On January 18, Billboard magazine reported on a letter sent by the US Copyright Office to the American Law Institute expressing concerns regarding its Copyright Restatement project, a project that began in 2015. The Copyright Office, which is authorized by statute to provide expert advice on copyright to Congress, other Federal departments and agencies, and the Judiciary, urged the ALI to reconsider the project.
As the Copyright Office correctly points out in its letter, Restatements have traditionally focused on primarily common law legal issues, like contracts and torts, since those areas benefit from clarification and distillation of the vast body of case law into “black letter” rules. Copyright law, on the other hand, already has a black letter rule: Title 17 of the U.S. Code. The statute is comprehensive and complex, drafted with precise use of language and composed of interrelated provisions. Given the nature of a Restatement, it seems unlikely that one on copyright law would add any clarity; rather, there is a very real risk it would only introduce confusion. In isolation, any individual statement may not prove terribly worrisome, but when added altogether, they result in a project that misstates rather than restates the law.
The Copyright Office is not alone in its concerns. Many in the academic community have raised concerns about the utility and direction of the project, as have private practitioners and members of the judiciary. Copyright stakeholders hold similar concerns. Though the Billboard article specifically mentions stakeholders in the music and media fields, the truth is that stakeholders across the spectrum share these concerns – whether in software, the visual arts, publishing, and even in sectors that only remotely touch on copyright, such as fashion. What unifies them is a belief in a copyright law that is clear and balanced. They have not yet been given any reason to believe this project will advance either of those goals.
Despite these significant concerns, we and others in the broader copyright community have participated in the drafting process as advisers and liaisons to provide input and make sure the project reflects the law as accurately and consistently as it can. But to be clear, the power of the pen belongs to the Project Reporters, and they are free to disregard advisory input entirely. Unfortunately, after several rounds of drafting, that has occurred more often than not. It ultimately does not matter how representative the advisory group is if the Reporters are unbalanced in their views, and that bias will only compound the problems that the draft creates.
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