The ALI Copyright Project: Restatement or Revisionist?

Intellectual Property Practice Group

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The American Law Institute (ALI) is a familiar and trusted institution for jurists across the country who rely on its “restatements” of disperse common law jurisprudence. More recently, the ALI embarked on a different type of project; to “restate” not common law, but the federal statutory law of the U.S. Copyright Act. The origins of the project do not attempt to conceal its intent to be normative and to take the place of unsuccessful statutory reform efforts. As a result, the project has raised objections, including from the head of the U.S. Copyright Office, that it is inappropriate to “restate” a field undergirded by statutory law and that it is an invitation to activist judicial decisions to depart from the statute in favor of whatever policies the ALI adopts. Predictably for a norm-setting process, it has been further complicated by concerns about bias and lack of transparency. This panel discussion will consider whether the ALI project is appropriate and fair.

 

Featuring:

Prof. June Besek, Lecturer in Law; Executive Directo, Kernochan Center for Law, Media and the Arts

Mr. Sy Damle, Partner, Latham & Watkins, LLP

Moderator: Mr. Steven Tepp, President & CEO, Sentinel Worldwide

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Intellectual Property Practice Group, was recorded on Monday, April 22, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is the ALI Copyright Project: Restatement or Revisionist? My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call and not of The Federalist Society or their organizations.

 

Today, we are very fortunate to have with us Mr. Steven Tepp, who is moderating this discussion today. And he is President and CEO or Sentinel Worldwide. After our speakers give their remarks today, we’ll move to an audience Q&A, so please keep in mind what questions you have for them or for this subject. Thank you very much for moderating today, Steven. The floor is yours.

 

Steven Tepp:  Thank you very much and good afternoon to everyone. Thank you for joining us. The American Law Institute is well-known to lawyers and judges for its restatements of common law principles in helpful single source. But it has undertaken a new type of project that has created a bit more controversy. About five years ago, the ALI undertook to restate copyright law. This, of course, is black-letter law enacted by Congress. Proponents site to vagueness in the statute and circuit splits in interpretations of various provisions. By query, is this different from any other field of law? And query, is it appropriate for the ALI to purport to restate black-letter law enacted through democratic processes?

 

Further, implementation questions have arisen concerning the staffing of the project itself. There appear to be a clear majority of people with views in favor of more limited, narrow copyright protection and questions about the fairness and openness of the process. We’re fortunate today to be joined by two experts who’ve been directly involved in the process. Professor June Besek is Executive Director of the Kernochan Center for Law, Media, and the Arts, and a lecturer at Columbia Law School in New York. She is Vice Chair of the ABA section of intellectual property law and serves on the copyright reform task force for that section.

 

She is the IPL section’s liaison to the ALI Copyright Restatement Project, serves on the board of Volunteer Lawyers for the Arts in New York, and the Columbia Journal of Law and the Arts. She earned her law degree from New York University School of Law and her undergraduate degree in economics from Yale University. She will be our first speaker, and I invite you to begin, June.

 

Prof. June Besek:  I want to give a little background on the Copyright Restatement Project. It began in late 2014 or the beginning of 2015. The way that the ALI does these projects is it has a reporter, who’s the chief drafter, and then there may be co-reporters. In this case, there are four co-reporters. They’re all academics. And then there are also a number of advisors who can comment on draft, but they can’t compel changes. And the advisors in this case are from the government, from the Copyright Office, from academia, law firms, and in-house. And then, of course, there are liaisons to other groups. And, as you mentioned, I’m an ABA intellectual property section liaison.

 

So the first draft was distributed in 2015, and it dealt with subject matter and standards of copyright. And there was a meeting in December of 2015 for the advisors to give input on this draft. Although, the advisors were also free to make comments before or after that meeting. And some did both. In this case, many of the comments questioned the necessity for a restatement because copyright is a subject of federal statute – a very detailed federal statute. And I’ll let Sy discuss this a little bit more. A number of people suggested that this effort should really be a principles project, which, apparently, in the ALI, leaves more room for aspirational declarations about what the law should be. It’s less bound to existing law.

 

But there were some who felt that this restatement would be useful to judges. Frankly, the ALI was really unwilling at the meeting to entertain any comments about whether or not they should be doing this project, and they just plunged right into addressing specific issues that people had with the draft. So I’m just going to go through, generally, what some of the people said about the draft. And one of the things that they noted was there was a lack of balance in the draft. The drafters seemed to really espouse a narrow view of copyright. They always took the view -- when there was competing views, they always took the view that would make copyright narrower and more cramped, if you will.

 

Another problem was that, in discussions of the law, the draft restatement sometimes omitted the discussion of current law. Now, we’ve all seen restatements where they’ll say it uses the minority rule, the majority rule, we decide to go with this rule and this is what. Well, the problem with this draft restatement was they didn’t really give enough attention to what the current law was. And if they decided not to espouse that, rather than discussing it and explaining why they rejected it, they just kind of buried it in some cases, which is not -- ultimately, this is a tool. The restatement would be a tool for the courts and for litigators to design their cases. And it is not helpful not to find out what the law is and what’s being debated. I think that was quite problematic.

