One of the reasons someone like me mucks about in copyright law is that all law is an exercise in language. Especially because English comprises more words and, therefore, more shades of meaning than any language in the world, the logophile who enjoys a good fuss, bother, muse, agitation, or dither over deployment of le mot juste shares a kinship with the legislator, judge, or attorney whose choice of words can have profound consequences for generations of people.
If law can be described as an attempt to shape civilization by means of imperfect language, how could the subject not be a flame to the word-geek’s moth? And since the heart of copyright law is expression itself, it is naturally a region where one can spend considerable time exploring avenues, boulevards, and dark alleys on a journey of semantic discovery. On the other hand, the linguistic ambiguity that is the word lover’s playground can also be a source of frustration in the application of law, which is why context framed by precedent plays such a critical role.
But in the United States, where most laws are state laws, a broad framework of precedent is often impossible in certain specialities. No single attorney or judge can, for example, track the commonalities among all the tort law cases decided in the fifty states in order to find some consensus on the meaning of fundamental and evolving principles. In answer to this, a century-old organization called the American Law Institute publishes what are known as Restatements of Law, primarily for the purpose of consolidating and synthesizing the disparate body of common law into guidelines that may be cited in court almost as though they were statutory, or black-letter, law.
But in a move that would normally go unnoticed by anyone outside the legal profession, a small group of copyright skeptics, initially led by Berkeley Law Professor Pamela Samuelson, embarked on a Restatement project for copyright law. This is unprecedented. ALI Restatements have never been written for comprehensive federal laws like copyright because these are already statutory, or black-letter, laws. Congress writes the statutes, the judiciary interprets them, and attorneys make their arguments; but everybody’s working from the same statutes and a much more narrow body of case law than common law entails. Hence, this request for a Restatement of copyright law represents an end-run around Congress—an effort to reshape the Copyright Act without a legislative process.
The ALI Restatement process is methodical, iterative, and ultimately requires ratification by vote of the entire membership. Once a Restatement is issued—in fact, even before it is fully ratified and published—segments can be cited in court, so the institution does not take the process lightly. Drafts are written by a small group of attorneys called Reporters, and other ALI members are invited to submit comments as Advisers. The Reporters are, however, not required to defer to any of the Advisers; and a key concern among rights holders about this project is that its five Reporters are known to be highly critical of copyright with particular bias toward the anti-copyright agenda of internet companies. Most prominently, lead Reporter Christopher Sprigman serves as counsel to Spotify, which at least raises the question of a conflict of interest.
Because this project is unprecedented in the history of ALI, a response last week from music attorney Dina LaPolt pulls no punches, asserting that the institution is at risk of undermining its well-earned credibility by exceeding its tradition of filling in gaps in the law and instead rewriting law that is well-established. “The problem is that ALI has been hijacked by a handful of agenda-driven academics, who are drafting the text of the ALI treatise in a way that reflects their subjective view of copyright law, not the objective summary they were directed to create. Some of these academics have in the past tried to lobby Congress for changes that would weaken copyright protection — unsuccessfully. And for reasons I cannot understand, ALI has decided to be complicit in a process that will harm creators and likely benefit technology giants,” LaPolt writes in Billboard. In the same publication, Robert Levine cites a letter obtained by the magazine in which acting Register of Copyrights Karyn Temple Claggett calls the prospective Restatement “a pseudo version of the Copyright Act.”
Looking at this as an outsider, it is hard to imagine how this Restatement process, originally created to distill clarity out of the dynamic mosaic of common law, would not, at best, foster new areas of confusion in copyright. Presumably, the Reporters imagine rewriting copyright law as they believe it should be—and this is already an affront to the legislative process—but it’s not as though the considerable body of statutory and case law copyright knowledge will simply evaporate. Restatements clearly serve an invaluable purpose where no statute or collective understanding exists; but where well-founded and longstanding statutory knowledge is already present, confusion seems inevitable.
Copyright law contains statutory language dating back to the start of the nation, and its stately growth in complexity is a cumulative and fairly linear narrative that, not by coincidence, parallels the narrative of technological innovation. Nevertheless, language remains imperfect, subject to interpretation and persuasive argument; so it seems to this non-attorney that adding what might be described as a holographic copyright law (to build on Claggett’s comment) that would sit on top of well-established precedent would only inject greater uncertainty in the courts.
These Restatement projects take years. This one actually began in 2015 and is only being discussed in a limited way in public fora as of last week. And while it is hard to say exactly where this process will go—it really is inside baseball for the legal profession—rights holders should not lose sight of the fact that the forces opposed to copyright’s core principles, many of which are direct beneficiaries of the internet industry’s assault on creators, are clearly willing to achieve their ends by any means necessary. Isn’t it curious that the parties who so vehemently insist that copyright is incompatible with democracy are rather quick to throw democracy under the bus in order to get what they want?
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© 2018, David Newhoff. All rights reserved.