Assuming the Republic survives the present era, I think the retrospective phrase we might use to describe the spirit of the last two decades might be If it ain’t broke, hold my beer. Because it does seem as though quite a few people in positions of influence were at some point infected by the tech industry’s disrupt everything culture and, thus, began dismantling core elements of society the way kids must jump on a sandcastle after it outlives its novelty as a work of achievement.
This is more or less how I would describe the project known as the ALI Restatement of Copyright Law, which trended in the copyright Twitterverse last week because five Members of Congress wrote a letter on December 3 to the American Law Institute expressing their concern about imminent publication of the first two sections of the Restatement. Singed by Senator Tills and Representatives Cline, Deutch, Roby, and Rouda, the letter states, “Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively federal statutory law – until now.”
To recap what this is all about, the American Law Institute is a century-old institution that, among its august, lawyerly activities, publishes Restatements of Law that have “traditionally covered state common-law topics, such as employment, property, trusts, and torts, which are primarily governed by some combination of state statutory and judge-made law,” writes legal scholar Devlin Hartline. In other words, because state laws and judicial precedents are myriad, even at times contradictory, ALI Restatements in these common-law practice areas provide attorneys and jurists with a compendium that seeks to harmonize the most consistently-applied doctrines and principles; and these Restatements may be accorded deference in a court almost as though they were federal (i.e. black-letter) statutes.
As the congressional letter states, ALI Restatements have never been published on matters of federal law like copyright, and in January 2018, several key observers criticized the Copyright Restatement Project as an unconstitutional end-run around the political process normally required to amend laws in the Legislature. Because the following is so well said, I have to quote Devlin Hartline again, quoting Loyola Law Professor Justin Hughes’s observation about the key motive behind the Restatement of Copyright project:
“There is a very simple calculus of what is going on; that is, that Copyleft academics have felt themselves locked out of policymaking; have felt themselves ignored by the courts, rightly or wrongly; and are looking for a major lever. If you are not willing to do what is necessary to get legislation passed in Washington in IP — and it is not fun and it is ugly — so much the easier if you can just write black-letter law in a book with some other professors.”
Beyond the fact that the unprecedented nature of the Restatement Project belies its own necessity for happening at all, it is equally relevant that those leading this undertaking espouse views that are ideologically skeptical—if not outright hostile—toward the legal framework they propose to revise. Specifically, the academic in charge of the Project, called the Reporter, provides us with two reasons to be concerned about his motives—one philosophical, the other a conflict of interest.
Christopher Sprigman of NYU Law is an archetype of those academics who steadfastly assert a utilitarian view of copyright law, and he also happens to be lead counsel for the music streaming platform Spotify. Taken in combination, this particular scholar’s hand wielding the Restatement pen is a matter of no small concern to creators, and I’ll do my best to succinctly explain why.
The putative “balancers” of copyright sit on one side of the scale.
Beginning no later than 1769 with an English case called Millar v. Taylor, the BIG ideological argument in Anglo-American law over copyright’s nature has been a tug-o-war between those who view the property right in expressive works as a natural right of individuals, and those who view this property right as a utilitarian privilege created by statute. Most people who never give copyright much thought, instinctively adopt a balanced view between these yin/yang principles—believing that the property right in one’s expressive works is a matter of justice (natural right), but that this right is grounded in a social purpose with certain limitations (utility).
Yet despite many academics’ claims to want to “rebalance” copyright, the copyleft to whom Hughes refers, are so firmly positioned on the utilitarian side of the scale that many of them reject the natural right foundation altogether, seeing copyright only as a “necessary evil,” which must be tolerated in as limited a form as possible in order to incentivize authors to produce and distribute works. The problem with this point of view is that, when taken too far, the utilitarianfoundation obliterates the value of the individual. It undermines the notion that the author’s work is ever her own, concluding instead that her music, literary work, visual art, etc. is innately the property of the State, which begrudgingly grants her a temporary, exclusive license to exploit the work.
This may seem like a distinction without a difference, because copyright does grant limited, exclusive rights to the author; but as an ideological perspective, the too-utilitarian view becomes—and I do not say this lightly—communism. I know that word is bandied about these days by various parties seeking to malign political opponents, but that unfortunate noise floats on top of an underlying reality that more than a few academics lately reveal a new fascination with Marxism—especially where they have some pecuniary dependence on the internet industry. And that brings us back to Professor Sprigman.
In a two-part post, I responded to a paper written by Sprigman and UCLA Law academic Kal Rustiala, the thesis of which boils down to a proposal that creators’ access to Big Data implies a need to rethink copyright doctrine. Though I cannot fairly summarize all the specifics in this post, the nature of the “rethinking” that Sprigman and Rustiala recommend clearly expresses a collectivist, even Marxist, sensibility, which either underlies, or proceeds from, an over-emphasis of the utilitarian view of copyright.
Sprigman/Rustiala’s proposal that access to data (i.e. consumer desire) suggests that we might think of authorship as “panopticon” (collectivist) rather than “promethean” (individualistic) is actually a variation on the aforementioned theme that your work is naturally the property of the State. Or, perhaps more acutely, your work is naturally the property of Spotify, Google, Facebook, et al as proxies for the State. Sprigman and Rustiala unironically advance a theory that the author’s ability to (maybe) leverage data about his customers’ tastes implies that the author and his customers are really co-authors of a new work in the digital age.
So, you see where I’m going with this in light of the fact that Sprigman sits in the chairman’s seat on the Copyright Restatement Project. Not only does he write a paper advocating a radical departure from the very long history of individual authorship, but he also has a personal financial interest in the success of one of the largest (and not very artist-friendly) streaming platforms in the world. I cannot say whether Marx is really part of his calculus, but it would certainly fit the mold of the American neo-Marxist to be personally ensconced in the upper floors of the bourgeoisie.
Restatements of Law are not just handy summaries.
When the letter of concern was sent by Congress to ALI last week, devout utilitarian, Mark Lemley of Stanford, tweeted that the Members were being unfairly critical of “the entire idea of trying to summarize copyright.” This is disingenuous in two ways. First, by minimizing the influence of a Restatement as mere “summary,” Lemley dismisses the legitimate apprehension that, “In fact, any Restatement or treatise relied on by courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern,” states the congressional letter.
Second, by describing a Restatement as a “summary,” Lemley et al are obfuscating the strongly-held ideological views advocating the Project itself. As Professor Hughes notes, these are academics whose ideas have struggled to find purchase in the Legislature and the courts and are, therefore, seeking to reshape the law through the ALI. Having read many papers written by the so-called copyleft (like the one I mention here co-authored by Sprigman), it is both unsurprising and encouraging that few of these ideas have ever been put into practice. Because many of the ideas are rather far out on the bendy limbs of legal theory, consistently misunderstanding what makes flesh-and-blood artists and creators tick.
Unlike our friends in the anti-copyright crowd, I am not going to spin conspiracy theories about secret scribblings by tech-funded interests at the ALI. Perhaps that element is a factor, perhaps not. When scholar Pamela Samuelson, who initially inspired the Copyright Restatement Project, tweets that, “Five well respected scholars are the reporters and everything they say is closely reviewed by other experts, including judges,” I do not doubt that this is true. But at the same time, many of those scholars have earned that respect in the very small world of copyright academia by advocating some fairly radical notions, which is exactly why creators, who have no voice in the Restatement Project, have reason to be concerned with the enterprise.
© 2019, David Newhoff. All rights reserved.