Category: Culture

Censorship in the ALI Restatement of Copyright Project?

Justice O’Connor, in Harper & Row v. Nation Enterprises (1985), called copyright “the engine of free expression.” This was not a novel idea. The Justice was merely summarizing a well-established relationship between an author’s copyrights and the freedom to express herself as she wishes. Freedom in artistic expression requires that the author have a degree of personal economic liberty, which obviates the need to appeal solely to state-run cultural institutions or to wealthy patrons, either of which may seek to censor or otherwise control creative expression. The American system, which grants any author a copyright and lets the market decide whether the work is desirable, has, in general, yielded a diverse bounty of creative works in which we see the speech right and copyright working in tandem.

Yet, despite the volume of empirical evidence that O’Connor’s summary is axiomatic, copyright skeptics, including the individuals who launched, and are leading, the ALI Restatement of Copyright Law, have grounded their skepticism partly on the belief that copyright is fundamentally at odds with the speech right. I have written enough posts taking issue with that assertion and will not repeat those arguments here. Instead, the purpose of this post is to call attention to hypocrisy. Because while the Reporters comprise those who so often claim to rescue speech from copyright, they are silencing dissent, even pretending it does not exist, among their own colleagues who’ve been working on the Copyright Restatement project.

On May 21, Register of Copyrights Shira Perlmutter wrote a letter to the ALI, announcing her resignation as an Adviser to the Restatement project, stating that in her new role as Register (since September 2020), it is no longer appropriate for her to be active in the project. But more importantly, Perlmutter reiterates key areas of concern that the Copyright Office has expressed with the Restatement since before her tenure as Register of Copyrights began. These are: 1) a lack of deference to the statutory text; 2) a lack of deference to the Copyright Office as the expert agency; and 3) a lack of transparency about the drafting and decision-making process. In short, the USCO questions the propriety, methodology, and process of the ALI’s first statutory Restatement project in its history. On the subject of the statutory text, Register Perlmutter states:

In the latest Tentative Draft, as in prior drafts, the “black letter” statement of the law at the beginning of each section sometimes quotes the applicable statutory provisions, but at other times rephrases them. In statutory interpretation, there is no substitute for the words of the statute itself. Rephrasing, however well-intentioned, inevitably introduces imprecision and interpretive choices. This is particularly true where the Restatement presents these statements as the law itself, not as interpretations of the law.

In essence, the Register of Copyrights is suggesting that the ALI is usurping and mislabeling the true “black letter” law—the Copyright Act. As I have described previously, the concept of “black letter” in Restatements developed as a method for restating common law. The ALI’s founders recognized the folly, indeed impropriety, of restating statutory text under the rubric of  “black letter” drafted by Reporters.[1]

A variation on this precise concern—the Restatement’s “failure to treat the text of the Copyright Act as blackletter rules”—was submitted as a proposed amendment to the Restatement, co-authored by Professors Shyamkrishna Balganesh, Jane Ginsburg, Peter S. Menell, and David Nimmer. (See full amendment text here.) For those not immersed in copyright law, these are some of the heaviest hitters in the game; they are scholars open to debate, but who should not be ignored. Nevertheless, the ALI intends to disregard their amendment, stating in an email to its authors that it will not even be considered because, “The ALI does not add to the drafts what various advisers or members think about different sections or the draft as a whole.”

In plain terms, key Advisers to the project—and the four named above are not the only ones—have repeatedly tried to emphasize the premise that embarking on a Restatement of a comprehensive federal statute requires a different approach than every other Restatement in ALI’s nearly one-hundred-year history. That approach should begin with the language in the statute and the legislative significance of every negotiated word in it. Not only has the ALI elected to ignore this advice, but it has apparently censored Advisers’ views on these fundamental questions, thereby confirming Register Perlmutter’s concerns about transparency.

ALI and the Reporters are not merely overriding dissent, they seem to want to pretend it doesn’t exist. For example, Professor Samuelson, who initiated the Restatement project, tweeted on 12/4/2019, “Five well respected scholars are the reporters and everything they say is closely reviewed by other experts, including judges.” This comment is consistent with what the scholars named above describe as ALI creating the appearance that a collective of high-octane experts is negotiating in good faith, while eliding the fact that many of those experts are dissenters.

