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Copyright Copyright Theory

Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Ryan Reynolds

In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute’s (ALI) Restatements have become an important tool for those in the legal community to better understand different bodies of law. Despite the success of the Restatements, however, their expansion into different areas of law has not always been received with open arms. Such is the case with the Restatement of Copyright. Since the project was revealed in 2015, many have voiced their skepticism of the project, questioning both its utility and whether its supporters truly want to restate the law or instead reform it. It is against this backdrop that Professor Justin Hughes’ forthcoming article, Restating Copyright Law’s Originality Requirement, finds itself situated.

In his forthcoming article, Prof. Hughes provides a detailed review of the draft Restatement’s treatment of one of the threshold requirements for copyright protection: the “originality” requirement. This requirement is established per §102(a) of the Copyright Act of 1976, which states that “[c]opyright protection subsists . . . in original works of authorship [emphasis added].” To determine whether a work is sufficiently original to be copyrightable, however, the Supreme Court created a two-pronged test in its seminal 1991 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. opinion. First, the work must be “independently created by the author,” which means that the author created the work without knowingly copying another’s work; second, the work must possess a “modicum of creativity”—which, by all accounts, is a very low bar.

Prof. Hughes concludes that, despite the inspiration for the project “by academics who felt the pace of reform of copyright law . . . has been too slow, [and] in the wrong direction,” the draft Restatement “stick[s] to a centrist, sometimes minimalist, narrative of Feist’s two-step framework.” This notwithstanding, Prof. Hughes notes that there are several “occasional missteps” and “a few points of genuine concern” with the current draft Restatement.

The Draft Restatement’s Treatment of The “Originality Requirement”

As noted by Prof. Hughes, the draft Restatement follows the general framework of Feist with § 5 “‘Originality: In General,’” stating in 5(b) that, “‘[f]or a work to be original, the work must be independently created by its author, as discussed in § 6, and must embody expression that is at least minimally creative, as discussed in § 7.’”

In his review, Prof. Hughes examines § 6 and § 7 respectively, beginning first with § 7’s treatment of Feist’s modicum of creativity requirement.

§ 7’s Treatment of the Modicum of Creativity Requirement

Describing it as the “true heart of the draft Restatement’s originality exercise,” Prof. Hughes commends the draft Restatement for what it does well while also criticizing it on several grounds. As for what he believes it does well, Prof. Hughes approves of the language shift from 7(a)’s, which focuses on “expression that is…minimally creative,” to 7(b) and 7(c)’s, which focuses on the author’s “choices.” While acknowledging that others have criticized the section for “this sleight of hand,” Prof. Hughes believes that this properly reflects the “shift from what courts are supposed to do to what courts actually do [emphasis in original].” As explained by Prof. Hughes, while Feist directs courts to look for a modicum of creativity, the Supreme Court’s 1903 Bleistein v. Donaldson Lithographing Co. decision prohibits judges from making “aesthetic judgments” on what is and is not creative. To resolve this tension, Prof. Hughes explains that courts look to the creative choices in the creation of a work to determine minimal creativity. Therefore, Prof. Hughes believes the draft Restatement’s focus on author’s “choices” accurately reflects the practice of courts; however, as it barely mentions Bleistein, it does not adequately explain to the reader what it is doing.

Further, Prof. Hughes criticizes § 7 for not following its treatment of author’s “choices” consistently where 7(c) is concerned. The relevant language of 7(c) says that “‘[t]he minimal-creativity requirement is not satisfied by choices . . . (such as . . . the tools used to produce the work . . . ).’” Prof. Hughes argues that this provision is incorrect, as “[t]he artist’s choice of which tools to use is part of the creative process. The sculptor’s choice of which chisel to pick up—width of blade, angle of blade, hardness of steel, etc.––may be an expressive choice.”

Another problem Prof. Hughes identifies with the draft Restatement of § 7 is that “Section 7(b) clearly seems intended to limit ‘selection, coordination, and arrangement’ as possible bases for original expression to ‘compilation’ works.” While the current draft of 7(b) states that, “In the case of a compilation [emphasis in original], choices regarding the selection, coordination, or arrangement of elements can satisfy the minimal creativity requirement even if those elements are not themselves original,” the 2018 version “did not have this limitation and was more open-ended.” As expressed by Prof. Hughes, “This intent to limit selection, coordination, and arrangement of bases for minimal creativity to the category of ‘compilation’ works is not an accurate reflection of case law [emphasis in original].”

