The American Law Institute's proposed Restatement of Copyright Law gets the attention of Congress

By Emmanuel Legrand

Five US policy-makers – Senator Thom Tillis (R-N.C.) and Representatives Ben Cline (R-Va.), Theodore Deutch (D-Fla.), Martha Roby (R-Ala.) and Harley Rouda (D-Calif.) – have sent a letter to the director of the American Law Institute (ALI) outlining their concern about the ALI's proposed Copyright Restatement Project. 

  The ALI is an independent organisation set up in 1923 in the United States to produce "scholarly work to clarify, modernise, and otherwise improve the law." Among other things ALI "drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education,” according to the Institute's web site. 

  Restatement of the Law are meant to clarify some complexities of the law, and also to promote changes to adapt the laws "to the needs of life.” Restatement are used by courts to inform decision and can have a lot of influence, sometimes trumping federal rules and regulations that are already in place.

  The ALI embarked a few years ago in drafting a Restatement of copyright law, covering 18 sections of copyright law that now need to be approved by the ALI’s council. The draft is considered by many in the creative sectors as taking a copyleft view of copyright law that could end up in weakening copyright protections.

Deeply concerned

  In their letter, policy-makers point out to the language used in the proposed Restatement. Reads the letter: "Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of the law that is almost exclusively federal statutory law – until now. We are deeply concerned by the ALI's current Copyright Restatement Project. Courts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations."

  The letter goes on with a list of nine questions that policy-makers are asking the ALI, most notably what approach are the ALI's Reporters (authors of the Restatement) taking to assess copyright law and how much weight do they plan to give to statutory text and legislative history. The signatories also ask the ALI how it plans to "address potential conflicts of interest" and "prevent bias from affecting the proposed draft." They are expecting responses from the ALI by January 3, 2020.

The letter received positive reactions from creative organisations such as the Recording Industry Association of America (RIAA), whose chief policy office Morna Willens, welcomed the letter. "It's Congress's job to set copyright policy, not the ALI's," she said. "The letter from Senator Tillis and his House colleagues raises fundamental questions about the ALI's decision to wade into such deep policy waters that should be fully answered before any 'restatement' of copyright goes forward. I want to thank the members for their leadership." 

Circumvent the authority of Congress

  Keith Kupferschmid, CEO of the Copyright Alliance, said his organisation "echo[es] the many concerns expressed, particularly the fact that federal copyright law – which is governed by the 1976 Copyright Act – is ill-suited to a Restatement because it is clearly articulated by Congress, and thank the Senator and Representatives for voicing their concerns."

  The Association of American Publishers, through its President and CEO is Maria A. Pallante, herself a former Register of Copyright, commented: "The ALI’s attempt to reinterpret this critically important federal statute should be seen for what it is: a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy. Importantly, the letter amplifies concerns already raised by the US Copyright Office, the US Patent and Trademark Office, the American Bar Association IP Law Section, federal judges, prominent legal scholars, and a long list of industry groups and other organisations.”

  Copyright law expert Pamela Samuelson, who sits on the ALI's advisory board and who is often seen as a copyleft advocate, responded to Pallante's statement on Twitter: "Baloney. Many of the most significant concepts and doctrines of #copyright are common law interpretations; judges will benefit from a restatement, which is more likely to fulfill than circumvent Congressional intent."

Not a one-sided issue

  In a Twitter exchange, industry commentator Neil Turkewitz questioned Samuelson's intentions: "You’re a tireless advocate for a version of © that you believe better serves the public than the one that Congress has passed. You have every right to press your views, but not under the cover of the supposedly non-partisan ALI."

  To which Samuelson replied: "There is broad support for the ALI Restatement of Copyright project as well as broad opposition. So don't act like it's a one-sided issue. I'm just one small member of the advisory board of dozens of #copyright experts who reviews the drafts."

  Legal scholar Devlin Hartline, from the Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School, George Mason University, published a detailed blog on the Restatement issues, in which he concludes: "If the goal is to 'reform' copyright law, then the Restatement will not accurately reflect the law and thus will be of little use to the courts — its intended audience. On the other hand, if the Restatement instead accurately captures the current state of the law, then the Restatement will do very little to move the reformatory needle."