The American Law Institute (ALI) is under fire from its Copyright reformulation project, which he was due to vote on at his annual meeting this week. According to the Copyright Alliance, the members of the ALI approved on June 8 many sections which will constitute the first three chapters of the Restatement.
In 2019, members of Congress sent a letter expressing serious concerns about the project. Senator Thom Tillis (R-NC) and Representatives Ben Cline (R-VA), Martha Roby (R-AL), Theodore Deutch (R-FL) and Harley Rouda (D-CA) sent a letter to ALI stating that laws created through federal law such as copyright are “ill-suited to treatment in reformulation” and threaten to cloud the law. The US Copyright Office, the American Bar Association (IP Law Section), and the US Patent and Trademark Office have raised similar concerns.
Since then, a number of other voices have joined the opposition chorus, including the current Copyright Register Shira Perlmutter, who on May 21 this year sent a letter to the Associate Rapporteurs on the Restatement project, informing them that she was stepping down as project advisor amid a number of concerns. Perlmutter said:
Based on a careful examination of the nature of the project and the debate it has sparked over the past few years, I believe there are three areas where a change in approach would be important for the acceptance of the Restatement. as a resource for judges and practitioners: to elevate the processing of legislation and legislative history; giving appropriate deference to interpretations of the law by the Copyright Office; and improving transparency in the handling of comments.
Critics accused the authors of Restatement of being copyright skeptics who failed to properly focus the statutory text. The draft is inherently unusual in that it “seeks to reformulate a body of law primarily embodied in complex federal statute rather than common law,” Perlmutter said. She added:
I strongly recommend that each section begin with the text of the law, identified as the law in the black letter. Any reformulation must follow the statutory text and be clearly identified as such. Where the clear language of the law is ambiguous, rapporteurs should include the relevant parts of the legislative history.
A number of academics have also spoken out strongly this week against the ALI vote for the same reasons. According to a June 8 Reuters report, Jane Ginsburg and Shyamkrishna Balganesh of Columbia Law School, Peter Menell of the Berkeley School of Law at the University of California and David Nimmer of Irell & Manella sent an email to ALI urging the institute to reject the reformulation. According to the article, the researchers wrote:
We believe that the unprecedented nature of the project – a “reformulation” of a comprehensive federal law that does not take the law as the starting point of the black letter – raises significant concerns about the reputation and legitimacy of the ALI, âthe email says. âAs the Supreme Court reminds us, the interpretation of laws begins with the text of the law. Nevertheless, the ALI has consistently resisted these efforts.
Scientists have proposed an amendment to part viii of preliminary draft n Â° 2 of the Restatement indicating that they, as project advisers, âoppose the approval of preliminary draft n Â° 2 for reasons such as its failure to treat the text of copyright law as black letter rules â.
Just a resource
In January 2020, ALI Director Richard Revesz told members of Congress who had requested answers to a number of questions in the 2019 letter that:
- the project was undertaken to help the courts, as are all Restatements;
- that Copyright Restatement âwill focus on those parts of the law that have been the source of significant legal comment or disagreementâ;
- that the statutory text prevails in the drafting of the Restatement;
- that the differences be resolved by weighing all the relevant sources as the judges would;
- that “any gap filled by case law, which would generally involve subsidiary or generally minor questions, must be governed by the language and structure of the statutes, similar judicial decisions and trends in case law”;
- that the ALI will modify its Restatement to take into account the subsequent modifications made to the legislation if necessary;
- that the views of the US Copyright Office will be carefully considered;
- that it has a formal procedure for managing conflicts of interest and ensuring that Restatements are impartial and non-partisan; and
- that while several other Federal Law Restatement projects are underway, there are currently no plans for a Patent Law Restatement project.
A subsequent response arrived on February 28, 2020, and Revesz again explained that “it is not the function of this Restatement or any of the American Law Institute‘s Restatements to rewrite existing statutory law or to say what a better status would look like. Instead, the Restatement of the Law, Copyright is intended to be a resource for courts, and others, where the law leaves a lot of room for judicial interpretation and discretion.
The letter pointed to the fair use doctrine as an example of a problem that Congress left to the courts to interpret and develop on a case-by-case basis. Revesz added:
Reformulation of copyright law can help clarify the complex and often different precedents that have emerged from the courts in the forty years since the enactment of the Copyright Law. In this sense, our Restatement of the Law, Copyright is no different from our many other Restatements dealing with statutory law or from our many Common law Restatements which clarify and simplify the lines of doctrine.
Eileen McDermott is the editor-in-chief of IPWatchdog.com. Eileen is an experienced intellectual and legal property journalist, and no stranger to the world of intellectual property, having held editorial and management positions in several publications and industry organizations. She acted as an editorial consultant for the International Trademark Association (INTA), mainly overseeing the editorial process of the Association’s bimonthly newsletter, the INTA Bulletin. Eileen was also a freelance writer for the World Intellectual Property Organization (WIPO); as consultant editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Editor-in-Chief and Editor-in-Chief of INTA from 2013 to 2016; and was editor-in-chief for the Americas of Managing Intellectual Property magazine from 2007 to 2013.