George Mason University Antonin Scalia Law School

Members of Congress the Latest to Question ALI’s Restatement of Copyright

the word "copyright" typed on a typewriterAs copyright wonks are surely aware, the American Law Institute (ALI) has been busy with its first foray into restating a body of federal statutory law, the Restatement of Copyright. Restatements have traditionally covered state common-law topics, such as employment, property, trusts, and torts, which are primarily governed by some combination of state statutory and judge-made law. Sometimes a federal statute plays a significant, though partial, role in a Restatement, as with the Foreign Sovereign Immunities Act in the Restatement (Fourth) of Foreign Relations. But never before has ALI produced a Restatement of a coherent and comprehensive federal statutory scheme—a fact that has diverse commentators scratching their heads.

Since its inception, many have expressed doubts about the Restatement of Copyright project. The U.S. Copyright Office, U.S. Patent and Trademark Office, American Bar Association IP Section, industry groups, judges, academics, and many others have communicated serious concerns that this Restatement will do more harm than good, yet ALI seems dead set on seeing it through. The latest to question the propriety of this project are Members of Congress who voiced concerns in a letter sent to ALI earlier this week. In the letter, Senator Thom Tillis and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda point out that in over 100 years of existence the ALI has never drafted a Restatement on law that is almost exclusively governed by federal statutes. The Members of Congress are primarily concerned with how the Restatement “attempts to diminish the importance of the statutory text or legislative history relating to that text” and replace it with “novel interpretations.”

The congressional letter has been well-received by the copyright community. Yesterday, AAP CEO and President Maria Pallante commended the Members of Congress for their “strong leadership” and called the Restatement of Copyright “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.” Copyright Alliance CEO Keith Kupferschmid applauded the Members of Congress for “voicing their concerns” and called on ALI to “address these and the many other significant and very real concerns that have been raised by the Senator and Representatives and many others who have spoken up.” And CreativeFuture complimented the insights of the Members of Congress while condemning this Restatement as being “driven by those who want to rewrite the law, which isn’t their job.”

Though certainly venerable, the Restatements over the last century have not been immune to attacks of perceived bias. Law review articles for years have made these claims (for example, see here, here, and here). The late Antonin Scalia highlighted such concerns in his acerbic dissent in Kansas v. Nebraska, when he stated in 2015 that “modern Restatements . . . are of questionable value, and must be used with caution” since “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.” Justice Scalia warned that “it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”

Unfortunately, ALI’s current Restatement of Copyright project suffers from the very problems that Justice Scalia described. The Reporter and other supporters have expressly stated that they view this Restatement as a chance to change the law—not simply to restate it. To that end, this Restatement literally rewrites the Copyright Act by paraphrasing the statutes rather than quoting them directly when presenting the supposed black-letter law. This will only lead to confusion as the proffered black-letter law is not the same as the actual law that must be applied by the courts.

A Restatement Or A Principles Project?

I participated in a panel discussion on this Restatement last year at the Fordham IP Conference, and I was genuinely surprised by how many of my fellow panelists were skeptical of the notion that we should have another copyright reference such as ALI’s Restatement of Copyright. My own view is that there’s plenty of room for more copyright treatises, but this particular project should be abandoned given the decision to recast the statutory text rather than to simply quote and interpret it. Other panelists were not nearly as positive. For example, Professor Justin Hughes of Loyola Law School offered his insights into what is really driving this project:

There is a very simple calculus of what is going on; that is, that Copyleft academics have felt themselves locked out of policymaking; have felt themselves ignored by the courts, rightly or wrongly; and are looking for a major lever. If you are not willing to do what is necessary to get legislation passed in Washington in IP — and it is not fun and it is ugly — so much the easier if you can just write black-letter law in a book with some other professors.

In fact, the Restatement of Copyright project originated as an ALI Principles project as part of a copyright reform initiative. In a letter to ALI in late 2013, Berkeley Law’s Professor Pamela Samuelson suggested that ALI “should undertake a copyright reform project” to “aid additional reform efforts” in copyright law. Her idea was that ALI would provide judges and lawyers with a set of “normative underpinnings” that they could use in practice to shape copyright law without statutory amendment. In particular, Prof. Samuelson cited “a dozen examples of common law copyright issues on which courts have been at odds that an ALI project might usefully address” that she had outlined in an article calling for copyright reform. These included digital first sale, statutory damages, conceptual separability, secondary liability, and whether fair use is a right. The letter stressed that ALI was “the institute most capable of taking on such a significant law reform project that would bring greater normative clarity, predictability, and balance to U.S. copyright law.”

Critically, in both the letter and article, Prof. Samuelson proposed that ALI undertake a Principles project—not a Restatement. The two serve different purposes and audiences. According to ALI’s Style Manual, “Restatements are primarily addressed to courts,” while “Principles are primarily addressed to legislatures, administrative agencies, or private actors.” Each “seeks to clarify and synthesize” a particular field of law; however, only Restatements are intended to “reflect the law as it presently stands or might appropriately be stated by a court.” Principles projects, by contrast, are “generally written as recommendations to particular institutions (e.g., legislatures, corporations).”

Nevertheless, ALI authorized the project as a Restatement even though its official Reporter also made clear in a letter to ALI that he envisioned a reform effort: Given the “bad state” of things, there “seemed to be a perfect environment for a deep reevaluation of copyright law.” Because this “has not happened. . . . it falls to the federal courts” to fix things since “Congress is unlikely to proceed any time soon with copyright reform.” Accordingly, the Reporter clearly intended a Principles project and not a true Restatement.

