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.
The anti-copyright crowd have a few different ways to turn astroturf into deceptively scholarly work product. One way is to take over otherwise credible brands to insert their own truthiness.
In a highly predictable move, the American Law Institute, a reliable old brand in the law, appears to have had some sudden interest in writing up a “Restatement of Copyright” treatise. The ALI’s restatements of the law have been around a very long time, but they mostly deal with bodies of law that rely heavily on judge-made law such as agency, property or contracts.
The advantage of having a Restatement that says what you want it to say is that those toiling against artists and songwriters can cite it as an authoritative source in legal briefs, scholarly writings, amicus briefs, etc. Handy, eh?
The ALI Restatement of Copyright seems to have been the brainchild of one Pamela Samuelson, she of the Samuelson-Glushko technology and policy legal academic centers–Silicon Valley’s answer to the Confucious Institutes. The project is nominally under the watchful eye of Professor Christopher Sprigman, from whose intellectual loins sprang Spotify’s defense of “sorry just kidding” in the Bluewater lawsuit for Spotify’s alleged nonpayment of mechanical royalties. Sprigman is trying to convince the court that mechanical royalties don’t exist, don’t you know.
The Restatement of Copyright has been on the horizon for quite some time as it takes a lot of effort to produce one of these treatises. So naturally, one must ask–why the sudden interest at the American Law Institute in such a costly project that we’ve struggled along without for a hundred years or so? You don’t suppose someone is…paying for the costs of this work? And who might be interested in picking up the tab for the project?
Perhaps the same company that paid for five–count ’em–five–research projects by Professor Sprigman. That we know of.
According to the useful “Google Academics, Inc.” database created by the Google Transparency Project, Google funded these articles co-written by Sprigman (two of which criticize moral rights):
Valuing Publication And Attribution In Intellectual Property: Sprigman, Christopher, Christopher Buccafusco, and Zachary Burns. “Valuing Publication and Attribution in Intellectual Property.” (2012)
What’s A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property: Sprigman, Christopher Jon, Christopher Buccafusco, and Zachary C. Burns. “What’s a name worth?: Experimental tests of the value of attribution in Intellectual Property.” (2013)
What’s In, And What’S Out: How IP’s Boundary Rules Shape Innovation: McKenna, Mark P., and Christopher Jon Sprigman. “What’s In, and What’s Out: How IP’s Boundary Rules Shape Innovation.” (2016)
Experimental Tests Of Intellectual Property Laws’ Creativity Thresholds, Buccafusco, Christopher, Zachary C. Burns, Jeanne C. Fromer, and Christopher Jon Sprigman. “Experimental tests of Intellectual Property laws‰Ûª creativity thresholds.” (2014)
Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property: Bechtold, Stefan, Christopher Buccafusco, and Christopher Jon Sprigman. “Innovation heuristics: experiments on sequential creativity in Intellectual Property.” Ind. LJ 91 (2015): 1251
And speaking of astroturf, what’s also interesting is that Sprigman appears to have filed comments in Copyright Office moral rights study that incorporated concepts in Google-funded papers and cited to one of them without disclosing Google’s funding as far as I can tell. (https://www.regulations.gov/document?D=COLC-2017-0003-0019).
So a perfect lawyer to advance the interests of Spotify, the savior of the music business and to gift the legal community with the Restatement of Copyright, a crystalization of his genius.