 

And then another thing was that there was discrepancies between what the ALI calls the black-letter law. These are sort of the fundamental principles of fundamental statements of the law that are in the restatement. And it’s complicated enough to do a restatement of statutory law. But, as you know if you’ve ever tried to educate anybody on this subject, you always tell people, when they’re trying to understand a statute, first you go to the words of the statute. And by, essentially, replacing the words of the statute with a formulation that differs from the statute, you are inviting multiple levels of interpretation and confusion, to tell the truth.

 

Another complaint was that there was no mythological statement about how they were going about doing this, what their priorities were, what they would do if the interpretation of the law didn’t seem to coordinate with the statement of the law in the statute itself, what priority they gave to cases and to set regulations and copyright pronouncements and things like that. They were just, basically, silent on that. But I think one of the really overwhelming comments was that it seemed to be an effort to change the law. Now, there have been some efforts over the years to change the law through the courts and through statutes. And generally, I’m referring to changes that would narrow copyright. But there was some evidence that, because this had been thwarted, that this was seen as another way to alter the law. And if this is the source that a judge would turn to, then it could ultimately have the effect of altering the law. Many people felt that it should be more balanced than it was.

 

Well, at the end of that meeting, the reporters agreed to take the suggestions under advisement and go ahead and redraft. And they got some more comments. Let’s see. The meeting was in December, so they got some in January and February. And then, things were silent while they worked on the draft for the following year. And then, in fall 2016, we got draft two, which I won’t go into detail on every draft, but this one basically contained a redraft of what they’d released the previous year, plus some new material on the scope of protection. Basically, many advisors had the same kinds of concerns on the new draft. They were dissatisfied with the revisions of the draft, and they didn’t feel that their comments were fairly taken account of. So this went on a couple more times.

 

Between the draft three and draft four, the reporters decided to take certain parts of the draft to council. Now, the way that a restatement gets passed is that the council has to pass it, and then it is released to membership of ALI for a vote. And if it’s voted on favorably, it becomes a restatement. But that doesn’t have to be done in all of a piece. It doesn’t have to be the complete draft that’s submitted at one time. It can be portions. So the thought, I guess, on the part of the reporters was they would introduce this beginning section on the subject matter of copyright and some of the limitations of that and then, at least, get that much through to council and be prepared to have it go to the membership.

 

There was a lot of dispute to the first council draft. Many people felt that it wasn’t really something that had been agreed upon in any respect by the advisors and that reporters -- that there was still a lot of disagreement there. So the first time it went to council, council did not approve it. But the next time, even though there was a lot of disagreement, council did decide to approve the draft of, again, just these beginning portions. It’s subject to the reporters making some changes to the draft. Now, if it goes ahead as they say it will, now that the council has approved it just subject to reviewing what -- the changes that they made, the schedule is for it to go to the membership next year in 2020. And if that is the case and it gets passed, then some of this draft will already become part of the restatement, even though, as I said, it’s been quite hotly debated.

 

And meanwhile, while these council drafts are going ahead, there are still drafts at the level of the advisors where new subject matter of the copyright restatement keeps being released. So for example, after the subject matter protection, now we’re on to issues like ownership and transfer of copyright. And eventually, we’ll go on to exceptions and things like that. Whether this will go ahead as it’s been going, I don’t know. But it’s definitely clear that there is not a strong consensus among the advisors, and the same kinds of issues keep coming up. Is this a balanced discussion? Is this tilting too far in one direction? Have they fairly discussed aspects of the law that they don’t agree with? Do they have reasonable grounds for disagreeing with it? Is it too narrow in terms of its outlook on what copyright does?

 

And I don’t see this changing over time. It will be a surprise if we get to a true meeting of the minds among the advisors and the reporters. I should say, though, that the advisors are not all of the same mind, but there are definitely a group of advisors who feel strongly about certain things. They include the Copyright Office, the Patent and Trademark Office, the Copyright Alliance -- a number of academics. So it isn’t just in-house lawyers who have a problem with what’s going on here as some people would like to depict it as. So with that, I’m going to turn it over to Sy, and maybe you can talk more about what the issues are with this attempt on the part of ALI to create a copyright restatement.

 

Steven Tepp:  Thanks very much, June. Just a brief introduction for Sy as well, since I gave you yours. Sy Damle is a partner in the IP Litigation Practice at Latham & Watkins. Before entering private practice, Sy spent over a decade in the federal government, including as General Counsel of the U.S. Copyright Office and as a litigator at the U.S. Department of Justice. Sy, please go ahead.

 

Sy Damle:  Thank you to everyone for joining this call. Very interesting topic. I think it’s helpful to start with just sort of a basic principle that I think everyone agrees with, which is that the goal of any restatement project, including this one, is to produce a document, at the end of the day, that provides accurate and helpful guidance to courts and practitioners. That is the goal. So let’s think about how a restatement works ordinarily, outside of the context of this particular one. So if you think about the restatement of torts, what the restatement of torts is doing is that it is synthesizing common law from multiple jurisdictions, from all 50 states, and trying to derive, from that common law as it sort of gets decided on a case by case basis -- trying to derive some rules out of it that can be helpful in guiding practitioners and courts in the future about what the law is -- what the sort of general view is about particular legal principles.

