A group of legislators have written a letter to the American Law Institute asking for an explanation of why the ALI finds it necessary to draft a “Restatement of Copyright Law”. They have good reason–historically, the Restatement series has been a crystallization of “”black letter law” on common law subjects such as Property, Agency, and other largely judge-made law that evolved from the curia regis in ancient times.
Copyright is not one of those topics–in America it is a creature of statute (Microsoft Corp. v. Grey Computer, 910 F.Supp. 1077, 1084 (D.Md.1995).) So since the people make the laws of copyright through their representatives in Congress, the Congress is well within their lane to enquire of the ALI what the purpose of the Restatement of Copyright is intended to be.
However, one need look no further than the impetus for the Restatement of Copyright to gain an explanation. And that explanation reveals that from its inception, the Restatement of Copyright was intended to be a vehicle to make an end run around the people’s house.
And it was an end run by two familiar faces: Professors Pamela Samuelson and Christopher Sprigman. The real advantage of examining the record on the Restatement project is that you can read the story in their own words.
What we don’t know is who is paying for the cost of the Restatement of Copyright–and that really should be answered, given who is involved and the approach.
Professor Samuelson wrote a letter on September 12, 2013 to Lance Liebman, the director of the American Law Institute pitching the project. Her letter clearly identifies the project as “reform” and not simply a black letter law project:
ALI should undertake a copyright reform project…that articulates principles that courts, lawyers, and scholars can use without the need for legislation…[and] that would aid additional reform efforts.
And then we have Professor Sprigman’s pitch memo to ALI. (Sprigman is a Lessig acolyte, represents Spotify against songwriters and who has engaged in fundamental challenges to the Copyright Act that have all failed so far. ARW readers may recall his unprovoked vulgar tweet storm rants against David Lowery and Blake Morgan.)
I think it’s plain that a Restatement of Copyright…could be enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need….I envision dividing principal responsibility for the subjects I have listed above among four Associate Reporters (I would like to name Profs. Neil Netanel (UCLA), Molly Van Houweling (Berkeley), Tony Reese (UC-Irvine) and Lydia Loren (Lewis & Clark) to these positions).
As Kevin Madigan observed:
It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.
While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.
I think it’s fair to say that the rather desperate intention all along has been to use the Restatement to create a self-serving alternative to legislation, perhaps driven by Professor Samuelson’s largely failed testimony before the House Judiciary Committee in the last session. David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte.
Naturally, the pearl-clutching commenced in earnest when the Members of Congress sent their letter to the ALI. Immediately, the Samuelson allies rallied around her to condemn the process without addressing the substance. But this misses the real issue here that the Members politely left to the subtext.
The potential for astroturfing of the law itself is why the controversy should be of importance. We don’t know who is paying for the Restatement but we do know who benefits. Those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.
If the companies doing the astroturfing were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice. And in a post-Cambridge Analytica world, these members of the professoriate may have backed the wrong horse.