ALI Restatement of Copyright – A Conversation with Professors Balganesh and Menell

Episode Contents

  • 58:12 – Overview of the American Law Institute and Restatements of Law
  • 06:13 – Restatements have never addressed areas of primarily statutory law.
  • 08:53 – Development of the 1976 Copyright Act
  • 15:17 – “Why we are not opposed to the idea of a Restatement.”
  • 25:09 – Criticism of the project’s lack of transparency.
  • 31:28 – Criticism of the project’s methodologies.
  • 42:44 – The distribution right & shifting judicial philosophies.
  • 51:50 – Rewriting copyright law without the legislature.
  • 54:17 – Can the Restatement still have a good outcome?
  • 01:01:43 – “the worst sausage factory”
  • 01:05:24 – Hypocrisy of the Reporters

Show Description

In 2015, the American Law Institute announced that it would embark on a Restatement of Law for U.S. Copyright. The plan raised eyebrows in the copyright community, the broader legal community, at the Copyright Office, and in Congress. For one thing, the ALI, which was founded in 1923, has never written a Restatement for any area of primarily statutory law—and the current copyright law is a rather complex federal statute. For some discussion about the Restatement project and the broader criticisms, see the post I wrote in 2018.

In this podcast, we get an insider’s view from two legal scholars who serve as Advisors to the Restatement of Copyright project. Although they joined the process with a measure of optimism that a Restatement could address certain complexities in copyright practice, the pair have since become critical of the project with regard to both its methodologies and its lack of transparency. Professors Shaymkrishna Balganesh of Columbia Law School and Peter Menell of the Berkeley School of Law published a detailed account of their analysis in a 77-page paper entitled Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts. Professors Balganesh and Menell discussed their concerns with me about the project–concerns that extend beyond copyright law.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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