by Randolph J. May and Seth L.
Cooper
There is a distinct difference between
stating what the law is and stating what
the law ought to be. Yet the American
Law Institute’s (ALI) “Restatement of the Law, Copyright” project appears not
to appreciate the difference. In a January 16 letter, Acting Register of
Copyrights Karyn Temple Claggett reportedly wrote that ALI’s project “appears to create a
pseudo-version of the Copyright Act.” Rebukes by the Register and others cast
doubt on the value of any work product that might emerge from the copyright restatement
project. Indeed, ALI probably should abandon it.
Historically, ALI’s
restatements of the law of property, contracts, and torts and so forth were
treatises that primarily distilled legal doctrines from the common law in the state
jurisdictions. The
Institute’s founding Committee recommended that “the first undertaking
should address uncertainty in the law through a restatement of basic legal
subjects that would tell judges and lawyers what the law was.”
It was the objectivity
of the restatements’ surveys of the law – primarily as expressed through judicial
decisions – that accounted for their influence on judges and lawyers. Indeed,
the entire point of their creation and publication was to restate the law,
rather than to relate the preferences of the treatises’ authors. Over the
years, ALI has developed restatements of a wide variety of legal subject areas.
ALI’s “Restatement of the
Law, Copyright” project is one of the latest.
Much attention, deservedly, has been
paid to Acting Register Claggett’s January 16 letter, which The Trichordist quotes as stating that ALI’s copyright restatement project “appears to create a pseudo-version of the Copyright
Act that does not mirror the law precisely as Congress enacted it.” Ms.
Claggett warned that the prospective copyright restatement would not “promote
the clarification and simplification of the law” in keeping with ALI’s
ostensible mission. She called for the entire ALI project to be reconsidered.
The Register of Copyrights isn’t alone in criticizing the
project. U.S. Copyright Office General Counsel Jacqueline C. Charlesworth
wrote, in a December 2015 letter to ALI members, that “the project would appear to be more accurately
characterized as a rewriting of the law.”
Others in the field have
criticized restatement drafts. In a post at Above
the Law, for instance, Scott Alan Burroughs quotes Cynthia S. Arato, writing on
behalf of the New York Bar City Bar Copyright & Literary Property
Committee, as stating that a restatement draft “includes positions that
conflict with the actual state of the law or that advocate policy preferences
divorced from Congressional Intent.” For his part, Mr. Burroughs writes: “The
proposed language of the Restatement departs significantly from relatively
settled precedent to opine as to how the law ‘should be’ in the future.”
According to Burroughs, “copyright law is being ‘restated’ in a manner that
greatly favors Big Tech and their confederates in their ongoing campaign to
devalue art and content.”
Moreover, the perceived agendas driving ALI’s copyright restatement project have
generated strong criticism. In a Billboard op-ed, Dina LaPolt offers a harsh assessment that ALI’s project is
Big Tech agenda-driven. Here’s what she said regarding Professor Christopher Sprigman, ALI’s copyright restatement project reporter: “In his proposal
for this project, he said that copyright law is in a ‘bad state,’ and that the
ALI project could be influential in ‘shaping the law’ and result in ‘the
reformed law that in the long term we will almost certainly need.’” Of course, shaping
or reforming copyright law is the proper role of Congress under the
Constitution’s Copyright Clause, not the ALI.
Professor Sprigman co-authored The Knock-Off Economy: How Imitation Sparks Innovation (2012), a
book extolling copying by imitators and questioning whether copyright
protections for creators have any just or practical basis. Reportedly, Sprigman
also is counsel to Spotify and has produced work with the financial support of
Google. Both companies have staked out positions on copyright protections in
digital media that are hotly contested by copyright-protective interests.
Having
financial interests or personal viewpoints doesn’t exclude the possibility that
one can work objectively and no disparagement of Professor Sprigman or his work
is intended. But selecting as the restatement’s reporter someone who has such a
stake as an advocate of controversial positions on copyright law is
questionable. At the very least, such a selection should have heightened the
need for exhibiting scrupulousness in any prospective copyright restatement.
Unfortunately,
the highly critical public responses indicate that the copyright restatement
project’s work has significantly departed from ALI’s historic mission to
restate what the law is rather than to reform it. It is true that ALI’s website
now touts that it is the leading scholarly organization “to clarify, modernize,
and improve the law.” But if ALI wishes to be in the business of modernizing
and improving copyright law, it should not be doing so through the current restatement
project. ALI’s website states that when it engages in examination of areas
thought to be in need of reform “[t]his type of study generally culminates in
extensive recommendations for change in the law and usually is published as
Principles of Law.”
In
January, ALI announced that its Projects Committee has been tasked “to consider whether this project should use a
format that differs from the typical Restatement format.” Now it is clear that,
if at all, the copyright project should have been initiated to develop
Principles of Law, not a restatement. But Congress already has under
consideration many proposals to revise federal copyright law, along with an
extensive record compiled through many legislative and field hearings held over
the last few years. And given the questions raised about the project’s reporter
and other participants and its direction, ALI should abandon the copyright project
entirely.
Posts
