Amending the law — any law, through a democratic process is hard, and can frustrate even the most articulate, impassioned and committed advocates. The creative community knows. Our entire existence takes place within an outdated legal framework that encourages willful blindness and rewards the engineering of technical modes of delivery and storage that undermine the very purpose of copyright law. It would be nice to find shortcuts that avoided the messiness and compromises of democracy in order to achieve necessary reforms, but that kind of reform via executive fiat isn’t a tool available to mere mortals. Well, unless that mortal is Professor Pam Samuelson whose advocacy has led the prestigious American Law Institute (ALI) to undertake a “Restatement of Copyright” as a means to effectively achieve legislative reform outside of the legislative process.
Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series. Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit. But for lawyers (particularly litigators), the Restatement series has had some passing value.
However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is. This is a way to make an end run around the democratic process. Why? To deny voters and their elected representatives their proper Constitutional role. What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand….
Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment. If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is. That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent. If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection. They are not your friend and they are not fond of you. And as Rogers & Hart wrote, unrequited love’s a bore.
Let me be blunt: They are screwing you, get it? And to be blunter still–there’s something to that. These people are not stupid, they can see a sucker stepping up to the thimblerig.
So if you’re going to keep showing up for their tricks, do not cry about it afterwards. There’s one answer when that call comes in–pass.
Embrace the Apocalypse. There is no “unity.” Or you can buy Bitcoin futures from the Winklevoss Twins.