Law Review Articles
In 2021, several law review articles were produced by legal scholars and copyright experts addressing the myriad problems associated with attempting to restate a body of statutory federal law, as well as specific concerns about the ALI Copyright Restatement’s treatment of certain areas of copyright law. While authors of the articles proposed ways to remedy the projects shortcomings, no changes were made by ALI leadership or the project’s leaders in response. Below is a list of those law review articles and their respective abstracts.
For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century.
This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.
It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.” Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the project forward, and despite the persistence of serious objections from within the membership of the project (including many of the project’s Advisers), the first draft of the Restatement is scheduled to go to a vote seeking adoption by the organization’s full membership in the middle of 2021.
In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright. Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection. The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized.
This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone. Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is limited, formulaic, and opaque. Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion.
The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal.
Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity. Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.
As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.” An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute. Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary.
If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts? In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law? What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result?
From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators. This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues. The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.
The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of the law governed by a comprehensive federal statute? Restatements have, to date, focused near-exclusively on common law subjects. The Reporters of other Restatements thus did not operate in the shadow of an authoritative uniform federal statute. Instead, they faced an unruly and “ever-growing mass of decisions in the many different jurisdictions, state and federal, within the United States.” From this mass of decisions, the Reporters derived the “black-letter law” and “restated” the law in a form resembling a code. In doing so, reporters sought to bring order, clarity, and coherence to a body of law that lacked any other means of doing so. But if this act of restating the law in the form of a code is a central feature of a Restatement, then how do you restate an area of law that already has a comprehensive code? What is to be gained by essentially re-codifying the law?
Sections of the Restatement Mischaracterize Copyright Law
Throughout the Restatement, the Reporters consistently prioritized marginal and exceptional cases over prevailing legal principles. By foregrounding exceptions instead of established rules, the document reads more like advocacy scholarship than an objective summary of existing law. While we highlight specific instances of legal mischaracterization below, these examples alone cannot fully capture the fundamental deficiencies permeating the entire work—namely, its skewed methodology, partisan tone, and misaligned focus.
Systemic Issues Beyond Individual Sections
Examining any single section in isolation might not reveal overt legal misrepresentations or explicit anti-copyright bias. However, a consistent anti-copyright orientation pervades the Restatement’s hundreds of pages, manifesting through disproportionate reliance on atypical judicial decisions that narrow copyright protections. Beyond merely overemphasizing outlier cases and exceptions over general rules, the Reporters at times advanced legal conclusions unsupported by existing law and contrary to established Copyright Office practice, and, in certain instances, fabricated standards with no basis in statute or precedent. When Advisers and Liaisons raised these concerns, the Reporters routinely declined to make corrections. The following examples illustrate—though do not exhaust—the Restatement’s legal inaccuracies:
- A Fabricated “Fixation” Standard: In 2020, the Reporters created an entirely novel temporal requirement for “fixation”—a statutory prerequisite for copyrightability—supplanting the actual statutory language with their own formulation. Over vigorous objections from numerous project participants, the now-approved Section 8 defines fixation as an embodiment lasting “long enough to allow the enjoyment, exploitation, or other non-fleeting use of the work’s expressive content after the embodiment is initially made.” This “enjoyment or exploitation” test finds no support in the statute itself, its legislative history, or any court decision, nor does anything suggest Congress contemplated such an interpretation. Multiple Advisers and Liaisons repeatedly flagged (across successive drafts) that the Reporters had invented this language wholesale and urged its deletion. Yet rather than recognize this as a controversial and evolving area of law and eliminate the fabricated standard, the Reporters disregarded these expert recommendations and persisted in incorporating their own invented test—one that limits copyright owners’ protections.
- Mistreatment of Transmission as Distribution: Despite acknowledging “only a small number of judicial opinions have examined the issues,” Chapter 6, Section 57, attempts to definitively establish when transmitting a work constitutes distribution. The analysis selectively cites only early internet-era cases while completely omitting more recent authorities, including Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649 (2d Cir. 2018). The Restatement omits a balanced treatment of divergent judicial views on the relationship between “making available” and distribution, instead following the Restatement’s consistent pattern of elevating decisions that narrow copyright protections. Notably, after intense debate at the 2020 Adviser meeting led to this section’s withdrawal—ostensibly for revision—it resurfaced two years later in Tentative Draft 3 essentially unaltered. Project participants received no opportunity to address these unchanged provisions before the section’s approval at the 2022 Annual Meeting.
- Distorting the Scope of Fair Use: Section 6.12 addresses fair use—among copyright law’s most critical doctrines—yet systematically elevates atypical, peripheral considerations to create a misleading impression that fair use applies far more expansively than case law and underlying policy actually support. The Reporters disproportionately emphasize decisions favoring fair use (thereby limiting the scope of copyright protection) while characterizing decisions rejecting fair use as narrowly applicable or highly limited in scope. For example, the Reporters leaned excessively on the Second Circuit’s Authors Guild v. Google, effectively treating it as equal to—or even more authoritative than—controlling Supreme Court precedent. Moreover, the Restatement does not acknowledge that portions of this decision may even conflict with the Supreme Court’s subsequent Warhol v. Goldsmith holding and no longer constitute good law.