Pennsylvania Record

Saturday, March 28, 2020

Legal observers say ALI's pending Copyright Law Restatement encroaches on federal decision-making territory


By Nicholas Malfitano | Apr 24, 2019

Copyright 14

PHILADELPHIA – The American Law Institute’s pending Restatement of the Law, Copyright has some law scholars questioning its compilation, merits and intentions as to its given subject, while the ALI stands by the integrity of its Restatement-drafting process.

A teleforum conference call hosted by the Virginia-based Federalist Society on Monday afternoon featured commentary and analysis on the still-in-progress Restatement draft from speakers who expressed reservations on the drafting and direction of the document.

The Philadelphia-based American Law Institute publishes Restatements - summaries of existing law in specific areas intended to help judges. However, in recent years, the ALI has been accused of creating its own laws rather than restating current case laws, especially in its controversial insurance liability law Restatement.

The first draft of the copyright law Restatement was released in 2015. According to Professor June Besek - Executive Director of the Kernochan Center for Law, Media and the Arts at Columbia Law School in New York City and an intellectual property liaison to this Restatement project - observers were divided between those who felt a Restatement of this nature would serve as a useful guide to courts and those who felt such an endeavor would be better-framed as a Principles Project instead of a Restatement.

A Principles Project is a document produced by the ALI which allows for advocacy as to where its author(s) and the organization believes the law should go in the future, rather than a Restatement's intended capturing of current law at that point in time.

“Many of the comments questioned the necessity for a Restatement, because copyright is a subject of federal statute, a very detailed federal statute,” Besek said. “A number of people suggested that this effort should really be a Principles Project, which apparently in the ALI leaves more room for aspirational declarations of what the law should be, as opposed to existing law.”

According to Besek, critics of the project felt, among other things, that the project took a narrow and unbalanced view of copyright law, that it didn’t give enough attention to where copyright law currently stands and that there was no methodology as to how the Restatement arrived at its legal conclusions.

Though the project reporters agreed to take those concerns under advisement, Besek said some observers were dissatisfied and thought by and large there were no substantive changes made in later drafts of the document – even after ALI council-level discussions.

“The same kinds of issues keep coming up: Is this a balanced discussion? Is this tilting too far in one direction? Have they fairly discussed aspects of the law that they don’t agree with? Do they have reasonable grounds for disagreeing with it? Is it too narrow in terms of its outlook on what copyright does?” Besek said.

Sy Damle - a partner at the law firm of Latham & Watkins in Washington, D.C., and former general counsel and Associate Register of Copyrights at the U.S. Copyright Office - explained the goal of any Restatement project, including this one, is to produce a document that provides accurate and helpful guidance to courts and law practitioners – and that a Restatement project is “a generational document” meant to take a “long view” of the law, as there usually aren’t multiple iterations of the same document.

Damle provided examples of hurdles to the process of creating a Restatement that will stand the test of time, such as the passage of key copyright law federal statutes like the recent Music Modernization Act, in addition to case law decisions that can sometimes arrive quickly and leave a legal guidance project like a Restatement needing to play catch-up.

Expressing the view of the U.S. Copyright Office, Damle said, “Copyright law, by [its] federal statutory nature, is one that seems ill-suited to a Restatement. Which, again, a Restatement is meant to be something that lasts a fairly long time. There’s a fundamental mismatch between what a Restatement is and what the law is that we’re purporting to describe.”

Damle said his concerns are that the copyright law Restatement has good intentions, but in his view, the project in its current form cannot predict future copyright law activity on the federal level and begins to encroach on the decision-making territory of Congress and the U.S. Copyright Office.

“Those are the places you should look to physically for determining what the law is, not a private organization that is trying to re-describe what the statute says or what the agency’s regulations are,” Damle said, indicating if the project in its current form is meant to be the last word on copyright law in the courts, it would run into problems.

Besek added hers and Damle’s remarks are not indicative of any lack of good faith on the part of the project reporters, who she feels are trying very hard to create a document expressing what the law is, but more so speaking of concern towards the aspirational territory in which they believe the Restatement is headed.

When reached for comment, the ALI acknowledged the concerns of objectors, but defended its Restatement drafting process.

“The notion that there should not be a Restatement because copyright is sourced in a statute does not make sense. While is true that some provisions of the statute are precise and detailed – and therefore do not call for restatement – most of the basic statutory provisions are very old, brief formulations, whose meaning now derives primarily from a heavy overlay of common law interpretation, or are later congressional approximations of many decades, even centuries, of common law development,” said Stephanie Middleton, ALI’s Deputy Director.

“The words of the statute do not provide a complete understanding of what the law means and how it works, and do not supply the answers to many of the challenging issues courts must decide. The Restatement cannot contradict the statute, of course, and this is and will be made clear to the reader. What it can do is provide a guide to the common law on the issues it addresses.”

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Organizations in this Story

Latham and Watkins LLPU.S. Copyright OfficeThe Federalist SocietyColumbia Law SchoolThe American Law Institute