Feb 12 2020

The Hill 

The American people have entrusted us to represent them in Congress - with our voices, votes, and lawmaking power. It is not a responsibility that we take lightly. Every statement we write and policy we create has the potential to impact the livelihoods of millions across the country.

Issues like health care and Social Security benefits receive incessant congressional attention, and rightfully so. However, there are thousands of unseen issues that directly affect the lives and businesses of Americans, which can and should be addressed by lawmakers. Copyright is a perfect example.

Copyright is an essential Constitutional provision that allows individuals in the creative industries to be fairly compensated. The freedom to innovate and create is enshrined in our founding document and is what has allowed America to be a beacon of talent and inspiration for the rest of the world.

The creative industries, which include film, television, music, publishing, video games, software, and other sectors, employ over 5.7 million Americans. Together, they represent 6.8 percent of our nation’s gross domestic product (GDP), and export 1.3 trillion dollars of revenue annually – more than pharmaceuticals, aerospace and agriculture.

With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.

It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.

This organization, The American Law Institute (ALI), may not be readily familiar to millions of Americans who rely on our bicameral legislature to create our nation’s laws. The ALI, however, is widely known and rightfully recognized within legal circles as an authority on explaining the law. Through their best-known works, called “Restatements of the Law,” the ALI compiles all aspects of a legal topic and publishes a “Cliff’s Notes” guide to that topic. These Restatements are regularly relied upon by our nation’s judges when they are asked to decide on cases requiring expert knowledge of a particular subject.

Because of this dynamic, we are concerned with their most recent endeavor to publish a Restatement of Copyright law. Our legal system is mainly based on common law, meaning that the courts look to past cases for guidance to decide similar cases today. Of course, after centuries of cases being decided, certain sections of the law can become unwieldy for judges to navigate. Enter the usefulness of the ALI’s Restatements. These summaries anthologize and condense years of case law into more simple takeaways that can be used.

However, when it comes to copyright law, none of this applies. Copyright law is primarily statutory law. Unlike common law, statutory laws are passed by Congress and signed into law by the president. They don’t need restating. The law speaks for itself.

For this reason, the ALI has appropriately avoided creating Restatements based on statutory law. Restating statutory laws could result in judges looking to the Restatement for interpretations that mischaracterize or misrepresent the text of the law as passed by Congress.

We fear the restatement was begun with the aim of moving judicial interpretations of copyright law away from existing statutes and toward interpretations that would weaken copyright protections for Americans. This fear, and the search for adequate justification, has been at the center of our correspondence with ALI Director Richard Revesz. Out latest letter sent on Jan. 15, reiterates our concerns about this project.

ALI’s proposed Restatement has the potential to irreparably harm the creative industries and the millions of Americans who depend on copyright protections to make a living – we hope they reconsider immediately. If they want the law to be changed, they need to come to Congress and advocate for those changes in public and let us—the people’s elected representatives—make the final decision.

Tillis is a chairman of the Senate Judiciary Subcommittee on Intellectual Property. Rouda represents California’s 48th District and Deutch represents Florida’s 22nd District and is a member of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.