Prof. Hughes also criticizes the draft Restatement both for what it chooses to say and chooses not to say about creativity. As to the former, while comments to § 7 do not provide a definitive definition of what is or is not original, they do provide a list outlining what minimal creativity requires. While to Prof. Hughes this list is helpful, it is also imperfect and raises concerns. One concern he highlights is its potential to raise the minimal-creativity bar, thereby narrowing copyright’s protections. To this point, Prof. Hughes highlights that, in the draft Restatement’s list, it provides that creativity must be “‘making non-obvious choices from more than a few options.’” As Prof. Hughes breaks down, “[t]hat appellate court dictum is directly contradictory to the Supreme Court’s statement in Feist . . . that the minimal-creativity requirement . . . can be met by ‘some creative spark, ‘no matter how crude, humble, or obvious’’[emphasis in original].”

As to what the draft Restatement chooses not to say about creativity, Prof. Hughes first believes that, to improve, the draft Restatement should “includ[e] . . . a discussion of how choices that manifest individual personality,” such as the decisions of photographers on how they take pictures, are “protectable original expression.” To this point, Prof. Hughes believes that “the most serious shortcoming” of § 7 is the Reporters’ decision not to address Bleistein—which, in the cited words of Prof. Barton Beebe, “‘directly connected ‘originality’ with personal expression.’” Second, Prof. Hughes believes that § 7 should acknowledge “‘intellectual’ choices” as “part of the minimal-creativity equation.”

§ 6’s Treatment of The Independent Creation Requirement

Moving onto his review of § 6, Prof. Hughes first points to its language: “A work meets the independent-creation criterion for originality if the author has contributed some expression to the work without copying that expression from any preexisting work.” While Prof. Hughes believes that the “formulation is ok,” he quickly points out issues he sees with the section’s comments and Reporters’ Notes. First, Prof. Hughes notes that Comment a’s statement “that ‘[f]or expression to be independently created, it must come from the mind of the author’ . . . arguably conflates the two Feist prongs”—a conflation he notes Comment b also likely commits. As Prof. Hughes explains, “the independent production requirement is that the expression be made or brought into the world by a person who had not experienced the same expression previously [emphasis in original],” and therefore “[i]t is not necessary that it ‘come from the mind of the author.’” As Prof. Hughes illustrates, “If a person throws a set of dice one hundred times and writes down the resulting dice totals from each roll on a list, that list was ‘independently-created’ under Feist.”

Prof. Hughes is also critical of the discussion of “novelty” in Comment b, which says that “‘the expression need not be novel or unique.’” While he believes the Reporters’ Notes make an important point, he sees the use of the word “novelty” as simply “too loaded with patent law baggage.” As he explains, the independent-creation standard for Copyright is different from patent law’s “novelty” standard, as “[c]opyright’s independent-creation requirement does not mean that the thing cannot already exist in the world.” Therefore, as there may be confusion in using the word “novelty,” Prof. Hughes recommends removing it altogether.

Lastly, Prof. Hughes also questions the amount of attention the Comments and Reporters’ Notes to § 6 dedicate to nonhuman authorship. After providing an overview of the current limited case law surrounding this issue, he concludes that, while “[t]hese issues are fun conjecture for academics, . . . [they] are so rarefied as to wonder why the draft Restatement discusses them at all.”

Categories
Copyright Legislation

Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

a gavel lying on a desk in front of booksBy Ryan Reynolds

In 2015, the American Law Institute (ALI) made the announcement that it would restate an area of law that is dominated by a detailed statute—the Restatement of Copyright. ALI’s Restatements have played an important role in the development of the law, with judges, lawmakers, and law students referring to them as important tools in understanding different bodies of law. In the nearly one hundred years since ALI’s formation, however, its Restatement projects have historically eschewed legal fields dominated by statutes, instead focusing on common law topics. Therefore, when ALI announced its plan to create a Restatement of Copyright, there were many who were skeptical of the project.

