American Law Institute Decision Could Make It Harder for Creators to Protect Their Work

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A vote last month by the American Law Institute (ALI), a century-old body known for compiling and publishing “Restatements on the Law,” could make it more complicated for creators and rights holders to protect the rights to their work.

The ALI’s Restatements are works of legal research that guide judges by summarizing and clarifying court decisions from around the U.S.

But its copyright project has proved more contentious than most, with high-profile scholars and lawyers arguing that it reinterprets existing law in a way that could make it harder for creators and rights holders to prevail in court in the future.

“Copyrights are very important to [creators],” says ALI voting member Sherri Burr, a law professor emerita at the University of New Mexico and fierce critic of the Restatement project. “[The Restatement] would really impact what gets created, and the fact [is] that people would not be able to earn a living.”

With the vote, which took place during ALI’s annual meeting on June 8, ALI membership overwhelmingly approved several sections of the copyright Restatement, despite critics’ protests — a group that includes esteemed law professors, creator advocacy organizations, current U.S. Register of Copyrights Shira Perlmutter and numerous advisers and liaisons to the Restatement project. The sections in question encompass important issues including fixation (how a work must be “fixed” in a tangible medium to receive protection) and joint authorship between songwriters.

Ahead of the vote, multiple organizations opposed to the Restatement sent letters to ALI members to persuade them not to approve the sections in question. One June 4 letter, signed onto by music organizations – the Songwriters of North America (SoNA), the Black Music Action Coalition and the Music Artists Coalition – argued that the Restatement was “deeply flawed in its approach and unquestionably aims to erode protections for creators.”

Perlmutter, a former adviser to the ALI’s copyright Restatement project, wrote in a letter last month that the document’s rephrasing of statutory law, set down in the federal Copyright Act, “inevitably introduces imprecision and interpretive choices.” Perlmutter went on to characterize the project as “unusual” for the ALI, whose Restatements typically serve to restate common law (i.e. law established by judicial precedent) as opposed to federal statute, or “black letter” law.

Sources have pointed to the section on fixation as particularly troubling, claiming it ignores a section of the Copyright Act that allows a live performance to be “fixed” — i.e. protected — in the course of being broadcast. In a victory for opponents, ALI membership approved an amendment proposing that exact language from the Copyright Act be added to the “black letter” portion of the Restatement that deals with fixation. However, members voted down a separate amendment which requested that the “comments” portion of the Restatement, which interprets the statutory law, also be edited to reflect the Copyright Act’s fixation language.

“In general, the fixation provision and its comments provoked particularly strong objections in Advisers’ meetings from the start,” read the former amendment, which was submitted by Columbia Law School professors Jane Ginsburg and Shyamkrishna Balganesh. “Over multiple drafts, and notwithstanding consistent pushback from the Advisers, the Reporters have persisted in an approach that both omits statutory text from the black letter, and in the Comments applies a definition that has no basis either in the statute or in the caselaw.”

Also of concern is a section that addresses joint authorship of works in terms that could complicate claims of ownership for songwriters. In sharp contrast to existing copyright law, the Restatement asserts that all contributions must be put down in writing prior to the start of the songwriting process — something opponents argue simply isn’t practical in terms of how songwriters work.

At the June 8 meeting, ALI members voted on two amendments meant to address these critiques. The first, proposed by Ginsburg and Balganesh, asked that a “substantive provision” of statutory law regarding joint authorship be added to the “black letter” portion of the Restatement. The second, proposed by Texas A&M University School of Law professor Irene Calboli, took issue with a separate subsection of the Restatement’s black letter. In an email sent to Billboard, Calboli echoed concerns laid out by other Restatement opponents, arguing that the subsection she took issue with includes language that is “largely unnecessary and also could result in complicating the interpretation of the law rather than clarifying [it].”

Ginsburg and Balganesh’s amendment, which was accepted as “friendly” to the main motion and unopposed by copy was approved, but Calboli’s, which was not accepted as friendly, was rejected. While all amendments are debated and voted on during annual meetings, friendly amendments have an advantage in that they are not disputed by reporters — i.e. ALI members who steer projects at the organization — ahead of the vote, considerably easing their path to adoption by the full membership.

