In January 2020, we wrote on a little-known project of legal scholarship that could become a big deal for creatives – the American Law Institute’s âRestatement of Copyrightâ.
Since then, our negative view of the business has not changed, but our sense of urgency has changed.
At its 2021 annual meeting scheduled for June 7-8, ALI members will vote on the formal approval of the first sections of the Restatement of Copyright. It might only be a few weeks before this misguided work product becomes public, and could then be used by federal judges and others to help shape incorrect and damaging opinions in copyright cases through. 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 towards reckless interpretation. and pious. These Restatements are supposed to âclarify, modernize and improve the lawâ by bringing together, analyzing and summarizing all related documents, with the aim of providing lawyers and judges with reliable, impartial and usable information on complex matters. This reformulation? It is not a useful guide as 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 court decisions. However, despite their importance, ALI Restatements are not part of the law – they are a resource to help judges interpret the law and, in theory, make better and more informed decisions about cases.
ALI’s continued quest to serve as a sort of CliffsNotes for litigators has not been without controversy. It turns out that when one tries to condense vast reams of complex legal matters into simplified and widely readable formats, prejudices can creep in.
In 2015, the late Supreme Court justice Antonin Scalia stated that the authors of ALI Restatements âHave abandoned the mission of describing the law, and have instead chosen to state their aspirations for 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’s not alone. Two of our government’s preeminent copyright authorities – the Copyright Office and the US Patent and Trademark Office – have both publicly criticized the effort. And, a bipartisan group of senators and representatives written to ALI more than once questioning the wisdom of this Restatement.
This is because the Restatement of Copyright Law differs from past Restatements in a very disturbing way – this is the ALI’s first attempt to publish one in a regulated domain. entirely by statutory law.
Usually, ALI focuses on areas of law that have evolved primarily through court precedents or the common law. They stayed away from reformulating federal statutory law – that is, laws passed by Congress, frequently anchored in constitutional principles (such as copyright).
The first copyright law was passed in 1790 and Congress has revised it ever since – drafting, editing, arguing, and ultimately voting on updates and additions over the centuries. By trying to “reformulate” the law on copyright, ALI essentially ignores this rich legislative history, settling to imbue the statutory text of copyright law with new meaning and to replace the intention of Congress as expressed in its extensive hearing brief. , reports, briefs, files and discussions with its own interpretation of the law.
And because judges and lawyers are likely to rely on this interpretation to guide court decisions, as they do with other Restatements, it is likely to have an impact on the way courts federal governments interpret copyright laws, without Congress really considering changing the law.
This is not just a guess – the authors of Restatement of Copyright said it. In her 2013 letter initially proposing the copyright relief project to ALI, UC Berkley law professor Pamela Samuelson criticized what she called the “long and contentious process” of traditional legislative legislation which, she insisted, made “a comprehensive reform of [copyright] . . . it is unlikely to happen anytime soon.
There is a lot of nerve in these sentences. Eager that Congress had not embarked on a “comprehensive reform” of copyright law, Samuelson and his supporters decided to try another path – thanks to the ALI’s potential to influence 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 writing effort. Since the scholarship, research and advocacy of both Professor Samuelson and Professor Sprigman leans heavily and consistently against the protections established for creatives, what was to follow was predictable. As the âlead reporterâ author of The Restatement, Sprigman selected four âassociate journalistsâ who all share his minimalist and often incorrect views of copyright law, as evidenced by their own academic and other legal work.
Now the ALI is about to vote on whether to bless the efforts of those opponents of strict copyright laws. The vote to authorize an unprecedented Restatement of an area of ââwritten law is near. The brainchild of an academic known for her negative views on copyright protection is about to come true, led by a group of “Reporters” who share the “reformist” views of this academic as well as her anti-copyright bias.
Last year, we (along with countless others) urged ALI to recognize the biases and flaws inherent in its Restatement of Copyright and to cease activities on this project. Since this plea 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 no on the publication of the Restatement of Copyright. Or, at the very least, reject the controversial sections that are proposed. There can be no more precise statement of copyright law than what Congress has taken centuries to enact.
Ruth Vitale is the CEO of CreativeFuture, a nonprofit coalition of over 500 companies and organizations and nearly 260,000 people dedicated to promoting the value of creativity in the digital age. She has held senior positions at Paramount Classics, Fine Line Features and New Line Cinema.