 

It is a product that is well-designed to dealing with that kind of legal problem where you have all of these different jurisdictions deciding disputes -- individual disputes on a case by case basis. And from that, you sort of learn what the law is. That has a couple of different features. One is that it does not change very frequently. You don’t get radical shifts in common law from one year to the next because it requires sort of development on a case by case basis. This sort of happens in fits and starts. And it’s because it’s generally state law we’re talking about, no one state can sort of decide for the others what the law is.

 

So even if a state supreme court in Wisconsin decides a new principle of common law that was heretofore not understood, that’s only one state. So what you have is the restatement is able to take a long view of common law. And I think that’s sort of indicated by the fact that restatements -- you don’t get new versions of the restatement very frequently. I think we’re on the restatement -- so if you look at the restatement of torts, I think the first one was sometime in the 1930s or 1940s -- restatement of torts. The second version of it -- the restatement second of torts was issued in four volumes between the years 1965 and 1979. And then the restatement third of torts is currently in process. The first volume of that was in 2005.

 

So these are documents that are meant to sort of last a significant amount of time and do not require revisiting from every year -- every five years, even. They’re sort of generational documents.

 

Now, let’s turn to the copyright law. The copyright law is statutory. It is a federal statute, which means that Congress can decide at the drop of a hat to change the law. Obviously, congressional processes move slowly, but it is not unheard of to get major copyright legislation fairly quickly. So you look at what happened in this past October. You had a major overhaul of various aspects of the laws that govern music in the Music Modernization Act. That was a fairly significant piece of legislation that decided a bunch of questions that had been open. So you have that element of it.

 

You also have -- so the federal statutes can change quickly. Those federal statutes are implemented by a federal agency – the U.S. Copyright Office. The U.S. Copyright Office has room, like any other agency does, to interpret that statute and its regulations. So it has the ability, from time to time, to revisit those interpretations and by doing so change what the law is because regulations are binding. And the Copyright Office, as the agency that has authority to interpret that statute, gets deference for its views. And then you have case law. Case law changes fairly quickly. You have case law developing in all of the district courts. You have case law developing in the regional circuits. Those can change the law fairly quickly, and we’ve seen shifts in the way courts sort of view things like fair use, even over the span of the last five years, I would say. I think some of the law around fair use has really shifted around a lot, I would say.

 

And then, ultimately, in a case when you have splits in the circuit about the interpretation of a statute, those splits go to the Supreme Court. And the Supreme Court can decide, in a single decision, what the law is for the entire nation. So copyright law, by dint of its federal statutory nature, is one that seems ill suited to a restatement, which, again, a restatement is meant to be something that lasts a fairly long time. These change very infrequently. And as someone who’s involved in the process, you can see why because it is a -- there are a lot of advisors that have to go up to Philadelphia every year and sit around and debate the law and what the law is and what the best way of describing it is.

 

So in addition to everything that June said, including the sort of difficulty of describing a statute in other words -- so saying, “Here’s what the statute says. And now, we’re going to have, quote, black-letter law that describes what the statute says.” That’s difficult. But in addition to those problems, I think there’s just sort of a fundamental mismatch between what a restatement is and what the law is that we’re purporting to describe. That’s been the sort of core, I think, of the concern of the Copyright Office.

 

So the Copyright Office has sent now, I think, three letters during this process where they’ve repeated this concern of “Listen, this seems like we’re not thinking ahead to whether this document is something that will continue to be useful to courts and practitioners five years from now -- five years after it’s completed.” Because this is just sort of a thought experiment I like to give in thinking about this. So imagine we have completed the restatement, and you have to predict how every single Supreme Court case is going to come out over the next five years. I don’t think you could do that. And I don’t think anyone’s out there that could, five years ago, have said, “I know exactly the way in which every Supreme Court case on copyright law is going to come out.”

 

So you could have the best of intentions -- and I just want to emphasis this. I know there’s a lot of concerns about the identity of the reporters who have been selected and whether they have particular biases. My concern is totally separate and apart from that. My concern is you could have the most brilliant copyright minds, the most neutral copyright minds on this project, and you would still get it wrong because it requires predicting what Congress is going to do, what the Copyright Office is going to do, and what the Supreme Court and other courts are going to do. That is, I think, an impossible task. If you had a restatement that changed every year, maybe you could do it. But that’s just not the way restatements have worked.

 

And my understanding is that’s not the way the ALI is intending for this restatement to work. They’re not intending to revisit this every year with the Supreme Court has now decided the Supreme Court case, and now we have to redraft that section of the restatement. I’m not understanding them to be approaching the project -- this restatement project in that way. So that is, to me, what the fundamental problem is. And beyond that, to the extent the ALI is expecting courts to give weight to the restatement in a way that’s sort of above and beyond the kind of weight they would give to a treatise, for instance, or a law review article, then I have some real concerns because, then, it starts to -- putting on my hat as the former General Counsel of the Copyright Office, it starts to encroach on the space of Congress and the agency.

