When is a Restatement Not a Restatement? ALI’s Highly Original Copyright Journey
By Neil Turkewitz
The very notion of “restatement” from a linguistic standpoint is that it is a recapitulation of that which has already been said. A restatement, as such, doesn’t break new ground. The object is not to be novel. Clever. Original. Just to provide clarity where such clarity may have been lacking. If it strays from its fealty to the past, it becomes a statement rather than a restatement. The proposed ALI Restatement of Copyright brings us right into this very thicket. It is public policy advocacy masquerading as legal review, and it is essential that it be rejected. Not for some minor technical fixes, but to reassess the very viability and usefulness of the project itself.
This project can not be divorced from its origins as an initiative undertaken by a number of copyright scholars unhappy with what they viewed as overly expansive judicial interpretations of the very detailed statutory text of the copyright law. The goals of the Restaters and the complex, interwoven relationship of the objects of their desire with reform — and not restatement, were set out back in 2013 by Professor Pam Samuelson in a 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.”
Of course, the most important aspect of this history is that the referenced “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 little surprise that Project members were unable to reach consensus given fundamental differences on core issues underlying copyright law, including some who would question the Supreme Court’s oft-repeated observation that “copyright is an engine of free expression.” Harper & Row v. Nation Enterprises
Indeed, as recently noted by Professor Justin Hughes, the proposed Restatement is “mired in controversy both because of the statutory nature of copyright law and the deep, abiding ideological disagreements about copyright policy.”
In short, this ALI project grew out of a failure to develop broad consensus and to achieve legal reform through a democratic and open legislative and/or regulatory process. It seeks to characterize as unassailable truth that which was not capable of agreement amongst experts. It seeks to reify opinion as law. It is, in a word, a mistake.
As I wrote back in 2018, “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 the champions of this ALI project 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 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 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.”
Since 2018, more and more clear and detailed criticism of the project has emerged, including a brilliant paper earlier this year from Professors Shyamkrishna Balganesh and Peter S. Menell which is essential reading for understanding the myriad problems with the current project. They wrote:
“For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role as sources of law in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century.”
An insightful paper by Professors Shyamkrishna Balganesh and Jane Ginsburg is also required reading: “It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.” Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the project forward, and despite the persistence of serious objections from within the membership of the project (including many of the project’s Advisers), the first draft of the Restatement is scheduled to go to a vote seeking adoption by the organization’s full membership in the middle of 2021.”
We are now on the doorstep of that vote. I urge ALI’s membership to hit the pause button and to return the issue of copyright legal reform to where it belongs — in front of elected members of Congress, and not done in a non-transparent and highly inventive process in which inventiveness is not a positive attribute. Advancing this further will operate to the detriment of all concerned — including of course the ALI itself. It must be the road not taken.
End Note: For additional reading, the Copyright Office has very usefully compiled its various submissions to the ALI, including this from their most recent letter:
“In statutory interpretation, there is no substitute for the words of the statute itself. Rephrasing, however well-intentioned, inevitably introduces imprecision and interpretive choices. This is particularly true where the Restatement presents these statements as the law itself, not as interpretations of the law. The words of the statute have been carefully chosen by Congress and reflect a delicate balancing of various competing interests. Standard tools of statutory construction remain the best method to resolve any ambiguity in the text.”
