Music Technology Policy

[Editor Charlie sez:  This is a post from 2/6/18 with an update from this week as noted.  MTP readers also might want to re-read this post about Spotify lawyer’s gratuitous attack on David Lowery.]

UPDATE: Senator Thom Tillis and Representatives Ben Cline, Martha Roby, Ted Deutch and Harley Rouda have written a letter to the American Law Institute asking what they think they’re doing with the fake “Restatement of Copyright” being written by Spotify’s lawyers and recipients of Big Tech largesse.  

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.  Now it’s the “Restatement of Copyright”, which is rapidly becoming a desk reference for the anti-artist crowd, led in this case by Professor Pamela Samuelson and Professor Christopher Sprigman.  Sprigman enjoyed a walk-on for the Spotify legal team in the Nashville Cases.  (Having achieved victory with a new safe harbor with the Music Modernization Act, Spotify may find that the Nashville cases are the last copyright infringement lawsuits they will ever defend.  So Sprigman’s role is significant in the anti-artist community.)

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):

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 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.