Must read by @SenThomTillis: ALI’s proposed Restatement of Copyrights has the potential to harm the creative industries

[Welcome Senator Tillis to shining sunlight on the astroturf “Restatement of Copyright”, which in our view is a epitoma suprema of Silicon Valley shillery.  The letter that Senator Tillis refers to is the December 3 letter his colleagues and he sent to the American Law Institute asking some questions about the proposed Restatement (which isn’t all that proposed anymore as the drafting is moving along briskly).  I gather from Senator Tillis’s op ed that he hasn’t gotten a reply yet.  Which must mean that the mumbletank in the Silicon Valley policy laundry hasn’t quite figured out how to reply.  But here’s the question that no one seems to have asked yet:  Who is paying for the Restatement of Copyright?  I don’t mean which non-profit accountability blocker wrote the check, I mean who is the ultimate donor who is the source of donor directed funds?]

With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.

It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.

Read the post on The Hill

You might also be interested in these MTP posts from 2018:

Shocker: Is Spotify Lawyer Leading “Scholarly” Project to Create Fake Treatise?

The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

A Look at Christopher Sprigman’s Recent Record

And from 2013 about the Copyright Principles Project, the precursor of the Restatement of Copyright:

The Copyright Principles Project: Selflessness, Valley Style Amongst A Dedicated Group of Likeminded People

 

Letter on “Restatement of Copyright” to American Law Institute from @SenThomTillis @RepBenCline @RepMarthaRoby @RepTedDeutch and Rep. @HarleyRouda A Leading Cause of Pearl Clutching

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.

@musictechpolicy: The Restatement Scandal: The Futility of False “Unity”

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.

Read the post on MusicTechPolicy

@musictechpolicy: Shocker: Is Spotify Lawyer Leading “Scholarly” Project to Create Fake Treatise?

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.

Lucky us.