Four luminaries of copyright law and scholarship submitted a letter to the American Law Institute (ALI) formally withdrawing their names as Advisers from the Restatement of Copyright Law, approval of which is set to be voted on next week. Professors Shyam Balganesh, Jane Ginsburg, and Peter Menell, along with attorney David Nimmer submitted the May 12 letter conveying strong disagreement with both the substance of the Restatement and the subterfuge in the process. Affirming their commitment to the mission of the ALI overall, the authors write, “…we firmly believe that the Restatement of Copyright is materially different from anything that the Institute has done, and is unsuccessful when measured against the very goals of the Restatements.”
To review, the ALI writes and publishes Restatements of Law that synthesize matters of common law for the purpose of providing guidance to the courts. Thus, when various state courts rule, for instance, on tort or contract matters, the ALI will use that body of case law to write a Restatement that seeks to harmonize common and sound decisions—and these Restatements may then be referenced by future courts almost as if they were statutory law.
But because the Copyright Act is already statutory law, the proposal about ten years ago to write a Restatement was instantly controversial—not least because the project was initiated at the urging of copyright skeptic, Professor Pamela Samuelson and was then led by fellow skeptic Professor Christopher Sprigman. It is in no way unfair to say that Samuelson and Sprigman belong to a class of IP academics who promote a view of copyright as they believe it should be rather than the law as it is. That view is, of course, their prerogative, and advocating change to law has its value; but since its beginning, the Restatement of Copyright has been viewed by many in the legal community as a veiled end-run around the legislative process.
Without getting into a harangue on the many doctrinal conflicts promoted by the “copyleft,” let alone the amount of Big Tech money funding their various projects and institutions, suffice to say that when one writes papers and amicus briefs that are aspirational rather than grounded, one loses a lot in court. In fact, Professor Menell, who recently delivered the distinguished Horace S. Manges Lecture, which I had the honor to attend, included a slide showing the success rate of major copyleft attorneys in the courts—and it is not an impressive record.
Although I have certainly heard rumors about the start of the Restatement project, I shall decline to comment on how Prof. Samuelson convinced the ALI to take up the uncommon task of restating Copyright Law. What is certain, however, is that almost since the start of the project, the signatories of the May 12 letter, along with other copyright experts involved, recognized that they were being treated as Advisers in name only while Sprigman et al. proceeded to “restate” copyright law as they believe it should be applied. As the May 12 letter states:
The current draft of the Restatement does not reflect a consensus or even broad agreement of the Adviser group, nor does it adequately address the innumerable objections made by the group as well as, and especially, by the Copyright Office.
In a March 2021 podcast on this blog, Professors Balganesh and Menell spoke to me about the lack of transparency in the Restatement project as well as the unorthodox methodologies being applied. Clearly, nothing about the process improved in the intervening four years because, as the letter states:
As we have repeatedly noted in our comments to the Reporters and the Council, the Restatement of Copyright refuses to acknowledge the centrality of the statute, and instead routinely re-phrases (with strategic intent) the wording of the statute in a way that is at odds with an interpretive exercise.
…while we might see some merit in advocating substantive statutory changes were this a Principles Project, we believe that it is misleading to courts when such revision is passed off as an accurate (rather than aspirational) interpretation of the law as part of a Restatement.
So, after about ten years and who knows how many hours, the ALI is going to publish a Restatement of Copyright Law that seems more likely to confound rather than rationally guide the courts—or perhaps, it will simply be ignored. Further, it must be said that at a time when millions of Americans, including many legal scholars, believe that the rule of law is under threat, one civics lesson of the moment might be that small groups of cloistered ideologues should not be writing or re-writing any laws.
