Mounting Resignations Call into Question Legitimacy of ALI Copyright Restatement

On May 20, the American Law Institute (ALI) approved the final sections of its Copyright Restatement, effectively bringing an end to a ten-year project that saw many of the participants resign just days before the ALI’s Annual Meeting—and more resignations have followed since. The resignations of over a third of the project’s Advisers and Liaisons, including prominent law professors and former U.S. Copyright Office officials, were the final acts of many whose frustrations came to head after it became clear that the project’s leaders and ALI leadership failed to address concerns that were repeatedly raised about the substance and procedure of the project.

During the Annual Meeting, ALI Director Diane Wood did not directly address the resignations, but tried to assure the ALI members in attendance that criticisms and strong disagreements are routine for any ALI project and that the process worked exactly as intended. What’s dubious is whether having a large group of participants resign at the end of a Restatement project is truly “routine.” If concerns about ALI projects are regularly so great that a substantial number of participants feel the need to resign and ask that their names be removed from the final product, it should call into question not only the legitimacy and methodology of the project but also the ALI itself.

But since we know ALI’s reputation is generally thought of as stellar, Director Wood’s statement about the Copyright Restatement certainly seems like puffery intended to divert attention away from the controversial nature of the Copyright Restatement. It’s like a traffic cop directing onlookers around a serious crash and saying “nothing to see here.” Ultimately, practitioners, courts, and any others who encounter the Copyright Restatement should understand that the resignations reflect serious concerns with the Restatement’s treatment of copyright law and should take that into account when deciding whether to reference it as an authoritative or citable source.

Resignation Letters Describe Mistreatment of the Law, Biases, and Procedural Failures

Letters of resignation have been sent by leading copyright scholars, industry professionals, former Copyright Office officials, professional legal organizations, and long-time ALI members, all of whom point to the enduring problems that have led to a Copyright Restatement that misrepresents the law and reflects the underlying biases and normative views of the project’s leaders. The resignations include the following:

A group of leading copyright professors, including Jane Ginsburg, Shyam Balganesh, David Nimmer, and Peter Menell, who all served as Advisers to the project sent a letter voicing dissatisfaction with both the substance of the Restatement and the process by which its sections were approved. The letter explains that the final product represents a “revisionist agenda” that cannot be trusted by courts and is “unsuccessful when measured against the very goals of the Restatement.”

The American Bar Association, Intellectual Property Law Section, sent a letter explaining that “to resign reflects our concerns regarding the direction and methodology of the Restatement project” and that “[w]e believe the final Restatement does not present a balanced representation of copyright law and is not aligned with the policies and principles of the ABA-IPL Section.”

The Intellectual Property Law Owners Association (IPO) sent a letter asking for its name and the name of its Liaison to be removed from the Restatement. The letter explains that the “IPO remains concerned that the project has in many places adopted minority interpretations of copyright law without clearly stating the majority rule” and that the Restatement “will be unhelpful and misleading to courts and litigants, leading it to be cited when it is not, in fact, articulating a restatement of existing law.”

A group of 14 industry professionals and copyright experts who served as Advisers and Liaisons to the project sent a letter explaining that the Reporters routinely disregarded and dismissed concerns and comments put forth by the United States Copyright Office, judges, and many other project participants because those concerns and comments differed from the Reporters’ views and biases about copyright law. As a result, the letter says that the Restatement presents an inaccurate and unbalanced view of copyright law that deviates from the U.S. Copyright Act and judicial precedent. Copyright Alliance CEO Keith Kupferschmid joined the letter and issued this statement.

Professor Marketa Trimble, who participated in the project as part of the Members Consultative Group submitted a letter asking that her name be removed absent the addition of a disclaimer explaining that the Restatement does not represent the views of all the participants. Her letter states that “the development of the project has been disappointing, considering that many crucial comments, including by the Copyright Office and project Advisers, who are preeminent experts in copyright law, have been discounted or indefensibly rejected.”

Simon Barsky, a life member of the ALI and copyright expert, sent a letter asking for his name to be removed absent a disclaimer or for the Restatement to be converted to a Principles project. His letter explains that the Restatement is an “aspirational rather than accurate statement of the law.”

At least two other Advisers also sent letters of resignation asking that their names be removed, and more may still be coming.

From the Start of the Project, Concerns Have Been Repeatedly Dismissed and Disregarded

Despite its traditional focus on state common law, in 2015 the ALI decided to launch a new Copyright Restatement project that would tackle a body of established federal law. From the beginning, many copyright experts, professors, and lawmakers questioned the rationale behind attempting to “restate” an area of law governed by a federal statute. What’s more, many participants warned that the Copyright Restatement was more likely to look like a restatement of the Reporters’ views on copyright rather than a restatement of actual copyright law. These are some of the concerns raised in letters to the ALI in the early years of the project:

Many copyright industry organizations sent a letter in 2015 to the ALI warning that the Copyright Restatement was more likely to look like a restatement of the Reporters’ views on copyright rather than a restatement of actual copyright law. Specifically, the letter explained that lead Reporter Christopher Sprigman has consistently argued in favor of a limited scope of copyright and that his motivations seem to be changing the law to support a certain viewpoint in ongoing policy debates.

