The copyright cartels’ obsession with the American Law Institute’s forthcoming Restatement of the Law, Copyright, is honestly wild. ALI Restatements are reference works authored by scholars, endorsed by the august body of ALI members (judges, scholars, and leading practitioners), and designed to provide judges with useful guidance on the interpretation of complex bodies of caselaw. When a Restatement of Copyright was first proposed, industry groups and their allies tried to stop it before it could get going. In a show of extraordinary generosity, many of these critics were invited to participate in the project as advisors, which they took as an opportunity to kill the project from the inside by sowing chaos at early meetings. When that didn’t work, they staged a resignation campaign on the eve of the ALI’s final vote to endorse the document. This failed, too, and now the Restatement, having been unanimously approved by the ALI membership, is being prepared for final publication.
Now there’s been another eruption, with partisans appearing on a panel at the AIPLA conference last month and in the pages of legal blogs and Law360, flogging the same lame arguments that have failed to convince anyone outside their narrow circle for over a decade.
To understand why this campaign is bogus, consider the critics’ most neutral-sounding, technical-seeming objection: copyright law doesn’t need a restatement because restatements are for “common law” subjects and copyright is based on a statute, which can speak for itself. This argument doesn’t pass the laugh test. If it were true, there wouldn’t be several multi-volume treatises, each with their own take on hundreds of interpretive debates in copyright law. Nor would the U.S. Copyright Office have published a library of Circulars and a ~1400 page “Compendium of Copyright Office Practices,” the latter emblazoned with a disclaimer that “The Compendium does not cover every principle of copyright law….” The Copyright Act is not a speed limit sign or a property tax schedule; it is full of broad language and undefined concepts (the Restatement’s authors have used “originality” and “copying in fact” as examples) that courts have had to give meaning through caselaw. That kind of stuff is the bread and butter of a Restatement project.
The rest of the critics’ gripes are similarly lame, a mix of angels-on-a-pin peccadilloes, ad hominem attacks on the authors, and thinly disguised copyright partisanship. In the end, judges will be the ones to decide whether the Restatement is helpful. Hopefully it will help them see through the kind of copyright sophistry that has been the hallmark of the anti-Restatement campaign—which may explain the campaign’s existence.