A long-running argument about an American legal organisation’s desire to ‘clarify, modernise, and otherwise improve’ copyright legislation in the US is making headlines again. Some of the details of what’s being done and why it’s controversial may be daunting for non-lawyers elsewhere in the world, but it’s worth grasping at least the basics, to understand why some music-industry bodies are so unhappy about the idea.
The American Law Institute is the organisation in question: its website explains its mission thus: “ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education.” So, it’s not about writing new laws, as such, but rather producing these ‘restatements’ that may then influence how courts and other entities interpret the existing legislation.
The ALI has been working on a restatement of copyright for several years, but controversy around it re-emerged this week with a letter to its director co-signed by five US politicians: senator Thom Tillis and representatives Ben Cline, Martha Roby, Theodore Deutch and Harley Rouda. They claimed that two sections of the proposed restatement were recently approved by the ALI’s council, and if now approved by its membership “will be made publicly available and may then be cited by federal courts”. In short, the politicians are questioning why the ALI thinks US copyright legislation needs a restatement at all.
Music industry bodies are just as concerned about who’s doing the restating. “It’s Congress’s job to set copyright policy, not the ALI’s. The letter from Senator Tillis and his House colleagues raises fundamental questions about the ALI’s decision to wade into such deep policy waters that should be fully answered before any ‘restatement’ of copyright goes forward,” said the RIAA’s chief policy officer Morna Willens in a statement yesterday.
Other bodies have been even blunter in the past. NMPA boss David Israelite attacked the restatement last year as “written by extremist anti-copyright lawyers in an attempt to redefine Copyright Law”, while indie body A2IM lambasted it as “being led by copyleft lawyers who have been quite vocal in their anti-copyright sentiments and who have ties to large tech companies that would benefit from a weakening of US copyright law”. The battle lines drawn in this argument mirror those from other past copyright and regulatory rows involving the music industry, the technology industry and internet activists.
The bigger message: the passing of the Music Modernization Act (MMA) was certainly a step forward for the music industry’s policy goals in the US (and a relatively-rare example of genuine industry unity in the push for it). But from arguments about how the Mechanical Licensing Collective (MLC) created by that law will go about its business, to this ongoing row about the ALI’s copyright restatement, the tensions around music and copyright in the US are far from a thing of the past.