ALI Copyright Restatement Project

The American Law Institute (ALI) is a century-old independent organization that produces and publishes scholarly works, including “Restatements of the Law,” which are intended to provide guidance to judges by summarizing and advancing uniformity in fundamental state common law principles. ALI has no formal legal authority. However, its Restatements are used frequently by attorneys and cited by judges—and therefore play a significant role in shaping court decisions.

The ALI has undertaken an initiative called the Copyright Restatement Project, which—if completed—would “restate copyright law.” Throughout the drafting process, numerous concerns have been expressed regarding the project including:

  • By then-U.S. Register of Copyrights Karyn Temple, who sent a letter to the ALI in January 2018, in which she wrote that the Institute’s project “appears to create a pseudo-version of the Copyright Act” and urged it to suspend the “misguided” initiative.
  • By current Register of Copyrights Shira Perlmutter, whose May 21, 2021 letter to the ALI identifies several problematic areas in the draft Restatement, writing 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.”
  • By numerous members of Congress who sent a letter to the ALI, asking questions and expressing serious concerns about the project, stating 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.”
  • By Andrei Iancu, then-Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, who sent a letter to the ALI 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.”
  • By the American Bar Association (ABA), which sent a 2019 letter to the ALI 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.”
  • By Academics who sent a letter to members of Congress criticizing the Reporters’ approach to the Copyright Restatement, including a lack of methodology, departure from ALI practice by attempting to supplant a federal statute with manufactured “black letter” law, Reporter bias, a number of substantive deficiencies in the text, and the Reporters largely ignoring these critiques.
  • By numerous representatives of the copyright industries, who have consistently raised concerns with pervasive bias and mischaracterizations of the law in the Restatement that result in a limiting overview of the scope of copyright protection. See here, here, and here.
  • Reuters article published on June 8, 2021 stated that “Four well-known copyright scholars urged members of the influential American Law Institute in an email to reject [the] proposed restatement of copyright law when the proposal comes up for a scheduled vote… The scholars – Jane Ginsburg, Shyam Balganesh, Peter Menell, and David Nimmer – told ALI members … [that the] copyright restatement … marks the first time that ALI has proposed a restatement in an area of law governed by a federal statute … We believe that the unprecedented nature of the project — a ‘restatement’ of a comprehensive federal statute that does not take the statute as its black letter starting point — raises significant concerns about the ALI’s reputation and legitimacy…”

Despite this chorus of opposition and concern, the ALI has instead chosen to manufacture its own version of the law that is often confusing and presents an incomplete and inaccurate statement of copyright law. And during its meeting on June 8, 2021, ALI members approved many sections that will make up the first three chapters of the Restatement.

Additional letters, statements, blogs, opinion pieces and media coverage regarding the Copyright Restatement Project can be found directly below:

Academic Research:

Industry Statements and Letters:

Congressional and Scholarly Letter(s) to ALI:

Blogs and Opinion Pieces: