In January 2020, we wrote about a little-known legal research project that could become a big deal for creatives – the American Law Institute’s “Restatement of Copyright”.
Since then, our negative view of effort has not changed, but our sense of urgency has.
At its 2021 annual meeting scheduled for June 7-8, ALI members will vote on whether to formally approve the first sections of the copyright reformulation. It could only take a few weeks before this flawed work product becomes public, and could then be used by federal judges and others to help shape incorrect and damaging opinions in copyright cases across the country.
While the ALI is an independent academic organization with a long history of writing respected restatements on common law topics such as property, employment, and torts, this time they have taken a wrong turn toward reckless interpretation. and pious. These restatements are meant to “clarify, modernize and otherwise improve the law” by assembling, analyzing and summarizing all related material, with the aim of providing lawyers and judges with reliable, unbiased and usable information on complex matters. This rephrasing? It is not a useful guide so much as a complete overhaul of the law based on the agenda of a small group of anti-copyright activists within the ALI.
The group’s previous work is respected in legal circles. Judges across the country regularly rely on its restatements to inform their legal decisions. However, despite its importance, ALI restatements are not the law – they are a resource to help judges interpret the law and, theoretically, make better and more informed decisions on cases.
ALI’s continued quest to serve as a sort of CliffsNotes for litigants has not been without controversy. It turns out that when trying to condense vast amounts of complex legal topics into simplified, widely readable formats, biases can creep in.
In 2015, the late Supreme Court Justice Antonin Scalia said the authors of the ALI Restatements “abandoned the mission of describing the law and instead chose to lay out their aspirations as to what the law should be” .
Is Scalia right? Taking the current Restatement of Copyright effort as an example, I can say that if he wasn’t right then, he certainly is now. And, he is not alone. Two of our government’s preeminent copyright authorities – the Copyright Office and the US Patent and Trademark Office – have both publicly criticized this effort. And, a bipartisan group of senators and representatives have written to ALI more than once to question the wisdom of this restatement.
That’s because the copyright law restatement differs from past restatements in a very troubling way – it marks ALI’s first attempt to issue one in an area that is governed entirely by statutory law.
Usually, ALI focuses on areas of law that have evolved primarily through judicial precedent or common law. They refrained from reformulating federal statutory law — that is, laws passed by Congress, often rooted in constitutional principles (like copyright).
The first copyright law was passed in 1790, and Congress has been revising it ever since — drafting, editing, arguing, and ultimately voting on updates and additions over the centuries. In attempting to “rewrite” copyright law, ALI essentially ignores this rich legislative history, working to imbue the copyright law’s statutory text with new meaning and supersede the intent of Congress as expressed in its extensive legal brief. hearings, reports, briefs, depositions and discussions by its own interpretation of the law.
And because judges and attorneys will likely rely on this interpretation to guide court decisions, as they do with other restatements, it is likely to have an impact on how federal courts interpret copyright laws, without Congress having actually considered changing the law.
This is not mere guesswork – the Restatement of Copyright’s own authors said so. In her 2013 letter initially proposing the copyright reformulation project to ALI, UC Berkley law professor Pamela Samuelson criticized what she called the “long and controversial process” of traditional legislative legislation which, she insisted, makes “comprehensive reform of [copyright] . . . this is unlikely to happen anytime soon.
There’s a lot of sass in those sentences. Impatient that Congress would not undertake “comprehensive reform” of copyright law, Samuelson and his supporters decided to try another route – through ALI’s potential to sway judicial opinion. by “interpretation”. And ALI was happy to oblige.
In response to Samuelson’s letter, ALI appointed Professor Christopher Sprigman to chair the Restatement drafting effort. Given that the scholarship, research and advocacy of Professor Samuelson and Professor Sprigman lean heavily and consistently against established protections for creatives, what was to follow could be predicted. As “lead reporter” author of the Restatement, Sprigman proceeded to select four “associate reporters” who all share his minimalistic and often incorrect views on copyright, as evidenced by their own academic and legal work.
Now ALI is about to vote on whether or not to give its blessing to the efforts of these opponents of strict copyright laws. The vote to authorize an unprecedented restatement of an area of statutory law is near. The brainchild of an academic known for her negative views on copyright protection is about to become reality, led by a group of “reporters” who share the academic’s “reformist” views as well as her anti-copyright bias.
Last year, we (along with countless others) urged ALI to acknowledge the biases and flaws inherent in its copyright reformulation and to suspend activity on this project. Since this appeal has clearly fallen on deaf ears, there remains one last hope: membership in the ALI.
We implore you — at your annual meeting on June 7, vote against the publication of the Restatement of Copyright. Or, at the very least, reject controversial items that are offered. There can be no more precise statement of copyright law than what Congress has already spent centuries enacting.
Ruth Vitale is CEO of CreativeFuture, a nonprofit coalition of more than 500 companies and organizations and nearly 260,000 people dedicated to promoting the value of creativity in the digital age. She has held executive positions at Paramount Classics, Fine Line Features and New Line Cinema.