.57 Al munication to a retransmission or se works which are initially broadcast and though the appellate court agreed that lected to serve only particular CATV retransmi tted. "53 United Video would be exerting con systems, then a different result might This determination compelled a fur trol over the primary transmission have occurred. These facts, however, ther inquiry. Since the district court "only if WON's copyright of the nine were not present in EMI. defined "primary transmission" as the o'clock news includes the teletext in the "copyrighted work," then United Video vertical blanking intervals," it disputed Control Over The Primary would be exerting "control over the pri the district court's finding that the news Transmission mary transmission" only if the nine program and the teletext were not "re o'clock news and the simultaneously lated images" copyrightable as a single In WON,46 Chicago television station broadcast teletext amounted to a single audiovisual work. The court found that WON began experimenting with the copyrightable work. If the teletext and the two sources of information "vertical blanking interval" (VB!) of news program were copyrightable as amounted to a "two-channel" news its broadcast signal. The VB! is the ex program, both channels of which were tremely short period of time needed for "intended to be seen by the same view television circuitry to reset between ers" who could switch back and forth 47 frames. During this interval, coded in In view of the between the sources with the decoder. formation can be inserted for transmis Thus United Video was not an exempt sion along with the program material. carrier's intended carrier, for in stripping out WON's This added information, known as teletext, it had exerted control over the "teletext," can be viewed on television role as a non.. copyrighted material constituting the sets equipped with special decoders. interfering message primary transmission. 58 Teletext can appear as subtitles at the bottom of the television screen (as is ((conduit," Congress In view of the carrier's intended role done with closed-captions for the hear could not have as a non-interfering message "conduit," ing impaired) or may be displayed se Congress could not have meant for the parately as an entire screenful of typed meant for the common carrier exemption to apply to information. WON's teletext was of the a carrier that removes a portion of a latter variety and consisted of local Chi common carrier broadcaster's message and replaces it cago news and a program schedule in exemption to apply with material from another source, as serted in the VB! of its copyrighted nine was done in WON. Unlike EMl's o'clock p.m. national news program.48 to a carrier that retransmission, United Video's retrans Viewers using a decoder could either mission was not "passive." Thus, on watch the news program, or switch to removes a portion of the facts, EMI and WON are distin the decoded teletext. 49 guishable. However, the two opinions a broadcaster's have produced inconsistent definitions Defendant United Video, a common message and replaces of the term, "primary transmission." carrier that retransmitted the WON sig In EMI, the nature of the carrier's nal via satellite, began stripping the tele it with material from retransmission was not at issue. Both text information out of the broadcast another source, as the district and circuit courts defined signal and substituting teletext supplied "primary transmission" as simply "the by Dow Jones before retransmitting the was done in WGN. signal broadcast" by a television station. 59 signal to CATV systems.50 WON sued In WON, however, the addition of United Video for copyright infringe teletext to the broadcast signal forced ment and for a permanent injunction to the courts to more closely examine the prevent United Video from removing separate works, then United Video's concept of a "primary transmission." its teletext. The United States District refusal to retransmit the teletext would The Act, itself, was of little help. Even Court for the Northern District of Illi not alter the "passive" character of its though § 111(f) purports to define a retransmission nois, Eastern Division denied WON's of the nine o'clock "primary transmission," the definition motion for injunction and instead news. focuses only on the word "primary." granted summary judgment for United The district court, relying on the Section 111 (f) defines "primary trans Video.5! Act's definition of "audiovisual work" mission" as "a transmission made to At the trial, WON argued that its which, in part, requires "a series of re the public by the transmitting facility entire broadcast signal (including its lated images,"54 found that the teletext whose signals are being received and teletext) constituted the "primary material, which could not be seen to further transmitted by the secondary transmission," and that the removal of gether with the nine o'clock news, was transmission service .... "60 Left to its any part of that signal, namely WON's not part of the same "series of related own interpretive resources, the WON teletext, amounted to "control of the images" as the news program. 