Then-U.S. Register of Copyrights Karyn Temple sent a letter in 2018, in which she warned that the Institute’s project “appears to create a pseudo-version of the Copyright Act” and urged the ALI to suspend the “misguided” initiative.

Then-Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office Andrei Iancu sent a letter in 2018 expressing a “fundamental concern about the process and format” of the project and warning that attempting to provide an alternative black letter law for the prescriptive provisions of the Copyright Act would only lead to “confusion and ambiguity” and that the meaning of the federal statute would be “clouded or altered.”

The New York City Bar, Copyright & Literary Property Committee published a report in 2018 explaining that “a restatement of copyright law is unnecessary and, as currently drafted, potentially undermines ALI’s reputation for producing accurate explanations of the law.”

Numerous members of Congress sent a letter in 2019 asking questions and expressing “deep[] concern” about the Restatement project covering “an area of law that is almost exclusively federal statutory law.” The letter also stated that “…courts should rely upon statutory text and legislative history, not [on] Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretation.”

The American Bar Association (ABA) sent a letter in 2019 questioning the direction of the project and the Reporters’ lack of response to numerous commentators’ concerns about the substance of earlier drafts and warning that a “Restatement that focuses not on existing law but on the law as the Reporters would like to see it will be of dubious value and is inconsistent with the restatements that ALI has produced historically.”

U.S. Register of Copyrights Shira Perlmutter sent a letter in 2021 identifying several problematic areas in the draft Restatement, stating that “the Restatement process to date has been perceived by onlookers, including some Advisers, as inadequately documented, leading to questions being raised about the possible influence of the normative views of the Reporters.”

Unfortunately, the problems identified early in the project’s life only intensified as more controversial subjects were reserved until the end of the project. Indeed, the final version of the Restatement presents a restrictive and warped view of copyright—one that is inconsistent with the statute and case law and supports the Reporters’ aspirations to change the law of copyright.

Courts Should Recognize the Limited Utility of the Copyright Restatement

Traditionally, ALI Restatements are used by attorneys and cited by judges—and therefore can play a significant role in shaping court decisions. In an announcement about the end of the project, the ALI said that “Restatements are primarily addressed to courts” and that the Copyright Restatement may now be cited as the official position of the ALI.

While some sections of the Restatement were not subject to significant disagreements and may be helpful to courts, many of copyright law’s most important concepts and doctrines were addressed in a way that does not accurately reflect the law. These sections, including but not limited to the Restatement’s treatment of fair use, fixation, and secondary liability, should not be treated as persuasive authority in any litigation. Speaking to the Restatement’s procedural shortcomings and the likelihood that it will mislead courts, the law professors’ resignation letter explains:

At the core of the Restatement efforts of the Institute has been the ability of courts to trust that the process by which a Restatement was produced reflected a transparent deliberation and broad agreement among a body of experts. Just the opposite has occurred with the Restatement of Copyright.

The professors go on to express concern with the Reporters’ “revisionist agenda,” which they explain will confuse courts because it is being “passed off as an accurate (rather than aspirational) interpretation of the law.”

In another letter, the group of 14 Advisers and Liaisons highlight the Restatement’s biases and flawed approach to the law:

[T]here is a general undercurrent of anti-copyright sentiment that runs through the entire Restatement and manifests itself through a disproportionate focus on atypical court decisions that limit the scope of copyright protection. Not only does the Restatement emphasize minority and outlier decisions and emphasize the exceptions rather than the rules, but at times, the Reporters also drew conclusions that the current law simply does not support; and in some instances, made up new standards that are not supported by the statute or case law.

In response to the mass resignations, one of the project’s Advisers took to social media suggesting that those who resigned were “sore losers” who wanted control of the project but were “outvoted.” Without getting into the inaccuracies of those claims, it’s that kind of thinking that is the essence of the problem with the Restatement. When explaining the law, there should not be any winner or losers. The Restatement should restate the law. When it fails to do that, it is not a Restatement at all, but more of a normative treatise or law review article. Accordingly, the Copyright Restatement should not be afforded any more weight than those type of resources.

Conclusion

While supporters of the ALI’s Copyright Restatement project have claimed that those who have resigned are simply disgruntled copyright industry stakeholders, the mounting resignations of impartial law professors and professional legal organizations cannot be reconciled with such claims. What’s clear is that a broad group of project participants have expressed serious concerns with the project’s methodology and treatment of law since day one, and those concerns came to fruition throughout the ten-year process. That has resulted in a final product that is inaccurate and inconsistent with the statute and case law and promotes a vision of what some think the law should be, rather than what it is. The limited usefulness of such a “restatement” should be recognized, and any reference to it in the future should raise red flags.

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