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Next week, sections of the American Law Institute’s (ALI) Copyright Restatement will be offered for approval for the first time at the ALI’s annual membership meeting. If approved by the full membership, these sections will be made publicly available and may then be cited by attorneys in briefs and used by judges to help decide copyright cases. The problem is that the Restatement project has been plagued from the start with a myriad of substantive and procedural deficiencies that remain unaddressed. These shortcomings include:
- An overall lack of procedural transparency
- Manufactured “black letter” law that does not track the applicable provisions of the Copyright Act
- Inaccurate and incomplete representations of foundational legal concepts and case law
- The creation of fictitious legal standards with no basis in the Copyright Act or case law
- Pervasive bias that results in a limiting overview of the scope of copyright protection
These and other criticisms have been repeatedly raised by the U.S. Copyright Office, the U.S. Patent and Trademark Office (USPTO), members of Congress, the American Bar Association (ABA), federal judges, copyright scholars, and many of the project’s Advisers and Liaisons. While minor adjustments have been made over time, the Restatement continues to suffer from significant procedural and substantive flaws that will result in a Copyright Restatement that is more likely to confuse and befuddle readers than to clarify the law.
The Copyright Restatement is Unprecedented and Unnecessary
Founded almost one hundred years ago, the ALI is an independent organization with a mission to produce “scholarly work to clarify, modernize, and improve the law.” It brings together lawyers, judges, and academics to develop Restatements, the purpose of which are to advance uniformity in fundamental state common law principles. But the current copyright project diverges from traditional ALI Restatements by attempting to tackle a settled body of positive federal law, causing concern that the goal is not to restate the law but rather to create an alternative description of the law already established by the Copyright Act.
Members of Congress have repeatedly expressed concerns surrounding the ALI’s approach to the project and the Reporters’—those doing the actual drafting—attempt to try to rewrite an area of law that is based on a federal statute. Two letters sent to ALI Director Richard Revesz in late 2019 and early 2020 from a bipartisan group of members of Congress, including then-Chairman of the Senate Judiciary Subcommittee on Intellectual Property, Thom Tillis, spoke of the significant risks associated with a Copyright Restatement that aims to address an area of law based almost entirely on a federal statute. Their view, which is shared by the Copyright Office and USPTO, is that copyright law is ill-suited for treatment in a Restatement “because such laws already have been articulated by Congress in both the statute and ample legislative history.” In response to the ALI’s assurance that other projects have undertaken efforts to clarify areas of law where there are federal statutes, the second letter points out that those previous Restatements address areas of law where the federal statute is only one component of a larger body of law and that copyright law is “encompassed almost exclusively within the federal statute.” Warning that this unprecedented approach to a Restatement carries great risk of politicization, the lawmakers point to statements by the lead Reporter, Christopher Sprigman, that express a desire to circumvent Congress in an effort to “shape” and “reform” the law, rather than clarify it.
Concerns Raised by Project Participants have been Routinely Ignored
From the start of the project in 2015, copyright scholars and judges who serve as Advisers and Liaisons to the project have raised various substantive and procedural concerns with the Reporters’ approach to the Restatement. While some of these have been addressed over time, many have not. These issues were recently presented by Advisers Shyam Balganesh and Peter Menell in a thorough law review article published in Columbia Law School’s Journal of Law and the Arts. The article focuses on enduring problems with the Reporters’ approach to the Restatement, including a lack of methodology and departure from ALI practice by attempting to rewrite federal statutory law as “black letter” law.
The article describes how the ALI Council initially established a group to evaluate their proposals, but Balganesh and Menell were never given an opportunity to present their views, the group met “in secret with little external input,” and ultimately no format changes were recommended. Despite Balganesh’s and Menell’s constructive suggestions on ways the Reporters and ALI leadership could reframe the project to address its shortcomings, the Reporters have chosen to simply disregard the recommendations and plow ahead.
Adding to Balganesh’s and Menell’s concerns are other academics who have directed their criticism towards apparent bias, lack of methodology, and a number of substantive deficiencies in the drafts. In a 2019 letter to members of Congress, Professor Jane Ginsburg, an Adviser, and Professor June Besek, a Liaison, expressed serious concern with bias in the drafts, stating that “the drafts as a whole manifest a belittling perspective on copyright protection.” As Ginsburg and Besek have made clear in their comments, the Reporters have largely ignored their critiques, and instead offered minor revisions while moving ahead with drafts that endanger long-standing and well-recognized legal concepts. These concerns are not unique to Professors Balganesh, Menell, Ginsburg and Besek, but are shared by many other judges, scholars and others who participate as Advisors and Liaisons.
Members of academia not directly involved in the project have also been critical of the missteps of the Reporters. Earlier this year, Professor Justin Hughes published an article scrutinizing a section the Restatement and identifying the project as one “still mired in controversy.” Focusing on the Restatement’s handling of copyright law’s originality requirement, Hughes explains that the Reporters have deliberately narrowed the minimal creativity requirements related to selection and arrangement in a way that is not an accurate account of copyright law, saying: “This intent to limit selection, coordination, and arrangement as bases for minimal creativity to the category of ‘compilation’ works is not an accurate reflection of the case law. It is not even an accurate reflection of Supreme Court jurisprudence.”
Hughes recognizes that the project’s Reporters have been perceived as trying to shape the law in favor of a more limited scope of copyright protection, and he warns that if these sections on originality are not fixed, “the ALI would promulgate a Restatement that is not a wholly accurate account of American copyright law.”
