Scholars, Register of Copyrights Reinforce Opposition to American Law Institute’s Restatement of Copyright Project American Law Institute (ALI) is under fire for its Restatement of Copyright Law project, which it was set to vote on during its Annual Meeting this week. According to the Copyright Alliance, ALI members on June 8 approved many sections that will make up the first three chapters of the Restatement.

In 2019, members of Congress sent a letter expressing serious concerns over the project. Senator Thom Tillis (R-NC) and Representatives Ben Cline (R-VA), Martha Roby (R-AL), Theodore Deutch (R-FL) and Harley Rouda (D-CA) sent a letter to ALI stating that laws created through federal statute like copyright are “ill-suited for treatment in a Restatement” and threaten to muddle the law. The U.S. Copyright Office, the American Bar Association (IP Law Section) and the U.S. Patent and Trademark Office raised similar concerns.

Since then, a number of other voices have joined the chorus of opposition, including current Register of Copyrights Shira Perlmutter, who on May 21 of this year sent a letter to the Associate Reporters on the Restatement project, informing them that she was stepping down as an adviser to the project amid a number of concerns. Perlmutter said:

Based on careful consideration of the nature of the project and the debate it has engendered over the past few years, I believe there are three areas where a change in approach would be important to acceptance of the Restatement as a resource for judges and practitioners: elevating the treatment of statutory text and legislative history; affording appropriate deference to interpretations of the law by the Copyright Office; and enhancing transparency in the treatment of comments.

Critics have accused the Restatement authors of being copyright skeptics who have failed to appropriately center the statutory text. The project is inherently unusual in that it “seeks to restate a body of law primarily embodied in a complex federal statute rather than common law,” Perlmutter said. She added:

I strongly recommend that each section begin with the text of the statute, identified as the black letter law. Any rephrasing should follow after the statutory text and be clearly identified as such. Where the plain language of the statute is ambiguous, the Reporters should include the relevant portions of the legislative history.

A number of scholars also this week came out strongly against the ALI vote for the same reasons. According to a June 8 Reuters article, Jane Ginsburg and Shyamkrishna Balganesh of Columbia Law School, Peter Menell of the University of California Berkeley School of Law and David Nimmer of Irell & Manella sent an email to ALI urging the institute to reject the Restatement. According to the article, the scholars wrote:

We believe that the unprecedented nature of the project — a ‘restatement’ of a comprehensive federal statute that does not take the statute as its black letter starting point — raises significant concerns about the ALI’s reputation and legitimacy,” the email said. “As the Supreme Court reminds us, statutory interpretation begins with the text of the statute. Nonetheless, the ALI has persistently resisted these efforts.

The scholars proposed an amendment to part viii of Tentative Draft No. 2 of the Restatement indicating that they, as advisers to the project, “oppose approval of Tentative Draft No. 2 for reasons including its failure to treat the text of the Copyright Act as blackletter rules.”

Just a Resource

In January 2020, ALI Director Richard Revesz told the members of Congress who had asked for responses to a number of questions in the 2019 letter that:

  • the project was undertaken to aid courts, as are all Restatements;
  • that the Copyright Restatement “will focus on those parts of the law that have been the source of significant judicial commentary or disagreement”;
  • that the statutory text is controlling in drafting the Restatement;
  • that discrepancies are resolved by weighing all of the relevant sources that judges would;
  • that “any gap filling of the case law, which would generally involve subsidiary or generally minor matters, must be governed by the statutory language and structure, analogous judicial decisions, and trends in the case law”;
  • that the ALI will modify its Restatement to account for subsequent changes to legislation as necessary;
  • that the views of the U.S. Copyright Office will be given careful consideration;
  • that it has an official procedure for dealing with conflicts of interest and ensuring that Restatements are impartial and nonpartisan; and
  • that, while several other Restatement projects addressing federal law are in the works, there currently are no plans for a Restatement project on patent law.

A later response came February 28, 2020, and Revesz again explained that “it is not the function of this Restatement or of any of the American Law Institute’s Restatements to rewrite existing statutory law or to say what a better statute would look like. Instead, the Restatement of the Law, Copyright aims to be a resource to the courts, and others, when the statutory text leaves broad scope for judicial interpretation and discretion.”

The letter pointed to the doctrine of fair use as an example of an issue that Congress left to the courts to interpret and develop on a case-by-case basis. Revesz added:

The Restatement of the Law, Copyright can help to bring clarity to the complex and often differing precedents that have emerged from the courts over the more than forty years since the Copyright Act’s enactment. In this sense, our Restatement of the Law, Copyright is no different from our many other Restatements addressing statutory law or our many common law Restatements that clarify and simplify doctrinal lines of cases.



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