Copyright controversy erupts as prominent scholars urge veto of ALI restatement

New York City Mayor Bill de Blasio watches as Jane Ginsburg speaks at an event to rename a Municipal building in Brooklyn to "Justice Ruth Bader Ginsburg Municipal Building" amid the coronavirus disease (COVID-19) pandemic in the Manhattan borough of New York City, New York, U.S., March 15, 2021. REUTERS/Carlo Allegri - RC2XBM9JBGI6
Jane Ginsburg speaks at an event to rename a Municipal building to "Justice Ruth Bader Ginsburg Municipal Building" New York City, March 15, 2021. REUTERS/Carlo Allegri

(Reuters) - Four well-known copyright scholars urged members of the influential American Law Institute in an email sent on Monday night to reject a proposed restatement of copyright law when the proposal comes up for a scheduled vote on Tuesday.

The scholars – Jane Ginsburg and Shyam Balganesh of Columbia Law School, Peter Menell of the University of California Berkeley School of Law and David Nimmer of Irell & Manella – told ALI members that their chief concern is methodological. The copyright restatement, they said, marks the first time that ALI has proposed a restatement in an area of law governed by a federal statute. Yet the draft restatement, they said, does not present the statutory text of the Copyright Act as “black letter” law.

“We believe that the unprecedented nature of the project — a ‘restatement’ of a comprehensive federal statute that does not take the statute as its black letter starting point — raises significant concerns about the ALI’s reputation and legitimacy,” the email said. “As the Supreme Court reminds us, statutory interpretation begins with the text of the statute. Nonetheless, the ALI has persistently resisted these efforts.”

Ginsburg, Balganesh, Menell and Nimmer all served as advisers on the ALI copyright restatement project, which has been under way since 2014. Before emailing all of ALI’s members on Monday, they proposed an amendment to the draft restatement that would reflect their opposition. ALI deputy director Stephanie Middleton told them in a June 3 email that their proposed amendment would not be taken up as a motion because ALI does not include advisers’ individual views in restatements.

ALI spokesperson Jennifer Morinigo said that Middleton and ALI director Richard Revesz were unavailable for comment because the group is in the midst of its annual meeting. Neither the lead reporter on the copyright restatement, Christopher Sprigman of the New York University School of Law, nor any of the four associate reporters on the project responded to my queries.

ALI members, according to the group's website, are "eminent judges, lawyers, and law professors ... selected on the basis of professional achievement." Total membership is about 4,200 and is by invitation only.

Revesz addressed the long-simmering controversy over restatements involving federal statutes in an ALI news post in March. “What we seek to do … is to provide guidance to the courts where the scope for judicial discretion is broad, which can be the case even for statutes that are very detailed,” he wrote, noting that the restatements would indicate where the black letter departs from the text of the statute. “In doing so, we would fulfill our mission to ‘promote the clarification and simplification of the law,’ which is as important in the face of federal statutes as it is in common law areas.”

But Columbia professor Balganesh said in an interview on Tuesday that the ALI restatement is effectively creating a “shadow statute” by presenting black letter law that departs from the statutory text.

“How can you create black letter when there is already a statute?” he said. “We’re not saying you shouldn’t synthesize case law. We’re saying you should start with the statute.”

Balganesh and Menell have been making that point for years, as they wrote in an article for a Columbia symposium in April on the ALI copyright restatement.

Two other law professors, Jeanne Fromer of NYU and Jessica Silbey of the Boston University School of Law wrote in defense of the restatement for the symposium, arguing that it presents “routine and straightforward” conclusions that “will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it.”

In 2018, Balganesh, Menell and Nimmer asked ALI’s governing council to consider their objection to the restatement’s black letter departures from the language of the Copyright Act. The council, according to Balganesh, referred their concerns to a different ALI committee, but they were never apprised of that committee’s conclusions. The council voted in February to approve the draft copyright restatement. If ALI members vote for the draft on Tuesday evening, it can be cited in judicial opinions.

Balganesh said he and the other scholars who sent Monday’s email to ALI members were distressed about the group’s opacity. “We’ve played by the rules,” he said. “The (restatement's) reporters have not publicly addressed the methodology question at all. We’ve gotten no response.”

He and his allies, he said, have some concerns with the substance of the draft restatement but would not have urged ALI members to vote it down had it not been for the “methodology and format” of the proposal.

“That’s the elephant in the room,” he said.

As Balganesh, Menell, Nimmer and Ginsburg pointed out in their email, ALI is in the midst of other restatements in areas of law governed by statute. If the copyright restatement serves as a model, they warned, this won’t be the last time that ALI black letter language departs from statutory text.

The scholars who signed the email are not the only copyright restatement advisers to object to departures from the statute. U.S. Copyright Office director Shira Perlmutter resigned as an adviser last month. Her resignation letter said it is “crucial” that the restatement “be centered on the statutory text, rather than displacing it with paraphrases that by definition cannot be fully accurate recitations of the law."

Members of Congress led by Senator Thom Tillis of North Carolina also warned ALI in a 2019 letter to be wary of departing from the statutory text.

“Courts should rely on … statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations,” the Congressional letter said.

The draft restatement is slated for discussion and a possible section-by-section vote on Tuesday. If the proposal as a whole or particular sections are voted down, the restatement can be remanded to reporters for revisions.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.