Authors Guild Executive Director Mary Rasenberger submitted her comments on the draft of the American Law Institute's Restatement of the Law on Copyright Law to Council Members of the Institute, cautioning them to reconsider the project. In her letter, Rasenberger re-emphasized concerns that have lingered in the copyright community since the project was announced in 2014, and which have only grown as the drafts written so far have borne out the community’s fears about rewriting the law.
Restatements (for those readers who are not lawyers) are an important resource in legal practice that synthesize established legal rules, present examples from well-known cases to illustrate their application to factual scenarios, and provide explanatory comments from legal experts. They are taught in law schools, used in practice, and cited in court opinions. They are a strongly persuasive authority in the field—which is why copyright lawyers have been urging the ALI to be more probing of the rationale and direction of their effort to restate copyright law. It’s also unclear what need a Restatement on copyright law would be fulfilling since the general rules and principles of copyright law are already clearly stated in a federal statute—the Copyright Act—in contrast to other bodies of law, which are scattered across court decisions.
A Restatement of the Law that obfuscates the rules rather than shedding light on them can create more problems than it solves.
The copyright community has two main concerns. First, there are doubts whether a body of law as large and varied as copyright can be adequately synthesized without reducing or misconstruing the statute and court opinions. As Rasenberger wrote about the present draft in her letter:
“In my 28 years as a copyright lawyer, I often relied on copyright law treatises…to research and understand complicated issues. But while these resources chart out the full expanse of copyright law from legislative history, case law, administrative experience, and scholarly articles—presenting the law as it is for practitioners to explore and form an understanding therefrom—the Draft prescribes and advances certain narrow views, which not only signals problems with the Draft’s present form and direction but raises serious questions about the possibility of synthesizing a large and quickly changing body of law into a Restatement.”
An even greater concern for the community is the heavy skewing of the draft in favor of copyright minimalism, the view that copyright protection should be limited, which can be attributed to the drafters' professional biases. In an earlier guest blog post, the CEO of the Copyright Alliance, Keith Kupfershmid wrote that the drafters "are all of the shared misbelief that strong copyright protection is an obstacle to the public’s ability to access and use creative works. This makes for a very unbalanced and one-sided restatement."
At a time when copyright law has become a battleground between large tech interests propounding narrow views on copyright and creators who are increasingly loosing income from their work, circumspection is crucial.
You can read the letter in its entirety here.