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The Restatement Scandal: The Futility of False “Unity”

February 6, 2018

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand.

The potential for astroturfing is why the controversy should be of importance to artists–those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.  If the companies doing the astroturfing or lobbying were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice although that’s changing.

And yet the scandal is still a teachable moment for being far more selective and open-eyed about what we spend our time on and lend our names to.

What is a “Restatement”?

As Professor Risch notes in a 2015 blog post on the Restatement of Copyright controversy, there is a difference between the restatement approach and a treatise (such as Nimmer on Copyright) and should not be confounded:

Restatements generally boil the law down to a single rule (or few) on a given topic. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule. Quite often, referral to the treatise is really to the footnotes, looking for a case citation in a particular circuit. Treatises might present different rules in different circuits.

The current scandal is over copyright, but it appears that the Restatement of Copyright is simply the current manifestation–similar controversies face ALI on its “Restatement of Liability Insurance Law” project as well as its “Restatement of the Law, Consumer Contracts.”  There may be others.

What is the “Restatement”?  Justice Scalia provides us with an explanation (Kansas v. Nebraska, 574 U.S. ____ (2015) (Scalia, J. concurring in part, dissenting in part):

I write separately to note that modern Restatements—such as the Restatement [at issue in the case at bar]—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, 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….And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Enter Professors Samuelson and Sprigman.  Revising the law is just their game.  And so here we are.  (MTP readers will remember Professor Sprigman represents Spotify and came up with another example of “revisionist” argumentation to claim on behalf of Spotify that mechanical streaming royalties don’t exist.)

It All Starts with a Cigar:  Samuelson Makes the Pitch

Professor Samuelson (she of the Samuelson-Glushko law centers, Silicon Valley’s answer to the Confucius Institutes) seems to have been the prime mover in the effort for a “Restatement of Copyright” as near as I can determine from a 2013 letter she wrote to the then-director of ALI:

You may remember that during the American Law Institute (ALI) Young Scholars Conference on Patent and Copyright Law held at Georgetown University Law Center in February 2013, I suggested that ALI should undertake a copyright reform project. I am writing now to follow up on that suggestion with a more concrete proposal for a project that articulates principles that courts, lawyers, and scholars can use without the need for legislation and that would provide an analysis and framework that would aid additional reform efforts. Such a project would enable the ALI to bring reason and order to this important area of the law and help clarify and simplify it in accordance with the lnstitute’s mission.

Of course, American copyright law is a creature of statute as they say.  Professor Samuelson knows this.  So when she proposes a “copyright reform project” that avoids the “need for legislation”, she is heading straight into Justice Scalia’s sweet spot regarding the restatements.  Or jar of vinegar, depending on your view.  It appears that the Restatement of Copyright was planned on being a cut above a 3L’s course outline and a notch below lecture notes from the start.

So–and we will come back to this–the entire Restatement of Copyright enterprise was doomed from inception.  Thousands of work hours were spent on this misadventure that was a results oriented process designed–as Professor Samuelson clearly states–to create an antidemocratic work around to the statutory copyright law.  Talk about your smoke filled rooms, Valley-style.

It’s Not Just Us:  Problems with Astroturfing on Other Restatements

It is cold comfort that this astroturfing may well be a pattern at ALI.  Consider complaints about the Restatement of Liability Insurance Law that could easily be made of the Restatement of Copyright:

The Restatement of the Law, Liability Insurance is the ALI’s first-ever project on the topic of insurance law and the ALI’s first-ever industry-specific Restatement. The ALI leadership made a sound decision to postpone a final vote of approval of this Restatement at the 2017 Annual Meeting to allow time for additional work on the project. The project Reporters’ subsequent announcement of a “listening tour” to address outstanding concerns with the Restatement also signaled the prospect of meaningful improvements. Despite these assurances, minimal changes have been made to this Restatement….The failure of the Reporters to meaningfully address key sections of the Restatement that generated concern at the 2017 Annual Meeting makes the ALI leadership’s decision to postpone the project ring hollow and suggests a “broken promise” to address legitimate outstanding concerns. Numerous aspects of this Restatement have generated concern for both insurers and non-insurers. The two examples discussed in the prior general counsel letter continue to illustrate key concerns. The Restatement continues to endorse a “new version” of the basic rule that contract terms are interpreted according to their “plain meaning” which would allow extrinsic evidence to be considered even when a contract is clear. This provision would create uncertainty, invite unnecessary collateral litigation, and set an unsound precedent with respect to the interpretation of insurance policy terms, and possibly terms in other types of contracts.

Sound familiar?  The pattern raises a much, much larger question about what is going on at ALI and how ALI is funded.

But in the Copyright restatement, it was clear from the beginning that Professors Samuelson and Sprigman were involved.  Who did Samuelson recommend to “help” the ALI with the Restatement of Copyright in her 2013 letter to ALI?

The Reporter or Reporters, the Advisers, and the Institute should be able to engage and draw on significant law school resources. These include, to give just a few examples, the Berkeley Center for Law & Technology at Berkeley Law (BCLT, http://www.law.berkeley.edu/bclt.htm), of which I am a Director and which has hosted important copyright events such as a conference commemorating the 300th anniversary of the Statute of Anne, a conference on orphan works and mass digitization, and a conference on copyright.formalities; the Center for Internet and Society at Stanford Law School (http://cyberlaw.stanford.edu/), which concentrates on public policy issues such as copyright and fair use; and the Berkman Center for Internet & Society at Harvard (http://cyber.law.harvard.edu), which focuses on cyberspace issues through projects and initiatives such as the Digital Public Library of America.

Does it really need to be said yet again that CIS and Berkman both get funding from Google?  And that Professor Samuelson’s interests are as close to Google’s interests as one is to two or that Professor Sprigman conducts Google-sponsored research?  For example, statutory damages for copyright infringement has long been an attack point of Big Tech and we get a preview of where they want it to go in Pamela Samuelson’s “Copyright Principles Project”–essentially abolished–like the controversial Music Modernization Act, another example of fake “unity.”

The Teachable Moment:  Take A Pass in Future

The result of participating in a project where Sprigman controlled the pen was knowable simply based on who was involved.  So why would anyone bother with these people and their Restatement of Copyright?  I bet the insurance lawyers are asking themselves the same thing about the Restatement of Liability of Insurance Law.

Did anyone really need to know of Samuelson’s 2013 letter or Sprigman’s 2014 proposal to have guessed that these people were not interested in the ALI’s founding principles, were agenda-driven and were unlikely to consider the interests of professional creators that drive our industry?

This is why the idea that there can be unity between the anti-copyright forces and the creative community is a farce.  I don’t know how many times these efforts have to blow up for people to understand that it is not worth engaging if you see certain names involved because the effort is not genuine.

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  And as Rogers & Hart wrote, unrequited love’s a bore.

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”  Or you can buy Bitcoin futures from the Winklevoss Twins.

  1. February 6, 2018 at 19:33

    Reblogged this on The Trichordist and commented:
    Chris Castle has some excellent analysis of the ALI copyright restatement project as well as some other recent ALI restatements. Hew writes:

    However, there appears to be a trend at the ALI to trade on the “Restatement” series to provide a vehicle through which those who control the pen in drafting new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be rather than a tool for practitioners to quickly learn what the “black letter law” is. This is a way to make an end run around the democratic process to deny voters and their elected representatives their proper role. What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen.

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