The Reporter also appears to hold a narrow and controversial view of copyright’s constitutional purpose, asserting that the Constitution “sets out an explicitly utilitarian rationale.” But, in Eldred v. Ashcroft the Supreme Court stated that copyright serves both public and private ends. The Court held that rewarding authors and promoting progress are “complementary”—and “not mutually exclusive”—“ends” since “copyright law serves public ends by providing individuals with an incentive to pursue private ones.” The Supreme Court reiterated its holistic approach more recently in Kirstaeng v. Wiley, where it unanimously noted that one of the “well settled” objectives of the Copyright Act is “rewarding authors’ creations.” By contrast, the Reporter appears willing to write authors’ rights out of the constitutional bargain—an approach again better suited for a normative Principles project and not a Restatement accurately describing the current state of the law.

Why Paraphrase When You Can Quote?

ALI’s Style Manual explains that each Restatement section is broken into three parts: (1) black-letter provision, which states the rule of law; (2) Comment, which explicates, analyzes, and illustrates the black-letter rule; and (3) Reporter’s Notes, which explain the sources provided and their place within the current law. Since earlier Restatements dealt with common-law issues, the black-letter provisions at the beginning of each section provided a coherent synthesis of the various sources of law. Copyright law, by contrast, already has a coherent body of black-letter law—the statutory provisions of the Copyright Act itself. The Style Manual provides that “Restatements are expected to aspire toward the precision of statutory language,” but such aspirations are unnecessary here since the precise statutory language already exists.

Nevertheless, the Restatement of Copyright project has approached the copyright field like it was any other, and the drafts of the Restatement to date show that the black-letter provisions are paraphrases of the underlying statutes and not the statutes themselves. It seems obvious that any attempt to restate the copyright statutes in different terms will lead to unnecessary confusion, but this is, for the time being, the route that has been chosen. The problem, of course, is that courts first and foremost must interpret and apply the words of the statute. Any deviation from the statutory language in the Restatement’s black-letter provisions will only give courts more work to do as they attempt to reconcile Congress’s actual black-letter law with ALI’s gloss upon it. This is a recipe for confusion, not clarity. Indeed, ALI has received numerous comments challenging this unique format.

For example, the U.S. Copyright Office submitted a letter to ALI in 2015 questioning the “nature and goals” of ALI’s undertaking and pointing out the obvious fact that “there can be no more accurate statement of the law than the law itself.” The Copyright Office noted that the Restatement’s black-letter provisions materially departed from Congress’s enactments and that “the accompanying discussion and illustrations evince selective and particularized views that do not present a balanced interpretation of the statute.” The Copyright Office accused ALI of treating “singular judicial decisions” as “well-established rules” while ignoring “contrary precedent,” and, after listing several specific examples, it suggested that “the Restatement project appears to run the risk of creating a pseudo-version of the Copyright Act that is inconsistent with the law as Congress enacted it.”

Similar views were expressed by the Register of Copyrights just last year. Register Karyn Temple concluded that “the project is a misguided one” since “an extensive body of positive copyright law already exists.” She pointed out the futility of restating “a body of positive federal law,” noting that there “can be no more accurate statement of the law than the words that Congress has enacted in the Copyright Act and those that the Copyright Office has adopted in its regulations.” Register Temple admonished ALI for “tinkering with complex statutory and regulatory provisions” given that it “will lead to confusion and misinterpretation” and “will inevitably alter sense and meaning.” She then suggested that ALI “reconsider the project as a whole” as “the attorney or judge who relies on it will often be misled.”

The Director of the U.S. Patent and Trademark Office, Andrei Iancu, submitted a comparable letter in late 2018, but unfortunately it’s not publicly available. In the letter, Director Iancu suggested “adapting the typical Restatement format to accommodate the specific characteristics of the Copyright Act.” Specifically, he noted that “the detailed, prescriptive provisions of the Copyright have historically been considered ‘black letter’ law,” and he argued that the “attempt to rephrase them . . . can only lead to ambiguity and contradiction” as “the meaning of the statute will be clouded or altered.” Director Iancu predicted “that the copyright Restatement project as currently conceived will create more confusion than enlightenment,” and he urged ALI to quote the statutory law itself as the black-letter statement of the law.

Likewise, Columbia Law’s Professor Jane Ginsburg sent a letter to ALI in 2015. Prof. Ginsburg called the Restatement “a fundamentally aspirational endeavor” that “gives the impression of a shadow copyright act,” and she questioned whether the project should even proceed under the guise of a Restatement instead of a Principles project. Over the past several years, many others have filed critical comments as well, including the Authors Guild and the New York City Bar. Indeed, comments have even been submitted by prominent figures such as Judge Pierre Leval of the Second Circuit and Judge Margaret McKeown of the Ninth Circuit. Unfortunately, however, most of the comments that have been filed are not readily available online at this time. Perhaps most revealing of what seems to be an underlying bias in those leading the project, I have yet to see a commentator suggest that the Restatement gets something wrong in a way that would actually benefit copyright owners. The “mistakes” all cut the other way.

As a closing thought, I’ll note that this project appears to create a Catch-22 for ALI. If the goal is to “reform” copyright law, then the Restatement will not accurately reflect the law and thus will be of little use to the courts—its intended audience. On the other hand, if the Restatement instead accurately captures the current state of the law, then the Restatement will do very little to move the reformatory needle. Behind all this might be a gambit that the Restatement is perceived to be an accurate reflection of the law, such that it’s followed, while in fact expressing a version of the law that is not actually true, but rather “aspirational” as Prof. Ginsburg said. In this way, the existing statutes could effectively be changed by the courts—at least in how they interpret and apply it. That’s a narrow needle to thread, and it’s hard to see how it could be done. I think ALI could create a useful secondary source for copyright law, but the reality is that this Restatement has been designed from the beginning to change the law—not merely to restate it.