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Retelling Copyright

The Contributions of the Restatement of Copyright Law

Jeanne Fromer, Jessica M. Silbey

Since the American Law Institute (ALI) launched in the early twentieth century, its mission has been “the clarification and simplification of the law and its better adaptation to social needs … [and] to secure the better administration of justice.” A principal way it has pursued that mission has been through its Restatements of Law project. By their nature, Restatements of Law reflect tensions between what it means to “restate” and reform the law. As the ALI has grown and the legal profession has evolved with social and political changes, the organization has ensured professionalism and the incorporation of diverse views to manage this tension at the heart of its Restatement projects.

Against this backdrop, the ALI announced in 2014 that it would begin a Restatement of Copyright Law project in 2015 and we, as copyright lawyers and scholars, applaud that decision. The ALI specified that the project "will focus on the generally applicable parts of copyright law, including the subject matter of copyright; the scope of the exclusive rights granted by copyright; copyright ‘formalities’; the rules governing ownership and transfer of copyrights; the duration of copyright; the standard for copyright infringement; rules regarding the circumvention of copyright protection systems; defenses to copyright infringement, including the first sale limitation and fair use; and remedies, including actual and statutory damages, attorney[’s] fees, preliminary and permanent injunctive relief; and criminal penalties." Since this announcement, the Restatement of Copyright Law project has been a lightning rod for controversy. The Authors Guild, the Association of American Publishers, the Motion Picture Association of America, the Recording Industry Association of America, and fourteen other organizations wrote a letter to the ALI expressing the worry that “the conception of the project and the recent appointment of its Reporter indicate a significant risk that it would be used as a vehicle not to restate the law of copyright, but, rather, to rewrite it to benefit a particular viewpoint in the copyright debate.” The Acting Register of Copyrights wrote to the ALI that the Restatement project is “misguided” and that “[t]he need for the Restatement is unclear, as an extensive body of positive copyright law already exists.” The Copyright & Literary Property Committee of the New York City Bar Association prepared a report against the project on the basis that “rather than simply clarifying or restating that law, the draft offers commentary and interpretations beyond the current state of the law that appear intended to shape current and future copyright policy.” The head of the National Music Publishers’ Association called the project a “sham attempt to undermine hard fought principles of understood law” and urged that “[t]his thinly-veiled attempt to subvert the law and undermine creators . . . must be stopped.” And just last year, five members of Congress criticized the project, noting that “laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and the legislative history.” They elaborated that “any Restatement or other treatise relied on by courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern.” Furthermore, they asserted that “[c]ourts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.” Some have expressed skepticism that these critiques are honest, instead suspecting that they are a smoke screen for critics’ fears that a Restatement of Copyright Law would provide an understanding of copyright law that would undermine the ability of content creators and others to shape the law in their favor. Whatever the truth, for purposes of this Article, we accept the critics at their word. And we think their criticisms of the Restatement of Copyright Law project are exaggerated and mistaken. As we contend, the act of restating in the manner that is the ALI’s signature form is consistent with the practice of law generally, which inevitably involves acts of legal exposition and interpretation. It is not inherently partisan but a professional practice in which all lawyers are taught to engage. Stating the law, saying what it means, and then applying it in a particular context are what lawyers and judges do all the time. In this way, restating—or “retelling”—the law is both normal and inevitable. A restatement of law is another way of saying what the law is. To be sure, copyright law is grounded in a federal statute, while the more common ALI Restatements of the Law, such as the Restatements of Contracts and Torts, are based in common law. These previous Restatements helped guide interstate practice and coordinate legal development across the fifty states. The 1976 Copyright Act, the principal federal statute governing copyright law, may be a single federal statute for the whole nation, but its development over forty years by courts in thirteen separate circuits through thousands upon thousands of cases has not always been uniform or crystal clear. The 1976 Copyright Act both draws on longstanding common law elucidated by federal courts and uses language indicating Congress intended for courts to continue expounding the common law in essential ways. Moreover, as Congress intimated when it enacted the 1976 Act, it was enacting a copyright statute for the ages. In four decades, Congress has not returned to revise the central aspects of the law to which the ALI Restatement of Copyright Law now turns its attention. This confirms that it was intended for long-range judicial interpretation subject to complex and diverse doctrinal evolution. For these reasons, we should welcome a carefully crafted Restatement of Copyright Law to help courts and lawyers ascertain the central rules of copyright law as they have evolved over the past forty years. The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership. This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright. In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward. They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI.