Industry & Advocacy News
September 24, 2020
Last week, Chris Sprigman, the lead drafter of the American Law Institute’s (ALI) controversial Restatement of Copyright Law, wrote a series of tweets attacking authors for taking a stance against the Internet Archive’s practice of unauthorized digitization and lending of books, demonstrating a complete lack of understanding of the Constitutional foundations of copyright law and the supply side of the copyright system, which is premised on the ability of authors’ to be compensated for their work. Ordinarily, we would ignore ill-informed attempts like Sprigman’s to embarrass authors, but considering his role in leading the drafting of ALI’s Restatement of Copyright Law, we believe a more thorough response is in order.
For those who don’t know about the ALI’s “Restatements”, they are highly regarded definitive summaries of a particular body of law. Judges and lawyers use them as references for the black letter law on a particular area. They articulate the underlying principles the specific area of law (such as contract, torts, etc.) by surveying the common law—”the law developed and articulated by judges in the course of deciding specific cases” as ALI defines it. The ALI states that it “operates to give precision to use of legal terms, and make the law more uniform throughout the country.”
The problem with ALI’s current copyright law restatement project is that it appears to be an attempt to change the law in places, not restate it, and to do so in a way that minimizes copyright rights or makes them harder to enforce. We have previously questioned the ALI”s decision to do a restatement of copyright law on the basis that restatements are intended to summarize common law, not statutory law like the Copyright Act, as well as “the clear anti-copyright bias of the initial proponent of the Restatement and lead drafter appointed to run the project—both legal scholars who have devoted their careers to curtailing copyright protections and who have consistently taken positions on copyright opposing the Authors Guild.” Most others in the copyright community share our concern about the legal scholars running the project. As CEO of the Copyright Alliance, Keith Kupferschmid wrote in a blog post, the drafters “are all of the shared misbelief that strong copyright protection is an obstacle to the public’s ability to access and use creative works. This makes for a very unbalanced and one-sided restatement.”
We had nevertheless hoped that the drafters would take the higher road and not endow the Restatement of Copyright with their personal views, but that does not seem have transpired so far, especially in the case of the lead reporter, Sprigman. Now that we are in our fifth year of the project, the pattern is clear. The bias against copyright protection is often subtle with respect to the cases and areas of the law the drafters focus on and what they leave out. But there are other areas where this bias is not so subtle, such as where a minority view is adopted over a majority view that favors copyright protection, or where a new rule is made up by the reporters and inserted as if it were law, and where the interests of copyright owners are disregarded. The advisors appointed to the project, which include some of the country’s leading copyright experts, have pointed out these errors or biases in every Advisors’ meeting, and yet the drafters refuse to take most of the Advisors’ comments and correct the errors. Just last Thursday, a few days after Sprigman’ s tweets, ALI held its annual meeting with the project’s Advisors to go over new drafts, and again, Sprigman refused to change language he liked, despite overwhelming opposition.
Sprigman’s resistance to the comments of those who disagree with his view is even more alarming in light of his tweets attacking authors for wanting to defend their rights and defending the Internet Archive’s assaults on copyright law and authors’ rights. For years, Internet Archive has been digitizing books donated to it or on behalf of libraries without the permission of the authors or publishers of those books. Holding itself out as an online library, it makes these digital copies available to anyone throughout the world through its websites, claiming that because they made only a single copy of any book in their possession and that only one person can “take out” the digital file at a time, their practice approximates the operation of an actual library and therefore must be legal. The Internet Archive calls this “Controlled Digital Lending” or CDL, which would allow any website that calls itself a library to do the same. The problem is that it relies on a legal theory under the fair use doctrine that has already been squarely rejected by the courts, and one that ignores the rights of authors to be compensated for their work.
