Big Tech Wants To End Copyright

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.

5 thoughts on “Big Tech Wants To End Copyright”

  1. Is Big Tech EVIL for pushing to extend copyright forever? or EVIL for wanting to cut back on copyright? they can’t be both.

    personally, I think copyright is far too long today. The vast majority of works are not valuable at life + 90 years (not to mention whatever happens with corporate copyrights), and so locking everything up for that time is not useful for anyone.

    I think a shorter period, renewable with escalating fees would be a much better situation. If a product is valuable commercially, let it get extended, but when it’s not, let it be used as fodder for additional works.

    Now, I’m in Tech, so I mostly see the abuses on the software side of things (which have included companies using copyright to force you to buy their printer supplies rather than generic versions). I do have a couple published articles, but do not make my living from writing

    • Multiple flaws with both “ideas”.

      First, there is no such thing as “Big Tech” as a unified thing. Or even a fractured one.

      Second, “Big Tech” seeks to lump in all sorts of different businesses some of which aren’t even technological. Google and Facebook are advertising companies masquerading as communications companies. Apple is a consumer electronics company with a walled garden software on the side.Microsoft and Amazon are old fashioned (80’s style) conglomerates lie Welch’s GE. Not only does each individual company have its own goal and approach they also situational policies.
      The only things they have in common is most use new technology in some part of their operations,most are big and successful, and most are attacked by pundits with no understanding of technology or tbe companies themselves. Also, all can afford to buy IdiotPoliticians™ by the dozen and all use them, the pundits, and the equally clueless bureaucrats as tools against each other. Oh, and all really like to make money. (Like, duh, right?)

      When dealing with pieces like the OP there is a lot to be said for shrugging and moving on.
      If still interested, a deeper look into whatever position should follow tbe money and look for the hidden agendas. Because if you look deep enough, you’ll find somebody looking to make money at everybody else’s expense.

      Best to just move on; there are far more interesting, popcorn-worthy tech world circuses in town.
      In fact, one that started in California last summer just exploded early January 18 with the force of a $67.8B bomb that left media, pundits, and even bystanders like deers in headlights trying to figure out: “WHAT JUST HAPPENED? ”
      That fun soap opera is going to be playing out for months and months and the effects for years.

      Copyright isn’t at issue there but it *is* a new phase of the content wars and the ongoing restructuring of global content distribution. By the time tbe dust settles, a lot of the issues the pundits fret over will be irrelevant. The big money lies in other business models.

      They’re still arguing last century issues while the world has moved on to bigger (and more profitable) concerns.

  2. If a product is valuable commercially, let it get extended, but when it’s not, let it be used as fodder for additional works.

    Better to encourage creative people to recycle the other guy’s work rather than write something new? Seems like a money grab.

  3. Two general comments on Restatements:

    (1) In some fields, they are much more valuable than PG notes, particularly when a state high court cites to the specific Restatement. The Restatement (2d) of Conflicts of Laws is particularly helpful (cited by every state high court in whose courts this shark has had need to argue choice of law, and this shark ran out of fingers and toes to count them nearly twenty years ago). But then, I’m one of those weirdos — primarily because my work has often been at the edge of either existing law or existing factual assimilation in the law, often both — who cites on-point law journal articles to courts. (The short version is that I’m not as convinced that judges are quite as smart, as a group, as they think they are, as a group; they can still use some help, as generalists, from professors who are specialists.)

    (2) That said, the so-called Restatement of the Law of Copyright is an incredibly stupid and wasteful crock, largely in opposition to the already existing Restatement (0th) of the Law of Copyright, a/k/a/ N_____ on Copyright. Which has a list price — from PG’s former employer — of over $9,000 and is treated by courts as if it is a definitive restatement far more often than it deserves. Worse, the panel doing the Restatement of the Law of Copyright has barely above zero experience representing the natural-person creators of copyrighted works; they almost all have extensive experience with transferees, reusers, distributors, publishers, etc. So it’s… A Problem. And likely to be a self-inflicted wound that will not actually correctly state the law* in a neutral fashion without causing more controversy than it deserves — especially given the weaknesses in N_____ on Copyright, which are worse (father-and-son N_____ have/had an even-more-restricted exposure to the creative process than the panel doing the “Restatement” does).

    * Hint: It’s the same statute nationwide, guys. There’s no need for a “Restatement” in the same way as there was, once upon a time, for Contracts and for Torts, when it was almost impossible to ensure that one actually had access to the primary sources in those areas outside one’s own jurisdiction. Which leads back into that Conflicts of Laws thingy…

    • Good point about what happens when a court includes a quote/reference to a Restatement in its opinion, C.

      In my ancient litigating days, however, if I resorted to a Restatement, it was to help find a case or statute that supported my argument.

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