In a medium post that’s more meme than argument, the Content Creators Coalition (c3action), a pro-IP group claiming to represent the interest of the producers of creative works, bemoans the American Law Institute’s (ALI) Restatement of Copyright Law, a project begun in 2014. The statement, though still in the works, has been accused of being “anti-copyright.”
What does c3action object to?
The co-authors picked to write the Restatement made strong statements against copyright protections such as calling copyright “obsolete” and “a tool for censorship.”
And the leader of the effort Christopher Sprigman even wrote in an article: “Copyright is a tax on learning. It is a tax on culture. It is a tax on speech. And this tax is more than an inconvenience. It is a barrier to those who cannot, or will not, pay it.”
They even go a step further to argue that the very thing that hurts creators — piracy — is a form of “promotion” and “spurs innovation.”
Now, in fairness, the mission of ALI is “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work…Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court” (emphasis added).
But, while law and policy are different things, ALI’s focus on common law, rather than statutory interpretation, makes recognizing the costs and consequences of policies necessary. Since precedent created by “discovered” law informs future decisions, judges should be aware of who is harmed in cases of copyright infringement as they create future precedent.
Restrictive copyright regimes benefit copyright holders, sure, but they have detrimental effects for those looking to create follow-on works and regular consumers (thanks to monopoly pricing) that should be more clearly recognized by practitioners of IP law.