A host of music creator advocacy organizations are gearing up for battle against the latest part of the American Law Institute’s “restatement” of U.S. copyright law, with several signing on to a new letter urging ALI members to vote against it. At 5 p.m. ET today (June 8), several sections of the copyright Restatement pertaining to issues including fixation (how a work must be “fixed” in a tangible medium to get protection) and joint authorship go up for a vote in front of the full ALI membership for the first time.
The American Law Institute is a century-old organization that compiles and publishes legal books, including so-called “Restatements of the Law,” which guide judges by summarizing and clarifying court decisions from around the U.S. Although it is a private organization with no legislative power, ALI’s Restatements are often cited by judges, giving it immense power to influence court decisions.
In the June 4 letter obtained by Billboard, three organizations – Songwriters of North America (SONA), Black Music Action Coalition and Music Artists Coalition – urge ALI members to vote against the Restatement, arguing the project is “deeply flawed in its approach and unquestionably aims to erode protections for creators.”
The letter further sounds the alarm by noting that the Restatement, instead of relying on the Copyright Act – the federal statute that governs copyright law in the U.S. – creates a set of “black letter” rules for copyright, which the organizations argue are “consistently oriented to diminish the rights of creators” and “harmful to those who depend upon copyright for a living.”
“In presenting a biased and false view of copyright, the ALI not only harms creators and does a disservice to judges and lawyers, but damages its own reputation as well,” the letter goes on.
Sources who spoke with Billboard stressed that the potential fallout for music creators is vast if the ALI chooses to adopt the sections of the Restatement that are scheduled for a vote tomorrow. One source opposed to the Restatement, who spoke on the condition of anonymity, was particularly troubled by the section on fixation. “The Copyright Act says you can fix a work while it’s being broadcast…if you have a live show, and someone’s recording it, that’s considered fixed, so it’s protected,” says the source. “[The ALI] just left that out of their black letter.”
Also of note is a section that addresses joint authorship of works in terms that could complicate claims of ownership for songwriters. As opposed to existing copyright law, the Restatement asserts that all contributions must be put down in writing prior to the start of the songwriting process. “If you think about that, in practical terms for songwriters, that’s crazy that they would sit in a room and sign a contract before they start writing a song,” the source adds.
In a statement sent to Billboard, ALI said, “This is the first time that a draft of the Copyright Restatement has been presented to ALI’s membership at an Annual Meeting. We are looking forward to today’s discussion; all comments and criticism will be carefully considered.”
The fight between music creator advocates and ALI, which has been bubbling up for years, began boiling over in Jan. 2018, when Acting U.S. Register of Copyrights Karyn Temple Claggett wrote her own letter to the organization imploring it to reconsider the Restatement project, stating that it “appears to create a pseudo-version of the Copyright Act.” She went on to question the necessity of the project given that copyright law is largely covered by federal statute, not common law codified by court decisions, like most of the ALI’s Restatement projects.
Current U.S. Register of Copyrights Shira Perlmutter, who was previously an adviser to the ALI’s copyright Restatement project before stepping down following her appointment to the Copyright Office, echoed Claggett’s concerns in a letter sent to the organization last month that was obtained by Billboard. Perlmutter called the copyright Restatement “unusual among ALI projects” in its rephrasing of statutory law, saying that doing so “inevitably introduces imprecision and interpretive choices.” She also urged more transparency in the Restatement process, saying it “has been perceived by onlookers, including some Advisers, as inadequately documented, leading to questions being raised about the possible influence of the normative views of the Reporters.”
The latter concern is shared by other critics of the Restatement, who point out that the project has been guided by “reporters” (i.e. ALI members who lead projects at the organization) who are perceived as being skeptical of the extent of current copyright law. They include New York University School of Law professor Christopher Sprigman, who for years has been critical of the scope of copyright in the U.S. In a book he co-authored entitled The Knockoff Economy: How Imitation Sparks Innovation, Sprigman argued that copying has helped fuel creativity in fields including the fashion industry. He also represented Spotify in a copyright infringement lawsuit brought by music publishers in which he argued that on-demand streaming didn’t qualify as a reproduction, under the legal definition of the term, as well as a public performance. That would mean that such services would no longer need to license mechanical rights as well as public performance rights.
“If you look at each of the reporters, [it’s a] not very balanced group,” says Keith Kupferschmid, president and CEO of the Copyright Alliance, a trade organization that represents businesses that depend on copyright. “It’s a bunch of individuals…who have long had an agenda of minimalizing copyright and creators and copyright owners’ rights. And they are…pushing that agenda in this restatement.”
Other critics of the latest part of the project include music industry lawyers, as well as scholars like Columbia Law School professors Jane Ginsburg and Shyam Balganesh, University of California Berkeley School of Law professor Peter Menell and copyright lawyer David Nimmer. All four, who serve as project advisers to the copyright Restatement project, sent a joint letter on May 31 encouraging their fellow ALI members to strike down the project in tomorrow’s vote. Like the SONA-BMAC-MAC letter, it lays out what it sees as the consequences of the ALI disregarding established copyright law.
“Not only will this current approach cause confusion as to the operative language and meaning, the project will serve as precedent for future Institute efforts to restate subjects covered by federal statutes,” the letter reads.
While music creator advocates are deeply worried about tomorrow’s outcome, they’re even more concerned about what the future holds as more contentious issues come up for a vote. “What we really, really worry about is, if they can’t get these sections right, what happens when we take on the controversial stuff, like fair use, the DMCA?” says Kupferschmid. “That’s really going to get ugly at that point.”