Some of the first things we all learned about in law school were the “Restatements” of law published by the American Law Institute (“ALI”). Far more than just a mere treatise, the Restatements are designed to distill broad concepts of “common law” (contracts, torts, property, etc.) down to accepted core principles of “black letter law.” While the Restatements are neither caselaw nor statute, both judges and practitioners give great deference, and frequently cite, to the Restatements as credible authority.

But credibility must be earned. And, in the case of the ALI’s latest project—a Restatement of Copyright Law—revelations about problems with both the substantive approach and the overall process of the project call the proposed Restatement’s credibility into question.

Let’s start with problems of substance.

As noted above, Restatements have typically focused on areas of jurisprudence that evolved out of the common law. In contrast, copyright, although its roots are in the common law, is currently governed by an extensive statutory regime as embodied in the Copyright Act of 1976. One cannot “restate” a statute. The legislative text is what the text is. As such, the raison d’être of the Restatement Project already stood on shaky ground even before anyone put pen to paper.

To illustrate the point, let’s look at the doctrine of “fair use.” Under Section 107 of the Copyright Act, Congress instructs courts that when determining whether a use of a copyrighted work is a “fair use,” the reviewing court is supposed to make a fact-specific determination using four non-exclusive factors, including: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. While a summary of assorted courts’ rulings (perhaps along with some summary of the academic literature) on how one should interpret and weigh these factors under various factual scenarios might make for an interesting chapter in a treatise on copyright, the reality is that there is no common law to distill in a Restatement—Congress has articulated the final word on the matter.

But in addition to problems with substance, the ALI’s Copyright Restatement Project raises troubling questions of process.

Traditionally, copyright occupied a quiet little corner of the law. As the internet proliferated, however, the copyright debate became quite contentious. On one side there are people who believe in “strong” enforcement (i.e., content creators); on the other side, there are people who believe in “weak” enforcement, generally taking the (erroneous) view that “information should be free” (and that such freedom is costless to society). But the ALI’s Restatement Project is far from balanced. Stating the matter bluntly, proponents of the project come from the “weak enforcement” camp and are successfully using the Restatement Project to put the imprimatur of the ALI on a document nakedly designed to reform copyright law along a particular ideological bent.

Take, for example, a 2013 letter (page 15) from Professor Pamela Samuelson to the Director of the ALI to encourage the organization to undertake the project. Professor Samuelson argued that because the “the length and complexity of [the Copyright Act] obscures normative underpinnings of the law,” the ALI should undertake this project in order to provide “an analysis and framework that would over time be helpful to Congress, the Copyright Office and others considering [copyright] reform.” (Emphasis supplied.) Professor Christopher Sprigman, the lead reporter of the project, was even more blunt: As he argued in his Proposal to the ALI (page 23), a Restatement of Copyright “could be enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need.”

This bias did not go unnoticed by several advisors to the project. For example, Eric Schwartz wrote in the Columbia Journal of Law & the Arts that not only have initial drafts of the Restatement “inconsistently paraphrased, omitted, or in some cases completely adopted verbatim the text of the statute,” but the circulated drafts have failed to cite or rely on some important and impartial U.S. Copyright Office studies and materials. In fact, Schwartz revealed that the reporters have “all but written the Office out of the draft—even though the Office’s regulatory law (or pronouncements) are routinely relied upon by practitioners and courts.” Given the Reporters’ short shrift to the Copyright Office, Shira Perlmutter—the Register of Copyrights and the Director of the U.S. Copyright Office—felt compelled to step down last May as an advisor to the project.

Another law review published in the Columbia Journal of Law & the Arts by Professors Shyamkrishna Balganesh and Peter S. Menell echoes and expands on these concerns. As Balganesh and Menell spell out, not only did the “ALI leadership, as well as the newly appointed group of project reporters show little concern for the idea that the original restatement model was intrinsically unsuited to areas governed comprehensively by statutory provisions,” but “the Restatement of Copyright Reporters chose to engage statutory law in a way not envisioned when the Project was initially approved.” Making matters worse, the authors exposed that even though the “the Restatement of Copyright was advertised as limiting itself to areas of judge-made law within copyright,” it turns out that “the Reporters have restated not just judge-made copyright law, but also aspects of the copyright statute that had been the subject of extensive (and, at times, contentious) legislative revision, delicate crafting, and compromise.” And on top of that, the authors revealed that “ALI Director justified this move on the grounds that even with a detailed statute, courts were nevertheless invested with ‘broad’ ‘judicial discretion.’”

Finally, for non-ALI members, this entire process has been, to put it politely, opaque. Indeed, in looking at the ALI’s webpage, it is impossible to see where we are in the process—there no documents are available, and there is only a confusing chart which indicates what chapters have been voted on. Under normal circumstances, private organizations certainly are under no obligation to make drafts available to the public. In this situation, however, the ALI is acting in a quasi-judicial capacity knowing full well that the purpose of their efforts is to create black letter law that both judges and practitioners will rely upon as authority. Given this social contract, it is incumbent upon the ALI to be more transparent going forward.

Justice Antonin Scalia noted nearly a decade ago that “modern” Restatements “are of questionable value, and must be used with caution” because they have strayed from “describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” And from what we have learned about the Copyright Restatement Project so far, it appears that Justice Scalia has presciently captured the situation in a nutshell.

 

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