In fact, I am told by the authors of the proposed amendment that one of the primary reasons for seeking its adoption is to stave off the perception that the mere presence of a diverse body of scholars, experts, and industry representatives (who serve as Advisers) means that the Restatement is being produced through a collaborative effort. On the contrary, their criticisms and others are apparently not being revealed to the full membership of the ALI, let alone to the public.

So, for those keeping score at home, follow the logic:  the folks who started the Copyright Restatement project are among those academics who assert that copyright must be weakened in deference to the speech right. Yet, in a process that is already dubious at inception and obfuscated for the general public by its arcane nature, the ALI and the Reporters seek to avoid acknowledging even the existence of opposition from many of the same colleagues whose credentials give the project the color of validity. Whether that meets the legal standard for compelled speech is for someone else to say, but it must feel that way to some of the Advisers.

[1] Am. Law Institute Report on Business Associations, 1924: “…it is obvious that the Restatement, if it deals with the subject [of statutory law] at all, must set forth the statutory provisions as Principles of Law or Comment.”

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”

A Response to “Weaponizing Copyright” by Cathay Y. N. Smith

Last week, I stuck my toe into a little debate on Twitter about the word weaponize, when Professor Cathay Y. N. Smith[1] defended her use of the expression “Weaponizing Copyright.” Smith was citing the title and subject of her own draft paper, and because I still hate Twitter for discussing complex issues, I read the 73-page draft over the weekend. While I disagree with several important aspects of Professor Smith’s approach, it is a thoughtfully written paper so far, highlighting more than one point of view, and despite the choice of a loaded term like weaponize, it is not as thoroughly hostile to copyright as its title suggests.

Professor Smith’s main thesis is that the use of copyright enforcement for “noncopyright purposes,” which is how she defines “weaponizing copyright,” is increasing, though she does not contend that all alleged “weaponization” of copyright is necessarily a bad thing. She identifies, “five common noncopyright objectives that copyright owners seek to achieve through weaponization: to silence and erase facts, suppress criticism and speech, punish and retaliate, protect reputation and moral rights, and preserve privacy.” For each of these five categories, Smith cites various examples, some of which I would argue do not belong in her data set, even as anecdotal evidence. But I’ll get to those in a moment.

Defining the Purpose of Copyright

The premise of Weaponizing Copyright begs some fundamental questions that are either not answered or not answered correctly in my view. First, how are we defining copyright’s purpose? Second, is “weaponizing” an appropriate term for noncopyright enforcement action? And third, is copyright “weaponization,” even if we accept the term, truly increasing? And perhaps a subordinate of question three is to ask how successful are “weaponized” copyright enforcement actions?

Smith does not answer the latter questions at all. Her paper describes several enforcement examples, but even if all these examples properly fit the definition of “noncopyright objectives,” a handful of anecdotes is not a sufficient body of data to show whether the types of legal actions described are increasing. But even before that, I would argue that not every example cited serves noncopyright ends because Smith begins with a too-narrow definition of copyright’s purpose, one which elides non-pecuniary (or non-market) reasons for enforcement. She writes, “Copyright grants authors exclusive rights in their works, which allows authors to realize financial and economic gains for their works.” True but incomplete.

It is the view of many copyright skeptics that copyright should never serve any purpose other than to protect an author’s financial interest in her works, but this opinion is inconsistent with history, case law, and a basic sense of fairness. As Professor Jane Ginsburg observes in a paper from 1990, both the natural rights (French) and utilitarian (English) rationales for copyright were alive at America’s founding period.[2] And without going into a long history discussion, suffice to say that non-pecuniary reasons for protecting authorial rights have been part of our philosophical consciousness since before modern copyright existed, and these rationales are still part of the copyright narrative. Sometimes, we simply call it justice.

Non-Financial is Not Noncopyright

Because copyright protects works of creative expression, the exclusive right of the author to license the use of a work naturally anticipates that the author might reject certain uses, regardless of financial consideration. I doubt very much, for instance, that Ta-Nehisi Coates would allow the exploitation of his literary works by the KKK, even if they offer him millions of dollars. And if such a group infringed his works, I imagine he would file suit for the same reasons that he would have rejected a license in the first place. This non-pecuniary motive is not in any way inconsistent with the purpose of copyright and, therefore, should not be considered an example of “weaponizing” copyright, if we are to use that term at all.

