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Music industry hits out at American Law Institute’s ‘restatement’ of copyright law

By Chris Cooke | Published on Thursday 18 October 2018

With America’s Music Modernization Act signed into law by President Donald Trump last week, you might think that the music industry’s lobbyists Stateside could take a little time off from endlessly chattering about copyright issues. But no.

Trade bodies for US record companies and music publishers have written to the American Law Institute to raise all sorts of issues with a copyright report which that organisation’s Council is due to discuss today.

The ALI describes itself as the “leading independent organisation in the United States producing scholarly work to clarify, modernise and improve the law”. One of its key areas of activity is compiling and publishing what are called ‘Restatements Of The Law’.

These are documents that seek to compile and summarise key judgements in a specific area of the law, putting together all the key precedents that have been set in the courtroom in one place. In common law jurisdictions like the US – and the UK – precedents set by landmark rulings clarify and arguably expand the law beyond the basic rules and principles set out in statue by Congress, in the case of the US, or in Parliament in the UK.

The ALI’s restatements don’t in themselves have any legal authority, but they are persuasive, and are often relied on by those without specialist knowledge of any one branch of the law. The assumption is that, because they are compiled by specialist lawyers, academics and judges, they are decent summaries of what the US law currently says about whatever area each restatement is focused on.

One restatement currently being compiled is on good old copyright. A draft of that report was shared back in August and is due to be discussed by the ALI’s Council at a meeting in New York later today. It is fair to say that the music industry has some major issues with that draft. And also with the people who have been selected to do the drafting.

In fact, the music industry has also questioned whether now is the right time to be restating copyright law at all, given that some key issues are currently in a state of flux.

For starters, the aforementioned Music Modernization Act makes a number of changes to the way music licensing will work in the US. While the Act may have been passed, those changes still need to be implemented. And when it comes to the reforms it will instigate regarding the payment of mechanical royalties to music publishers and songwriters, there’s still quite a lot to work out.

Then there is the US Copyright Office’s review of the copyright safe harbour, which is still yet to report, despite being launched at the end of 2015. Plus there are some big copyright cases considering tricky issues still to be resolved, including those on the liabilities of internet service providers to deal with infringers among their customer bases, and the various song-theft cases that have been filed in the wake of the ‘Blurred Lines’ litigation.

In a joint letter to the ALI, the Recording Industry Association Of America and the National Music Publishers Association note that “in recent years copyright law for music has faced repeated tests and challenges, including for those who legislate and interpret the law, in large part due to the transformation of the music industry from physical to digital”.

This trend is ongoing they say. “Important copyright law issues for music are before Congress, the courts and agencies”, they add. “Under these circumstances, attempting to ‘restate’ copyright law for music now is a difficult, if not an odd, exercise”.

With regards the people compiling the ALI’s copyright document, music industry reps argue that the team working on the restatement are primarily lawyers and academics who have long pushed for the rights of copyright owners to be restricted, ie members of what is sometimes called the copy-left movement.

The RIAA/NMPA letter alludes to these concerns, though NMPA boss David Israelite was more forthright on this issue in a statement yesterday. “The American Law Institute’s so-called ‘Restatement Of Copyright Law'”, he said, “was written by extremist anti-copyright lawyers in an attempt to redefine copyright law”.

Meanwhile, in a recent op-ed for Billboard, music lawyer Dina LaPolt – a key campaigner for the MMA – wrote: “The ALI’s projects are trusted and admired for playing it straight and have always been known for their neutrality, clarity and precision. But not this time”.

“The copyright project”, she argued, “is being led by some of the most notoriously anti-creator copyleft irritators, many with financial ties to big tech companies – with a goal of tilting the playing field and producing a very biased Copyright Restatement that short-changes songwriters, artists, and the copyright holders”.

Much of the RIAA/NMPA letter deals with specific concerns about each section of the current draft of the Copyright Restatement. This includes the authors’ selective restating of actual copyright statute which, the trade bodies suggest, is being deliberately misrepresented.

Concluding, the two trade groups write: “[We] believe that copyright law is ill suited for restatement by ALI at this time, especially as envisioned by the [authors]. We therefore request that the Council postpone voting on [the current draft] or vote no … and reconsider the project in its entirety”.

In his statement yesterday, Israelite added that it isn’t just the music industry itself which is concerned about the Copyright Restatement. “The restatement has been slammed by the US Copyright Office, the American Bar Association, the US Patent & Trademark Office, and most importantly, the creators themselves”, he said.

Referencing the RIAA/NMPA letter, he went on: “We have written the ALI Council to implore them to vote ‘no’ on approving the restatement draft as we hope they will reject this sham attempt to undermine hard fought principles of understood law. This thinly-veiled attempt to subvert the law and undermine creators and must be stopped”.