 

Those are the places you should look to, principally, for determining what the law is, not a private organization that is -- tell us it’s trying to redescribe what the statute says or what the agency’s regulations say. This becomes more -- the project becomes more problematic the more deference the ALI expects courts to give to it. That’s another issue that we’ve raised -- that the Copyright Office has raised in the past. And we’ve not gotten a clear answer about what exactly they’re expecting this restatement to -- how they’re expecting courts to treat this restatement, if they’re expecting courts to treat them differently than they do sort of your typical restatement of torts, which in many jurisdictions is the law.

 

Some courts have adopted -- legislatures and some state supreme courts have adopted the restatement as the law. That’s obviously something that would not work here. But even beyond that, if they’re expecting it to get more deference than a law review article, then I think that would raise some serious concerns, just in terms of the proper sort of democratic accountability and things like that. That’s my take on it, which reflects, largely, what the Copyright Office is and PTO’s take on it as well.

 

Prof. June Besek:  Can I add a couple of things to Sy’s statement?

 

Steven Tepp:  Sure.

 

Prof. June Besek:  Well, I wanted to give an example, which I really failed to do earlier. But first, I just want to say I don’t think my remarks—or I venture to say Sy’s—indicate that we think there’s any lack of good faith on the part of the reporters. I think they’ve been working very hard on this. I think they’re trying very hard to create a restatement that reflects what they think the law is. My concern is that they stray sometimes into what they think the law should be, and that is a concern. But for example, fixation is a fundamental requirement of copyright. It has to be fixed in a tangible -- the work has to be fixed in a tangible medium of expression, which can be anything. It can be anything from play to paper to computer hard drive. It has to be fixed for a period of more than transitory duration.

 

And there’s no definition in the law that gives clarity so you can measure what a period of transitory duration is. But they’ve created something here that is not in the statute or in any of the cases. And they say a period of more than transitory duration means a period that is long enough to allow enjoyment or exploitation of the works expressive content after it’s creation. And it’s problematic to just formulate something and drop it in the black-letter law as though it is suggested or dictated by the statute.

 

So it’s those kinds of things that cause real concern. Sometimes it can be smaller changes, but that doesn’t mean they’re of less concern. It just means they’re more subtle. I don’t know if you can do this, Sy, but you might talk a little bit about -- maybe disagreement is the right word -- about how they treated copyright protection for computer programs.

 

Sy Damle:  Sure. I can talk about that a little bit. But let me just take a step back. And I think that’s a really great point about -- again, this fundamental difficulty with this project is that, inevitably, unless you’re saying the black-letter law is exactly what the statute says -- In which case, what is the point of this project? -- but as soon as you start saying, “Well, the black letter law, let me try to explain it a little better than Congress has explained it or better than the Copyright Office explained it --” As soon as you start doing that, then you run into trouble because, as anyone that’s been involved in the sort of legislative sausage making knows, every word in a bill is poured over and often, especially in this space, it’s highly negotiated.

 

And so inevitably, when you start swapping one word out for another in describing what the law is, you are getting yourself into potential trouble in terms of giving an accurate reflection of what the law is. So to the point of -- to the question about computer software, there’s a hot debate, as I’m sure -- if any of you are at all familiar with copyright law, you’re aware -- there’s a really fierce debate in the courts and elsewhere about what -- how you apply Section 102(b), which limits copyright protection in work. So it says that copyright protection in works of authorship do not extend to ideas, processes, etc., that are described therein. There is a real debate about how that applies in the context of software. The real debate there is about whether the fact that software is functional means that it is unique -- it is especially subject to the limitation on 102(b).

 

The very technical debate is about whether 102(b) is a limitation on the scope of copyright protection for works that are otherwise protected by copyright or whether it is an exclusion to copyright protection so that it prevents things from being copyrighted that would otherwise be copyrighted. And it’s a really difficult issue in the context of computer software. There is a -- the application of 102(b) to computer software is difficult, and it is controversial. The restatement, at times, appears to take a very firm view on one side of that debate. And again, who knows -- this is something I think, ultimately, will have to get resolved by the Supreme Court, if not now in the context of current litigation, at some point in the future.

 

It will likely get before the Supreme Court, and the Supreme Court will decide. And so I think the question for those of us who are advisors is do we feel comfortable making a prediction about the way the Supreme Court would come out on that question? Will it take a narrower view of copyright protection for software or will it take a broader view of copyright protection for software? I think the answer -- I think there’s no way to know, sitting here today. And so it strikes me, at least, as a bad idea to try to anticipate that, now. And even worse, I think, would be to try to influence that now in the context of the restatement. I think if you wanted to write a law review article to express your view or file an amicus brief on behalf of some party, fine.

 

But I think to use the ALI process as a way to influence the outcome of litigation, I think, is really a misuse of what the ALI process is about. That, I think, is an example of where the restatement project could get into trouble where it tries to take a view of a position that might be controversial. I think there may be ways around that. But again, that just highlights the sort of fundamental problem here which is that, if you’re not taking a view on any of these positions, unless they’ve been decided by the Supreme Court, then you don’t have a very -- I don’t think you end up with a very useful document.

