Dina LaPolt: American Law Institute's Credibility at Stake After Giving Copyright Cynics a Green Light to Push Agenda

do not reuse
Courtesy of LaPolt Law PC
Dina LaPolt

Today the American Law Institute (ALI) will vote to approve the first part of a legal resource on copyright law that will be used by courts to decide cases. The result could lead to changes in how laws apply that would weaken copyright protection -- and ultimately result in a transfer of wealth from creators to large technology companies (as if Google needs any more money).

While ALI is generally regarded as a neutral organization, it is being seized by a group of anti-copyright academics in an effort to change copyright law in a way that will take money out of the pockets of songwriters and artists like those I represent. Make no mistake -- this is a cynical effort to try to change how creators make money for generations to come. It must be stopped.

Most people have never heard of ALI, but it was founded almost a century ago by respected judges, including former President and Chief Justice Taft, with the purpose of "reflecting the law as it presently stands" in treatises to help educate courts when deciding cases. Judges and expert practitioners continued this tradition over many decades. Every first-year law student is acquainted with ALI as a trustworthy resource for legal subjects such as torts and contracts. The copyright project will give courts advice on important issues such as how rights of public performance and reproduction are defined, what activities constitute infringement, and the parameters of fair use.

The problem is that ALI has been hijacked by a handful of agenda-driven academics, who are drafting the text of the ALI treatise in a way that reflects their subjective view of copyright law, not the objective summary they were directed to create. Some of these academics have in the past tried to lobby Congress for changes that would weaken copyright protection -- unsuccessfully. And for reasons I cannot understand, ALI has decided to be complicit in a process that will harm creators and likely benefit technology giants.

This is not how you change the law! Besides the court system, there's a legitimate legislative process that has to be followed. I would know -- I've spent the last several years working on legislative reform with creators, trade organizations, and policymakers; and now we finally have a bill on the table, the Music Modernization Act (H.R. 4706), which reflects a consensus among not just groups of creators and copyright owners (including the National Music Publishers' Association [NMPA], ASCAP, BMI, Songwriters of North America [SONA], the Nashville Songwriters Association International [NSAI], and others), but also the Digital Media Association (DiMA) which represents Amazon, Apple, Pandora, Spotify, and YouTube. The bill, which would revolutionize how songwriters are paid for use of their work by streaming services, reflects significant negotiations and compromises on both sides over the last year. That is how you are supposed to change copyright laws -- not through a one-sided coup to push your agenda in a publication that is supposed to be neutral by design.

ALI should see that a handful of out-of-touch academics are attempting to use the organization as a Trojan Horse to advance their views without balanced input from those who represent the creators who rely on copyright to earn a living. It all started when University of California, Berkeley School of Law Professor Pamela Samuelson, who is known for her dissatisfaction with the current state of copyright law, proposed the project. Then ALI director, Richard Revesz, then appointed his NYU colleague, Christopher Sprigman, to lead the project.

Sprigman is known for agreeing with Big Tech's talking points on the most important copyright issues of the day. He argues that a critical enforcement law designed for the dial-up world of 20 years ago works just fine -- which is also Google's position and happens to be at odds with that of the entire music community. Sprigman has even argued that counterfeit products are good for creators! Seriously? This is who's running ALI's copyright project?

Sprigman isn't shy when it comes to pushing to change the law when it suits him, and technology companies. In his proposal for this project, he said that copyright law is in a "bad state," and that the ALI project could be influential in "shaping the law" and result in "the reformed law that in the long term we will almost certainly need."

Here's the problem: This undermines the very purpose for which ALI was founded.  It was formed to create resources that reflect the current law, not attempt to change it. The draft to be voted on this week reflects an inaccurate and one-sided view of copyright -- just ask the judges and well-respected practitioners who sought to work constructively within ALI on this project only to have their comments routinely rejected.

Whatever led ALI to become an enabler of these copyright cynics is for ALI to figure out. But it's surely a black eye for an organization formed by legal titans, and a potential destruction of the credibility that it's built up over 100 years.

But what's most important to me is the effect this will have on my clients and generations of musicians and songwriters to come. What happens if the reproduction and public performance rights so important to music creators are curtailed? What happens if fair use expands so much that all samples are covered?

After more than a decade of trying to survive, music creators are finally seeing improvements in the marketplace and music fans flock to streaming services that provide more opportunity for artists and songwriters than ever before. I have worked tirelessly to ensure that these creators will finally start to get the compensation they deserve in the digital era. This project not only undermines the many years of work by multiple organizations across the country -- it puts the very livelihoods of creators in jeopardy.

Dina LaPolt is the owner and president of LaPolt Law, P.C.