The Copyright Restatement Starts to Crumble – Music Technology Policy

Readers will recall that I’ve posted a few times over the years about Pamela Samuelson and her American Law Institute “Restatement of Copyright” astroturf project. As predicted, that Big Tech propaganda campaign is now collapsing under its own weight. Color me shocked.

In the Beginning was the Word from Pamela Samuelson

This whole waste of space began with Professor Pamela Samuelson’s arrogant fever dream: Rewrite the Copyright Act to completely reorder the rights of authorship. What we did not know then that we may know now is why? My bet is on eroding if not destroying copyright for the really big money–artificial intelligence training. In one way or another, all of the moves that Big Tech has made with the millions if not billions that they have invested in astroturf organizations, cy pres awards, anti-artist litigation and flat out lobbying since around 1998 has been in aid of the AI coup de grace. And there has been no more loyal water carrier for Big Tech than Pamela Samuelson (with the possible exception of his Lessigness).

Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at universities such as Fordham, George Washington University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.

I think it’s fair to say that the Sameulson-Glushko centers are to Big Tech corporate interests what the Confucian Institutes are to the Chinese Communist Party’s “revolutionary” interests.

I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum.  The Samuelson-Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”.  Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google and other Mag 7s.  This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.

So how did the Restatement Project get started? Apparently, Professor Samuelson formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act of 2008.  As then-Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at a later hearing we’ll discuss below, the CPP was convened by Professor Samuelson with one principal qualification for core membership as far as I can tell: That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”). A dedicated group of likeminded people.

Remember, the whole “orphan works” experience was another global lobbying effort by Silicon Valley to upend copyright so they could snarf down works of authorship without a license–kind of like they are doing now with artificial intelligence training materials. You know, fair use, yeah, that’s the ticket. Orphan works were extensively criticized by our friend the late Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog.  The legislation was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008.  It has been criticized in the orphan works inquiry at the U.S. Copyright Office.

In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform” published in…wait for it…the Berkeley Technology Law Journal.  The opening sentences of the abstract tells you all you need to know: “Copyright law is under considerable stress these days, particularly due to technological advances and the growth of global networks. In recognition of these stresses, the Copyright Principles Project (CPP) was formed to consider whether and what possible improvements could be made to existing U.S. copyright law.” Not because of a vulpine lust for theft, oh no. Who could be against “advances” and “growth.”

It seems that the next step was to pitch the project to Congress, apparently in the mistaken belief that scales would fall from Members’ eyes in a Damascene moment. Then Professor Samuelson could begin what I suspect is her real work–replacing the Copyright Act with the sliced down version she is rumored to have been keeping in a metaphorical desk drawer. And so she appeared on May 16, 2013 before the House IP Subcommittee, then chaired by Bob Goodlatte (R-VA) who was conducting a series of hearings about revisions to the Copyright Act. And everyone wanted to get in on the act.

As it turned out, Professor Samuelson got quite a different reception in Congress than she probably expected, largely due to the fact that many Members know her hustle and were not having it, but partly due to an op-ed by musician, University of Georgia professor and artist rights advocate David Lowery in Politico that was published the day before the hearing that exposed Professor Samuelson’s longstanding support for weakening creators’ rights in favor of digital platforms and intermediaries. You know, like Big Tech is doing right now with AI. It’s not idle speculation–David’s Politico op-ed was cited to Professor Samuelson by Members during the hearing and was entered into the hearing record by Rep. John Conyers. I’m so sure she loved that.

In fact, Samuelson was sharply criticized by then-Representative Ron DeSantis who was on the IP Subcommittee (something to keep in mind for future). DeSantis, skeptical of her claimed objectivity, challenged the project’s framing and highlighted its potential to undermine the statutory protections that safeguard the rights of songwriters, artists, and independent creators.

So that didn’t work.

What’s the next best thing to controlling the pen in rewriting the Copyright Act? Controlling the pen in a formal guide that Big Tech’s vast network of lobbyists and litigators can cite to in order to support their positions against artists. And that would be called the “Restatement of the Law of Copyright” which would involve getting the American Law Institute on board. Sounds difficult maybe? Well, good news–that’s a problem that can very likely be solved with the payment of money.

Samuelson’s Pitch to ALI

After her disastrous appearance in Congress, Samuelson wrote a letter to ALI Director Lance Liebman to make her pitch for what became the Restatement (and probably was always intended to be the Restatement). In that letter dated September 12, 2013, Professor Samuelson urged the American Law Institute (ALI) to initiate a “Principles of Copyright Law” project. She argued as follows:

Many of the most important and contested issues of U.S. copyright law-among them, its originality standard, disputes over authorship, infringement standards, fair use, equitable or monetary compensation for infringement, and preemption of state laws-are matters for statutory interpretation in a common law fashion that judges and lawyers must address with little or no help from the statute (Say what?). There is considerable uncertainty, lack of clarity, and undue complexity on these and other important aspects of copyright law. It is unfortunate that the length and complexity of the statute today obscures the normative underpinnings of the law. With a Principles of Copyright Project (or other type of project that the Institute thinks is appropriate) (whatever could that be?), the ALI could help rectify this problem. Although the proposed project would concentrate on principles that courts, lawyers, and scholars can use now, without statutory amendment, it would include an analysis and framework that would over time be helpful to Congress, the Copyright Office, and others considering reform.

So there it is. First, like Professor Vinnie Barbarino, she says I’m so confused. Now this should sound very, very familiar if you’ve been following the artificial intelligence litigation and legislative proposals. They have to lay down a predicate that the law is confused in order to lead us poor confused people to the promised land. One could say, thou shall not steal–nothing confusing about that. In other news, water is wet.

