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.
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.
 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.”
© 2021, David Newhoff. All rights reserved.