ALI’s Great Copyright Caper: Has The American Law Institute Been Hijacked By Big Tech?

The public has turned against Big Tech, and this misguided project will only enforce that distrust.

The venerable American Law Institute (“ALI”) has apparently been infiltrated by Big Tech and its confederates. A portion of the ALI’s proposed “Restatement of Law, Copyright” was recently unveiled, and groups ranging from musicians’ organizations to no less an authority than the U.S. Copyright Office have objected to the ALI’s attempt to rewrite (or “restate”) copyright law in a way that further disadvantage artists and creators.

The ALI is known for its Restatements of Laws regarding areas of state law that differ greatly in their application from state to state, such as torts. In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act. A few years ago, the ALI started a somewhat similar project regarding insurance liability law, but rolled that back after public objection regarding the myriad ways in which ALI’s restated law conflicted with settled law. A similar result would be proper here.

That is because the project is outside the purview of the group’s mission, which is “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.” ALI’s literature further notes that it “has limited competence and no special authority to make major innovations in matters of public policy.” Yet, ALI’s forthcoming copyright Restatement achieves none of ALI’s goals and attempts to make major unnecessary changes to existing law.

The proposed language of the Restatement departs significantly from relatively settled precedent to opine as to how the law “should be” in the future. And these beliefs about how the law “should be” are transparently out-of-step with prevailing statutory and other relevant authority. From a preliminary review of the project’s language, the copyright law is being “restated” in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. For example, the Restatement favors and promotes a 1995 computer program copyright decision over a 2014 decision that rejected the earlier reasoning. Now, it is hard to argue that courts had more facility with computer copyright issues in 1995 than they did in 2014, but the 1995 decision was more favorable to Big Tech interests, and — voila! — this 22-year-old decision gets prominent placement over the more recent and prevailing legal precedent.

It appears that the project will adopt wholesale many of Big Tech’s talking points on copyright issues and seek to roll back certain protections that artists and creators have held for decades. If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).

The timing is particularly strange because Congressman Bob Goodlatte (R-Va.) is currently leading an overarching copyright law reform process that looks to appreciably impact the current law. With the current, rich body of federal copyright law authority, the learned Nimmer on Copyright treatise, a recently issued U.S. Copyright Office Compendium all addressing copyright law issues, and a Congressional reform effort underway, the ALI project seems superfluous and even harmful, as it will add confusion to this already well-populated legal landscape. In other words, this is a solution in search of a problem and a project driven by something other than market need.

So, why copyright law and why now? The answer is potentially revealed by following the money and ideology. Two of the main architects of the ALI project, Christopher Sprigman and Pamela Samuelson, do not appear to spend most of their time litigating copyright cases. But, what they lack in copyright litigation experience they make up for with an apparent belief that they know better than the drafters of the Copyright Act and the courts that interpret said statute. This is reflected in the language of the proposed draft of the Restatement, which is replete with condescending statements finding a court’s decision “incorrect” or noting that “[c]ourts sometimes have difficulty” applying a particular copyright principle.

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This correspondent was only able to find a handful of copyright cases in which Mr. Sprigman has appeared as attorney of record in a copyright case over the past few years. In no less than three of those cases, he was one attorney among a multi-attorney team defending Spotify against claims of exploiting musicians’ songs without adequate compensation. In his writing, he once professed support for knock-off items, claiming that they did not hurt, and in fact, helped, artists. A brief look at a market like China, which has not historically had strong copyright oversight, proves false this notion. His beliefs in this regard have not gained much traction and the website for his book in support of knock-offs apparently went offline last year.

Given the above, it may come as no surprise that Google may have paid for some of Mr. Sprigman’s past work. Records compiled by the Google Transparency Project appear to expose Google’s funding of no less than five of Mr. Sprigman’s research projects. Spoiler alert: Mr. Sprigman’s research projects do not tend to reach conclusions that inure to the benefit of the artist.

This correspondent was unable to find any cases in which Ms. Samuelson appeared as counsel of record in a copyright case over the past few years, but it appears that she did found and fund the Samuelson-Glushko Technology Law & Policy Clinic, which takes positions that favor the tech industry. Some of you may recall a talk given by Ms. Samuelson at a recent Copyright Society of the USA conference in which she vehemently railed against awards of damages for copyright infringement while a room full of the nation’s top copyright law practitioners sat in shocked, slack-jawed silence or excused themselves for coffee.

While Mr. Sprigman and Ms. Samuelson’s far-out ideas about copyright law are creative and make interesting fodder for discussion, they are not entirely suitable for creating a “uniform” restatement of copyright law. This is especially true given their lack of exposure to musicians, photographers, designers, filmmakers, and all those other creative individuals whose livelihood depends on their art. From those that represent such artists and creators, you will not hear a call for a copyright law restatement

That is because US has enjoyed robust copyright laws for generations and is a world leader in creating new and original artwork and content. Restating the copyright law to weaken those protections is folly. In fact, the only field in which it can be argued that the US lags behind world creativity leaders is in the area of fashion design and, not coincidentally, the US has weaker copyright laws in regard to fashion than the countries like Italy and France that it lags behind. The ALI’s restatement is a move in the wrong direction.

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The people lining up to excoriate the ALI’s copyright project include the US Copyright Office, whose Acting Register Karyn Temple Claggett wrote that the project “appears to create a pseudo-version of the Copyright Act.” And Cynthia S. Arato, who is listed as a “participant” in the project by the ALI, wrote on behalf of the New York Bar City Bar Copyright & Literary Property Committee to note that the Restatement “includes positions that conflict with the actual state of the law or that advocate policy preferences divorced from Congressional Intent.” Savage.

Back in 2013, when Ms. Samuelson first pitched this project, the public was still enamored with Big Tech and believed it could do no wrong. That support may have resulted in an an overreach here. In the past couple of years, the public has turned against Big Tech, with that trend rapidly accelerating in the last year. The general public and especially artists’ groups now view Big Tech with skepticism and disfavor. This misguided project will only enforce that distrust.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.