55 Thus, district court determined that the primary transmission," an act that United Video was entitled to an exemp phrase, "control over the primary precluded the passive carrier exemption. 52 tion under § 111(a)(3) with regard to transmission," meant control over the Spring, 1984/The Law Forum-31 copyrighted program,61 even though the court admitted that the phrase "could easily mean either alteration of the signal or editing of the program. "62 By defining "primary transmission" as it did, however, the district court Experienced Reporters, (and later, the appellate court) had to determine whether the two works, the Extra Care, news program and the original teletext, constituted a single copyrightable audio State-of-the-Art Technology visual work comprised of a "series of related images."63 This inquiry was also have enabled us to provide fraught with interpretive problems inasmuch as the Act defines neither the very best in "series" nor "related." Court and General Reporting The uSame Viewer /Same Since 1906 Time" Test The district court concluded that the and Litigation Support Services teletext and nine o'clock news "were not intended to be viewed together as a Since 1979 single work by the same viewer at the same time," and thus did not constitute one copyrightable audiovisual work.64 On appeal, the circuit court applied the same test, but disagreed with the dis • Video depositions • Key Word Indexing trict court's conclusion and held in stead that the two works were intended • Deposition Suites • Floppy Diskettes to be seen at the same time by the same • Computer Assisted • Alphabetical Sort Lists viewers. The court hypothesized that if Transcription of Every Word Used In teletext news were broadcast during "a cartoon show for preschoolers," the Context two works would not then be "related • Magnetic Tapes Compatible with your Computer System images. "65 The so-called "same viewer/same time" test applied by both courts in WGN is inadequate to determine the We specialize in daily and expedited copy, copyrightability of teletext and televi and our reporters proofread every page sion programs as a single "audiovisual of transcript work." By providing no guidelines for determining when two works were "in tended to be seen by the same viewers," the test merely invites judicial conjec ture. The WGN appellate court itself demonstrated the likelihood of widely inconsistent decisions under the test when it announced that WGN's teletext containing local Chicago news and ~~,~Ol1loq &portiQ8 Service weather was intended to be seen by the same cable viewers as were watching the COURT AND GENERAL REPORTING WGN national news in Albuquerque, New Mexico. Further, the WGN same viewer / same time test has the practical effect of forcing a carrier to retransmit all teletext broadcast by a station even if the carrier has no way of knowing if the teletext might unexpectantly become 100 EQUITABLE BUILDING OFFICE (301) 539-6760 "unrelated" to the main program. BALTIMORE, MARYLAND 21202 EVENINGS & HOLIDAYS (301) 974-0851 In view of the fact that § 111 second ary transmission exemptions were de signed to protect cable television and common carriers, it makes little sense to apply such a "loose and spongy" ex- 32-The Law Forum/Spring, I984 emption eligibility test as the one app dience only on the basis of legitimate 291d. at 131, n. 15. lied in WGN.66 While it is true that business reasons.69 30ld. at 131. .31 Id. at 134. Congress intended the Copyright Act With the introduction of teletext .12 17 U.s.c. ~ III (1982). of 1976 to be applied to new technolo broadcasts into the carrier exemption :l3 EMI, 691 F.2d at 132. 341d. gies,67 teletext broadcasting has raised a scheme, a strong need exists for con carrier exemption problem that cannot 35United State.s v. Southwe,>tern Cable gressional action aimed at clarifying the Co., 392 (l.S. 1.57 (1968). be satisfactorily resolved under the parameters of carrier "control" over 16 EMI, 691 F.2d at 132. Act's current wording and legislative teletext broadcasts. Such clarification 37 ld. history. 'IBId. at 130. will result in more consistent judicial 391d. at 132. The solution is, of course, a statutory application of the common carrier ex 40 Responses to the district court ruling one. Now that the television and cable emption, which in turn will benefit appeared almost immediately. A bill industries have recognized the potential both carriers and copyright owners was introduced in the Hou.sc' of for teletext broadcasting,68 so must alike by providing them with clear op Representati\'(,s just twel\'(, days aftn the EMI district court decision. See Congress. If, upon investigation, Con erational guidelines. ~ H.R. 5949, 97th Congo 2d Se.ss. (1982). gress determines that teletext is as de 41 EMI, 691 F.2d at 130. serving of protection as CATV was, 42 The district court did not identify how then it should enact new or clarifying EMI selected the recipients of its legislation to safeguard teletext's future NOTES retransmi.>sions. The appellate court in the competitive broadcast industry. 