 

You could have a document that just says “Well, there’s cases that say this and cases that say that.” And that’s it. But I think that, really, to end up with a useful document that actually gives guidance, you end up taking positions that may turn out to be incorrect. Does that answer the question, June?

 

Prof. June Besek:  Yes. I think it did. Thanks, Sy.

 

Steven Tepp:  Thank you, both, very much. Let me note very quickly, before we turn to see if there are any questions from the listeners, that people may have noticed there’s a relatively close set of views on our two speakers today, which is unusual for The Federalist Society. We prefer to have diverse views represented and a productive exchange between the participants. I want to clarify that we did invite several people who are involved closely on the project who are supportive of the undertaking, but they declined, one after another, to participate. So we decided to move forward in any event with people who are certainly knowledgeable and well spoken. And we invite any comments or questions from the floor. Wes, do we have any questions at the moment?

 

Wesley Hodges:  Steve, it does look like we have one question from the audience so far. Would you like to go with that caller?

 

Steven Tepp:  Absolutely.

 

Wesley Hodges:  Wonderful.  Well, first caller, you are up.

 

Chris Garvey:  Chris Garvey. I’m a patent attorney and a former libertarian candidate for District Attorney, State Attorney General in New York, and Governor. So Dean Monrad Paulsen, first Dean of Cardozo Law School, opened up his legal methods course by shouting at the top of his lungs, “Never paraphrase a statute.” And it seems to me that the restatement is paraphrasing everything they might. I haven’t read it, and I have a point of personal curiosity. I have a tendency to write poetry, which I later will realize fits in music. And when that happens, I sort of wonder about copyright violations that I may be committing on that. Does the restatement give me more leeway in using other people’s melodies?

 

Steven Tepp:  They may charge you for legal advice.

 

Prof. June Besek:  I think the short answer is they haven’t gotten there yet, so we don’t know what their view is because that’s probably a fair use issue. And they haven’t gotten to talking about fair use yet.

 

Steven Tepp:  Yeah. And transformative use and all that other stuff.

 

Prof. June Besek:  You’ll have to stay tuned.

 

Sy Damle:  The paraphrasing the statute point is a good one, right? That’s exactly the concern here is that, again, you could be the most even handed, middle of the road copyright person -- copyright expert. And inevitably, you will lose meaning or change meaning when you try to change the statute, when you try to use different words than are used in the statute. I think there’s absolutely room here for more guidance. I understand why there are members of the ALI, including many judges, who see this as a potentially helpful project or helpful endeavor at some level, given the sort of uncertainty around many issues in the law. But that’s not unique to copyright law. That’s true of, also, various statutory law. And the way those get resolved -- we have the tools to resolve those already, so I don’t know why a restatement would be necessary on top of those other tools.

 

Prof. June Besek:  I guess one more thing I would add about restating the statute: there are sometimes reasons you might be able to clarify or something. But I think the more problematic aspect of that is the fact that I think the drafters are sometimes trying to do what I call filling holes. They see an issue that the courts haven’t addressed, and it seems to be open. And they decide we need an answer for that. But some people would argue that maybe we should give -- if it’s important in some -- if that issue ever comes up, maybe we should give the courts the first shot at it, rather than trying to effectively legislate through the restatement. And so it’s this notion of filling holes that I think is particularly problematic.

 

Wesley Hodges:  Well, thank you for your question. Here’s our second caller of the day.

 

Caller 2:  One observation and one question. The observation is in line with previous discussion, but it hardly seems to add clarity when you define transitory to mean long enough. But the question is is this a problem specific to a certain part of the American Law Institute, or are there other ALI projects going on that everybody should be aware of? And in this regard, I know that they’re trying to talk about -- or there’s been some discussion of the sexual assault standard. And some years ago, there was a reworking of real property rules that some people greeted with the plaintiff’s trial bar, so saw ten good things that came out of it. And I’m wondering how general this issue is.

 

Prof. June Besek:  I’ll just venture on that. There’s always -- even their traditional approach to restatement where they might articulate a majority rule and a minority rule and, in some cases, the restatement would espouse the minority rule, that did happen. But I think, over the years, the reporters have been encouraged or lead to believe that they have more latitude in advocating positions that maybe the courts had not advocated and that there should be less reporting and more speculating -- I don’t know whether I want to say that -- but assuming how the law would go if certain things arose.

 

So I know that there have been controversies in other areas, too. The current ones, I think it’s too early to see. I know that there was one, I believe, on insurance a few years ago that was quite controversial. So this approach hasn’t been embraced by everyone. But I do think that they have kind of envisioned their role a little differently than they used to.

 

Wesley Hodges:  Well, thank you caller. Steve, I turn the mic back to you. Do you have any questions for our panelists?

