dissenting.
I would affirm the judgment of the district court, for reasons given in Judge Campbell’s well-reasoned opinion. That opinion looks to the plain meaning of the controlling statute, 17 U.S.C. § 304(a)(1)(C), which devolves rights to copyright renewal if the author is not living on “the widow, widower, or children of the author” without specifying the disproportionate shares read into the provision by the majority here. I see no reason for us to do so in the absence of a Congressional directive, or — at minimum — a determination that the language used in the statute is ambiguous. It clearly is not.
Moreover, Congress certainly knew how to create a disproportional distribution scheme, as evidenced by the provisions in § 304(c). That it did not employ similar language in § 304(a) can only mean that it did not intend that section to mandate disproportionality.
I find instructive the Supreme Court’s opinion in DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), in which the Court held that the phrase “widow, widower or children” found in § 24 of the Copyright Act of 1909 created a class of persons who “succeed to the right of renewal as a class, and are each entitled to share in the renewal of the copyright.” Id. at 580, 76 S.Ct. 974. The Court explained, “[Pjutting each word in its proper context[,] we are unable to say, as the widow contends we should, that the clear purport of the clause in question is the same as if it read ‘or the widow, or widower, if the author be not living, or the *784children if the author, and widow' or widower, be not living.’ ” Id. at 573, 76 S.Ct. 974. Likewise, I conclude that the district court was correct in finding that § 304(a) creates a class whose members take equally, in the absence of Congressional instruction to the contrary. That the court in DeSylva said no more about the distribution was not caused by any disinclination to decide or instruct upon the issue, as the majority now suggests, but rather a recognition that they need not say more because the issue had not been presented. See id. at 582, 76 S.Ct. 974 (noting that although “there remains the question of what are the respective rights of the widow' and child in the copyright renewals, once it is accepted that they both succeed to the renewals as members of the same class ..., [sjince the parties have not argued this point, and neither court below has passed on it, we think it should not be decided at this time”).
This interpretation is also endorsed by the preeminent legal treatise on copyright, Nimmer on Copyright. Addressing divisions within the “widow-children class,” the authors note that “the Supreme Court in DeSylva expressly left open the question as to whether the widow and children share equally on a per capita basis or whether the widow is entitled to a one-half interest, and the children on a per stirpes basis share equally in the remaining half,” but add that “it appears to be more logical to regard all: members of the class — widow and children — alike, as sharing claimants.” 3 Melville B. Nimmee & David NimmeR, Nimmer ON Copyright .§ 9.04[A][lj. Also persuasive is the opinion letter from the Register of Copyrights, endorsing the result reached by the district court in this case.
Finally, I am not inclined to embrace the majority’s in pari materia analysis. Interpreting the statute in the manner suggested would make sense only if the statute had been adopted as a whole. For this reason, I also find Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990), readily distinguishable from the current case. The failure of Congress to enact a proposed amendment in Pension Benefit is simply not the equivalent of the legislative history in this case, in which Congress did amend an existing section of the statute, namely § 304(c), to create a distinction that it did not extend to the statutory provision at issue here, § 304(a). Pension Benefit cannot be read to counsel against the distinction between these two provisions by invoking the in pari materia doctrine to read them as a whole. To do so would be to create a judicial fabrication that was not intended by Congress. Indeed, the length and the complexity of the majority opinion indicate how much strain is required to fabricate a distribution system that simply does not exist in the statute.
Rather than engage in what seems to me to constitute a clear case of judicial activism, I respectfully dissent.