In the end, over three-quarters of ALI members voted in line with reporters to approve the full Restatement draft comprising all sections. Keith Kupferschmid, president and CEO of the Copyright Alliance, a trade organization that represents businesses that depend on copyright, doesn’t see that dynamic changing. “In terms of the whole big picture, I think this is just an indication of where things will go next year or the year after or the year after,” he says, referencing votes on yet-to-be-introduced sections that will take place at future annual meetings.

When asked to respond to charges lobbed by critics of the Restatement project, ALI chief communications and marketing officer Jennifer Morinigo refuted many of their claims in a lengthy email sent to Billboard. Morinigo hit back at the idea that Restatement projects have in the past been confined to common law, noting that Restatements covering foreign relations law, trademark law and American Indian law have all dealt with existing federal statutes. “The Copyright Restatement serves the same purpose as these other ALI Restatement projects — it is a resource for the courts when the statutory text leaves broad scope for judicial interpretation and discretion, which can be the case even for statutes that are very detailed,” Morinigo said.

Morinigo added that because several copyright issues “are not squarely addressed by” the Copyright Act, the Copyright Office’s own Compendium “recognizes that ‘certain copyright law doctrines are derived largely from court decisions’ and that ‘copyright law doctrines may differ among jurisdictions, as different circuits have followed different standards.’”

Burr says that the way the June 8 vote was conducted felt “restrictive” to dissenters of the project. Among other complaints, she says only proponents of the Restatement were visible on camera during the Zoom meeting, likening it to “going into a courtroom where you can only see the defense attorney but not the prosecutors.”

Burr, who was behind one of the six amendments to the Restatement put forward during the meeting, says she felt her proposal was never taken seriously by reporters. After asking that the amendment — which sought to alter a section of the Restatement that states any work created with a government employee is 100% uncopyrightable — be considered a “friendly amendment,” reporters told her they had already decided to reject it, she says.

“I found that fascinating, because the collaborative part of it was totally missing,” says Burr. In the end, her amendment was voted down by more than 80% of ALI members.

In Burr’s estimation, the Restatement’s reporters used the virtual format to stifle dissent to the project. Whereas in-person ALI meetings traditionally allow members to instantaneously propose amendments to sections of a Restatement before they are put up for a vote, she says members were told to submit amendments up to a week in advance for the virtual gathering. In contrast to past in-person meetings, she adds, hosts also exercised total discretion over who was allowed to speak.

“You had to fight to get on,” says Burr, who has authored books including Entertainment Law in a Nutshell and Entertainment Law: Cases and Materials in Established and Emerging Media. “That was the other thing that was so strange. Before, at other Zooms, you just raise your hand or type in a question in the chat or a question in the Q&A. All of that was just not available.”

After the vote was tallied, Burr adds, only percentages reflecting votes in favor of and against the sections were shown onscreen, with no accounting for how many votes were cast or who voted.

In response to these claims, Morinigo says that the technology that would both accommodate “several hundred participants” and also allow for virtual voting “did not permit” ALI to show more than a handful of speakers on video during the June 8 meeting. She adds that, aside from the project’s reporters and ALI leadership, supporters of the Restatement were also kept off-camera, and further characterizes the meeting as a “robust debate” between parties on both sides of the issue. In terms of Burr’s complaint about the transparency of vote tallies, Morinigo says that ALI “does not attribute any vote to an individual member.”

Morinigo also defended the requirement that amendments be submitted up to a week before the meeting. “To ensure that all members had time to read and consider all motions carefully, and to enable ALI staff to present the text of the motion on screen, as well as make the process as fair as possible given different levels of comfort with technology, our president David Levi made the decision to require motions to amend the [Restatement] draft be posted in advance,” she says. “The drafts were available in March, so members had plenty of time to post comments and submit motions before the meeting.”

