The American Law Institute's (ALI) Copyright Restatement Project previously has come under fire for its attempt to produce a statement that effectively rewrites federal copyright law. Now, a December 3 letter by Senator Thom Tillis and four U.S. House members rightly criticizes the ALI's effort to reword and supplement copyright statutes passed by Congress. Given the serious concerns voiced by those federal lawmakers and by others, and the unusual nature of the Copyright Project, the ALI should abandon it.
As Free State Foundation President Randolph May and I explained in a February 2018 blog, the ALI's historic restatements of the laws of property, contracts, torts, and more are treatises intended to objectively describe and summarize common law doctrines in the states. However, federal law is based almost exclusively on federal statutes and federal courts have exclusive jurisdiction over copyright claims. In their letter, Senator Tillis and his House colleagues point out that "laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement." Register of Copyrights Karyn Claggett made this same point in January 2018 when she wrote to the ALI that "[t]here can be no more accurate statement of the law than the words that Congress has enacted… and those that the Copyright Office has adopted in its regulation."
In their letter, Senator Tillis and the U.S. House members observed that the ALI's Council approved two sections of the proposed ALI Copyright Restatement in mid-October of this year. Sections approved by ALI's Council must also be approved by its membership before they are made public. Yet earlier copyright section drafts have been publicly criticized by the Register, academics, and copyright lawyers for misconstruing the meaning of federal copyright statutes and for filling in statutory gaps with the ALI drafter's preferred views. Gap filling by ALI Reporters is inconsistent with the historic purpose of restatements: restating what the law is. Rather, such gap filling is likely to produce a restatement of what ALI reporters think the law ought to be.
Indeed, the ALI's Copyright Project appears to be pursuing a course that was sharply criticized by the late Justice Antonin Scalia. In Kansas v. Nebraska (2015), Justice Scalia wrote: "Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be." In addition to confusing black-letter copyright law with aspirational viewpoints, inserting ALI reporter conclusions about unsettled points of law into a Copyright Restatement poses serious methodological concerns. As Senator Tillis and his colleagues put the question to the ALI: "When there are gaps in the statutory or case law, how do the Reporters decide when to fill in those gaps as opposed to declining to take a position?"
Senator Tillis and the U.S. House members directed several other pointed questions to the ALI that touch on purpose, methods, bias, and more. Those questions should be taken seriously, and the ALI should heed the warning given by these federal lawmakers. Many states have passed laws or resolutions to curb or reject the influence of the ALI's recent Insurance Liability Restatement. To their credit, Senator Tillis and his colleagues indicate their willingness to similarly push back against any future Copyright "Restatement" that effectively rewrites federal copyright law. As they wrote to ALI: "Since copyright law is predominantly federal law, codified in Title 17, it would be Congress, and not the states, that would take action in this case."
Perhaps earlier, ALI Reporters could have expressed their views on copyright law and policy through a Statement of Principles or some other vehicle. But because the ALI has shown an unwillingness to rethink its approach, the best thing the ALI can do now is abandon its Copyright Restatement Project.
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