As our readers know, the Guild and virtually every other author, publisher, and creator organization has resoundingly opposed the Internet Archive’s Open Library, the more recent so-called National Emergency Library, and the stilted “Controlled Digital Lending” legal theory that Internet Archive uses to justifies its illegal use of authors’ works. The Guild’s open letter to the Internet Archive’s Board of Directors demanding shutdown of the National Emergency Library received over 6,000 signatures from writers and their supporters around the country (due to privacy concerns we are not publicly sharing names of the signatories). When the publishers sued the Internet Archive for mass copyright infringement in June, the Guild came out in support. For raising their voices against the Internet Archive, Sprigman calls authors “selfish,” and says that authors’ concerns about the NEL are “brain-dead and tiresome,” chastising them for asserting their rights against an entity that has been trampling those rights long before the pandemic. He completely ignores the many accommodations that authors and publishers have provided for free use by schools and the public to ensure that they have access to the books they need during these trying times. He further fails to acknowledge that almost every library in the country continues to lend out authorized e-books and that the number of them has dramatically increased during the pandemic. Instead, he shames authors for upholding the principle of earning from their work, creating a false dichotomy between authors’ interests and the public’s interest in reading.
The fragility of a freelance creator’s life—with low incomes that many supplement with part-time work, no subsidized health care, benefits, paid sick leave, or vacation—is invisible to those like Sprigman who have secure jobs in academia and university libraries and to whom writing is just one aspect of their professional sinecures, not a vocation or source of income. So, even when authors lose over 40% of their income because of the pandemic—in addition to the 42% decline over the prior decade—even as they are denied federal pandemic unemployment benefits, and even as many, quite literally, cannot afford to put food on the table, these conditions in the eyes of Sprigman and other copyright-minimalists do not register as a travesty worth paying attention to.
Instead, Sprigman goes on to attack those very people who live a precarious existence while continuing to provide us with news, information, and great literature, calling them selfish and asking them to accept a further deduction in their royalty income—a pay cut—so that websites like the Internet Archive can make unauthorized copies in the guise of access, even though no one is complaining about a lack of access. He discredits the notion that Internet Archive’s decision to take the law into its own hands and provide free e-books to the world might threaten author’s livelihoods, calling it “baloney on stilts” despite knowing full well that allowing Internet Archive to continue its practice opens the door for anyone to throw up a website for distributing unauthorized e-books and call it a library.
Sprigman’s position rests on a poorly considered but common trope about an inherent conflict between the rights of authors and those of the public whose respective interests exist in binary opposition. His assertions and the false dichotomy between authors’ and public’s interests are entirely groundless, going against the grain of copyright’s constitutional history. Copyright is not a death battle between authors and readers—these interests largely, albeit not completely, coalesce. The most obvious support for this coalescence comes from the original source of the drafter of the copyright clause of the U.S. Constitution, James Madison, who wrote that “The public good coincides…with the claims of individuals.” Legal scholars today, like William Patry, who has served as counsel to the House Judiciary Committee and the Copyright Office, authored a treatise on U.S. copyright law, and currently is Senior Copyright Counsel at Google, have also reiterated this balance: “the public interest fully coincides with the interest of authors having exclusive rights in their works. The source of this harmony between public and private interests is not difficult to discern once we strip away our present-day, consumer-oriented perspective: in place of government control, the Founding Fathers believed private property, including intellectual property, was the best way to ensure the triumph of democracy over the tyranny of the aristocracy.”
The basic purpose of copyright is the public interest—to make sure that the wellsprings of creation do not dry up through lack of incentive and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators—its authors, composers, and artists—who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. The public’s principal interest is in the production of works of art, information, and entertainment that have some value for society. That, of course, is the function of copyright; only a strong, practical copyright policy can assure that the creative activity we all benefit from as a society continues to flourish. In fact, the false dichotomy between the interests of authors and the public has contributed to the decline of creative industries in the U.S., and it is not at the end of the day to the public’s benefit. While some, like Sprigman, focus on access to copyrighted works as the end all, there is no access to creative works without creation; when authors are being starved out of their profession, as is the case now, their ability to create dwindles proportionately. In constructing a misleading narrative about the balance between authors’ right to control and profit from their works and public’s rights to enjoy the works, Sprigman completely glosses over the precarity of authors. This is an inexcusable omission that betrays the bargain undergirding the copyright clause in the constitution: to provide incentives to authors in exchange for their personal and professional investment in creating works that enrich and nourish public life.
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