So, although I agree that Professor Smith alludes to some noncopyright examples of enforcement, I would argue that her incomplete definition of copyright’s purpose encompasses other examples that properly manifest the purpose of copyright. For instance, Matt Furie’s attempt to litigate against white supremacist and fascist groups for mass appropriation of his Pepe the Frog character should not be included in Smith’s discussion in my view. Furie’s complaint is wholly consistent with the purpose of copyright, responding to appropriations that obliterated the value of his work in every sense. Pepe was simultaneously damaged as a work of expression and as a work of potential market value, and it is copyright’s purpose to protect both.

Likewise, Professor Smith should not include William Greenblatt’s efforts to stop the gun wielding McCloskeys from using his photograph as a holiday card. Although Smith acknowledges that Greenblatt might have several motives and she is, therefore, hesitant to call his enforcement “weaponization,” none of that matters. When an author says Do not reproduce my photo as your holiday card, this demand fits squarely within the purpose of copyright, and Greenblatt’s motives, while we can probably guess what they are, are irrelevant to a discussion about noncopyright purposes.

Where I am more intrigued by Professor Smith’s inquiry is when she cites an example like The Weinstein Company attempting to use copyright law to stop Ronan Farrow from exposing evidence to support the sexual assault allegations against Harvey Weinstein. I think we all agree that trying to stifle news of compelling public interest is well beyond the purpose of copyright, and in the Weinstein example—a bare-knuckle fight with a bully—it seems appropriate to use a term like “weaponize.”

On the other hand, Weinstein’s attempt to frighten Farrow with the specter of copyright litigation was not successful, which brings the conversation back to the need for a broader data set, if we are to consider whether Professor Smith is truly examining a subject that needs addressing or citing anomalies that are simply unavoidable in legal battles. No doubt, just about every area of law has been misused in some way by someone, but that does not mean we necessarily amend or scorn the body of law itself.

Related to this need for more robust data, when Professor Smith cites examples adjacent to Weinstein, in which celebrities seek to protect reputation and/or privacy by enforcing copyrights in images, video clips, or even emails and other written material, I believe the conversation becomes more nuanced, and I would again question whether “weaponize” is a proper term. Almost everyone would agree that the public has a compelling interest to know the facts about a business mogul who may be a sexual predator, a fraud, a drug abuser, etc., but the presumed “right to know” probably does, and certainly should, diversify our views when it comes to the merely gossipy and prurient.

For instance, Smith is right that it is not very close to the soul of copyright to enable Hulk Hogan to sue for the unauthorized release of his sex tapes, but neither is it generally beyond the purpose of copyright to protect the author’s right to not publish a work. Granted, the word author in regard to a sex tape is a bit much, but the legal principle is the same. Copyright enforcement is the remedy when unpublished works are made available without license. And again, it does not matter whether the works are unpublished because the author would be embarrassed by them or because she decides not to publish for any other reason.

Correspondingly, does the public really have the right to see Hulk Hogan’s, or anyone else’s, sex tape? Or some celebrity’s secret wedding photos? If a person of influence has a sex tape (or gets married), perhaps the public has a right to know the facts (because the facts may be relevant to the subject’s public role), but that does not extend to a right to see the works per se. Samuel Warren and Louis Brandeis, who wrote the seminal paper on privacy in American law, would agree with this, and when they began seeking a foundation for privacy, they turned first to copyright law and the protection of unpublished works.[3] So, once again, I would personally disqualify some of Smith’s examples as standing far outside the penumbra of copyright’s purpose and, therefore, deserving the term “weaponize.”

As stated above, Professor Smith does not necessarily reject every noncopyright purpose of enforcement as a negative use of copyright. For instance, she entertains the idea that perhaps copyright should serve to protect privacy. But my point is that there is an extent to which copyright always has protected privacy with the protection of unpublished works, so it is not necessarily a novel principle, even if the digital age has provided so many new opportunities for privacy to be invaded. At the same time, I think Smith poses a thoughtful question when she writes the following:

… if we are content with copyright being used for purposes of protecting privacy, reputational or dignitary interests, could the law become complacent in holding back important and necessary reforms of laws, such as in the areas of privacy, Section 230, and others?

