Category: Podcasts

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.

The Online Advertising Market with Andrew Orlowski (Podcast)

I haven’t done a podcast in a while but decided to reach out to technology writer Andrew Orlowski after reading his article Alphabetti Spaghetti:  What Wall Street isn’t telling you about Google.  Andrew is the executive editor of the IT news and opinion publication The Register, a critic of techno-utopianism, and coiner of the term “Googlewashing” to describe either purposeful or inadvertent censorship through search result rankings.

Andrew and I talk about trouble in the online advertising market, broader economic issues, and the politics behind the technologies we use.  I spoke to him at his home in the UK via Skype.

“The Internet is Not the Answer” with Andrew Keen (podcast)

Keen-Internet book jacket

Andrew Keen’s new book, The Internet is Not the Answer (Atlantic Monthly Press), goes on sale today.  This is the third book Keen has written about the Internet and digital-age culture. A native of London, Keen first became an Internet entrepreneur in the US with the founding of Audiocafe.com in 1995, and this new book cites his own personal conversion from early evangelist of techno-utopian ideas to an observer with a more critical view of how and why the evolution of the Web is failing to fulfill many of its founding ideals.  Through first-hand accounts and solid research, Keen describes how some of the most influential technology leaders abandoned the egalitarian and democratizing goals of the Internet in favor of business strategies that have produced, and will continue to produce, a winner-take-all-economy that only serves to exacerbate wealth stratification throughout the market.   While economics are the central theme of this new book, Keen also discusses culture, sociology, and in particular privacy, saying that we are voluntarily creating a surveillance state that would be the envy of the East German Stasi.

Keen believes, as I do, that government must play a role — that if we naively think the Internet obviates the role of regulation and law enforcement through representative government, that we are only empowering an oligarchy and not ourselves.  The Internet is Not the Answer is an approachable read for anyone with no prior knowledge of digital-age issues, and for all its seriousness and dire warnings, Keen’s writing is lighthearted, personal, at times very funny, and is ultimately optimistic.

For more information about Andrew, visit www.ajkeen.com.

The Internet is Not the Answer is reviewed here by Michael Harris for The Washington Post.