Tag: Restatement of Copyright

Leading Scholars Insist Their Names Be Removed from the ALI Restatement of Copyright Law

restatement

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.

Censorship in the ALI Restatement of Copyright Project?

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.[1]

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.

[1] 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.”

ALI Proceeds Toward Vote on Restatement of Copyright, Critics Ignored

On June 7 and 8, the membership of the American Law Institute will vote on several sections of the Restatement of Copyright, covering a range of topics, including categories of works, scope of protection, ownership, and transfers of rights. Restatements of Law are the primary work product of the ALI, and the century-old institution has never before embarked on a project to restate any area of law controlled primarily by federal statute.

Historically, Restatements have been written to clarify common law in subject areas like torts or contracts that lack uniformity from state to state. The purpose of a Restatement is to provide jurists and practitioners with a formal articulation on matters where the ALI project “Reporters”—these are the authors and managers of the Restatement—find judicial consensus on key doctrinal questions. As such, ALI Restatements can be highly influential, as they may be cited in briefs or in court opinions almost as if they were statutory (i.e. “black letter”) law.

So, the first conflict with the proposal to write a Restatement of Copyright is the fact that IP law already is primarily statutory law—constitutionally mandated, written by Congress, and adjudicated in federal courts. And as the Restatement project gained momentum in 2018, Members of Congress, the Copyright Office, and the Patent and Trade Office all wrote letters to ALI, all echoing very similar concerns, which then acting Register of Copyrights Karyn Temple summed up when she wrote:

Even if the [Restatement] drafters sought to remain entirely faithful to the statute or regulations, any departure from the words used in the positive law will lead to confusion and misinterpretation. Substituting words, condensing text, and otherwise tinkering with complex statutory and regulatory provisions, and the manner in which they relate to each other, will inevitably alter sense and meaning.

Nevertheless, because IP does encompass a substantial amount of judge-made law, academics like Professors Shaymkrishna Balganesh of Columbia Law School and Peter Menell of Berkeley School of Law joined the Restatement project as Advisers, believing that there are common law aspects of copyright which could benefit from a well-crafted Restatement. But once they engaged with the process, Professors Menell and Balganesh became disillusioned with both its undisciplined methodologies and its lack of transparency. For a detailed discussion about their concerns, listen to my podcast interview. But in a paper the professors published on this matter, they state:

“The ALI initially indicated that the Copyright Restatement Project would focus on common law features, but soon expanded its focus toward comprehensive restating of the copyright regime. The reporters took the common law restatement template and started to rewrite statutory text as “black letter” law. The project was soon mired in the political wrangling that has long dogged copyright reform.”[1]

Although the Reporters should take input from Advisers et al, they are not obligated to do so, and according to Balganesh and Menell, their own critiques and suggestions have fallen on deaf ears, indicating that the “process” is little more than a formality in which a very small group of individuals are writing this alternate “black letter” as they see fit. This raises a serious matter of concern for copyright owners …

Who’s Leading the Restatement Project and Why?

“In a September 2013 letter to then-ALI Director Lance Liebman, Professor [Pamela] Samuelson advocated that the ALI launch a Copyright Principles Project. Her letter held out the CPP as a model and offered to assist the ALI with fund-raising and identification of reporters and advisers.”[2]

Professor Samuelson is a copyright skeptic, and so is lead Reporter Christopher Sprigman. I am not going to attribute their views on copyright to malice, but it is a matter of record that their positions (and those of fellow Reporters) are unquestionably directed at limiting—many would say weakening—copyright law for rightsholders. Sprigman, in particular, represented Spotify in a high-profile case in which he advocated positions that would weaken copyright protection for songwriters—a conflict of interest which the ALI has been unwilling to address.[3]

Further, as the quote above states, this ball started rolling as a Principles project, which is a different kind of undertaking by the ALI, one that does not have the “black letter” influence of a Restatement. So, the fact that the scope of the proposal expanded—first from the kind of project it would be, and then to encompass more than common law areas of copyright—indicates that the agenda is to effectively amend federal law without a legislative process.

Given the Reporters’ views, they naturally have allies in the technology and internet industry, so we can hardly be blamed for assuming that Silicon Valley has something to do with seeking a tailor-made, weaker copyright law and, therefore, has its fingers in what Professor Menell describes as “the worst sausage factory ever” for its lack of transparency. More broadly, Menell warns that this Restatement project raises concerns that go beyond copyright because (and I am paraphrasing) it could become a blueprint for the next industry that wants to “support” its own “black letter” law without Congress involved.

How might the ALI Restatement influence copyright jurisprudence?

Because the ALI has never issued a Restatement in any subject of primarily statutory law, it is hard to say how much deference courts will show to the final product. We could predict, for instance, that in circuits with substantial volumes of copyright case law—namely the Second and Ninth—that these courts may give little weight to the Restatement over their own precedents. (In fact, if courts are generally dismissive of the Restatement on the grounds that it is incompatible with both statute and their own case law, this whole venture could prove to be a stain on ALI’s reputation.)

But in other circuits, or in cases that are novel to the court (called cases of “first impression”), the Restatement may be cited as the guiding interpretation of the statute. While we cannot predict this future with any certainty, there should be no doubt that the intent of this alternate “black letter” seeks to limit the efficacy of copyright for authors of works in some significant ways. The details are a bit arcane but suffice to say that the Reporters introduce unfounded legal standards related to the subjects of fixation, joint works, and copyrightable authorship. These invented standards have no basis in the Copyright Act, legislative history, or case law, and they attempt to chip away at the exclusive rights guaranteed to copyright owners.

Not Just Unprecedented, Ahistorical

Throughout the history of American copyright, Congress has amended the law in response to technological developments—not with an aim to either advance or stifle those technologies, but to ensure that new technologies do not undermine the purpose and efficacy of copyright. Today, despite overwhelming evidence that digital technology companies continue to do greater harm to authors of works than any inventors of the past, it is ironically the “digital age” that, in the minds of the Reporters, justifies weakening copyright law. As Sprigman wrote in his 2014 memo to the ALI, proposing a rationale for a Restatement instead of a Principles project, “… it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.”[4]

That statement may be true, but it’s cagey as hell. Because Sprigman and Co. do not mean “improve the fit” in any way that balances the interests of rightsholders and technology developers. I say this because I’ve read their papers and their social media comments, and because I’ve read earlier draft sections of the Restatement. To say nothing of the fact that so many rightsholders are visibly being clobbered by Big Tech in the digital marketplace. So, it appears that because a small group of ideologues have not succeeded in weakening copyright law to their satisfaction via the courts or the legislature, they hope to achieve this end with the ALI Restatement project. As such, it may be difficult to commit to what I said above about malice.

[1] “Restatements of Statutory Law: The Curious Case of the Restatement of Copyright,” Columbia Journal of Law & the Arts. https://journals.library.columbia.edu/index.php/lawandarts/article/view/8096

[2] “Curious Case”

[3] Bluewater Music Services Co. v. Spotify USA Inc., in which Spotify/Sprigman argued that interactive streaming did not require a mechanical license. The court rejected this argument.

[4] Cited in “Curious Case”