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89 N.Y.U. L. Rev. Online 1 (2014)

handle is hein.journals/nyulro89 and id is 1 raw text is: 












                              ESSAY


  TEXTUALISM AND THE EQUITY OF THE

COPYRIGHT ACT: REFLECTIONS INSPIRED

          BY   AMERICAN BROADCASTING
          COMPANIES, INC. V. AEREO, INC.

                           ANDREw TUTT*

    Still steeped in an  important  tradition of unwritten  law-where
statutes were  either declaratory of the common law, or remedial of
some  defects therein'-English   judges  in the time of Coke  and  later
Blackstone   often invoked  the  equity of the statute. Departing  from
the text, they extended  statutes beyond  their plain terms in order to
make  them  more  coherent  expressions  of purpose and  cut back others
to avoid inequitable results that did not serve the statutory purpose.2
Whatever   one's views about  textualism, equity of the statute is almost


   * Copyright @ 2014 by Andrew Tutt, Visiting Fellow, Yale Law School Information
Society Project; Law Clerk, Honorable Cornelia T.L. Pillard, U.S. Court of Appeals for
the District of Columbia. Thanks to Kiel Brennan-Marquez and Priscilla J. Smith. Thanks
also to Mikayla Consalvo, Bradley Markano, Jonathan Ossip, Johann Strauss, and most of
all Adrienne Lee Benson, the superb editors of the New York University Law Review who
repaired the defects in this essay to avoid inequity and helped at every step to make it a
more coherent expression of its purpose. Finally, my thanks to Peter Strauss who knows a
thing or two about the worlds of statute and common law, and who believed that I could
too. This Essay is dedicated to him.
   1 1 WILLIAM BLACKSTONE,  COMMENTARIES  *86; see also, e.g., Edward Jenks, The
Myth of Magna Carta, 4 INDEP. REV. 260, 261-62, 272-73 (1904) (explaining that the
Magna Carta was not a charter of liberty, that a fair construction of most of its terms
shows that it was primarily concerned with cementing class privilege among a narrow elite,
and that Lord Coke's creative rewriting of the document in later judicial decisions made
him its real author); Max Radin, The Myth of Magna Carta, 60 HARV. L. REV. 1060,
1061 (1947) ([T]he Charter was merely an ancient statute not much in people's minds. It
was Coke ... who gave Magna Carta its sacrosanctity.); Max Radin, A Short Way with
Statutes, 56 HARV. L. REV. 388, 388, 392 (1942) (explaining that [i]t has taken the
common  law a little over three centuries to come to the full realization that it has to deal
with something called statutes, and that part of this reticence, at least in England, came
from the fact that there was less reason [than there was in Continental Europe] to deal
with statutes as supremely authoritative, since there had never been among English
theorists an unqualified admission that legislation was the highest of governmental
functions).
   2 John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 8
(2001); see also id. at 29-36 (discussing the English practice of equitable statutory
interpretation in the 16th through 18th centuries).


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