US Publishers and Alliance Back Congressional Letter on Copyright Restatement

From Publishing Perspectives:

An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.

And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”

At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”

. . . .

At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.

“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”

Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.

“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”

In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”

. . . .

The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”

The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.

The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:

  • Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
  • How is ALI approaching the restatement process?
  • How much weight is given to existing law and legislative history?
  • Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.

. . . .

In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”

Link to the rest at Publishing Perspectives

PG is reminded of an old Southern rural saying, “The stuck pig squeals.”

The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.

PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.

Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.

PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.

From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.