Expert Government Entities and Legal Associations Object to the Project
The government entity responsible for administering U.S. copyright law—the U.S. Copyright Office –has consistently questioned the approach taken by the Reporters and their mischaracterizations of statutory and case law. In a 2018 letter to the ALI from former Register Karyn Temple, the Office expressed significant concern with the Restatement, concluding that an attempt to restate positive federal law was “misguided” and recommending that the Council suspend the project. In its series of comments on subsequent Restatement drafts, the Copyright Office repeatedly urged the Reporters to make changes intended to retain the terms used in the statute and to avoid conflicts between the Restatement and the Office’s rules and regulatory guidance. Again, these recommendations mostly fell on deaf ears.
Echoing the concerns of her predecessors, current Register of Copyrights Shira Perlmutter recently sent letter to the ALI notifying its leaders that she is stepping down from her role as an Adviser to the Copyright Restatement project. In the letter, Register Perlmutter expressed concerns with many procedural and substantive issues that have compromised the Restatement’s legitimacy. Joining critics of the Reporters’ manufactured “black letter” law, Register Perlmutter strongly recommends that each section begin with the text of the statute, and, where the plain language is ambiguous, the Reporters should include the relevant portions of the legislative history. She also urges that the Restatement afford appropriate deference to the regulations and guidance issued by the Copyright Office, which to date the Reporters have only chosen to do when it suits their interpretation of the law.
Importantly, the letter also calls for enhanced transparency in the treatment of comments submitted by project participants. Recognizing the consistent grievances of Advisers and Liaisons, Register Perlmutter writes 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.” This overall unwillingness of the Reporters to provide insight into their process and methodology has frustrated many and led to widespread criticism surrounding a lack of responsiveness to comments and questions. Moving forward, Perlmutter advises the ALI to provide the public with a better understanding of what advice is given to the Reporters, how it is considered, and the criteria under which it is accepted or rejected. The ALI can accomplish this, she says, by disclosing records of written comments submitted by Advisors and records of any ALI meetings where the project was discussed.
Joining the Copyright Office in questioning the Copyright Restatement project’s viability and framework, the U.S. Patent and Trademark Office (USPTO) sent a letter to the ALI in 2018 expressing a “fundamental concern about the process and format” of the project. Then-Director of the USPTO, Andrei Iancu, warned 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 letter recommended adapting the project’s format to accommodate the specific characteristics of the Copyright Act by beginning each section’s black letter with the clear language of the statute, lest the Restatement undermine Congressional authority.
Finally, In a 2019 letter to the ALI, the American Bar Association (ABA) questioned the direction of the project and the Reporters’ lack of response to numerous commentators’ concerns about the substance of earlier drafts. Noting that many portions of the Restatement remain “vigorously disputed,” the letter explains that “[u]nless the drafting process undergoes a course correction, we fear that the Copyright Restatement, rather than clarifying the law, will sow confusion and contribute to polarization in the field.” Focusing on the Restatement’s failure to justify the differences between the black letter as drafted by the Reporters and the text of the copyright statute, the ABA warned 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.” Perhaps not surprisingly, the ABA’s recommended “course correction” has not come to fruition, as the Reporters have not adjusted their approach to the black letter and other controversial portions of the Restatement.
The Restatement Invents Legal Standards with No Basis in the Law
One of the most troubling parts of the Restatement has been the Reporters introduction of entirely new legal standards that have no basis in the Copyright Act or case law. For example, the Reporters manufacture a new temporal requirement for “fixation” – which is one of the required elements of copyrightability – in place of the language in the statute. The Restatement repeatedly says that fixation can be understood as an embodiment that “lasts long enough to allow enjoyment or exploitation or other non-fleeting use of the work’s expressive content after the embodiment is initially made.” But that “enjoyment or exploitation” interpretation appears nowhere in the statute, the legislative history, or in any judicial precedent, and there is nothing in the legislation or case law to “suggest” that it is what Congress intended.
Several Advisers and Liaisons have pointed out (over the course of many drafts) that this phrase has been created by the Reporters out of the blue and should be deleted from the draft. But rather than acknowledge that this is a controversial and evolving area of the law and remove the fictitious standard, the Reporters have largely ignored the recommendations of the project participants and instead insisted on including a standard of their own creation that shrinks the scope of the copyright owner’s rights.
Unfortunately, that is not the only instance where the Reporters attempt to change the law by introducing unfounded standards. The Restatement “takes positions” on a number of unsettled issues, and always in a way that reduces the scope of copyright protection or shortchanges copyright owners. And by taking these positions, rather than explain that the issues are subject to debate, the Reporters no doubt seek to influence judges, lawyers, or any others who may use the Restatement in the future. It’s not hard to see why concerns over impartiality have accompanied the project from day one. If the ALI does not make profound changes to remedy the lack of transparency and underlying biases of the Restatement, these concerns will only become more pronounced and in turn create a record of opposition that will taint any eventual final product.
The ALI’s Copyright Restatement project as a whole has been marred by controversy over procedural problems and the Reporters’ evident bias, casting the credibility and utility of the Restatement in serious doubt. Concerns voiced by Liaisons, Advisers, ALI members, judges, lawmakers, academics, the American Bar Association, the U.S. Patent and Trademark Office, and the U.S. Copyright Office have been routinely ignored as the Reporters have persisted in their effort to create an influential resource that promotes their unique interpretation of copyright law—one that is inconsistent with the copyright statute and case law. The Restatement mischaracterizes the law, attempts to establish fictitious legal standards, and includes biased and negative views on foundational principles of copyright. It’s past time that the ALI reconsider the project as a whole, and that begins with an outright rejection of all sections offered for approval at the upcoming membership meeting.