It is in this context that Professors Shyamkrishna Balganesh and Peter Menell provide insight in their forthcoming article in the Columbia Journal of Law & the Arts, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright. While Profs. Balganesh and Menell support a Restatement of Copyright, they argue against ALI’s application of the traditional Restatement format to an area of law dominated by a detailed federal statute. They argue that such an application ignores the analytical mismatch between the traditional Restatement format and statutory domains that will create more confusion than clarity. To resolve this mismatch, Profs. Balganesh and Menell argue for several modest changes that would allow the project to serve as a template for future statutory Restatements.

Historical Origins of the “Mismatch”

Looking to the origins of ALI, Profs. Balganesh and Menell illustrate that, from the beginning, it purposely avoided areas of law principally governed by statutes. ALI’s conception of its core function then, as now, was to resolve the uncertainty and complexity of American law—which, at the time of ALI’s formation, was derived from judge-made law that lacked general agreements on legal principles. Therefore, ALI provided guidance to judges and those involved in the legal field with the first Restatements of the law. These Restatements distilled black-letter rules of law from the disparate court decisions across the country and were seen as clear statements of the law.

It is for this reason that, soon after ALI approved a Restatement of Business Associations, fear arose among its membership that it was a subject too steeped in statutory provisions to fit the Restatement model. To address this fear, then ALI Director William Draper Lewis prepared a report outlining a framework to adapt Restatements to statutorily dominated legal fields. At its core, this framework advocated for placing the statutory provisions of subjects governed by uniform statutory law front and center. To Mr. Lewis, the primary value of these Restatements would not consist in distilling black-letter rules of law but would instead be the clarification of interpretive principles, providing the relevant judicial and executive efforts surrounding the statutory text.

Despite Mr. Lewis’ efforts, however, ALI ultimately abandoned the project and never revisited the framework of Lewis’ report. Following this affair, ALI’s Restatements avoided direct engagement with fields dominated by statutory law, instead using model codes as an alternative. That changed in 2015 when ALI announced the Restatement of Copyright project.

The “Mismatch” in the Current Restatement Initiative

As Advisors on the Restatement of Copyright project, Profs. Balganesh and Menell take time to outline their experience and criticism of the project’s use of the traditional Restatement model to copyright law. Despite ALI initially indicating that the project would focus on common law features of the Copyright Act, the first circulated draft indicated that its scope had expanded to include federal statutory provisions. To create its distilled black-letter rules of law, Profs. Balganesh and Menell note that the draft paraphrased, condensed, and reworded the statutory provisions of the Copyright Act. These changes were such that the “lack of attention to the text, legislative history, and administrative context of copyright law . . . would not aid busy judges in identifying pertinent sources for interpreting statutory provisions.”

To illustrate their criticism of the mismatch, Profs. Balganesh and Menell provide an in-depth case study of ALI’s efforts to restate the Copyright Act’s distribution right. As they explain, the interpretation of the distribution right has been subject to significant interpretive controversy. With the rise of peer-to-peer file sharing in the early 2000s, the distribution right was the subject of massive litigation. While some courts interpreted a violation of the distribution right narrowly to require proof that sound recordings placed in a share folder were actually downloaded by a third party, other courts read it broadly so that merely “making available” a sound recording through a peer-to-peer network could constitute a violation. As argued by Profs. Balganesh and Menell, the legislative history of the Copyright Act demonstrates Congress’ intention for a broad reading of the distribution right. This legislative history was not considered by a court until the Tenth Circuit’s opinion in Diversy v. Schmidly, where the court held that the distribution right included liability for “making available” copyrighted works to the public. This same interpretation was also reached by the Copyright Office in a 2016 report prepared at the request of the House Subcommittee on Courts, Intellectual Property & the Internet.

At its core, Profs. Balganesh and Menell criticize ALI’s draft of the distribution right for not presenting faithfully all the pertinent interpretive sources and instead improperly stepping into the role of a judge by making an interpretive decision itself. Despite it’s claiming not to do so, Profs. Balganesh and Menell argue that the draft intentionally put aside a meaningful discussion of the legislative history to adopt an interpretation of the distribution right that rejected the “making available” approach to liability. Further, in its formulation of its black-letter law, the draft relied solely upon court decisions interpreting the statute prior to the Diversy decision, where the legislative history was not understood, and at no point presented the language of the statute itself. Despite their raising of these concerns to ALI, Profs. Balganesh and Menell state that ALI only “double[d] down,” committing to its textualist interpretation while “purporting not to take a position.”

