ALI Restatement of Copyright Law with Professors Balganesh & Menell
Mar 15, 2021
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Professors Balganesh and Menell discuss the American Law Institute's restatement of copyright law, addressing criticisms of lack of transparency and methodologies. They explore the development of the 1976 Copyright Act and the challenges faced in updating copyright law. The speakers also highlight issues with the selection process, funding, and limitations of the restatement project. They discuss the confusion surrounding the interpretation of the word 'publish' in copyright law and the expansion of distribution rights. Can the restatement still have a good outcome?
The American Law Institute aims to simplify and clarify American law through restatements, which distill principles from common law decisions and present them in short, statute-like sections.
The traditional restatement model developed by the ALI does not adequately accommodate the interplay between the text, legislative history, and administrative guidance of a comprehensive statute like copyright law.
The ALI copyright restatement project has faced criticism for its lack of transparency, flaws in methodology, and concerns about potential changes to copyright law without legislative involvement.
Deep dives
The American Law Institute Restatements aim to simplify and clarify American law
The American Law Institute (ALI), founded in 1923, aims to produce restatements of law to simplify and clarify American law. These restatements distill principles from common law decisions and present them in short, statute-like sections. The ALI views the restatements as a way to achieve coherence in the legal system by providing clear guidelines for judges and lawyers. The restatements mimic the precision of well-crafted statutes, emphasizing the importance of court-made law over statutory sources.
The ALI's history and original focus on common law subjects
The ALI was founded in 1923 and initially focused on state common law subjects. The organization aimed to provide organizational structure and systemic clarity to the complex and disparate American law. The ALI functioned based on the belief that statutes were not real sources of law, while judgments made by courts epitomized legal wisdom. The ALI's founding documents emphasized the importance of judicially developed law over statutory law, which influenced the structure and focus of their restatements.
The complexity of restating statutory law
Unlike common law subjects, restating statutory law poses challenges due to the presence of a comprehensive statute. In the case of copyright, the 1976 Copyright Act is a complex and detailed federal statute that interacts with judge-made law. The language used in the restatements must mimic the precision of the statute itself. However, the traditional restatement model developed by the ALI does not adequately accommodate the interplay between the text, legislative history, and administrative guidance of a statute. The focus on traditional common law sources in restatements is a mismatch when dealing with a comprehensive statute like copyright law.
The goals and promises of the ALI copyright restatement project
The ALI copyright restatement project aims to provide guidance in areas of copyright law that are susceptible to common law development. The project promised to address significant areas, such as fair use, substantial similarity, and originality, where interpretation and common law evolution are crucial. Initially, there was optimism about the project's potential to clarify the interaction between the text, judicial decisions, legislative history, and administrative guidance. However, the project has faced criticisms for not following through on these promises and failing to provide a comprehensive synthesis of all interpretive sources.
Concerns about the ALI copyright restatement project and its lack of transparency
The ALI copyright restatement project has faced criticism for its lack of transparency and flaws in its methodology. Concerns have been raised about the selective treatment of interpretive sources and a failure to honestly portray the full gamut of sources judges should consider when interpreting the law. The project has also raised suspicions about its motives, as some believe it may lead to significant changes in copyright law without going through a legislative process. Furthermore, the lack of transparency and the confidential nature of the project have been identified as issues that undermine the integrity and credibility of the restatement.
In 2015, the American Law Institute announced that it would produce a Restatement of Law for U.S. Copyright. In response, many copyright advocates, as well as the Copyright Office and Congress, expressed some deep concerns with the project. Chief among these is the fact that the ALI has never in its hundred-year history issued a Restatement in any area of primarily statutory law. See IOM blog post from January 2018.
Link to paper, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts.
Episode Contents
58:12 - Overview of ALI and Restatements of Law
06:13 - Restatements have never addressed areas of primarily statutory law.
08:53 - Development of the 1976 Copyright Act
15:17 - "Why we are not opposed to the idea of a Restatement."
25:09 - Criticism of the project's lack of transparency.
31:28 - Criticism of the project's methodologies.
42:44 - The distribution right & shifting judicial philosophies.
51:50 - Rewriting copyright law without the legislature.
54:17 - Can the Restatement still have a good outcome?
01:01:43 - "the worst sausage factory"
01:05:24 - Hypocrisy
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