ALI Proceeds Toward Vote on Restatement of Copyright, Critics Ignored

On June 7 and 8, the membership of the American Law Institute will vote on several sections of the Restatement of Copyright, covering a range of topics, including categories of works, scope of protection, ownership, and transfers of rights. Restatements of Law are the primary work product of the ALI, and the century-old institution has never before embarked on a project to restate any area of law controlled primarily by federal statute.

Historically, Restatements have been written to clarify common law in subject areas like torts or contracts that lack uniformity from state to state. The purpose of a Restatement is to provide jurists and practitioners with a formal articulation on matters where the ALI project “Reporters”—these are the authors and managers of the Restatement—find judicial consensus on key doctrinal questions. As such, ALI Restatements can be highly influential, as they may be cited in briefs or in court opinions almost as if they were statutory (i.e. “black letter”) law.

So, the first conflict with the proposal to write a Restatement of Copyright is the fact that IP law already is primarily statutory law—constitutionally mandated, written by Congress, and adjudicated in federal courts. And as the Restatement project gained momentum in 2018, Members of Congress, the Copyright Office, and the Patent and Trade Office all wrote letters to ALI, all echoing very similar concerns, which then acting Register of Copyrights Karyn Temple summed up when she wrote:

Even if the [Restatement] drafters sought to remain entirely faithful to the statute or regulations, any departure from the words used in the positive law will lead to confusion and misinterpretation. Substituting words, condensing text, and otherwise tinkering with complex statutory and regulatory provisions, and the manner in which they relate to each other, will inevitably alter sense and meaning.

Nevertheless, because IP does encompass a substantial amount of judge-made law, academics like Professors Shaymkrishna Balganesh of Columbia Law School and Peter Menell of Berkeley School of Law joined the Restatement project as Advisers, believing that there are common law aspects of copyright which could benefit from a well-crafted Restatement. But once they engaged with the process, Professors Menell and Balganesh became disillusioned with both its undisciplined methodologies and its lack of transparency. For a detailed discussion about their concerns, listen to my podcast interview. But in a paper the professors published on this matter, they state:

“The ALI initially indicated that the Copyright Restatement Project would focus on common law features, but soon expanded its focus toward comprehensive restating of the copyright regime. The reporters took the common law restatement template and started to rewrite statutory text as “black letter” law. The project was soon mired in the political wrangling that has long dogged copyright reform.”[1]

Although the Reporters should take input from Advisers et al, they are not obligated to do so, and according to Balganesh and Menell, their own critiques and suggestions have fallen on deaf ears, indicating that the “process” is little more than a formality in which a very small group of individuals are writing this alternate “black letter” as they see fit. This raises a serious matter of concern for copyright owners …

Who’s Leading the Restatement Project and Why?

“In a September 2013 letter to then-ALI Director Lance Liebman, Professor [Pamela] Samuelson advocated that the ALI launch a Copyright Principles Project. Her letter held out the CPP as a model and offered to assist the ALI with fund-raising and identification of reporters and advisers.”[2]

Professor Samuelson is a copyright skeptic, and so is lead Reporter Christopher Sprigman. I am not going to attribute their views on copyright to malice, but it is a matter of record that their positions (and those of fellow Reporters) are unquestionably directed at limiting—many would say weakening—copyright law for rightsholders. Sprigman, in particular, represented Spotify in a high-profile case in which he advocated positions that would weaken copyright protection for songwriters—a conflict of interest which the ALI has been unwilling to address.[3]

Further, as the quote above states, this ball started rolling as a Principles project, which is a different kind of undertaking by the ALI, one that does not have the “black letter” influence of a Restatement. So, the fact that the scope of the proposal expanded—first from the kind of project it would be, and then to encompass more than common law areas of copyright—indicates that the agenda is to effectively amend federal law without a legislative process.

Given the Reporters’ views, they naturally have allies in the technology and internet industry, so we can hardly be blamed for assuming that Silicon Valley has something to do with seeking a tailor-made, weaker copyright law and, therefore, has its fingers in what Professor Menell describes as “the worst sausage factory ever” for its lack of transparency. More broadly, Menell warns that this Restatement project raises concerns that go beyond copyright because (and I am paraphrasing) it could become a blueprint for the next industry that wants to “support” its own “black letter” law without Congress involved.

How might the ALI Restatement influence copyright jurisprudence?

Because the ALI has never issued a Restatement in any subject of primarily statutory law, it is hard to say how much deference courts will show to the final product. We could predict, for instance, that in circuits with substantial volumes of copyright case law—namely the Second and Ninth—that these courts may give little weight to the Restatement over their own precedents. (In fact, if courts are generally dismissive of the Restatement on the grounds that it is incompatible with both statute and their own case law, this whole venture could prove to be a stain on ALI’s reputation.)

But in other circuits, or in cases that are novel to the court (called cases of “first impression”), the Restatement may be cited as the guiding interpretation of the statute. While we cannot predict this future with any certainty, there should be no doubt that the intent of this alternate “black letter” seeks to limit the efficacy of copyright for authors of works in some significant ways. The details are a bit arcane but suffice to say that the Reporters introduce unfounded legal standards related to the subjects of fixation, joint works, and copyrightable authorship. These invented standards have no basis in the Copyright Act, legislative history, or case law, and they attempt to chip away at the exclusive rights guaranteed to copyright owners.

Not Just Unprecedented, Ahistorical

Throughout the history of American copyright, Congress has amended the law in response to technological developments—not with an aim to either advance or stifle those technologies, but to ensure that new technologies do not undermine the purpose and efficacy of copyright. Today, despite overwhelming evidence that digital technology companies continue to do greater harm to authors of works than any inventors of the past, it is ironically the “digital age” that, in the minds of the Reporters, justifies weakening copyright law. As Sprigman wrote in his 2014 memo to the ALI, proposing a rationale for a Restatement instead of a Principles project, “… it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.”[4]

That statement may be true, but it’s cagey as hell. Because Sprigman and Co. do not mean “improve the fit” in any way that balances the interests of rightsholders and technology developers. I say this because I’ve read their papers and their social media comments, and because I’ve read earlier draft sections of the Restatement. To say nothing of the fact that so many rightsholders are visibly being clobbered by Big Tech in the digital marketplace. So, it appears that because a small group of ideologues have not succeeded in weakening copyright law to their satisfaction via the courts or the legislature, they hope to achieve this end with the ALI Restatement project. As such, it may be difficult to commit to what I said above about malice.

[1] “Restatements of Statutory Law: The Curious Case of the Restatement of Copyright,” Columbia Journal of Law & the Arts. https://journals.library.columbia.edu/index.php/lawandarts/article/view/8096

[2] “Curious Case”

[3] Bluewater Music Services Co. v. Spotify USA Inc., in which Spotify/Sprigman argued that interactive streaming did not require a mechanical license. The court rejected this argument.

[4] Cited in “Curious Case”

© 2021, David Newhoff. All rights reserved.

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