They say “the Devil is in the details” – and, in this instance, that could not be more true. The machinations of the opponents of copyright are often hidden in plain sight – fogged over with “complexity” that lets them carry out their efforts against creativity without being noticed.
If you are not a lawyer, it is highly unlikely that you have ever heard of the American Law Institute (ALI). They’re not an organization that comes up in conversation outside of legal firms, courthouses, or law schools. But if you, or your friend or family, work in the creative industries – for which copyright protection is essential – you need to know that the Institute is actively working to change how judges view and apply copyright law in their courtrooms.
The ALI is a nearly 100-year-old organization best known in the legal profession as the publishers of “Restatements of the Law.” These are sprawling legal treatises that assemble, analyze, and summarize all related materials in particular areas of the law, with the goal of giving lawyers and judges reliable and usable information on complex topics. ALI’s work is respected in legal circles. Judges across the country routinely rely on ALI’s Restatements to inform their court decisions.
But, the ALI’s decision to create a Restatement of Copyright Law is fundamentally different than anything they’ve done in the past century. And not in a good way.
Until now, the ALI has generally focused its efforts on areas of the law that have evolved chiefly through judicial precedent, or common law – i.e., legal principles derived from judicial decisions – as opposed to federal statutory law – i.e., laws passed by Congress, often rooted in Constitutional principles.
In America, copyright law is based on the Constitution and statute. The Constitutional provision authorizing copyrights is found in Article I, Section 8, Clause 8, and Congress has implemented that provision through the original Copyright Act of 1790, followed by the Copyright Acts of 1831, 1909, and 1976 – with revisions and additions made since then. These laws were drafted, argued, edited, voted on, and eventually passed by Congress, whose job it is to modify, expand, repeal, or otherwise revise our copyright laws.
Statutes are accompanied by a legislative history – the arguments, hearings, reports, briefs, filings, and discussions that are used by courts and scholars to provide insights into the meaning of a statute when the statute is ambiguous. The legislative history surrounding the 1976 Copyright Act is unusually thorough, reflecting an exhaustive process spanning several decades.
Now it appears that the ALI has been persuaded, for the first time, to publish a Restatement of Law in an area that is governed entirely by statutory law: the law of copyright. This Restatement would attempt to imbue the statutory text with new meaning and replace Congress’ legislative history with the ALI’s own interpretation of the statute.
This concern has given rise to a letter signed by U.S. Senator Thom Tillis and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda and addressed to Richard Revesz, Director of the ALI. The Members of Congress ask the ALI to explain why they have taken this unprecedented step, and how they presume to account for all the current and future additions and changes to copyright law in their Restatement. The same concerns led the U.S. Copyright Office, subject-matter experts on copyright law, to write to David Levi, President of the ALI, explaining that the “Restatement project appears to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it and one that will quickly become outdated as Congress amends it or the courts clarify it.”
Last month, Columbia Law professors Jane Ginsburg, June Besek, and Philippa Loengard sent their own letter to the Members of Congress, agreeing with their position. They wrote, “Like you, we are skeptical of the need for a Restatement of a federal statute, and particularly troubled by the ALI’s refusal to articulate a methodology for such a Restatement.”
Why is this? Let’s begin by looking at the individual most responsible for setting the wheels in motion for a possible Restatement of Copyright Law. In 2013, UC Berkley Law Professor Pamela Samuelson wrote a letter to formally propose the Copyright Restatement project to the ALI. Samuelson criticized what she called the “long and contentious process” of traditional legislative lawmaking that, she insisted, makes “comprehensive reform of [copyright] . . . unlikely to happen any time soon.” Impatient with Congress for not undertaking “comprehensive reform,” Samuelson sought another path, through ALI’s potential to sway judicial opinion.
Samuelson’s letter formally requested that the ALI launch a “Restatement” of Copyright Law. In response, ALI appointed Professor Christopher Sprigman to chair the drafting effort. Professor Sprigman’s proposed framework for the Restatement closely tracks Professor Samuelson’s request, using the exact same language to decry the fact that “Congress is unlikely to proceed any time soon with copyright reform” and suggesting that it must fall to the courts to do what these and other academics have failed to persuade Congress to do, with the objective of “shaping the law that we have, and perhaps, the reformed law that in the long term we will almost certainly need.”
What came next could be predicted, given that the scholarship, research, and advocacy of both Professor Samuelson and Professor Sprigman lean heavily and consistently against established protections for creatives.
The group charged with serving as “Advisers” to the Samuelson/Sprigman Restatement project is drawn from academia, government, some copyright industries, anti-copyright groups (like Public Knowledge), and others. Some have suggested that this composition makes the Restatement a “balanced” project. But those who really know the process understand that all of the power resides in the hands of the “Reporters” – those who actually draft the Restatements for the ALI. Professor Christopher Sprigman is the lead Reporter for the Copyright Restatement, with four associate reporters handpicked by Professor Sprigman who all share his minimalist views towards copyright protection, as reflected in their academic and other legal work.
Sprigman himself has written amicus briefs in support of Google and in opposition to the interests of creatives. As David Newhoff recently wrote: “Christopher Sprigman of NYU Law is an archetype of those academics who steadfastly assert a utilitarian view of copyright law, and he also happens to be lead counsel for the music streaming platform Spotify. Taken in combination, this particular scholar’s hand wielding the Restatement pen is a matter of no small concern to creators.” The drafting of the Restatement is hardly a consensus process and Sprigman is free to ignore and reject the opinions of the Advisers.
So, in short, the ALI has been buffaloed into authorizing a Restatement process for an area of law that is based on Constitutional and statutory law, not common law; it is the brain-child of an academic known for her negative views on copyright protection; it is being led by a group of “Reporters” who share the “reformist” views of that academic; and the work being produced with the ALI’s imprimatur is laden with anti-copyright bias.
We agree with the concerns expressed by Members of Congress, the U.S. Copyright Office, academics, and others. We urge the ALI to recognize the intractable issues with the Restatement of Copyright and suspend activity on this project until there are answers.