Proposed Remedies for the “Mismatch”

To remedy the mismatch in the current project, Profs. Balganesh and Menell first propose that the Restatement should modify its perspective. In the traditional model, Restatements purport to speak from the perspective of an “excellent common-law judge.” When it is extended to statutory areas of law, however, Profs. Balganesh and Menell argue that this perspective is inappropriate. As statutory interpretation relies on the discretion of judges, a black-letter rule prescribing a singular interpretation of the statutory language steps beyond the role of a Restatement to only clarify the law. Profs. Balganesh and Menell propose that the Restatement should instead act to aid judges in exercising their discretion by providing them with a forthright explication of the materials that inform statutory interpretation, such as an overview of the relevant legislative history or interpretive approaches by other courts.

Second, Profs. Balganesh and Menell propose an update to the Restatement template. Keeping with the idea from Mr. Lewis’ report, Profs. Balganesh and Menell propose that the traditional black-letter law section of the Restatement be replaced with the actual and complete text of the statutory provisions. They then propose that the Restatement lay out sources of interpretation available to a judge in the context of the statute. Since interpretation begins with the text of the statute, placing the text front and center, then followed by relevant interpretive tools, respects the role of a judge while ultimately aiding in the interpretive exercise. Last, Profs. Balganesh and Menell propose reworking the preamble to the Restatement of Copyright as an objective primer to the history surrounding the Copyright Act’s formation. Due to the complex and unique history surrounding the Act’s evolution, Profs. Balganesh and Menell argue that such a preamble would allow an interpreter from the outset to see some of the relevant tools and sources that could be used in interpreting its provisions.

Categories
Copyright

Members of Congress the Latest to Question ALI’s Restatement of Copyright

the word "copyright" typed on a typewriterAs copyright wonks are surely aware, the American Law Institute (ALI) has been busy with its first foray into restating a body of federal statutory law, the Restatement of Copyright. Restatements have traditionally covered state common-law topics, such as employment, property, trusts, and torts, which are primarily governed by some combination of state statutory and judge-made law. Sometimes a federal statute plays a significant, though partial, role in a Restatement, as with the Foreign Sovereign Immunities Act in the Restatement (Fourth) of Foreign Relations. But never before has ALI produced a Restatement of a coherent and comprehensive federal statutory scheme—a fact that has diverse commentators scratching their heads.

Since its inception, many have expressed doubts about the Restatement of Copyright project. The U.S. Copyright Office, U.S. Patent and Trademark Office, American Bar Association IP Section, industry groups, judges, academics, and many others have communicated serious concerns that this Restatement will do more harm than good, yet ALI seems dead set on seeing it through. The latest to question the propriety of this project are Members of Congress who voiced concerns in a letter sent to ALI earlier this week. In the letter, Senator Thom Tillis and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda point out that in over 100 years of existence the ALI has never drafted a Restatement on law that is almost exclusively governed by federal statutes. The Members of Congress are primarily concerned with how the Restatement “attempts to diminish the importance of the statutory text or legislative history relating to that text” and replace it with “novel interpretations.”

The congressional letter has been well-received by the copyright community. Yesterday, AAP CEO and President Maria Pallante commended the Members of Congress for their “strong leadership” and called the Restatement of Copyright “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.” Copyright Alliance CEO Keith Kupferschmid applauded the Members of Congress for “voicing their concerns” and called on ALI to “address these and the many other significant and very real concerns that have been raised by the Senator and Representatives and many others who have spoken up.” And CreativeFuture complimented the insights of the Members of Congress while condemning this Restatement as being “driven by those who want to rewrite the law, which isn’t their job.”

Though certainly venerable, the Restatements over the last century have not been immune to attacks of perceived bias. Law review articles for years have made these claims (for example, see here, here, and here). The late Antonin Scalia highlighted such concerns in his acerbic dissent in Kansas v. Nebraska, when he stated in 2015 that “modern Restatements . . . are of questionable value, and must be used with caution” since “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Justice Scalia warned that “it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”

Unfortunately, ALI’s current Restatement of Copyright project suffers from the very problems that Justice Scalia described. The Reporter and other supporters have expressly stated that they view this Restatement as a chance to change the law—not simply to restate it. To that end, this Restatement literally rewrites the Copyright Act by paraphrasing the statutes rather than quoting them directly when presenting the supposed black-letter law. This will only lead to confusion as the proffered black-letter law is not the same as the actual law that must be applied by the courts.