1 Wheeler, Cable Teiel,ision: Where It's explained that EMI rdll'>ed to contract Been, Where It's Headed, 56 FLA. B.]. with CATV system'> that could not Should Congress determine that com 228 (1982). meet it'> FCC ;lpprO\'ed '>c'n'ice rates. mon carrier interference substantially 691 F.2d at 131. 2 Fortnightly Corp. v. United Artists threatens the wide-spread development Television, Inc., 392 U.S. 390,392 n. 6 43 EMI, 534 F. Supp. at 538. of teletext systems, a simple solution (1968). 44 EMI, 691 F.2d at 137. 451d. at 132. would be to redraft the definition of 3 United States v. Southwestern Cable 45 523 F. Supp. 403 (N.D. Ill. 1981). "primary transmission" to mean "the Co., 392 U.S. 157, 162 (1968), 471d. at 40.5. entire broadcast signal," so that any car 4 392 U.S. 390 (1968). 48 ld. at 407. rier interference with the teletext would 5 Copyright Act, ch. 320, 35 Stat. 1075- 49 WGN, 693 F.2d at 624 (7th Cir. 1982). constitute "control over the primary 1088 (1909), amended by 17 U.s.c. ~~ 50 WGN, 523 F. Supp. at 407. transmission" under § 111(a)(3) of the 101-810 (1982). slId. at 405. 52 ld. at 409. 6 Fortnightly, 392 U.S. at 400. Act. "ld. at 411. 7 17 U.S.c. ~§ 101-810 (1982). On the other hand, should Congress 5417 U.s.c. § 101 (1982). 8 ld. at § 111(c)(d). 55 WGN, 523 F. Supp. at 412. determine that teletext broadcasts are 9 ld. at § 111(d). 561d. at 413. too disruptive of the CATV/carrier 10 For a discussion of the distant/local 57 WGN, 693 F.2d 622. copyright scheme to merit special signal distinction, see Teleprompter 5Bld. at 628. Corp. v. Columbia Broadcasting Sys 59 EMI, 534 F. Sllpp. at 537. protection, it might add to the Act a 60 tem, Inc., 415 U.S. 394 (1974). 17 U.s.c. § 111(f) (1982). definition of the word "series" that 51 WGN, 523 F. Supp. at 410-411. does not contemplate two simultaneously 11534 F. Supp. 533 (N.D.N.Y. 1982), 621d. at 410. rev'd, 691 F.2d 125 (1982), crrt. denied, 631d. at 412. telecast programs. Congress might also __ U.S. __, 103 S.Ct. 1232 (1983) "ld. expressly restrict the copyrightability of [hereinafter cited as EMil 65 WGN, 693 F.2d at 628. teletext broadcast simultaneously with 12 523 F. Supp. 403 (N.D. Ill. 1981), rf'l'd, 551d. at 629. a main program to that style of teletext 693 F.2d 622 (7th Cir. 1982), reh'g 671d. at 627. denied, 693 F.2d 628 (7th Cir. 1982) that appears only at the bottom of the 68 Shulman, Communications and Non [hereinafter cited as WGN]. l television screen during the featured communications Law'veTs Be7..l. are: The 13 EMI, 691 F.2d at 134. Tf'if'(f'x( and T'idpotp:\, Rf'l'oilltion is program. 14 WGN, 693 F.2d at 625. Coming, FED. B. NEWS &j., NO\. 1982. at 409. Some congressional action with re 15 Under 17 u.s.c. § 101, "perform" 69 EMI, 691 F.2c1 at 130. gard to teletext transmissions is neces means "in the case of a motion picture sary to afford common carriers clear or audiovisual work, to show its images in any sequence .... " notice of what conduct constitutes 16 "AudiovIsual works" are "works that impermissible "control of the primary consist of a series of related images transmission." Such legislation will which are intrinsically intended to be restore needed stability to the common shown bv the use of machines.. or electronic: equipment, together with Put your carrier exemption that was lost after the accompanying sounds, if any .... " 17 WGN decision. U.S.c. § 101 (1982). Sa generally M. money where NIMMER, NIMMER ON COPYRIGHT, § 209(a)(b)(c) (1982). your Heart is. 1717 U.S.c. § Ill(a)(3) (1982). Conclusion 18 See 70 F.C.C. REP. 2d 2195 (1979). The passive carrier exemption under 19 EMI, 534 F. Supp. at 534, t. §111(a)(3) of the Act should be 2°ld. American construed to maximize the free flow of 2Ild. at 537. Heart varied program material to CATV sys "ld. . AsSOCiation 23 ld. at 538. O tems while ensuring that the carrier is 241d. WE'RE FIGHTING FOR YOUR LIFE truly a "passive" intermediary that 25 EMI, 691 F.2d 125 (2d Cir. 1982). 251d. at 130. neither adds nor subtracts from the 271d. at 131. primary transmission and selects its au- 281d. Spring, 1984/The Law Forum-33 Invisible Teachers find interesting, important, and diffi that students master the profession's continued from page 36 cult to answer. The teacher thinks that conventions and skills even when they recognize these facts is indicative of the the questions he puts are hard questions, do not want to. The teacher does not caricature to which they are so power that they are worthy of students' seem to know about other needs, does fully impelled. attention and thought because they are not recognize that all this seriousness Another example of the same per hard. He surely does not often assume will corrupt pleasant, fun-loving per ceptual quirk is the belief that law that there are clear answers to the sonalities. He does not sense that there teachers try to hurt students' feelings in questions, let alone that he holds the is something a bit narrow and even class. Many students see their teachers answers. threatening about how lawyers think. In as a self-selected group of the meanest A fourth variation on this theme is short, the