Kastenmeier Leaves a Legacy That Extends Far Beyond Just Copyright Law

Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...

By Tamlin Bason

March 27 — The intellectual property community lost a giant March 25 when Robert W. Kastenmeier died at the age of 91.

Kastenmeier (D-Wis.) served in the House of Representatives from 1958 until 1990 and will be remembered by many in the intellectual property community for his contributions to copyright law, and most notably for his unrelenting work to secure passage of the 1976 Copyright Act.

However, while his impact on copyright policy was significant, Kastenmeier's achievements in other fields are sometimes overlooked. Kastenmeier himself shunned the spotlight, focusing instead on legislation that was sometimes as dry as it was necessary.

“I don’t think he cared about his recognition in the press,” Michael J. Remington of Drinker Biddle & Reath LLP, Washington, told Bloomberg BNA.

Remington, who also has Wisconsin roots, worked for the House Judiciary's Intellectual Property Subcommittee for 12 years when it was under Kastenmeier's direction.

“He was a really smart lawyer, a good Wisconsinite, and an institutionalist. And their mandate is to do good for the people. That was what was important to him,” Remington said

Champion of More Than Copyrights

“He was ‘Mr. IP,' ” Remington said.

Indeed, during the 21-year span that he served as chairman of the IP subcommittee, Kastenmeier sponsored a total of 48 laws to update or amend IP laws.

Of those, 21 were copyright focused, but the others included a bill renaming the “Patent Office” the “Patent and Trademark Office,” and a bill that added a provision to the Lanham Trademark Act that allowed for an award of attorneys' fees.

In addition to sponsoring those two bills, which both were introduced to the 93rd Congress, Kastenmeier also sponsored:

•  a bill that was generically titled “An act to amend the patent and trademark laws” when it was introduced to the 96th congress in 1980, but is now known as the Bayh-Dole Act;

• the Patent Law Improvements Act of 1984, which was in response to a Supreme Court decision, Deepsouth Packing Co. v. Laitram Corp., and created Section 271(f) of the Patent Act; and

• the Electronic Communications Privacy Act of 1986.


Kastenmeier also sponsored the Federal Courts Improvement Act of 1981, which, among other things, resulted in the creation of the U.S. Court of Appeals for the Federal Circuit.

“The whole time [the bill was being worked on] Kastenmeier carried the heavy water,” Paul R. Michel, former chief judge of the Federal Circuit, told Bloomberg BNA. “First he studied the problems and mastered the subject, and then he taught all the other legislators. And he had so much credibility with his colleagues that they passed the bill without a lot of trouble.”

Kastenmeier was so respected by the judiciary that, after he lost his seat in the 1990 elections, he was honored by a resolution of the Judicial Conference of the United States.

That resolution, which recognized him for his tireless dedication to the federal courts, was presented to Kastenmeier by then-Chief Justice William H. Rehnquist at a Supreme Court ceremony.

But a Champion of Copyrights Just the Same

The 1976 omnibus copyright legislation followed years of painstaking negotiations, as it was the first comprehensive overhaul of the nation's copyright laws since the 1909 Copyright Act had been enacted.

Kastenmeier dedicated himself entirely to that legislation, which culminated in 25 days of markup in 1975-76.

The House Judiciary Committee is currently undertaking another substantive review of the nation's copyright laws, and Remington said lawmakers would do well to learn from Kastenmeier's technique. The foundations for that approach, Remington said, are:

• A deep desire to get things right, especially where you have difficult public policy issues that arise at the intersection between intellectual property law and technological change;

• A commitment to bipartisanship in the decision making process; and

• A devotion to a full and fair hearing process.


In addition to the 1976 act, Kastenmeier was also behind the Computer Software Copyright Amendments Act of 1980, the Semiconducter Chip Protection Act of 1984 and the Satellite Home Viewer Act of 1988. Furthermore, he was a driving force behind, and sponsor of, the Berne Convention Implementation Act of 1988.

“I think he fervently believed that the role of law is not necessarily to predict changes, but to rechannel changes that occur outside of the law into an understandable system,” Remington said.

Remington said this view is reflected in some of the things that Kastenmeier chose to work on at the intersection of law and technological change.

“The software act, the semiconductor act, even the Electronic Communications Privacy Act—these are issues that sprung up and had to be rechanneled into the legal system,” Remington said.

‘The Real Thing.'

Michel recalled a time when he and Kastenmeier were waiting for a train in Newark, N.J. He said:

The train was late and so we had a chance to talk, and he described for me his motivation, which went back to when he was an infantry solider in World War II. He was a very stocky, muscular guy even in his elder years, and so you can imagine that when he was a younger guy he was even more so. And because of this, he told me that in his platoon, he was the guy to carry the heavy weapon—the Browning machine gun. That meant all the other soldiers in his unit depended on him because his fire power was so much more than their average rifles. And he said that ever since then, “I realized that I have got to be looking out for other people and working for the good of the team, and not just worrying about my own survival or my own benefit.”


“Talk about the greatest generation,” Michel said, “he was the real thing.”

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Remington and Michel are members of this journal's advisory board.