Re:Creating the world through sleight of hand: ALI Restatement on Copyright re:Visited

By Neil Turkewitz

Amending the law — any law, through a democratic process is hard, and can frustrate even the most articulate, impassioned and committed advocates. The creative community knows. Our entire existence takes place within an outdated legal framework that encourages willful blindness and rewards the engineering of technical modes of delivery and storage that undermine the very purpose of copyright law. It would be nice to find shortcuts that avoided the messiness and compromises of democracy in order to achieve necessary reforms, but that kind of reform via executive fiat isn’t a tool available to mere mortals. Well, unless that mortal is Professor Pam Samuelson whose advocacy has led the prestigious American Law Institute (ALI) to undertake a “Restatement of Copyright” as a means to effectively achieve legislative reform outside of the legislative process.

Professor Samuelson is fond of derivatives, and tends to favor them over the originals. One example is the Authors Alliance, an organization which hides its partisanship behind the cloak of “balanced copyright,” and dedicated to the proposition that the public interest in reuse is somehow greater than its interest in promoting original creation. But who favors imbalance? Does Professor Samuelson truly believe that copyright owners rally behind “unbalanced copyright?” And of course, celebrating reuse without due homage to the importance of original creation is…well, bizarre. Not a lot to reuse if there is nothing to access. Samuelson’s Authors Alliance describes itself as follows:

“Authors Alliance promotes authorship for the public good by supporting authors who write to be read. We embrace the unprecedented potential digital networks have for the creation and distribution of knowledge and culture. We represent the interests of authors who want to harness this potential to share their creations more broadly in order to serve the public good.”

As opposed to what? All of those authors who toil for years to keep their manuscripts to themselves? This is the most disingenuous kind of false dichotomy — positing that there are a bunch of selfish writers who use copyright law to deny access to their works, and enlightened writers who want to spread knowledge and information. How about an actual distinction — between authors that depend on royalties to sustain themselves and their families, and authors that are independently wealthy or who have sources of income other than from their writing? That’s an actual distinction.

The scary thing is that this very same Professor Samuelson — she who sees copyright law as serving to restrict expression rather than to enable it (as foreseen by the US Constitution, acted upon by Congress and repeatedly referenced by the Supreme Court), wants to rewrite copyright law through an ALI Restatement of Copyright. The astonishing thing is how far she has come to realizing this makeover of copyright to suit her image. Professor Samuelson herself makes no attempt to disguise her intention in her 2013 letter to the ALI proposing a Principles Project on Copyright which eventually evolved into the present initiative for an ALI Restatement on Copyright:

“Clarification and other reforms of US copyright law were the focus of a 2010 report by the Copyright Principles Project (CPP), a group I convened in 2007 comprised of twenty eight copyright professionals. Following three years of deliberation and discussion, the CPP Report identified and discussed twenty-five specific areas for reform. The CPP Report provides additional reasons for copyright reform to get under way. Although some recommendations in this report would require legislative change, many of them would be susceptible of consideration and articulation in an ALI project.”

There can be no doubt but that this ALI Restatement is about reform, not clarification, and as such, work on it should be ceased immediately. It is an attempt to circumvent Congress and the democratic process, and to subvert the independent judgment of the courts. Professor Samuelson curiously fails to advise ALI in her letter that her Copyright Principles Project failed to reach any consensus on the “twenty five specific areas of reform” — a fact noted by Chairman Goodlatte when he held a hearing in 2013 to hear from some of the members of the Project. And it should come as no surprise that Project members were unable to reach consensus given that Professor Samuelson and others on the Project reject the very basis of copyright as being an engine of free expression. Samuelson looks at copyright and sees only restraints. She simply doesn’t get it.

Having failed to convince Congress to adopt the kind of radical reforms she favors, and striking out with her own Project members in developing consensus on the nature of proposed reforms, she and her cohorts now turn to the ALI to seal the deal. It is time to end this dangerous charade. The former Register of Copyright and the present Acting Register have each carefully and thoughtfully outlined some of the reasons that this entire initiative should be rejected. But there is another non-theoretical one: the changes sought by Professor Samuelson will make life even harder for our country’s creative workers who are already struggling against tremendous odds to be fairly paid for their work. As Glenn Lammi wrote in Forbes back in 2015,

Reform of the copyright laws is not an academic or esoteric issue. Those who create, produce, and distribute copyrighted materials employ millions of Americans and contribute billions to the U.S. economy. Clear and transparent rules are essential not only for copyright-oriented industries, but also for any business whose activities may raise copyright infringement concerns.

The ongoing reform efforts on Capitol Hill should be given a chance to offer such clarity. On occasion we share Professor Samuelson’s impatience with Congress, but we have greater trust in the democratic system to forge consensus and promote the public interest than we have in a private restatement process, at least where reform of a federal statute is concerned.”

Samuelson claims to want to “clarify” the Copyright law, but her ambition is to make it even harder to enforce. Samuelson is a tireless advocate for a version of copyright law that she believes better serves the public than the one that Congress has passed. She has every right to press her views, but not under the non-transparent cover of the supposedly non-partisan ALI.

As a private organization, ALI has the right to engage in work that it thinks will benefit the field of law; and nothing they produce has any special formal legal authority. Having said that, there is broad concern that the evolution of this project, and the well known bias of the Reporter (Chris Sprigman) will result in a misstatement of the law and that, unless stopped, the imprimatur of ALI will lead those less familiar with copyright law to accept the Restatement at face value. That would be a tragedy, not only for our nation’s creators, but for all of us whose lives are enriched by the production of creative materials. I venture to say that’s all of us.