 

Steven Tepp:  For both June and Sy, I think it’s fair to say that if there’s one point of agreement across the spectrum of copyright law and policy, it’s that there’s a frustration about the political difficulties of amending the Copyright Act. As Sy said, once the decision to do it is arrived at, it can be done rather swiftly. But arriving at that decision can take years. And in many cases, politics are such that it seems gridlocked for the foreseeable future. So I’ll ask this in a neutral way. Is the ALI project an appropriate way to try to advance thought in the context of political loggerhead? Or does it present concerns about the democratic process?

 

Sy Damle:  Here’s what I’d say, as someone who’s been on the inside. I think if the brain power that’s in that room could be directed to something that’s much more affirmatively prescriptive, rather than descriptive, that would be a valuable contribution. The problem is that the restatement is not meant to be prescriptive. It’s meant to be descriptive. So then you have this sort of fundamental meta-fight about whether the degree to which the restatement should, in particular areas, be slightly more prescriptive than descriptive, whether the better view of the law is what these courts say rather than what those courts say, those kinds of fights. If you could instead have it much more consciously be a what do we think the law -- like blue sky this. What should the law look like?

 

I think that would be a really interesting and useful exercise for the ALI to get involved in. And they have, I think, as June mentioned, a sort of mechanism for doing that which is what they call their principles projects, which set out sort of more normative principles on what the law ought to be. So I think it would be really useful and interesting for us if we could sit in that room with all of the copyright brain power there, which is, let me just say, it’s a really fun -- these are really fun meetings if you’re a copyright nerd. But if that effort could be directed to something that could inform Congress on—or the Copyright Office, frankly—on the right way to amend the law, the right way direction to move the law in, I think that would be a really helpful exercise.

 

I don’t think doing it as a restatement is the way to do that. Again, I understand the frustration with how slowly Congress moves sometimes, having felt it myself. That’s democracy for you. That’s just the democratic process. Sometimes it moves slow, and sometimes it moves not at all. But that’s just the price you pay for living in this democracy.

 

Prof. June Besek:  I think -- my instinct was to say, well, maybe if there was a broader spectrum of views among the reporters, but then, I stopped and I thought, you know, I’m not sure I would think it was better if they had that because I’m uncomfortable about any small group of people not just describing the law but proscribing law as Sy mentioned. And of course, there’s the argument that they’re not creating law. This is a tool, and it’s issued by the ALI. And they can say what they think the law is or should be. But over the years, they have gained a strong reputation for being, I guess, honest brokers, if you well. And I think it is going beyond what they used to do, so there’s more of the reporters’ views now in the proposed restatement.

 

And then, as Sy pointed out, with the lack of forward movement in revising the copyright law, this document may have more influence than it otherwise would have. Congress doesn’t embrace the possibility of changing the law, unless there are a number of stakeholders who come forward together with a proposal. Then, there’s certainly room to iron out differences. But that’s much more likely to be the scenario when Congress passes a law. And that was certainly what happened in the recent Music Modernization Act. So unfortunately, I think, whatever the ALI does put out there, people may view that this is the work of experts and believe that, perhaps, it has a broader base than it does.

 

Sy Damle:  Yeah. I guess. You know, if you look back on the way the Copyright Act has been amended in the past, it is often a sort of small group of copyright experts that are helping drive it forward. If you look at the studies of the Copyright Act, the copyright studies lead by the Copyright Office that lead to the 1976 act -- and if you just look at the participants in the roundtables and other meetings that went into -- that feed into those studies, it’s all the usual suspects. It’s all the different groups on various sides making recommendations that are then getting synthesized into some report that then feeds into the legislative process. I mean, that’s a pretty common way that legislation in this space is moved forward.

 

So I’m not necessarily bothered by the fact that it is this sort of small, but not that small, group of people that are discussing these issues. So again, if this project could be turned into a much more consciously prescriptive direction, I don’t know. I think that could be something that generates a document that feeds into the democratic process at whatever phase and helps inform any future revisions to the Copyright Act. That could be a helpful document. The problem is I think the project feels a bit schizophrenic at this moment because, in some respects, it’s descriptive. In other respects, it’s prescriptive.

 

So I think, going back to your point, June, at the beginning, we’re not quite sure when we’re in that meeting what the methodology is for deciding whether we’re going one direction or another in terms of describing the law.

 

Prof. June Besek:  Yeah. And it’s interesting. Sometimes, they’ll say, “Well, there isn’t any law in this, so we’re going to be silent on it.” And then, other times, they’ll say, “Well, there isn’t any law on this, so this is what we think it should be.” Or the same thing will happen where the courts are split. They will sometimes not take a position, and then sometimes they say, “This is the view.” So it’s just inconsistent from issue to issue.

 

Sy Damle:  Yeah. I definitely get that feeling at times. Again, I think if there were sort of a kind of methodological guidepost, like “This is how we’re separate and apart for particular issues; this is how we’re approaching issues where there is no law or where there is a disagreement, in the context of this project; this is how we’re going to approach those kinds of questions when they arise,” that would be helpful in terms of -- even just in the mechanics of formulating comment for the reporters, if we kind of get a sense of what their meta-principles are, then I think we could be much more useful in giving them that kind of feedback that advisors are supposed to give.

