The Sneaky Long Game of ALI’s Restatement of Copyright (Guest Column)

US Capitol

Last week, Senator Thom Tillis and four other members of Congress sent a letter to an organization you may never have heard of, the American Law Institute (ALI).  The letter questions the ALI’s ongoing project to publish a competing version of the Copyright Act – or, as the ALI calls it, a “Restatement” of copyright law. The actual Copyright Act is a long and detailed federal statute enacted and updated by Congress only after weighing the views of those most affected — as those of us involved in getting the Music Modernization Act passed know well.

Why, you might ask, are these legislators pulling back the curtain on what the ALI is doing and calling them out?

The answer should be alarming to music creators everywhere.

First, a little bit of background. The ALI is a century-old organization that was established by leading judges and academics of the day to summarize and explain key areas of law. Because, unlike copyright, much of U.S. law is not enacted by Congress but is instead “common law” made by judges in individual cases (think contracts and torts), the original mission of the ALI was to review judicial decisions and identify significant court-made rules. The ALI’s Restatements saved lawyers and judges from having to sift through dozens of cases themselves.  And because they have traditionally been viewed as accurate summaries, these “Cliff’s Notes” explanations of the law are also frequently relied upon by judges in issuing decisions.

But the ALI is not the institution it once was. In recent times, it has come under the influence of academics who want to change, rather than simply describe, the law. This is especially true in the area of copyright, where several years ago a well-known copyleft professor, Pamela Samuelson, persuaded the organization to undertake a multi-year project for the purpose of “reforming” copyright law. The “copyleft” viewpoint is inherently anti-creator. It promotes the view that “information should be free” — available and accessible to all – which may be fine when it comes to information itself, but is a major threat when the “information” is the intellectual property of creators like us.

To head up its copyright Restatement project, the ALI appointed another copyleft professor, Christopher Sprigman, and three other like-minded academics to assist him. Sprigman is the co-author of a book praising the “innovative” value of knockoff goods and, as counsel for Spotify in a recent case, asserted (though unsuccessfully) that streaming music without a license did not violate copyright owners’ reproduction or distribution rights.

In each new piece of the Restatement he drafts, instead of presenting the actual text of the Copyright Act as the law, Sprigman and his colleagues rewrite Congress’ words to better suit their copyleft views. And in the comments that accompany these altered provisions, he highlights cases unfavorable to copyright owners and downplays (or simply ignores) cases that are more protective. The obvious aim is to have the judges rely on the inaccurate and misleading presentation of copyright law in the Restatement to limit the rights of creators.

This is the “long game,” and it’s pretty ingenious. Once the public advocating, fighting and bill-passing is over, we songwriters all go back to our studios … waiting to experience the benefits of the changes. Meanwhile, a surreptitious process to undermine our rights continues.

To give the project some cover, the ALI has appointed a number of outside “Advisers,” including attorneys who care about the rights of creators and copyright owners, to attend annual meetings and comment on the drafts. But the concerns of experts in the field — including the overarching complaint that the ALI draft relies on a made-up version of the Copyright Act — are systematically ignored. The U.S. Copyright Office has written that the project “appears to create a pseudo-version of the Copyright Act” and urged ALI to reconsider. The American Bar Association and preeminent scholars of copyright have weighed in with similar concerns.

But none of this has stopped the ALI. Maybe the reason the ALI thinks it can get away with their attack on creators’ rights is that the drafting process is the opposite of transparent. Meetings are not open to the public and Advisers have no vote on the drafts Sprigman delivers to the ALI Council for final approval and publication. In the rabbit-hole world of the ALI, the Copyright Act means whatever Sprigman says it does.

Why is this happening? As the saying goes, “follow the money.” But we can’t be sure how the project is being funded, because the ALI accepts confidential donations. Interestingly, the ALI took in over $7 million in private donations (far more than usual) at the outset of its copyright Restatement project.

Fortunately, in addition to the Copyright Office and the ABA, we are grateful to copyright champions like the late Jay Rosenthal for exposing this stealth attack on copyright law — or the creative community would have no idea this was happening. And we applaud Senator Tillis and his colleagues for shining a light on the ALI’s copyleft agenda to undermine the rights of creators.

Michelle Lewis is a songwriter, composer, ASCAP board member and executive director of Songwriters of North America.