An American Law Institute “Restatement” of copyright law that has been criticized by music and media business lawyers, as well as some academics and the acting U.S. Register of Copyrights, may proceed in a different format, the American Law Institute said Tuesday (January 23). Although the project is expected to continue, a change of format would make it somewhat less authoritative — and thus perhaps less damaging to the music industry’s interests if it proceeds as expected, several lawyers said.
The American Law Institute is a century-old organization that compiles and publishes legal books, including “Restatements of the Law,” which guide judges by summarizing and clarifying court decisions from around the US. Although the Institute is a private organization with no legislative power, its Restatements are so frequently cited by judges that they have significant power to shape court decisions.
Several years ago, the Institute started a project on copyright that’s being guided by New York University School of Law professor Christopher Sprigman, who has been critical of the scope of copyright and represents Spotify in a case in which he argued that on-demand streaming doesn’t require mechanical rights. The project drew significant criticism, partly because media companies and creators groups believed it could hurt their interests and partly because Restatements generally involve areas of “common law,” like torts and contracts, while copyright is a federal statute. On January 16, Acting U.S. Register of Copyrights Karyn Temple Claggett wrote a letter urging the American Law Institute to reconsider the project, which “appears to create a pseudo-version of the Copyright Act.”
Without offering much insight into its reasoning, the Institute has decided to appoint a group to decide whether to change the project’s format. Since copyright is federal statute, the group will consider focusing more on that. Presumably, the project would still try to clarify numerous decisions about copyright, but emphasizing the statute would make this one among many treatises, rather than the sole authoritative Restatement. It’s not yet known who’s in the group, let alone when it will reach a decision.
Although several music lawyers expressed hope that this represents a first step toward canceling the project, that seems unlikely, partly because the Institute would be reluctant to be seen as caving to outside pressure.