 

Prof. June Besek:  And I think it would be a check on themselves, too, because, if you’re working under some guidelines, then you can measure your own work and say are we being consistent here. I can tell you that I’ve written comments on this in my personal capacity, not for the ABA. But I have to do that sometimes, too, and say, “Well, is what I said here really consistent with what I said up here?” And I will end up changing things because I realize that I, too, have not been consistent. But I have these kind of internal rules about what I want to say in my comments and how consistent I want to be. And that helps me when I’m proofreading or creating the document in the first place.

 

Steven Tepp:  And if it purports to represent what the law is but in fact contains aspects that are more hortatory than statements of good law, are there any tools to alert judges to that reality? For example, is there an opportunity for a minority view or sort of dissenting document?

 

Prof. June Besek:  I don’t know ALI process well enough, but I’ve never seen that in a restatement, unless the reporters themselves write it.

 

Steven Tepp: I wonder if people feel strongly enough about it, if that’s something that might be drafted and published separately, if in fact the final document is sufficiently flawed to justify it.

 

Prof. June Besek:  Sometimes I consider, kind of tongue and check, writing a companion guide to the copyright restatement. You know, it’d be a difficult thing to do because a lot of times these issues are very esoteric but do have the ability to change the law.

 

Sy Damle:  I mean, at the end of the day, one hopes that anything that comes out of this, before it has any impact, would get subject -- be subject to the adversarial process, right? As a practicing litigator, it’s just going to be one other thing we have to either use, if it’s helpful, or argue against, if it’s unhelpful. So that’s just -- I think, practically speaking, that’s the way things will shake out. So one hopes that that process -- you end up with something that gives guidance -- that you end up through the adversarial process getting courts to the right place.

 

But again, to the extent that the document is issued tomorrow and the law changes next year, that’s going to be -- that just effects how useful the document is itself and how useful ALI is seen, in general, as a place for accurate and helpful guidance.

 

Prof. June Besek:  I hope you’re right. When this process first started, I talked a little bit to people at the ALI, and they said, basically, “You shouldn’t be too concerned about the fact that people’s views are quite different because usually, through the process, we end up with something of a consensus on these issues.” And I thought, “Well, you know. Maybe that would happen, and that would be better.” But it seems that the way things are going up to council I can’t say that the parties have reached consensus on it. So I’m not sure that that model will be followed.

 

One thing, just to step back a minute because I don’t think any of us have really noted this, but copyright is a very polarized field right now. And so to do something from one perspective or the other is going to be problematic. If you want to do something that is kind of straight down the middle and takes account of what the law is, it’s a difficult thing to do. And I think we’re all tempted to slant it one way or the other. But if you have the responsibility of creating something like the restatement, it’s a big responsibility.

 

Steven Tepp:  So there are really two sets of issues here, as I’m listening to the both of you. One is that the draft, as it’s being produced bit by bit now, may not, in fact, fairly represent the current state of law. And the other is, even to the extent it does, that may not be the state of the law a month, a year, or three years from now.

 

Sy Damle:  Yeah. That’s the problem. And again, I have not yet heard the solution to that problem from the ALI in the context of a restatement, like how do they plan on keeping it up to date, given that fact. I think it’s a fact that the law is going to change. It’s going to change in ways that we can’t expect going forward. And just think about a case -- like I don’t know if there are any real copyright geeks on the phone, but think about a case like Star Athletica. You had a lot of minds focused on that question of separability for designs of useful articles.

 

A lot of courts had weighed in on it. The Copyright Office had weighed in on it. A lot of academics had weighed in on it. I think it’s fair to say that the Court went in a direction that was not exactly the way anyone expected. And so if you had written a section and released a section on separability the year before or two years before Star Athletica, then you would have had to revisit that section after it was issued. Treatises, if you’re the writer of a treatise, if you’re a [Inaudible 00:47:25], you can swap in the pages that discuss that section in your next update.

 

But I don’t know how a restatement does that, just given the way that restatements work in general and how slowly they change. That is, again -- that’s the fundamental problem. For me -- I think for the Copyright Office as well -- that seems like a fundamental problem that has not yet been convincingly addressed.

 

Prof. June Besek:  There’s also the problem of the restatement getting out ahead of the Copyright Office regulations because the Copyright Office, obviously, has to think long and hard about how it alters it’s regulations and practices to reflect new cases and things like that. And if the restatement is either contradictory or it gets out before the Copyright Office does, I think that can lead to a lot of confusion.

 

Wesley Hodges:  We have two questions from the audience. Do you want to go to those?

 

Steven Tepp:  Oh, good. Absolutely.

 

Wesley Hodges:  Wonderful. Okay, caller, you are up.

 

Alan Smith:  Hi. Alan Smith from the R Street Institute. I know we’re here to talk about copyright, but there was a question asked and answered about other places where there’s been a problem. And I wanted to tell you that the liability insurance one is very, very current. Indiana is supposed to pass a resolution this week. Ohio has completely rejected the restatement by statute. North Dakota, Kentucky passed a resolution. That’s going on right now. Just wanted to add that to the conversation.

