The Acting U.S. Register of Copyrights sent a letter to the American Law Institute expressing concern over a project to "restate" copyright law that is causing concern among lawyers in the media business, Billboard has learned. In the letter, dated January 16 and obtained by Billboard, Acting Register Karyn Temple Claggett writes that the Institute's project "appears to create a pseudo-version of the Copyright Act" and urged it to reconsider the entire venture. By the standards of communication between U.S. policymakers and scholarly legal organizations, these are harsh words -- and they reflect the alarm with which some media business lawyers see the Institute's project.
The American Law Institute is a century-old independent organization that produces and publishes scholarly books, including "Restatements of the Law," which are intended to guide judges by summarizing and clarifying court decisions in different states. Although the Institute has no formal legal authority, its Restatements are so often used by lawyers and so frequently cited by judges that they play a significant role in shaping court decisions around the U.S.
Music industry lawyers, as well as those in the broader media business, worry that this particular Restatement will summarize copyright law in a way that reflects a bias toward loosening the protections it gives creators and rightsholders. 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. The project has been a subject of concern for several years, but the issue has gained urgency now that the Institute is gathering today and tomorrow to vote on whether to adopt the first part of the Restatement.
Some of the concern comes from the fact that the project is being guided by New York University School of Law professor Christopher Sprigman, who has been critical of the scope of copyright. In a book he wrote with another author, "The Knockoff Economy: How Imitation Sparks Innovation," Sprigman argues that copying has fueled creativity in fields like fashion (some of which is protected under trademark law). More recently, he represented Spotify in a copyright infringement lawsuit brought by publishers and argued that on-demand streaming didn't require the licensing of mechanical rights -- an idea anathema to the music publishing business. (Formally, Sprigman, who declined to comment, serves as reporter for the Restatement project, which involves input from a broad group of advisors, which will give him significant, but not complete, influence.)
The Institute's decision to undertake a copyright project seems to have its roots in a 2013 proposal from Pamela Samuelson, a professor at University of California, Berkley School of Law, who has also criticized the scope of copyright. In a letter sent to the Institute last week, the NMPA, ASCAP, BMI and several organizations wrote that, "Professor Sprigman's apparent goal, both through his current representation of Spotify and his history of championing causes arguably adverse to the interests of copyright owners is at odds with the purview of ALI projects."
Over the last several years, a variety of copyright lawyers, academics and media business trade organizations have expressed their own concerns. But none has the weight of this letter from the U.S. Register of Copyrights. In Claggett's letter, she says that the need for the project is unclear, since copyright law mostly consists of federal statute, not common law codified by years of court decisions, like most of the subjects the Institute publishes Restatements for; also since Congress is currently considering several pieces of copyright legislation, as part of an ambitious reform process planned by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), she points out that this project could soon be outdated. (The Copyright Office confirmed that Claggett had sent the letter but declined to comment on it.) Claggett suggests that the result of the project may be "confusion and misinterpretation" and urges the Institute "to reconsider the project as a whole."
Assuming the Institute continues its Restatement project, which seems likely but not certain, it's hard to know how much it will affect the music business. The first part of the Restatement, which is being considered now, deals mostly with abstract issues -- what can be copyrighted and so on. (Among the hot-button issues: How long must a work be fixed in a tangible medium in order to be protectable.) Since Restatement projects last years, it will take time to get to issues more directly relevant to the music business, such as the nature of a public performance and the scope of fair use.
"The case law across the 50 states is voluminous and it's not always coherent and Restatements help convey the way the law is interpreted," says Robin Feldman, a professor at University of California Hastings College of the Law who is acting as an Advisor to the Restatement project. (She spoke as a professor, not representing the Institute.) "Any time anyone in the intellectual property word says the world is coming to an end -- on either side -- they may be a bit overwrought."
Even so, so much has changed since the last major revision of copyright law, the Copyright Act of 1976, that this Restatement could have more influence than most -- especially if Congressman Goodlatte's copyright reform process isn't as ambitious as many hope. Because of the abstract nature of copyright, even seemingly abstract details can become important. (For example: Could the length of time a work needs to be fixed in a tangible medium to qualify for protection affect the way copyright covers copies of songs transmitted online?)
After more than a decade of decline, the music business seems to have finally found a business model that will let it grow again, in the form of streaming. But that business model depends more than most people realize on interpretation of law that are widely agreed on hardly invulnerable to challenge. So the contentious letters about the Institute's copyright Restatement project are probably just beginning.