Cross-posted from the Mister Copyright blog.
Over the past few weeks, widespread criticism has emerged over a superfluous and seemingly partisan effort to override existing copyright law. The target of concern is the American Law Institute’s (ALI) Restatement of the Law, Copyright project which—despite its stated mission to clarify copyright law—has been revealed as an influenced venture that could futher muddle already complex areas of IP law. And with disapproval ranging from the Restatement committee’s own Advisers to the Acting Register of Copyrights, the project’s future is suddenly in doubt.
Founded almost one hundred years ago, the ALI is an independent organization whose mission is to produce “scholarly work to clarify, modernize, and improve the law.” It brings together lawyers, judges, and academics to issue Restatements, the focus of which is to advance uniformity in fundamental state common law principles. But the current copyright project diverges from these traditional endeavors by attempting to tackle a settled body of positive federal law, causing concern that the goal is to create an alternative description of the law already established by the Copyright Act.
Copyright Office Concern
As reported in a Billboard article earlier this month, on January 16th Acting Register of Copyrights Karyn Temple Claggett sent a letter to the ALI voicing significant concern over the confusion that the Restatement project is in danger of injecting into copyright law. Calling out the committee for attempting to promote a “pseudo-version of the Copyright Act,” Temple Claggett ultimately urges the ALI to reconsider the project entirely. For the head of the Copyright Office to reach out to the ALI and question the necessity of the project is particularly noteworthy, and it reflects a pervasive worry among those in the copyright community that the Restatement will present a conflicting and potentially biased interpretation of established law.
But this recent inquiry by the Acting Register is just the latest expression of skepticism coming from the Copyright Office. In 2015, while the project was still in its infancy, former General Counsel and Associate Register of Copyrights Jacqueline Charlesworth questioned the nature of project in a similar letter to the ALI, noting that the early drafts of the restatement would be more accurately characterized as a “rewriting of the law.” The letter identified areas in which early drafts of the project highlight select judicial decisions or favor particular interpretations of law—treating them as well-established rules—and asked whether this approach could legitimately be called a “restatement.” But despite these concerns, the project went forward, and questions over its designation soon spread to fear throughout the creative community regarding the substance of the drafts and what influence they might have on copyright jurisprudence.
A Question of Leadership
It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.
While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role. As music industry attorney Dina Lapolt points out in a recent article denouncing the project, Professor Sprigman has been a persistent supporter of the big tech companies who stand to benefit from a neutering of copyright law. Specifically, Professor Sprigman’s recent representation of Spotify in which he argued streaming services are not required to pay mechanical rights should raise serious conflict of interest questions.
That the ALI would agree to an unprecedented interpretation of established federal law and entrust the process to unmistakably partial proponents of weakened copyright has resulted in a justifiable suspicion not just from the Copyright Office and creative community, but from some of the distinguished judges, scholars, and copyright experts working on the project. In a letter sent earlier this month to ALI Director Richard Revesz and fellow ALI members, a group of Advisors and Liaisons to the Restatement committee presented a litany of problems with the current draft, including an extensive list of errors and omissions in its black letter text, unclear explanations and misleading examples, and a pervasive lack of balance. The Advisors urged the ALI to, at a minimum, reject the current draft, or, as Register Temple Claggett advised, consider reframing the scope and nature project entirely.
Last week, following the barrage of criticisms and letters, the ALI posted this vague message to its copyright restatement webpage:
After discussion of the project at the 2018 January Council meeting, the Director agreed to designate a group to consider whether this project should use a format that differs from the typical Restatement format.
Though the ALI hasn’t offered more details about this “group” or what different form the project may take, the presumption is that it will become something less authoritative. It’s unclear if the work done over the last few years can be salvaged, but if there is to be an effort to move forward, a change in leadership is essential. With the project suddenly the subject of so much condemnation, perhaps it’s in the ALI’s best interest to abandon the effort entirely, rather than produce a treatise whose tainted track record may render it valueless.