2020 Grammys

Lawmakers Urge American Law Institute Not to Publish New Copyright Restatements

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A group of lawmakers on Wednesday (Dec. 4) sent a stern letter to the director of the American Law Institute expressing their concerns with a planned Copyright Restatement Project that they believe has the potential to upend copyright law interpretation.

The American Law Institute is a century-old organization that compiles and publishes legal books, including "Restatements of the Law," which are intended to guide judges by summarizing and clarifying court decisions around the U.S. Although the Institute is a private organization with no legislative power, its Restatements are so often used by lawyers and so frequently cited by judges that they play a significant role in shaping court decisions.

Sent by Sen. Thom Tillis (R-N.C.) and Reps. Ben Cline (R-Va.), Ted Deutch (D-Fla.), Martha Roby (R-Ala.) and Harley Rouda (D-Calif.) to American Law Institute director Richard Revesz, the letter warns of the possible repercussions, should the Institute approve restatements to 18 sections of copyright law. In effect, the letter states, the American Law Institute's new interpretations could be cited as authority for deciding case law disputes instead of federal rules and regulations that are already in place.

The lawmakers -- along with plenty of music and media business lawyers -- are concerned as to why the American Law Institute is meddling in this copyright law, which for the past 100 years has been left to the privy of the legislature. They feel that this particular Restatement will summarize copyright law in a way that reflects a bias toward loosening the protections it gives creators and rights holders.

"Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of the law that is almost exclusively federal statutory law -- until now," the letter reads. "We are deeply concerned by the ALI's current Copyright Restatement Project. Courts 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."

Although the Restatement can't affect anything specified in statute -- length of term of copyright, for example -- it could influence court interpretations of how certain rights apply and what activities are covered by fair use.

"Since copyright law is predominantly federal law, codified in Title 17, it would be Congress and not the states that would take action in this case," the letter states.

They are also demanding to know what they plan to do when there is a discrepancy in the interpretation of copyright law -- how will dispute be decided and on what precedent will govern?

In total they are asking the ALI to address nine key concerns that they have with this Copyright Restatement Project. Read the full letter here.

The response by the legislatures was supported by others in the music industry. Morna Willens, chief policy officer of the Recording Industry Association of America (RIAA), released a statement applauding the move.

"The RIAA is grateful to Senator Thom Tillis and his bipartisan colleagues for raising important questions about the American Law Institute's plan to 'restate' U.S. copyright law," says Willens. "It's Congress's job to set copyright policy, not the ALI's."

She continued, "The letter from Senator Tillis and his House colleagues raises fundamental questions about the ALI's decision to wade into such deep policy waters that should be fully answered before any 'restatement' of copyright goes forward. I want to thank the members for their leadership."

Copyright Alliance CEO Keith Kupferschmid also agreed with the stern approach taken by the lawmakers.

"We at the Copyright Alliance echo the many concerns expressed, particularly the fact that federal copyright law -- which is governed by the 1976 Copyright Act -- is ill-suited to a Restatement because it is clearly articulated by Congress, and thank the Senator and Representatives for voicing their concerns," said Kupferschmid in a statement. "As stated clearly in the December 3 letter by the Senator and Representatives, 'Courts should rely upon statutory text and legislative history, not [on] Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretation.' We could not agree more with this statement."


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