{"id":7514,"date":"2019-12-05T01:27:36","date_gmt":"2019-12-05T01:27:36","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7514"},"modified":"2026-02-03T20:36:51","modified_gmt":"2026-02-03T20:36:51","slug":"members-of-congress-the-latest-to-question-alis-restatement-of-copyright","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2019\/12\/05\/members-of-congress-the-latest-to-question-alis-restatement-of-copyright\/","title":{"rendered":"[Archived Post] Members of Congress the Latest to Question ALI’s Restatement of Copyright"},"content":{"rendered":"

\"theAs 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<\/a>. Restatements have traditionally covered<\/a> 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\u2014a fact that has diverse commentators scratching their heads.<\/p>\n

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<\/a> 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 \u201cattempts to diminish the importance of the statutory text or legislative history relating to that text\u201d and replace it with \u201cnovel interpretations.\u201d<\/p>\n

The congressional letter has been well-received by the copyright community. Yesterday, AAP CEO and President Maria Pallante commended<\/a> the Members of Congress for their \u201cstrong leadership\u201d and called the Restatement of Copyright \u201ca back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.\u201d Copyright Alliance CEO Keith Kupferschmid applauded<\/a> the Members of Congress for \u201cvoicing their concerns\u201d and called on ALI to \u201caddress 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.\u201d And CreativeFuture complimented<\/a> the insights of the Members of Congress while condemning this Restatement as being \u201cdriven by those who want to rewrite the law, which isn\u2019t their job.\u201d<\/p>\n

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<\/a>, here<\/a>, and here<\/a>). The late Antonin Scalia highlighted such concerns in his acerbic dissent in Kansas v. Nebraska<\/em><\/a>, when he stated in 2015 that \u201cmodern Restatements . . . are of questionable value, and must be used with caution\u201d since \u201cthe Restatements\u2019 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.\u201d Justice Scalia warned that \u201cit cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.\u201d<\/p>\n

Unfortunately, ALI\u2019s 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<\/em> the law\u2014not 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.<\/p>\n

A Restatement Or A Principles Project?<\/strong><\/p>\n

I participated in a panel discussion<\/a> 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\u2019s 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:<\/p>\n

\n

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 \u2014 and it is not fun and it is ugly \u2014 so much the easier if you can just write black-letter law in a book with some other professors.<\/p><\/blockquote>\n<\/div>\n

In fact, the Restatement of Copyright project originated as an ALI Principles project as part of a copyright reform initiative. In a letter<\/a> to ALI in late 2013, Berkeley Law’s Professor Pamela Samuelson suggested that ALI \u201cshould undertake a copyright reform project\u201d to \u201caid additional reform efforts\u201d in copyright law. Her idea was that ALI would provide judges and lawyers with a set of \u201cnormative underpinnings\u201d that they could use in practice to shape copyright law without<\/em> statutory amendment. In particular, Prof. Samuelson cited \u201ca dozen examples of common law copyright issues on which courts have been at odds that an ALI project might usefully address\u201d that she had outlined in an article<\/a> 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 \u201cthe 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.\u201d<\/p>\n

Critically, in both the letter and article, Prof. Samuelson proposed that ALI undertake a Principles project\u2014not a Restatement. The two serve different purposes and audiences. According to ALI\u2019s Style Manual<\/em><\/a>, \u201cRestatements are primarily addressed to courts,\u201d while \u201cPrinciples are primarily addressed to legislatures, administrative agencies, or private actors.\u201d Each \u201cseeks to clarify and synthesize\u201d a particular field of law; however, only Restatements are intended to \u201creflect the law as it presently stands or might appropriately be stated by a court.\u201d Principles projects, by contrast, are \u201cgenerally written as recommendations to particular institutions (e.g., legislatures, corporations).\u201d<\/p>\n

Nevertheless, ALI authorized the project as a Restatement even though its official Reporter also made clear in a letter<\/a> to ALI that he envisioned a reform effort: Given the \u201cbad state\u201d of things, there \u201cseemed to be a perfect environment for a deep reevaluation of copyright law.\u201d Because this \u201chas not happened. . . . it falls to the federal courts\u201d to fix things since \u201cCongress is unlikely to proceed any time soon with copyright reform.\u201d Accordingly, the Reporter clearly intended a Principles project and not a true Restatement.<\/p>\n

The Reporter also appears to hold a narrow<\/a> and controversial view of copyright\u2019s constitutional purpose, asserting that the Constitution \u201csets out an explicitly utilitarian rationale.\u201d But, in Eldred v. Ashcroft<\/em><\/a> the Supreme Court stated that copyright serves both public and private ends. The Court held that rewarding authors and promoting progress are \u201ccomplementary\u201d\u2014and \u201cnot mutually exclusive\u201d\u2014\u201cends\u201d since \u201ccopyright law serves public ends by providing individuals with an incentive to pursue private ones.\u201d The Supreme Court reiterated its holistic approach more recently in Kirstaeng v. Wiley<\/em><\/a>, where it unanimously noted that one of the \u201cwell settled\u201d objectives of the Copyright Act is \u201crewarding authors\u2019 creations.\u201d By contrast, the Reporter appears willing to write authors\u2019 rights out of the constitutional bargain\u2014an approach again better suited for a normative Principles project and not a Restatement accurately describing the current<\/em> state of the law.<\/p>\n

