From Tilting at Windmills:
I’m a writer by trade. I don’t have another gig as a lawyer or comedian or anything else. This is what I do to support my family.
Luckily, I’m able to do this because the work I create is covered by copyright. Salem—the parent company for sites like Townhall, Red State, Bearing arms, Twitchy, Hot Air, and PJ Media—is able to make money off content because that content can’t be found anywhere else.
At least most of it.
. . . .
Copyright tends to be more of a factor when it comes to entertainment. Books, movies, and television all enjoy copyright protection, which means you can’t just decide to start streaming Firefly on your own for fun and profit. You’ve got to deal with Fox, first.
. . . .
However, as Jennifer Van Laar notes at Red State, big tech seems to be working to undermine much of that.
For years companies like Google and Spotify, whose revenue streams depend on content and profits depend on how cheaply they can acquire it, have worked to weaken copyright protections. They know they can’t get what they want through a transparent legislative process, so they’ve set their sights on effectively changing the law by using “a well-established legal organization to ‘restate’ and reinterpret our copyright laws for the nation’s judicial system.”
The organization, American Legal Institute (ALI), an invite-only organization for legal scholars, is known for its Restatements of Law, which have been described as “Cliff’s Notes” guides to various legal topics:
The ALI…is widely known and rightfully recognized within legal circles as an authority on explaining the law. Through their best-known works, called “Restatements of the Law,” the ALI compiles all aspects of a legal topic and publishes a “Cliff’s Notes” guide to that topic. These Restatements are regularly relied upon by our nation’s judges when they are asked to decide on cases requiring expert knowledge of a particular subject.
According to the Content Creators Coalition, ALI’s Restatements are “descriptive black-letter texts designed ‘to reflect the law as it presently stands’ that are used by courts, scholars, and legislatures to understand the current state of the law on any subject. ALI Restatements have historically been considered the gold standard for unbiased legal clarity and precision” (emphasis added).
Although ALI’s Restatements almost exclusively focus on common law (formed by precedent) and not statutory law, the organization started a project aiming to restate the Copyright Act, a federal statute, back in 2013 at the suggestion of UC Berkeley law professor Pamela Samuelson. According to then-Acting Register of Copyrights Karyn Temple:
[T]he Restatement project appears to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it.
Samuelson is the founder of the Samuelson-Glushko Law Clinics (which one blogger referred to as “Silicon Valley’s answer to the Confucius Institutes)” who, at a Copyright Society of the USA conference “vehemently railed against awards of damages for copyright infringement while a room full of the nation’s top copyright law practitioners sat in shocked, slack-jawed silence or excused themselves for coffee.”
. . . .
Basically, though, Big Tech has decided that it wants to fund “legal research” that will undermine copyright because technology services benefit from looser copyright laws.
For example, you write a book. Now, I’ve written a few myself, so I know how much time and dedication goes into each one. Copyright laws allow you to have control over that book until or unless you give that up to someone, like a publisher. They then get the copyright so they can make money, giving you some of it.
. . . .
What’s happening here is that these Restatements, which are supposed to be based on the current understanding of the law, have been co-opted by some who actively oppose copyright protections in an effort to undermine the legal support for them. They’re blatantly misrepresenting the law in an attempt to effectively change the law.
And they’re likely to get away with it, too.
Link to the rest at Tilting at Windmills and thanks to K. for the tip.
PG will note that the author of the OP said he was not a lawyer upfront.
The Restatements he mentioned have been around forever. They’re published by a private company, The American Law Institute, universally referred to as ALI.
Restatements are a quick way of getting an overview of a legal subject or a piece of a legal subject, but Restatements aren’t the same as federal or state laws or formal decisions by federal or state judges.
When PG was doing a lot of litigation, he would resort to the relevante Restatement only if he couldn’t find any statute or court decision that was close to supporting his client’s case. On more than one occasion when he did this (not much more frequently than 2-3 occasions), the judge would either look at him (or opposing counsel, if opposing counsel tried to use a restatement) and say something like, “Does that mean you can’t find any Missouri law (or California law or federal statute or case) that supports your client’s case?”
If the judge didn’t say this first, opposing counsel (including PG if he was on the other side of a case where the attorney argued from a restatement) would say something like, “Your Honor” or “Judge” (if he knew the judge well), “I have included a great many citations to case law and statutes in order to support my client’s contentions. If counsel cannot locate any reliable citations, I’ll be filing a Motion for Summary Judgment (or whatever was appropriate) on behalf of my client because the other side apparently has no legal basis for their arguments.”
As a quote in the OP says, restatements are like the Cliff’s Notes version of the law. Just as Cliff’s Notes is the resort of desperate college students who aren’t ready for the final exam (May Cliff be blessed for all his past support of a younger and callower version of PG), for most judges with which PG is acquainted, quoting or citing a restatement, unless the restatement reference is accompanied by a whole bunch of on-point cases and statutes, is raising the desperation flag. An insightful client will be wondering why you didn’t recommend starting settlement discussions before wasting all the client’s money in court.
But Big Tech is a money machine and will waste a lot of money to get a 0.001% improvement in a legal position it’s trying to sell the justice system.
But, as always, PG could be wrong.