A Restatement Or A Principles Project?

I participated in a panel discussion on this Restatement last year at the Fordham IP Conference, and I was genuinely surprised by how many of my fellow panelists were skeptical of the notion that we should have another copyright reference such as ALI’s Restatement of Copyright. My own view is that there’s plenty of room for more copyright treatises, but this particular project should be abandoned given the decision to recast the statutory text rather than to simply quote and interpret it. Other panelists were not nearly as positive. For example, Professor Justin Hughes of Loyola Law School offered his insights into what is really driving this project:

There is a very simple calculus of what is going on; that is, that Copyleft academics have felt themselves locked out of policymaking; have felt themselves ignored by the courts, rightly or wrongly; and are looking for a major lever. If you are not willing to do what is necessary to get legislation passed in Washington in IP — and it is not fun and it is ugly — so much the easier if you can just write black-letter law in a book with some other professors.

In fact, the Restatement of Copyright project originated as an ALI Principles project as part of a copyright reform initiative. In a letter to ALI in late 2013, Berkeley Law’s Professor Pamela Samuelson suggested that ALI “should undertake a copyright reform project” to “aid additional reform efforts” in copyright law. Her idea was that ALI would provide judges and lawyers with a set of “normative underpinnings” that they could use in practice to shape copyright law without statutory amendment. In particular, Prof. Samuelson cited “a dozen examples of common law copyright issues on which courts have been at odds that an ALI project might usefully address” that she had outlined in an article calling for copyright reform. These included digital first sale, statutory damages, conceptual separability, secondary liability, and whether fair use is a right. The letter stressed that ALI was “the institute most capable of taking on such a significant law reform project that would bring greater normative clarity, predictability, and balance to U.S. copyright law.”

Critically, in both the letter and article, Prof. Samuelson proposed that ALI undertake a Principles project—not a Restatement. The two serve different purposes and audiences. According to ALI’s Style Manual, “Restatements are primarily addressed to courts,” while “Principles are primarily addressed to legislatures, administrative agencies, or private actors.” Each “seeks to clarify and synthesize” a particular field of law; however, only Restatements are intended to “reflect the law as it presently stands or might appropriately be stated by a court.” Principles projects, by contrast, are “generally written as recommendations to particular institutions (e.g., legislatures, corporations).”

Nevertheless, ALI authorized the project as a Restatement even though its official Reporter also made clear in a letter to ALI that he envisioned a reform effort: Given the “bad state” of things, there “seemed to be a perfect environment for a deep reevaluation of copyright law.” Because this “has not happened. . . . it falls to the federal courts” to fix things since “Congress is unlikely to proceed any time soon with copyright reform.” Accordingly, the Reporter clearly intended a Principles project and not a true Restatement.

The Reporter also appears to hold a narrow and controversial view of copyright’s constitutional purpose, asserting that the Constitution “sets out an explicitly utilitarian rationale.” But, in Eldred v. Ashcroft the Supreme Court stated that copyright serves both public and private ends. The Court held that rewarding authors and promoting progress are “complementary”—and “not mutually exclusive”—“ends” since “copyright law serves public ends by providing individuals with an incentive to pursue private ones.” The Supreme Court reiterated its holistic approach more recently in Kirstaeng v. Wiley, where it unanimously noted that one of the “well settled” objectives of the Copyright Act is “rewarding authors’ creations.” By contrast, the Reporter appears willing to write authors’ rights out of the constitutional bargain—an approach again better suited for a normative Principles project and not a Restatement accurately describing the current state of the law.

Why Paraphrase When You Can Quote?

ALI’s Style Manual explains that each Restatement section is broken into three parts: (1) black-letter provision, which states the rule of law; (2) Comment, which explicates, analyzes, and illustrates the black-letter rule; and (3) Reporter’s Notes, which explain the sources provided and their place within the current law. Since earlier Restatements dealt with common-law issues, the black-letter provisions at the beginning of each section provided a coherent synthesis of the various sources of law. Copyright law, by contrast, already has a coherent body of black-letter law—the statutory provisions of the Copyright Act itself. The Style Manual provides that “Restatements are expected to aspire toward the precision of statutory language,” but such aspirations are unnecessary here since the precise statutory language already exists.