Why Paraphrase When You Can Quote?<\/strong><\/p>\n

ALI\u2019s Style Manual<\/em> 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\u2019s 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\u2014the statutory provisions of the Copyright Act itself. The Style Manual<\/em> provides that \u201cRestatements are expected to aspire toward the precision of statutory language,\u201d but such aspirations are unnecessary here since the precise statutory language already exists.<\/p>\n

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\u2019s black-letter provisions will only give courts more work to do as they attempt to reconcile Congress\u2019s actual black-letter law with ALI\u2019s gloss upon it. This is a recipe for confusion, not clarity. Indeed, ALI has received numerous comments challenging this unique format.<\/p>\n

For example, the U.S. Copyright Office submitted a letter<\/a> to ALI in 2015 questioning the \u201cnature and goals\u201d of ALI\u2019s undertaking and pointing out the obvious fact that \u201cthere can be no more accurate statement of the law than the law itself.\u201d The Copyright Office noted that the Restatement\u2019s black-letter provisions materially departed from Congress\u2019s enactments and that \u201cthe accompanying discussion and illustrations evince selective and particularized views that do not present a balanced interpretation of the statute.\u201d The Copyright Office accused ALI of treating \u201csingular judicial decisions\u201d as \u201cwell-established rules\u201d while ignoring \u201ccontrary precedent,\u201d and, after listing several specific examples, it suggested that \u201cthe 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.\u201d<\/p>\n

Similar views were expressed<\/a> by the Register of Copyrights just last year. Register Karyn Temple concluded that \u201cthe project is a misguided one\u201d since \u201can extensive body of positive copyright law already exists.\u201d She pointed out the futility of restating \u201ca body of positive federal law,\u201d noting that there \u201ccan 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.\u201d Register Temple admonished ALI for \u201ctinkering with complex statutory and regulatory provisions\u201d given that it \u201cwill lead to confusion and misinterpretation\u201d and \u201cwill inevitably alter sense and meaning.\u201d She then suggested that ALI \u201creconsider the project as a whole\u201d as \u201cthe attorney or judge who relies on it will often be misled.\u201d<\/p>\n

The Director of the U.S. Patent and Trademark Office, Andrei Iancu, submitted a comparable letter in late 2018, but unfortunately it\u2019s not publicly available. In the letter, Director Iancu suggested \u201cadapting the typical Restatement format to accommodate the specific characteristics of the Copyright Act.\u201d Specifically, he noted that \u201cthe detailed, prescriptive provisions of the Copyright have historically been considered \u2018black letter\u2019 law,\u201d and he argued that the \u201cattempt to rephrase them . . . can only lead to ambiguity and contradiction\u201d as \u201cthe meaning of the statute will be clouded or altered.\u201d Director Iancu predicted \u201cthat the copyright Restatement project as currently conceived will create more confusion than enlightenment,\u201d and he urged ALI to quote the statutory law itself as the black-letter statement of the law.<\/p>\n

Likewise, Columbia Law\u2019s Professor Jane Ginsburg sent a letter<\/a> to ALI in 2015. Prof. Ginsburg called the Restatement \u201ca fundamentally aspirational endeavor\u201d that \u201cgives the impression of a shadow copyright act,\u201d 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<\/a> and the New York City Bar<\/a>. 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 \u201cmistakes\u201d all cut the other way.<\/p>\n

As a closing thought, I\u2019ll note that this project appears to create a Catch-22 for ALI. If the goal is to \u201creform\u201d copyright law, then the Restatement will not accurately reflect the law and thus will be of little use to the courts\u2014its 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<\/em> to be an accurate reflection of the law, such that it\u2019s followed, while in fact expressing a version of the law that is not actually true, but rather \u201caspirational\u201d as Prof. Ginsburg said. In this way, the existing statutes could effectively be changed by the courts\u2014at least in how they interpret and apply it. That\u2019s a narrow needle to thread, and it\u2019s hard to see how it could be done. I think ALI could<\/em> 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\u2014not merely to restate it.<\/p>\n","protected":false},"excerpt":{"rendered":"

As 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 […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10],"tags":[111,1227],"class_list":["post-7514","post","type-post","status-publish","format-standard","hentry","category-copyright","tag-ali","tag-restatement-of-copyright"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7514","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7514"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7514\/revisions"}],"predecessor-version":[{"id":15704,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7514\/revisions\/15704"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7514"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7514"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7514"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}