 

Wesley Hodges:  Thank you very much, caller. Let’s go now to our next caller.

 

Carlos Beckham Stichner (sp):  Hello. My name is Carlos Beckham Stichner, and from what I’ve heard you all say, it seems that restatement for this topic -- for copyrights may not be the appropriate way to go. And you all seem to say that restatement would confuse or not be helpful. Why not? Does the ALI have other ways to deal with this instead of a restatement? I think somebody mentioned something about principles. Is there a way to get ALI to change directions instead of --?

 

Wesley Hodges:  Steve, did you hear the question from the speaker? Could you repeat that for us?

 

Steven Tepp:  Sure. I think the question was, in light of the concerns that have been expressed about the tool of the restatement, are there other tools at the ALI’s disposal that could allow them to comment on copyright law and, perhaps, where they’d like to see it go that did not purport to state the law as such. And June, you may have a comment on that.

 

Prof. June Besek:  Well, my understanding -- and I’m not an expert on the ALI procedure, but there is a tool that they use, which is principles rather than the restatement, where I think there is more room for prescriptive or, you might say, aspirational views of the law and would not be so much into the nitty gritty of the law but just broad principles about how we should be viewing copyright law and what principles Congress might follow in legislating in the future. And it seems to me that might be a good way to go. Although, that argument has been made to the ALI on a number of occasions by a number of different groups, and they have not been receptive to it.

 

Steven Tepp:  I’ve got to ask. On a number of instances, now, both of you have described ways in which the participants have made comments about how the draft was not complete, not balanced, not accurate, how the restatement approach is not appropriate. And over and over, the answer seems to be to ignore those comments. Does that concern you at all? Because I’ve got to say it concerns me.

 

Sy Damle:  Look. Part of it is, if you’re being cynical about it, you might say, “Well, look. The ALI recognizes, as an institution, that the law is not principally a common law any more -- that it is driven by statute and regulation in a way that was not true when it was formed -- when the ALI was formed.” Then, all of the interesting issues in law are under statutes and under regulations. So you can imagine to, again, the cynical view is that they’re trying to maintain a relevancy today in light of that overall shift in the legal landscape. And so then it’s really a question of whether ALI -- what it’s sort of self-conception is in terms of its role.

 

Again, I think the project here feels like it’s sort of a treatise of sorts, right? It’s a treatise written by the people that -- by the reporters with input from the rest of us advisors. And that’s fine. If that’s what ALI wants to write and if they want to understand restatements going forward to be in that nature rather than the nature of what they were, which is a statement of the law that you could cite to as the law, then that’s fine. ALI is a private institution. It can do whatever it wants. But again, I think it would be good for them to be conscious of that and to say, “Whether we call it a principle or restatement or something else, that this is a different kind of document than the restatement second of tort” -- that ALI has a slightly different mission than it did when it was writing those documents.

 

And if they did that, then I don’t think there would be anything -- you couldn’t object to that. That would be fine. It’s just that, to the extent that they’re trying to say, as I said before -- to the extent that they’re trying to seek deference to their document above and beyond what you would get from writing a treatise or a law review article, that’s when it starts to get problematic in this space.

 

Prof. June Besek:  I just want to add that we don’t have -- I think that Sy and I don’t have the same views, but we have similar views. And there certainly are advisors who take a different view. Now, they have not been as vocal as the advisors who objected to some of the things in the draft. But on the other hand, they may be sitting back and thinking, if it becomes an issue, they will be more vocal. And if the draft keeps going in a way that they feel comfortable with, they’re not going to say anything. So that’s certainly understandable. But some things are more troubling than others -- that the ALI hasn’t done.

 

I think that it’s hard to argue with the proposition that they should be describing the current law, even if they don’t agree with it. They can, in comments, say they don’t agree with it and why they don’t agree with it. But to not discuss it, I think, makes the document much less useful and possibly harmful to people who would rely on it.

 

Steven Tepp:  To that point, if the purpose of a restatement, at least historically as we’ve understood them, is to provide some clarity to practitioners, but this document, if it moves forward as apparently envisioned, as Sy put it -- as a litigator, will simply become another tool for one side or the other to argue their case -- just another document to cite to, would it really achieve a goal of providing any more clarity? Or would it just muddy the waters further?

 

Prof June Besek:  Well, it depends what happens after it’s issued. If people get tired of the fight and just kind of drift away, then no one will really pursue the notion that it obscures the law. So it depends on what happens during the rest of the development with this and afterwards.

 

Wesley Hodges:  Very good. It does look like we’re a couple minutes past the top of the hour. Steve, do you have any comments for us before we close today?

 

Steve Tepp:  No, I think our speakers have been great, and I just want to thank them and thank everyone for joining the call today.

 

Wesley Hodges:  Wonderful. June and Sy, do you have any comments for us before we close?

 

Sy Damle:  Thank you for inviting us to speak.

 

Wesley Hodges:  Excellent. Well, everyone, on behalf of the Federalist Society, I’d like to thank our experts for the benefit of their very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for this conversation. This call is now adjourned.

 

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