Nevertheless, the Restatement of Copyright project has approached the copyright field like it was any other, and the drafts of the Restatement to date show that the black-letter provisions are paraphrases of the underlying statutes and not the statutes themselves. It seems obvious that any attempt to restate the copyright statutes in different terms will lead to unnecessary confusion, but this is, for the time being, the route that has been chosen. The problem, of course, is that courts first and foremost must interpret and apply the words of the statute. Any deviation from the statutory language in the Restatement’s black-letter provisions will only give courts more work to do as they attempt to reconcile Congress’s actual black-letter law with ALI’s gloss upon it. This is a recipe for confusion, not clarity. Indeed, ALI has received numerous comments challenging this unique format.

For example, the U.S. Copyright Office submitted a letter to ALI in 2015 questioning the “nature and goals” of ALI’s undertaking and pointing out the obvious fact that “there can be no more accurate statement of the law than the law itself.” The Copyright Office noted that the Restatement’s black-letter provisions materially departed from Congress’s enactments and that “the accompanying discussion and illustrations evince selective and particularized views that do not present a balanced interpretation of the statute.” The Copyright Office accused ALI of treating “singular judicial decisions” as “well-established rules” while ignoring “contrary precedent,” and, after listing several specific examples, it suggested that “the Restatement project appears to run the risk of creating a pseudo-version of the Copyright Act that is inconsistent with the law as Congress enacted it.”

Similar views were expressed by the Register of Copyrights just last year. Register Karyn Temple concluded that “the project is a misguided one” since “an extensive body of positive copyright law already exists.” She pointed out the futility of restating “a body of positive federal law,” noting that there “can be no more accurate statement of the law than the words that Congress has enacted in the Copyright Act and those that the Copyright Office has adopted in its regulations.” Register Temple admonished ALI for “tinkering with complex statutory and regulatory provisions” given that it “will lead to confusion and misinterpretation” and “will inevitably alter sense and meaning.” She then suggested that ALI “reconsider the project as a whole” as “the attorney or judge who relies on it will often be misled.”

The Director of the U.S. Patent and Trademark Office, Andrei Iancu, submitted a comparable letter in late 2018, but unfortunately it’s not publicly available. In the letter, Director Iancu suggested “adapting the typical Restatement format to accommodate the specific characteristics of the Copyright Act.” Specifically, he noted that “the detailed, prescriptive provisions of the Copyright have historically been considered ‘black letter’ law,” and he argued that the “attempt to rephrase them . . . can only lead to ambiguity and contradiction” as “the meaning of the statute will be clouded or altered.” Director Iancu predicted “that the copyright Restatement project as currently conceived will create more confusion than enlightenment,” and he urged ALI to quote the statutory law itself as the black-letter statement of the law.

Likewise, Columbia Law’s Professor Jane Ginsburg sent a letter to ALI in 2015. Prof. Ginsburg called the Restatement “a fundamentally aspirational endeavor” that “gives the impression of a shadow copyright act,” and she questioned whether the project should even proceed under the guise of a Restatement instead of a Principles project. Over the past several years, many others have filed critical comments as well, including the Authors Guild and the New York City Bar. Indeed, comments have even been submitted by prominent figures such as Judge Pierre Leval of the Second Circuit and Judge Margaret McKeown of the Ninth Circuit. Unfortunately, however, most of the comments that have been filed are not readily available online at this time. Perhaps most revealing of what seems to be an underlying bias in those leading the project, I have yet to see a commentator suggest that the Restatement gets something wrong in a way that would actually benefit copyright owners. The “mistakes” all cut the other way.

As a closing thought, I’ll note that this project appears to create a Catch-22 for ALI. 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. Behind all this might be a gambit that the Restatement is perceived to be an accurate reflection of the law, such that it’s followed, while in fact expressing a version of the law that is not actually true, but rather “aspirational” as Prof. Ginsburg said. In this way, the existing statutes could effectively be changed by the courts—at least in how they interpret and apply it. That’s a narrow needle to thread, and it’s hard to see how it could be done. I think ALI could create a useful secondary source for copyright law, but the reality is that this Restatement has been designed from the beginning to change the law—not merely to restate it.