I believe many legal authorities, including copyright advocates, would prefer to see, for instance, Section 230 no longer protect websites that trade in nonconsensual pornography, rather than have victims use DMCA takedown as a half-measure to remedy this form of harassment. Copyright enforcement is a workaround—a partial solution to a very ugly crime, and DMCA takedown is inadequate relative to the kind of damage inflicted or the motives for this crime to be committed in the first place. That said, I very much doubt the copyright stopgap solution will stand in the way of improving other areas of law, where improvement is possible. We seem to be making progress toward a federal prohibition against nonconsensual distribution of intimate images, and I don’t believe anyone has seriously suggested that DMCA takedowns obviate the need for this legislation.

On the subject of the DMCA, I think Professor Smith accurately describes certain uses of the takedown provision on platforms like YouTube to occasionally silence criticism or speech, or to punish. And she is also not wrong that DMCA takedown can be a relatively simple means to achieve these ends. But, on a side note, I also believe that inquiries in this area should compartmentalize sites like YouTube due to the intramural nature of copyright enforcement on the platform. Meritorious claims are in the mosh pit with unmeritorious claims, mixing it up with the ever-changing motives of YouTubers, and all of this chaos is administered by a corporate landlord with its own systems, interests, and dynamic rules while it adjudicates both takedown notices and counter-notices. YouTube is its own special copyright circus.

But more acutely, one of Smith’s key YouTube examples, citing gamer/YouTuber PewDiePie, reveals once again that she is working with an incomplete definition of the purpose of copyright. Once the highest paid YouTuber in the world, PewDiePie gained internet stardom with videos of himself playing popular games while joking, critiquing, or commenting as he played. In general, the game developers saw this use of their materials as good marketing, but in 2017, PewDiePie’s star fizzled a bit when he made racist and sexist remarks in several of his videos. Suddenly, “Pewds” was no longer a positive association for every game developer.

Professor Smith describes game developer Campo Santo’s takedowns as serving the noncopyright purpose of seeking to “punish” PewDiePie for being a jerk. But this is an error in my view. Because PewDiePie’s uses of gaming material likely would not be protected by fair use,[4] any of the gaming companies’ decisions not to issue takedowns should be understood as unwritten licenses to allow PewDiePie to use their works. But these are conditional licenses. As long as the use is good for the brand, the use is allowed. If the user is no longer good for the brand (just like an actor on a TV show whose public words or deeds become a liability), the company may revoke its unwritten license.

In other words, once again, there is nothing tangential to copyright’s purpose in Campo Santo’s decision to file the takedown notices—even if it turns out to be a financially detrimental decision, as Smith indicates it might be. Rightsholders grant unwritten, conditional licenses all the time (especially on the internet), simply by allowing uses they discover, and without any kind of formal agreements. But if the conditions of a particular use change, the copyright owner reserves the right to revoke that unspoken license. In fact, this is categorically a purpose of copyright.

I cannot address every example or aspect of Professor Smith’s paper in a single post, and my critiques here do not deny the fact that, in powerful hands, even the threat of copyright enforcement can be used as a weapon against a less powerful individual or entity for purposes outside the spirit of copyright’s intent. Smith is not wrong when she describes the attributes of copyright law that make it well suited for certain parties to try to silence criticism or erase information or perhaps even punish. And I think she is particularly thoughtful in exploring how and whether copyright is properly used to defend against powerful aggressors, even in contexts not typically thought of as fulfilling the spirit of copyright.

But recognizing that just about any legal framework may be used in a way we’ll call unconventional, questions remain as to how often that applies to copyright, and how often owners truly achieve noncopyright ends, regardless of whether those ends are ill or good. Meanwhile, before such an inquiry can provide useful insight, the examples considered should be based on a more complete definition of the purpose of copyright, and consequently a much narrower definition of what it means to weaponize.

[1] Associate Professor of Law, University of Montana Blewett School of Law.

[2] https://scholarship.law.columbia.edu/faculty_scholarship/620/

[3] https://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf

[4] Using portions of a video game in a video revie would likely be fair use, but using hours of game play as a major component In your for-profit entertainment vehicle would disfavor a finding of fair use.

Puzzle source image by: AndreyPopov