Thomas, you're forgetting an important component of Chevron - it applies only to an agency's interpretation of the statutes that agency administers, and it presupposes that the federal agency has more expertise in its subject area than does Congress. That reasoning doesn't apply here - the Copyright Act is not a law about international trade, and the executive branch acting as trade negotiator has no special expertise on copyright. So there's no strong reason for deference.

There are equally good reasons why the courts should not defer to the executive's interpretation of its treaties in this case: it twists a democratically enacted statute based on the processes of relatively undemocratic treaty organizations and negotiations that are more easily held captive by special interests (*cough*hollywood*cough*).

Dear Mr. Gordon:

Thank you for the comments. The two points that you raise about Chevron are good ones, and I have thought about them in some detail. Although I touch on these issues in my paper, here is some more detail on how I resolve the questions about administrative authority and expertise that you have raised.

I agree that courts accord Chevron deference only to the statutory interpretations of law-making entities authorized to administer the statute interpreted. In this case, that criterion is met: The Constitution directs Congress to administer the Foreign Commerce Power, and it directs the President to administer the Treaty Power. To act pursuant to these powers, these Branches must either enact Treaties that are self-executing (either because the Treaty is supposed to be self-executing or because it imposes obligations already satisfied by existing US laws), or enact implementing legislation. Consequently, Congress and the President have authority to administer the international relations of the United States, and to enact any laws needed to do so.

As for the issue of agency expertise, I have two reactions. First, I think that as a practical matter, Chevron deference derives more from comity and the limitations on the judicial power than deference to agency expertise. Second, to the extent that agency expertise must be shown and implicated, it was in the cases of the WCT, the WPPT and the FTAs.

I realize that administrative-law cases are filled with references to deference to agency expertise. But when you actually litigate those cases, you soon discover that expertise is something that courts presume as a matter of law—not something that they require (or even permit) the government or private litigants to prove as a matter of fact or application. As a result of the mental-process, decisional-process, and executive privileges, you simply cannot try to defeat the application of Chevron by showing that any given Executive-Branch law-making process was, in fact, not guided by specialized expertise that was actually applied.

That is why I think that inter-branch comity and structural issues arising from the limitations on the scope and exercise of the Judicial Power better explain the rationale for Chevron deference. In short, Chevron cases implicate a practical problem arising from the separation-of-powers doctrine: Regardless of whether you are talking about EPA trying to decide how to administer environmental statutes or Congress and the President trying to decide how to implement international agreements, both must interpret existing laws in order to decide how they can (or should) proceed.

Frequently, the statutes that law-making entities must interpret will prove to be ambiguous—not because Congress acts incompetently or in bad faith—but because general statutes will often prove to be ambiguous when applied to narrower classes of cases, particularly those that may not have been fully anticipated when the underlying law was enacted. When this happens, neither Congress nor an agency can resolve the resulting ambiguity by seeking guidance from the federal courts because the latter cannot issue advisory opinions. By according Chevron deference to reasonable statutory interpretations made in such situations, courts avoid the otherwise debilitating legal uncertainty that would arise were each federal judge entitled to upend a decade or more of otherwise reasonable practice whenever he or she disagreed with a law-making entity about which reasonable interpretation of an ambiguous statute was preferable.

Moreover, if expertise is required to trigger Chevron deference, the Charming-Betsy-based cases cited or quoted in my paper repeatedly acknowledge that Congress and the President have both expertise and preeminence in administering the international obligations and relations of the United States. And even if Chevron deference would attach only if agencies with expertise in copyright law were involved in a legislative process that required an interpretation of the Copyright Act, that requirement would also be satisfied in the cases of the WCT-, WPPT-, and FTA-implementation processes.

In the case of WCT and WPPT implementing legislation, my paper notes that the two relevant agencies with subject matter expertise in copyright law—the Copyright Office and USPTO—both testified before Congress that the then-existing Copyright Act provided the making-available right required by those treaties. At that point, there was no other authority within the federal government that Congress and the President could lawfully consult to ensure that they were proceeding properly.

The FTA-related processes are similar. You say, “the Copyright Act is not a law about international trade, and the executive branch acting as trade negotiator has no special expertise on copyright. So there’s no strong reason for deference.” For several reasons, I think that this is an incomplete description of the FTA negotiation and implementation processes.

I don’t think that USTR, in its capacity as trade negotiator, can be said to have no special expertise in copyright law. Copyright law, through TRIPS, is part of the law of international trade, and thus is a matter as to which USTR does have specialized expertise—indeed, there is a specialized IPR Office within USTR itself. But whenever USTR requires further substantive expertise in copyright law, it can and does get it from the relevant expert agencies. USPTO has a statutory duty to “advise Federal departments and agencies on matters of intellectual property policy in the United States and intellectual property protection in other countries.” (35 U.S.C. sec. 2(b)(9)). The Copyright Office has a similar statutory duty. (17 U.S.C. sec. 701(b)(2)).

Indeed, for practical reasons, both expert agencies tend to be heavily involved throughout any FTA process. Under the so-called fast-track statutes, both the President (advised by USPTO, (35 U.S.C. sec. 2(b)(8)), and Congress (advised by the Copyright Office, (17 U.S.C. sec. 701(b)(1)), have to approve both a Statement of Administrative Action and an associated implementing statute in order to adopt and implement any negotiated FTA. As a result, all relevant agencies tend to be heavily involved throughout the FTA process in order to minimize the risk that the President and/or Congress will be advised, after the fact, that there was something problematic about the result of given FTA negotiations.

Finally as for your point about not deferring to “relatively undemocratic treaty organizations,” I think it is a potentially valid concern, but not one implicated by my argument about the need for Chevron-like judicial deference in cases like Barker.

Granted, when courts interpret treaties, they will look to the records of their negotiating history. But that principle is only tangentially relevant to my argument. The records of the Diplomatic Conference that produced the WCT and WPPT certainly do show that the making-available-right provisions were intended to be an “umbrella solution” that would let different countries implement a making-available right by using different sets of existing exclusive rights. To make a long story short(er), the US and the EU, in particular, wanted to implement the right in different ways. The US wanted to use its existing, broad distribution right. But this approach would not have worked for most European countries: Most of them implement an analog of the U.S. first-sale doctrine by limiting the scope of their distribution rights. Consequently, they wanted to implement a making-available right through their existing communication-to-the-public rights. The final treaty language was thus made broad enough to permit either method of implementation.

I do these WIPO records could be relevant to show consistency of US interpretative practice: They certainly do show that U.S. officials had long concluded that they could and should implement a making-available right through existing exclusive rights, particularly the distribution right. But I don’t think that US courts must or should use them to defer to WIPO’s judgment that the making-available right can be implemented through a distribution right.

To the contrary: My argument asserts that the interpretations entitled to deference are those that the elected U.S. Congress and the elected U.S. President—advised by their respective subject-matter experts—made when executing their legal obligation to implement the WCT and WPPT treaties (and the FTAs) to which the United States had acceded. Because I conclude that the seven resulting implementing statutes were based upon a reasonable interpretation of the Copyright Act, (e.g., one that would give the phrase “to authorize” its plain meaning), then I argue that U.S. courts should defer to that interpretation even if they conclude that different interpretations might also be reasonable. My argument counsels only deference to interpretations the Congress and the President must and did make when enacting domestic implementing legislation—not deference to WIPO.

Thanks again for your comments, and I apologize for the long response. --Tom

Tom, thanks for the thoughtful reply.