Copyright As Censorship: American Law Institute Uses Copyright To Stop Discussion Of Controversial Publication Prior To Vote

from the bad-news dept

The American Law Institute, among other things, publishes various "Restatements" of law, which it describes as follows:

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. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.

Courts frequently rely on these "Restatements" to better understand the state of the law today, including how various courts have ruled on the law (so-called "common law.") For that reason, the Restatement process can get fairly controversial (including an ongoing controversy over the Copyright Restatement, which legacy copyright insiders are falsely claiming is somehow biased against legacy copyright companies). Leaving that particular controversy aside, it does appear that the ALI itself may need a refresher course on how copyright works, because it's currently abusing copyright law to try to prevent open discussion about another controversial Restatement.

ALI's proposed Restatement of the Law of Consumer Contracts has similarly been beset by vociferous criticism from a variety of different parties. There's a vote pending on the latest draft next week, on May 21st at the ALI's annual meeting. Georgetown law professor Adam Levitin posted a draft of the proposed Restatement on Dropbox so that his followers could read it and understand what was in it prior to the vote.

Apparently, the ALI had other thoughts in mind and, after first threatening Levitin, it issued a DMCA takedown to Dropbox to remove the file. It did this after first emailing Levitin and demanding he take it down and then (falsely) insisting that "fair use is excerpts" and saying that it relies on its copyright "to pay the light bill."

After Levitin told them he believed it was fair use, ALI went ballistic. As described by Public Citizen's Paul Levy:

Unfortunately, ALI upped the ante in ways both petty and effective. First, the petty: without any notice or due process, it disabled Levitin’s access to the ALI web site. ALI’s bylaws allow ALI officials to suspend members only for non-payment of dues; members can only be suspended for good cause or for extended nonparticipation in ALI work, and then only by action of the full ALI Council. When the suspension was challenged, ALI restored his web site access fairly promptly.

But then there's the second bit:

But its more effective response was to serve a DMCA takedown notice on Dropbox. As a result, I cannot link to the Dropbox so that readers of this blog post can judge the controversy for themselves. Although we have served a counternotice, the delays associated with the DMCA notice and counternotice procedure mean that, unless ALI voluntarily drops its takedown complaint, the Tentative Draft will remain off Levitin’s account until after the Annual Meeting next week.  As I have argued previously, the DMCA gives the copyright holder the equivalent of a TRO, without any notice and indeed without any independent judicial consideration.  It is a statute that is ripe for change.

This is a key point that we have argued over for years. The notice-and-takedown provision of the DMCA raises serious 1st Amendment issues, in that it acts as a way to use the power of the state to silence speech without any judicial review. That would seem to be unconstitutional.

Levy also sent a letter to ALI explaining why it is wrong concerning its understanding of fair use and is making a big mistake in taking down this discussion draft. Levy goes through the four factors of fair use, which go way beyond a simple "is it an excerpt" test that ALI seems to think:

First, the purpose of his use falls squarely within the statutory definition of fair use, because the purpose of the posting is criticism: to identify the many substantive flaws in the Tentative Draft and the reasons given for its creation. Moreover, the posting is for entirely noncommercial purposes. In addition, the criticism relates to issues of intense public interest. "The scope of the fair use doctrine is wider when the use relates to issues of public concern." National Rifle Ass'n v. Handgun Control Fedn. of Ohio, 15 F.3d 559, 562 (6th Cir. 1994), citing Consumers Union v. General Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983). Hence, the first factor strongly favors a finding of fair use.

Second, the copyrighted work is a set of legal standards that are intended to guide judicial decision-making as "'authoritative' sources on the meaning" of the common law. See Code Rev. Comm. v. PublicResource. Org, Inc, 906 F.3d 1229, 1248 (11th Cir. 2018). Regardless of whether the Restatement is or is not copyrightable as a statement of "the law," any copyright protection for this sort of work is fairly thin. Consequently, the second factor is at best neutral.

Turning to the third factor, in an email to Professor Levitin, you suggested that your main reason for contending that the online posting of the Tentative Draft is not fair use in that "fair use is excerpts." That misperception is common, but incorrect. "'[S]uch copying does not necessarily weigh against fair use' where 'copying the entirety of a work is . . . necessary to make a fair use.'" Stern v. Lavender, 319 F. Supp. 3d 650, 682 (S.D.N.Y. 2018), quoting Bill Graham Archives v. Dorling Kindersley Ltd, 448 F.3d 605, 613 (2d Cir. 2006). Rather, "the extent of permissible copying varies with the purpose and character of the use." Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013), quoting Bill Graham Archives. Here, the purpose of the use is to rally opposition to the prospective adoption of the entire Tentative Draft, to explain why the draft as a whole is problematic, and to allow members to understand why they should vote no and why readers should be contacting members whom they know to urge them to vote no. Only the posting of the entire draft could properly serve that purpose; indeed, posting selected portions could lead to accusations that the "vote no" campaign was dishonestly portraying the document. Consequently, the third factor does not support a conclusion of infringement.

Finally, considering the fourth factor, because the use is noncommercial, ALI would have the burden of showing likelihood that the use will cut into sales. Assn. of Am. Med. Colleges v. Cuomo, 928 F.2d 519, 525 (2d Cir. 1991). Your emails to Professor Levitin suggest that your concern is that the easy availability of the Tentative Draft may cut into sales that provide the main revenue to support the ALI enterprise. But, so far as we are aware, ALI sells final Restatements and other final statements, but not Tentative Drafts. Looking through the Publications section of the ALI web site, https://www.ali.org/publications/, I did not find any Tentative Drafts listed for sale. Draft documents are apparently available on Hein Online and Westlaw, and perhaps ALI gets a cut of those fees; but at the present time, the latest version of the prospective restatement that can be found on Hein Online and Westlaw is the discussion draft from 2017. Posting the 2018 Tentative Draft will not cut into those sales. Again, Professor Levitin planned to take down his posting after next week's vote. As a result, his action will not compete with sales of the final version, even if the Tentative Draft is approved without any changes.

And, of course, Levy notes that if the Restatement is voted down, then there won't be anything for ALI to sell in the first place, so it won't be creating an adverse impact there either.

So, yeah, perhaps ALI should spend some time reading the ALI's proposed restatement on copyright as well, as I'd imagine there are a bunch of fair use cases that it seems wholly unfamiliar with.

But there's a larger point in all of this. We've pointed out over and over again that copyright is frequently used for censorship purposes, and this seems like yet another clear example. This is not a product for sale. This is a discussion draft of an important issue that it would help for more ALI members to have access to as they decide how to vote. ALI's decision to pull it down via a DMCA takedown is shameful... but effective in censoring the discussion of the draft Restatement.

Filed Under: adam levitan, censorship, consumer contracts, copyright, dmca, fair use, paul levy, restatement of the law of consumer contracts, restatements
Companies: ali, american law institute, dropbox