copyrightIn April 2015, a WLF Legal Pulse post expressed concern with a nascent American Law Institute (ALI) project, Restatement of the Law: Copyright. Three years later, the drafting process continues in the face of increasing criticism from intellectual property scholars, ALI members, and even the federal government’s chief copyright official. Some of those critiques echo and amplify the concerns we expressed initially and have repeated in our posts on ALI’s other troubled project, the liability-insurance-law Restatement.  Simply put, the Institute’s ambition to put its own imprint on the law imperils its credibility.

ALI’s Council considered a draft of the copyright Restatement at its January 2018 meeting. Following that meeting, a cryptic message appeared on the project webpage stating that “the Director agreed to designate a group to consider whether this project should use a format that differs from the typical Restatement format.” The statement referred to a comment by four academics led by Penn Law School Professor Shyamkrishna Balganesh.

Part of the academics’ comment highlights a primary reason why many, including Washington Legal Foundation, find the copyright Restatement endeavor so misguided. All previous ALI Restatements have first surveyed common-law court decisions and derived a core legal principle that is related in statutory-like language as the “black letter” law. The copyright Restatement’s Reporters (i.e. the authors), however, don’t need to search for the black letter in federal court decisions or paraphrase the statute. The Copyright Act itself is the primary source of law; it is the “black letter.”

Any attempt to synthesize or paraphrase the words Congress wrote, the academics’ comment explained, “could be seen as establishing a competing code for copyright.” That alone would defeat ALI’s goal of reducing confusion and promoting uniformity in copyright law. It is quite revealing that, according to the comment, rather than debate whether to include the actual statutory text in each Restatement section, “Much of the meeting time and many of the comments thus far have debated whether the Reporters’ paraphrases correctly restate statutory text.”

In another comment to the ALI Council, Columbia Law Professor (and ALI copyright-project adviser) Jane Ginsburg and four other advisers provided specific examples of the Restatement draft’s paraphrased “black letter” materially departing from the Copyright Act.  One example involves the Act’s threshold provision, § 102 (a), which states:

Copyright protection subsists, in accordance with this title, . . .

Black letter 1.01 of the Restatement begins:

To qualify for federal copyright protection, a work of authorship … must: . . .

The advisers’ letter explains that subsists is the key word in the Copyright Act, conveying that “copyright arises out of creativity.” The Restatement version “recast[s] copyright as a series of hurdles to overcome,” which, the letter concludes, “sets the stage for a progressive narrowing of copyright protection.”

In a January 18, 2018 letter to ALI’s president, Acting Register of Copyrights Karyn Temple Claggett questioned the value of rewording a federal statute: “There can be no more accurate statement of the law than the words that Congress has enacted …. and those that the Copyright Office has adopted in its regulations.”

Acting Register Claggett’s letter notes two other factors complicating ALI’s Restatement project, either of which should have prevented the endeavor from ever getting off the ground. First, the Copyright Act explicitly preempts state common law—a clear indication that Congress wanted only one source of copyright law. Second, the law “is unlikely to remain static” thanks to Congress’s ongoing review of the statute.

Perhaps the group ALI designated to consider a “different format” for the copyright Restatement will embrace Professor Balganesh’s suggestion that the Copyright Act’s text should be listed as “the first level of authority … without any embellishment.” That solution, however, only addresses part of the Restatement draft’s problems.

One significant reason for the confusion in copyright law that ALI wishes to address with the Restatement is that different judges have interpreted and applied certain parts of the Copyright Act in different ways. That is because judges utilize different methods of statutory interpretation.

How are the Reporters for the copyright Restatement interpreting these different statutory interpretations? We don’t know because, as Professors Balganesh and Ginsburg both note in their separate comments, the current draft provides no indication of what interpretive method the Reporters have been utilizing.

Statutory interpretation is far from self-apparent. In their 2012 book Reading the Law, the late Justice Antonin Scalia and Bryan Garner wrote:

Neither words nor the sounds that the written words represent have any inherent meaning. There are jurisprudential conventions that make legal interpretation more than just a linguistic exercise.

In Reading Law, Justice Scalia and Mr. Garner advocated a “textualist” approach to interpretation. In the academics’ comment to ALI, Professor Balganesh and his colleagues express that statutory interpretation “involve[s] a complex synthesis of myriad sources.” If, as mentioned above, meetings on the copyright Restatement often bogged down over how to paraphrase a Copyright Act section, it’s highly doubtful that agreement could ever be reached on a clear set of interpretive rules.

Prior to the January 2018 Council meeting, numerous commenters, including Professor Ginsburg, Acting Register Claggett, and The New York City Bar called on ALI to either walk away from the copyright Restatement or reformulate it as an aspirational “Principles” project. Instead, the Council opted to keep it alive by appointing a study committee.

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.

A Restatement that introduces greater confusion into its area of focus will not only be ignored by judges and lawyers, it will undermine the credibility of current and future ALI work. The organization should take the advice given to it and either suspend the Restatement project or recast as a Principles project.

Also published by on WLF’s contributor page.