Restating the less-than-obvious
MUST READ: @georgemasonlaw professor @devlinhartline offers a devastating critique of @AmLawInst's deeply biased Copyright Restatement Project, which has become increasingly embarrassing as Members of Congress now join the chorus of concerned parties https://t.co/bYH1hLe3wo— Matthew Barblan (@mattbarblan) December 5, 2019
Since its inception, many have expressed doubts about the Restatement of Copyright project. The U.S. Copyright Office, U.S. Patent and Trademark Office, American Bar Association IP Section, industry groups, judges, academics, and many others have communicated serious concerns that this Restatement will do more harm than good, yet ALI seems dead set on seeing it through. The latest to question the propriety of this project are Members of Congress who voiced concerns in a letter sent to ALI earlier this week. In the letter, Senator Thom Tillis and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda point out that in over 100 years of existence the ALI has never drafted a Restatement on law that is almost exclusively governed by federal statutes. The Members of Congress are primarily concerned with how the Restatement “attempts to diminish the importance of the statutory text or legislative history relating to that text” and replace it with “novel interpretations.”
The congressional letter has been well-received by the copyright community. . . .
Though certainly venerable, the Restatements over the last century have not been immune to attacks of perceived bias. Law review articles for years have made these claims (for example, see here, here, and here). The late Antonin Scalia highlighted such concerns in his acerbic dissent in Kansas v. Nebraska, when he stated in 2015 that “modern Restatements . . . are of questionable value, and must be used with caution” since “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Justice Scalia warned that “it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”
Unfortunately, ALI’s current Restatement of Copyright project suffers from the very problems that Justice Scalia described. . . .
My own view is that there’s plenty of room for more copyright treatises, but this particular project should be abandoned given the decision to recast the statutory text rather than to simply quote and interpret it. Other panelists were not nearly as positive.
Ouch. Well, this is the way of our time, isn’t it? There’s even more:
ALI authorized the project as a Restatement even though its official Reporter also made clear in a letter to ALI that he envisioned a reform effort: Given the “bad state” of things, there “seemed to be a perfect environment for a deep reevaluation of copyright law.” Because this “has not happened. . . . it falls to the federal courts” to fix things since “Congress is unlikely to proceed any time soon with copyright reform.” Accordingly, the Reporter clearly intended a Principles project and not a true Restatement.
Well, what can you do when Congress refuses to legislate on substantive legal issues concerning commerce and boring old stuff such as copyright law?