teacher is a reduced person of the legal profession, a group that the belief that teachers are single with reduced vision who sees little of seems to get a personal thrill out of mindedly interested in legal thinking, in the broader world. brow beating students. Every reason legal problems, in law. They have no The truth is that many teachers are able answer begets just another ques self doubts, and they arrogantly insist loaded with self-doubts. They have tion, and it is frustrating and embaras sing to be put on the spot. But to conclude, because of such feelings, that the teacher is trying to hurt is for the student to confuse his personal re actions with the motives of the professor. It is to ignore the teacher as a person in his own right, with his own objectives. The teacher's aim is to enable the student to respond under pressure, even in situations where at Title first the student thinks he has no response. The objective is to encourage the student to think and communicate Insurance even more precisely and effectively than he thought he could. Law students are in training to be professional advocates and counselors. For a professional, and arguments cannot be merely adequate or normal or bright. Lawyers are paid to be always clear and sometimes moving and brilliant in their communi Judgment cations; they must meet this profes sional obligation even when they feel embarrassed, even when they are distracted, even when at first they think they have no response. Reports A third example is the belief that the teacher knows everything. I hesitate to Our Owners' or mention this particular misperception as it does not normally last past the Mortgagee Title Insurance policies third week of classes. At first impres sion this perception seems inconsistent are available to you with my model because it appears to and your clients. acknowledge and enlarge the capacities of the teacher. But the real reason students want to believe their teachers know everything is to justify their conclusion that it is unreasonable to expect them to live up to the standard SAFECO the teacher appears to set. If a teacher TITLE INSURANCE COMPANY commands a kind of superhuman excellence or perfection, students are OF MARYLAND TITLE BUILDINGIST PAUL AND LEXINGTON STREETS excused from paying attention to the BALTIMORE. MARYLAND 21202/(301) 727-3700 standards he is trying to communicate. In short, he can be ignored. In fact, of course, teachers do not normally ask questions if they are sure of the answers. They are ultimately seeking to interest students in questions that they
34-The Law Forum/Spring, I984 already mastered the skills that they are singly common view that law teachers the resulting personal unhappiness as it trying to impart and are familiar with are trying to convince their students is of any real ineffectiveness inherent in the conventions of the profession. They that there are always two sides to every prevalent teaching techniques. know that putting legal skills into argument. Many law students believe action can do a lot of harm. They have they have seen deeply into the purposes seen legal arguments intensify and even of legal education when they conclude initiate disagreements rather than re~ that anyone argument is as good as any solve them; they have seen students other, that the important thing is just to who-having just learned to say "inter be able to come up with an argument. alia" or divide their arguments into Students might come to this conclusion three numbered sections (and even because teachers tend to raise additional perhaps remember the third part of the questions in response to most answers. argument )-feel that because of these The perceived message is that the skills they have somehow become student is to learn to make an superior to other citizens; they have argument, any argument; one must be seen first~year law students disdain the as good as another since there are "fuzzy" thinking of other citizens and problems with all arguments. This Collective Bargaining even of their spouses and friends, so perception is almost completely wrong. continued from page 27 that they exhibit an aggresive over~ Teachers, of course, question answers confidence that is sometimes never so that students will learn to discover NOTES outgrown; they are well aware of judges possible weaknesses in even their I 294 Md. 144, 448 A.2d 345 (1982). who think that some special skill strongest arguments. Moreover, most 2 MD. ANN. CODE arl. 76A, §§ 7-15 (1980). 3 MD. ANN. CODE arl. 76A, § II(a)(8) (1980). entitles them to a superior place in the teachers want students to be able to 4 MD. EDUC. CODE ANN. §§ 6-401, 6-411 resolution of social problems. Teachers judge quality for themselves. They do (1978 & Supp. 1983). may love their craft and the skills of not make a habit of telling students 5 MD. EDUC. CODE ANN. § 6-408 (1978 & Supp. 1983). their profession, but they are at least as when their answers are "right" because 6 MD. ANN. CODE art. 76A, § 15 (1980). aware of the limitations as anyone else. a lawyer must learn to judge indepen~ 7 Edwards, The De
Spring, 1984/The Law Forum-35