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We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” Failure to undertake those fundamental revisions will perpetuate an erroneous view of the current law, with “profound consequences.” Pierre N. Leval, Comments on PD9, at 4-5 (“Leval Comments on PD9”). Judge Leval limits his comments to the fair use provisions in PD9; we note that the same concerns arise in an additional area: PD9’s treatment of the derivative works right. Judge McKeown has also highlighted significant problems in both these areas, stating, inter alia, that “the fair use section offers a position that is flatly at odds with the Supreme Court’s teaching that factor one requires justification.” M. Margaret McKeown, Comments on PD9, at 1. We elaborate on our concerns more fully below.


Intellectual Property Law | Law


Kernochan Center for Law, Media and the Arts