A New Front in the War on Creators

For years, dominant internet platforms like Google/YouTube and Facebook have tried to suck away as much value as they can get away with from artists, writers, musicians and filmmakers. — underpaying (or not paying) royalties, scraping and re-posting our work without permission, and cashing in on mass piracy instead of doing something meaningful to stop it.

But again and again they have run into the same fundamental obstacle — U.S. Copyright Law. While under siege, it still protects creators and rights owners by giving us the power to demand fair treatment from anyone who wants to use our work. Without the protection of Copyright, we’d be defenseless watching our life’s work be devoured online.

And that is far too tempting an image for the moneymen of Silicon Valley to resist.

Changing the law isn’t easy, of course — especially when your goals are selfish and destructive.

While Congress is considering several positive copyright reforms, like the CLASSICS Act to protect older artists who recorded before 1972 and the Music Modernization Act to fix the creaky systems used for songwriter pay, it has consistently rejected the kind of anti-copyright, anti-artist changes that the online platforms want.

But if the front door’s locked, you can always try ‘round back. (You can also just respect “no” as an answer, but we understand that’s not always the Silicon Valley way.)

The back door here is a well-respected group of legal scholars and experts called the “American Law Institute” which publishes simple treatises called “Restatements” of the law. These are (historically), scholarly works designed to give the clearest possible description of the current state of the law — to “restate” it, just like they said in the title.

However, they are not supposed to be used to change the law. The ALI is not Congress or a court. And its authority comes from that fact — because it has no agenda people trust it to play things straight.

But it’s just that reputation the platforms and their allies are cynically trying to exploit. They have stacked the ALI Copyright Restatement project with anti-artist, anti-copyright ringers who have spent careers taking extreme positions against creators and their rights.

The lead “Reporter” on the project, Chris Sprigman, has spent decades making tech friendly arguments that strong copyright “threatens the most vibrant sector of our economy — Internet commerce.” He thinks illegal piracy can “benefit” movies and shouldn’t ever be prosecuted as a crime, even for global mega-villains like Kim Dot Com (currently fighting extradition by the U.S. Department of Justice). Over and over again, he has derided Copyright law as “in a bad state,” “widely disliked,” and “founder[ing]”. Fundamentally, Mr. Sprigman believes Copyright is “ineffective” and “stifl[es] creativity.”

For most experts, that’s a pretty bizarre way to look at the legal structure that has been in place during the last 100+ years of creative fervor and artistic revolution, that has taken us from jazz to rock and roll to rap. From Hello Dolly to Hamilton.

Bizarre to some, but not to all. Google’s Chief Economist was happy to “blurb” Mr. Sprigman’s book celebrating “The Knockoff Economy” and the tech giant funded Sprigman’s Stanford research center, donating over $2 million during his tenure. It’s that kind of web of relationships that led one watchdog group to identify Sprigman as a “Google Academic” just last year.

Having such an out-of-the-mainstream figure lead an ALI project might not be a problem if it was a traditional good faith Restatement effort — describing the law, not distorting it. But everyone recognizes that the mission here is not to describe the current state of Copyright law, but to reform and change it — to put a thumb on the scale for the internet behemoths and win concessions Congress has refused to make.

Indeed, the sponsors of the project admit the ALI project is “the most promising way to work toward more comprehensive copyright reform” and hope it will be “enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need.” They acknowledge the project will be “a bit of a departure” for the ALI by meddling with a Congressional statute instead of simply documenting judge-made “common law” as ALI treatises typically have done. Any honest observer can see that Sprigman and his fellow travelers are determined to produce not a “Re-Statement” but an “Altered-Statement” of the law of Copyright.

If it isn’t stopped, this project seems certain to leave the American Law Institute’s decades old reputation for sober trustworthy commentary in tatters. A sad end to a cherished and once public-spirited organization.

And it will create an even greater disaster for the creative economy, artists, and audiences and fans. It would weaken rules that actually need strengthening and siphon yet more of the value of creative work into the online monopolies’ already overstuffed pockets. How much higher can property values in Silicon Valley go? How many Teslas can a person drive?

The U.S. Copyright Office has already spoken out about this abuse of the ALI process and urged that the project be suspended immediately.

Artists and creators must join in and condemn this insidious, technocratic threat.

We must urge Congress to reject this attempted run around of its power and help the ALI leaders see what a serious risk they are taking.

We must oppose this project to ensure we leave a healthy and creative ecosystem behind for the next generation of artists, creators, audiences, and fans.