Tag: Dina LaPolt

Ideologues Seek Revision of Copyright Law Without Legislative Process

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?

Photo by designer491

Compulsory Licensing & Chilling Effects

This morning, music industry attorney Dina LaPolt and Aerosmith front man Steven Tyler submitted written comments to the USPTO on the subject of compulsory licensing for remixing and sampling musical works. At issue is a green paper submitted by the US Department of Commerce Internet Policy Task Force that copyright reform could include a measure that would effectively mandate artists license their works whether they want to or not.  In short, any entity from a creative, young upstart to the Ku Klux Klan could legally sample and/or remix these works, and the original creators would have no say in the matter.  The compulsory license strips one of the fundamental properties of copyright, the right of choice, from the artist; and this is why Tyler and LaPolt were supported with letters from other creators including, Don Henley, Joe Walsh, Sting, Ozzy Osbourne, and Mick Fleetwood.

All of the artists who wrote letters made the central point that collaboration and licensing among creators is and has been working very well to the benefit of both creators and the public; and they insist that no change to copyright law in this regard is required.  It seems fundamental to the concept of fairness and decency that an artist should have the right to deny the use of his or her work in a form that he or she feels betrays its initial purpose or meaning.  If the artist creates from a place that is deeply personal or politically motivated, it is easy to see — indeed we have seen — how a permissionless environment invites degradation that is a disservice to cultural diversity.  A black artist writing about black issues could not stop a racist hate group from appropriating his music as long as they paid the license.  A politician who opposes everything an artist ever stood for could turn that artist’s work into his campaign soundtrack.  Or, on the simplest level, as we’ve seen in the case of GoldieBlox and the Beastie Boys, artists who simply don’t want their works used to sell products or services would lose this basic right.

LaPolt offers a compelling analysis that the potential misuses I refer to above can amount to a chilling effect on artistic expression; and those who consider copyright anathema to free speech should consider what she’s saying.  Steven Tyler and other artists who wrote letters confirm that money is not the issue.  If an artist doesn’t want his or her work used in a certain way, no amount of money will matter.  What would instead happen, suggests LaPolt, is that artists will likely choose not to produce certain works, knowing that they can be lifted and used in contexts that betray their message or meaning. I would certainly agree that the more powerful material — work that might confront a serious social issue, for instance — would be the stuff an artist would reconsider in such an environment. By contrast, the counter-argument we often hear is that artists unwilling to license their works for certain derivative uses has a chilling effect on free speech; but I happen to think that’s stretching free speech to coddle opportunists who are either too lazy or not talented enough to create their own thing.