Still, critics are unlikely to be swayed. In a letter to ALI members obtained by Billboard dated May 31, 2021, a coalition of advisers and liaisons to the project wrote of concerns that the Restatement’s opponents were being disregarded.

“We are extremely concerned that the Restatement’s black letter and comments do not accurately reflect the law as set forth in the Copyright Act,” the letter reads. “Unfortunately, these concerns, which have been raised by the U.S. Copyright Office, the U.S. Patent and Trademark Office, the American Bar Association, federal judges, copyright scholars, and many Advisers and Liaisons to the project, have been routinely ignored by the project’s Reporters.”

The May 31 letter goes on to state that these reporters — a group that includes, most prominently, NYU law professor Christopher Sprigman, who is part of the so-called “copyleft” movement, which seeks to lower the restrictions that make works harder to access and thereby easier for creators to get paid — betray an “evident bias, casting the credibility and utility of the Restatement in serious doubt.”

Sprigman, who is leading the Restatement’s reporters, has long been critical of the scope of copyright in the U.S. Among other works, the professor co-authored a book entitled The Knockoff Economy: How Imitation Sparks Innovation, in which he argued that copying has helped fuel creativity in fields including the fashion industry. He also represented Spotify in a copyright infringement lawsuit brought by music publishers in which he argued that on-demand streaming didn’t qualify as a reproduction, under the legal definition of the term, as well as a public performance. That would mean that such services would no longer need to license mechanical rights or public performance rights.

“I like Chris personally a lot, but his views on copyright are frankly weird,” says Mary Rasenberger, an adviser to the copyright Restatement project who serves as CEO of the Authors Guild, which advocates for the rights of book authors on issues including copyright. “I think that’s true of all of the reporters… they understand from the user side, but not from the perspective of people who are trying to make a living within the copyright system. Which is what copyright is all about — to incentive people to write, to create.”

Rasenberger, who is not an ALI voting member, agrees with Burr that the June 8 meeting made it difficult for opponents of the Restatement project to be heard, and also claims that Sprigman misrepresented the views of the project’s advisers during the meeting. “Chris Sprigman said … the advisors have approved all this. That was a flat-out lie,” Rasenberger says. “Because he knows that advisor after advisor after advisor has said, ‘No, this is not okay.’”

While avoiding the subject of Sprigman and his fellow reporters’ alleged bias on copyright issues, Morinigo emphasizes the collaborative nature of ALI Restatement projects in an attempt to discredit any notion that Sprigman and his allies have exerted undue influence on the project. “The approved language of every Restatement reflects the views of the American Law Institute as a whole, not the views of any individual Reporter,” she says. “It is the result of our careful and transparent drafting process — which involves the dedicated work of many minds and perspectives over many years, and which requires each draft to be separately approved by our extraordinarily diverse voluntary Council and Membership.”

She added that the copyright Restatement’s reporters “have continually been revising the draft text in response to” feedback put forth by the project’s advisers, liaisons, members and the ALI council. “As with any of our Restatement projects, no participant — not even our Reporters — will walk away from the process fully in agreement with every section of the publication,” she says.

Sprigman did not return multiple requests for an interview.

Despite considerable opposition, Sprigman and his fellow reporters have so far been successful in pushing the Restatement through. Though Ginsburg and Balganesh’s amendments were approved by members during the June 8 meeting, arguably the most important amendment for critics — which would have added existing “black letter” copyright law to all sections of the Restatement to provide the proper statutory context — was rejected.

“Their opposition to that,” says Kupferschmid, who signed on to the May 31 letter, “[is] an indication that they’re trying to change the law, rather than actually restate what the law is.”

While future, still-to-be-drafted sections of the copyright Restatement won’t be voted on until next summer’s annual meeting, opponents of the project argue that the sections approved on June 8 — which are now available for judges deciding copyright cases — already have significant potential to negatively impact creators. And as of now, Kupferschmid sees little hope of turning things around.

“It’s clear that the ALI membership, who are a bunch of people who are not copyright experts, are going to be voting with the reporters,” he says, “regardless of the substance or correctness of the position.”

 
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