Brandon Butler

Motion to adopt proposed draft so far carries! ALI Restatement of Copyright is under way. (If I understand what I just heard.)

Here comes Judge Leval! As a judge, the statute in some instances isn’t all that helpful. Fair use, e.g.! He’s singing my song.

Happily, it seems that the good folks at ALI are not much moved by all the stürm und drang from industry blogs+advertorials or even the repeated earnest concern-trolling of a few academics. Hopefully the project can move forward, now, with (fun!) discussions of substance.

Anyway, for a longer, deeper, more scholarly defense of the Restatement project, see @JSilbey and @JeanneFromer https://journals.library.columbia.edu/index.php/lawandarts/article/view/8097 …. I just needed to vent a bit about the storm of foot-stomping and grousing we’ve seen this week.

Dark insinuations about serving Google and undercutting copyright for Big Tech look like so much projection coming from a cast of characters who have contributed to a half-century of tilting copyright law ever more in favor of their preferred industries.

You can’t help but admire the chutzpah involved in this epic gaslighting effort, but it’s still gaslighting. Literally every critic who has leveled ad hominem charges at the Restatement authors is or has been a paid advocate for the copyright industries.

More generally, the vast majority of the objections to the project amount to ad hominem attacks on the lead authors, mainly allegations that they are partisans in the copyright wars. But of course all of these objections are lodged by…partisans in the copyright wars!

then argues that a restatement will somehow erase the “rich legislative history” of the various Copyright Acts (a sop to legislators, one presumes). I’m not a Scalia expert, but it seems… opportunistic to invoke St. Nino AND deify legislative history in the same piece.

If ‘the statute speaks for itself’ doesn't survive encounter with the statute, some of the other objections don’t even survive encounters with themselves. For example, one piece intones that Justice Scalia didn’t trust the ALI (ringing a Pavlovian bell for conservatives…),

Ironically, some folks seem to want to vest the Copyright Office with a power not vested in it by the statute or the courts: exclusive jurisdiction and deference as restater of the law.

a 1300-page Compendium and a laundry list of Circulars and other explainers laying out the Office’s preferred interpretations of (presumably ambiguous parts of) the Act?

The objections from current and former Copyright Office folks ring hollow to me (and not just because of who currently pays the former officials’ salaries). If the statute speaks for itself, why does the Office publish (and regularly revise and update)

diverse and distinguished group of experts (incl. almost all of its erstwhile critics) and approved by a learned group like ALI add something new and useful to a secondary literature dominated by the solitary opinions of four men, two of whom are named “Nimmer”?

for something close to the truth, you probably need to check them all and triangulate. If the statute is clear and speaks for itself, how can there be a market for these, and an appetite to check them all and weigh them up? And wouldn’t a Restatement drafted and advised by a

Consider for a moment that there exist not one, not two, but at least three major multi-volume treatises purporting to explain (one might say “restate”) copyright law to the confused attorney or judge. The savvy lawyer knows that each of these has a POV, and if you're looking

even a cursory encounter with the actually-existing Title 17, which is shot through with provisions that cannot be applied without reference to a rowdy body of case law—exactly the kind of stuff a Restatement can render more coherent and manageable.

substantive issues in good faith. Where the good faith seems to evaporate, however, is in the meta-conversation about whether there should be a © Restatement at all. Arcane arguments about the difference between statutory and common law sound profound, but don’t survive

substantive objection to the draft that was intractable or even particularly controversial. Maybe that day will come (fair use awaits, after all), but so far, so good. I’ve seen no evidence, yet, that this project can’t move forward productively if people can discuss