But the punch line is in that last sentence–having failed to move any Members by her lame appearance, she’s now trying to go through the back door to weaponize ALI’s credibility to push Silicon Valley’s hustle.

When Samuelson appeared before Congress to promote her proposed “Principles of Copyright Law” project, she was sharply criticized by then-Representative Ron DeSantis. DeSantis, skeptical of her claimed objectivity, challenged the project’s framing and highlighted its potential to undermine the statutory protections that safeguard the rights of songwriters, artists, and independent creators. What began as a modest academic proposal has since metastasized into a Restatement project that many regard as a covert attempt to rewrite copyright law in favor of technology companies and mass copyright users.

Make no mistake—this ALI Restatement project was not born of neutrality or consensus. It was pitched to ALI by Professor Samuelson for the reasons she gives after she cratered In DC.

What is a “Restatement”?

As Professor Risch notes in a 2015 blog post on the Restatement of Copyright controversy, there is a difference between the restatement approach and a treatise (such as Nimmer on Copyright) and should not be confounded:

Restatements generally boil the law down to a single rule (or a few) on a given topic, often a common law topic like Property, Contracts, Conflict of Laws, or notably Torts. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule in many cases. Treatises might present different rules in different jurisdictions.

The current scandal is over copyright, but it appears that the Restatement of Copyright is simply the current manifestation–similar controversies face ALI on its “Restatement of Liability Insurance Law” project as well as its “Restatement of the Law, Consumer Contracts.”  There may be others.

What is the “Restatement”?  Justice Scalia provides us with an explanation (Kansas v. Nebraska, 574 U.S. 445 (2015) (Scalia, J. concurring in part, dissenting in part):

I write separately to note that modern Restatements—such as the Restatement (at issue in the case at bar)—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be….And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Chances are good that readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter–or their sponsor or acolytes–thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand.

The potential for astroturfing is why the controversy should be of importance to artists–those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.  If the companies doing the astroturfing or lobbying were Exxon or Aetna instead of Google, OpenAI and Meta, no one would have to be told twice.

And yet the scandal is still a teachable moment for being far more selective and open-eyed about what we spend our time on and lend our names to.

Criticisms of the ALI Restatement

1. Inappropriate Format for a Statutory Regime

• Unlike common law subjects like torts or contracts, copyright law is entirely statutory under the 1976 Copyright Act. It is therefore not an appropriate topic for a Restatement codification of the common law.
• Critics argue that restating such law is not only unnecessary but misleading, as it may suggest to courts that interpretations in the Restatement reflect legal consensus.

2. Risk of Judicial Misuse

• Courts, especially those unfamiliar with copyright’s statutory framework, may treat the Restatement as authoritative, introducing biased or incorrect interpretations into precedent.

3. Lack of Stakeholder Involvement in the Restatement of Copyright

• The drafting process lacked meaningful engagement with copyright holders, creators, and practicing attorneys.
• Major stakeholders like the Copyright Alliance CEO Keith Kupferschmid resigned in protest over the project’s direction and methodology.

4. Ideological Bias and Academic Overreach

• The project’s lead reporters and contributors have been widely criticized for inserting personal legal theories that benefit platforms over creators.
• Prominent scholars such as Samuelson’s Berkeley Law colleage Professor Peter Menell—originally supportive of academic commentary on copyright—have since turned sharply critical, citing flawed methodology and ideological slant.

Industry Pushback and the 2018 Letter to ALI Council

A 2018 letter signed by a wide coalition of content industry representatives (music publishers, authors, motion picture organizations, and others) outlined the following:

• The Restatement mischaracterizes the law and embeds controversial positions as if they are settled.
• It diverges from ALI’s mission by not faithfully describing existing law but instead advocating for a narrow interpretation favorable to high-volume copyright users.
• It risks creating legal instability, eroding protections for artists, and inviting litigation over well-settled doctrines.

The letter concluded with a strong request that ALI terminate or pause the project. While I appreciate the sentiment, the time to have had a walkout was in 2018.

Samuelson’s pitch for a “principles” document veiled what many view as a coordinated strategy to reshape copyright law without going through Congress. The ALI’s pivot from neutral guidance to a binding-style Restatement enabled academic editors to insert policy-driven reinterpretations of statutory text under the guise of clarifying the law.

What began as a proposal for clarity and consensus has instead become a symbol of institutional capture, in which the academic elite, aligned with technology platforms, attempt to redefine creator rights from above—without public accountability or legislative authority.

The Teachable Moment:  Take A Pass in Future

The result of participating in a project where Christopher Sprigman (the ALI “Reporter”) controlled the pen was knowable simply based on who was involved.  So why would anyone bother with these people and their Restatement of Copyright?  I bet the insurance lawyers are asking themselves the same thing about the Restatement of Liability of Insurance Law.

Did anyone really need to know of Samuelson’s 2013 letter or Sprigman’s 2014 proposal to have guessed that these people were not interested in the ALI’s founding principles, were agenda-driven and were unlikely to consider the interests of professional creators that drive our industry? You need only to look at the ways the Restatement of Copyright would help the artificial intelligence training rip off to get the point–they were building the AI in 2013 and they were building the copyright law for AI in 2013 as well.

This is why the idea that there can be unity between the anti-copyright forces and the creative community is a farce.  I don’t know how many times these efforts have to blow up for people to understand that it is not worth engaging if you see certain names involved because the effort is not genuine.

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  Kind of like the endless “salons” that the lead to the disastrous Title I of the Music Modernization Act.

That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”