Roundtable: How Do You Make a Decision When the Legal Answer is "Maybe"?

"We wanted to conclude the day by focusing on how you move forward and make a decision when the legal answer is unclear, as it often is. We’ve touched on this throughout the day; I know that [he] talked about it a little bit on his panel and everybody alluded to it at various points. How do you make a decision? How can you move forward on some level if you’re not absolutely certain of where you stand as a legal matter?

Questions and Answers

"I guess one question would be: what are the prospects for the legislation? This is just sort of following up on where you left us. We saw the barriers, and then what?

Welcome and Introductory Remarks

Let me say a few words about why we decided to focus on collective management of copyright for our symposium this year. Collective licensing and collective management have long been part of the U.S. copyright landscape. In particular, the performing rights organizations, ASCAP, BMI and SESAC,1 license performing rights in music, and almost all composers and music publishers belong to one of those organizations. There are, of course, later-developed collective management organizations in the United States. One notable one is Copyright Clearance Center ("CCC"), which was developed after the 1976 Copyright Act, largely to license photocopying of textual materials. But the world has changed since then, and the scope of CCC licenses has expanded to meet the demand for audiovisual and digital forms as well. Still, outside the field of music, collective management organizations are not as prominent or as widely adhered to in the United States as they are elsewhere in Europe and around the world

Welcome and Introductory Remarks

"Digital archives and libraries have long been an interest of the Kernochan Center and that’s why we wanted them to be the focus of our annual symposium this year. We hope to speak about them on a couple of levels, both the theoretical and the practical, and provide some guidance, but also think about the bigger picture.

Letter to Council Members Regarding Council Draft 2

We understand that the ALI Council will consider Council Draft 2 (CD2) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 18-19, 2018. We have had – and continue to have – significant concerns about the project and the work to date. We note that numerous parties have expressed concerns about CD2, including the US Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, academics and other Advisers, and that the US Copyright Office and the New York City Bar Association’s Committee on Copyright and Literary Property have done so with respect to CD1 and previous drafts

Comments on Preliminary Draft 3 [black letter and comments]

The absence of stated principles underlying the articulation of the black letter and comments – principles that the Reporters have said they will provide at the end of the process – continues to trouble the Draft. It remains unclear whether the Reporters are synthesizing positive law, or seeking to reform it. We are not contending that ALI should not push for law reform (even though Principles or some other form might provide a preferable and more transparent vehicle for aspirational endeavors), but we do think the objectives and methodology should be clear from the outset. We remain concerned that ALI’s credibility is undermined if its output is perceived as promoting an unstated agenda

Comments on Preliminary Draft 5 [black letter and comments]

We appreciate the considerable work that has gone into PD5, and believe that several of its provisions and Comments accurately quote or state and explain the law. Nonetheless, PD5 manifests several of the earlier drafts’ shortcomings. We remain particularly concerned that the relationship of this draft to the statute remains highly inconsistent, not to say erratic. We are not sanguine that our oft-repeated calls that the Reporters and ALI devise a consistent and transparent methodology for restating a statute will finally be heeded. (To the extent there is a guiding principle behind this Restatement, and PD5, it often appears to be to construe the Copyright Act and the caselaw to minimize the existence and scope of copyright protection.) But we and other Advisers will keep urging the articulation of a coherent approach to restating the Copyright Act because we are convinced that continuing to carry on without clear methodological principles will undermine the utility of this project and the credibility of the ALI

Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

The typical complaint about intellectual property laws is that they are sluggish in responding to technological change. An unfolding question in the contemporary era, however, is the degree to which the threat of constitutional challenge will lead Congress to further adhere to the status quo. In the wake of the patent law overhaul several years ago, for example, the wisdom and scope of those amendments were widely debated, but concern about their constitutional soundness was also expressed in some quarters. Likewise, the latter concern is in play with respect to a proposed amendment of the law that applies to sound recordings. Amidst the waves of technological innovation affecting access to music, the eyes and ears of the music industry, library associations, policy makers and others are focused on a legislative decision made some four decades ago. Specifically, these parties are staking out their positions on the possibility of extending federal copyright protection to pre-1972 sound recordings. Those sound recordings are currently protected through 2067 by a patchwork of state laws, and after that date all pre-1972 sound recordings will enter the public domain. The U.S. Copyright Office has issued a report recommending that pre-1972 sound recordings be brought under federal copyright protection in the near future. There are sound reasons for doing so. The Office’s proposal would result in a shorter term of protection for some recordings and effect other changes in the rights and responsibilities of right holders and users

Comments on Preliminary Draft 4 [black letter and comments]

In many respects, PD4 is a helpful synthesis of the law, likely to provoke less controversy than drafts of earlier Chapters. Nevertheless, we remain concerned about this draft’s, like its predecessors’, inconsistent treatment of legal issues. As in earlier drafts, this one sometimes traverses the line between restating positive law and “improving” it. In several instances, these departures from positive law adopt policy positions we would endorse in a different kind of endeavor, such as a “Principles” project, or an acknowledged advocacy piece. But we do not believe it accurate to characterize these departures, however substantively desirable, as “restating” the law (as opposed to revising it)