Move over Chris Harrison, looks like The American Law Institute President David F Levi may be 2018’s Artist Enemy #1. Don’t fret Chris, it’s only January you still have 11 months to make a comeback. (Photo hosted and served from Duke University Law School website.)
Artist Enemy #1 title is only given when an individual or group is engaged in activity that will do irreparable harm to the rights of artists. In this case it is David F Levi President of the American Law Institute that has captured my attention. Under the leadership of David F Levi the American Law Institute is engaged in a dubious “restatement”project to create what the US Register of Copyrights calls a “pseudo version of the copyright act.”
In all seriousness, this is very hard for me to write. David F Levi is a widely regarded former federal jurist. He is also the highly respected dean of the Duke University School of Law. It saddens me to have to point out he bears ultimate responsibility for what appears to be a full blown academic scandal at the American Law Institute. A scandal that may forever damage the ALI (and Levi’s) reputation for impartiality.
My father was a career NCO in the US Air Force. I grew up on military bases all over the world. If there is one thing that those experiences (and my father) taught me is that real leadership demands one accept responsibility for failures that occur on one’s watch. In my experience most Americans also feel the same. For intuitively it makes sense: You don’t get the perks of leadership without accepting the responsibilities and downsides as well. I’ll admit in my own life I have often failed to live up to the demands of this credo. It is extraordinarily difficult. That’s why I hate to point a finger. But it is also because of my own experience with my own failures I feel like I have some insight here. And I’m not optimistic that the ALI’s Levi will show true leadership and accept the responsibility that comes with leadership. Why? I see all the telltale signs of the covering up a problem rather than fully addressing it. At the time of publication, the only action from ALI is a vague statement about reorganization of the project at the heart of the scandal. Further as far as I can tell, it was only posted on a page buried deep in ALI website. This is not how anyone with half a brain (or heart) does damage control. This is the kind of thing that otherwise good people do because they think no one has really noticed yet, and maybe, just maybe, they can avoid the difficult process of taking responsibility.
The Trichordist has convened a group of artists for “The Honest Restatement of American Law Institute Principles Project.” Above are some suggested amendments to current principles.
So what is the scandal?
If you really want to understand just how crazy this scandal is, you should read one or more of the following:
US Copyright Office original objection to project: http://c.ymcdn.com/sites/www.csusa.org/resource/resmgr/AM16/Course_Materials_/USCO_Letter_–_ALI_Prelimina.pdf
Jane C. Ginsburg Columbia University Law School: http://www.law.columbia.edu/sites/default/files/microsites/kernochan/Jane-Ginsburg-Comment-on-ALI-Restatement.pdf
NYC Bar: http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/recommendation-to-reject-the-american-law-institutes-proposal-to-create-a-restatement-of-law-copyright
These documents go back almost 3 years. Many of these complaints were made directly to the ALI. It is unfathomable that Levi would not be aware of these complaints. This is why I feel Levi bears full responsibility for this dubious project. And it is a dubious project, with more than a whiff of corruption surrounding it.
If you don’t want to read these documents, I’ll do my best to explain it here. However I am not a lawyer.
The scandal concerns the ALI’s so-called Restatement of Copyright Project. This project has a multitude of problems. But basically early reports show it is an attempt to stand up a tech industry friendly extra-legal alternative to the copyright act. Pardon the use of this term, but frankly, it is an exercise in “fake lawmaking.”
Further it is a bizarre and puzzling project for the staid ALI, as it goes against their very principles. It attempts to “restate” and reinterpret statutory law something it has generally sought to avoid. Why? Well as most law students know this is something only the congress and (sometimes) the courts have power to do. It goes against ALI principles because instead of clarifying matters the ALI seems to want to muddy the waters by presenting a competing version of the copyright act.
Yes, in the past the ALI has issued “Restatements” but these genuinely clarify matters. As a result Judges routinely consult these restatements for help. (Many judges are political appointees and not really…er…uh.. well versed in the law). But there is a crucial difference between those “restatements” and this one. Until now, the restatements have concerned non-statutory “common law,” conflicting state laws, international law, treaties etc. My understanding is that past projects were well intentioned attempts to clarify “effective” existing law from a number of widely dispersed sources. Not law contained in a single statute with a couple of minor amendments. The ALI has never before offered what is essentially alternate reality legal fiction that (according to early reports) will contradict existing law and federal jurisprudence.
Okay. That’s the gist of the scandal. Well except for the next part…
The biggest (and completely avoidable) problem is that the restatement project leader is Christopher J. Sprigman. This is where Levi has really failed as a leader of the ALI. One would be hard pressed to find a less impartial choice to mediate between big tech and artists. Sprigman is Spotify’s lawyer in the Bluewater v Spotify case. Does Levi not know this? But hang on cause it gets worse. In documents filed with the court in the Bluewater case Sprigman argues that Spotify is not copying and distributing songs and thus doesn’t owe a mechanical royalty. This is far outside the mainstream of legal thought, and is at odds with the facts. Sprigman is either completely unaware of the nature of the services Spotify provides or he is going beyond advocating for his client and purposely misleading the court. Either way this is troubling.
Let’s look at the undisputed facts:
1) Until late 2014 Spotify operated using P2P technology which necessitates the copying and distributing of millions of music files. Files downloaded onto users computers were cached and subsequently “streamed” to other devices and user accounts. They admit it. They were proud of it as it saved them server costs.
2) Spotify allows users to make playlists available offline. This necessitates distributing and copying works. This sort of use is no different than the “limited download” described in federal copyright regulations and according to same regulations require a mechanical licenses. Spotify calls it a download on their own website seemingly contradicting Sprigman statements to the court suggesting Spotify doesn’t allow users to download music.
3) The federal government sets a rate for streaming mechanical royalties via the Copyright Royalty Board. A Jan 26th 2018 ruling just set a new rate for this streaming mechanical royalty. Why on earth would the Copyright Royalty Board set a royalty for something that need not be paid according to Sprigman? Clearly he’s outside the mainstream.
4) Spotify has been paying streaming mechanicals to songwriters and publishers since they entered the US market.
5) Spotify and its agents have sent songwriters (like myself) thousands if not millions of “notices of intent” to obtain a compulsory mechanical licenses for use of songs on its service. Was the intention expressed in these notices (sent through the US mail) not accurate? Is Sprigman not aware of this practice?
6) Spotify has filed millions of “address unknown” notices of intent to obtain a compulsory mechanical license to the US Copyright office. Why would it make such statements to a federal agency if it did not believe it needed a compulsory mechanical license? Again is Sprigman not aware of this practice?
Finally Sprigman started the ALI project by declaring:
“Yet, by most accounts, copyright law is in a bad state, and has been for some time now. Among the public at large, and especially among young people, the law is widely disliked”
WTF? It’s a statute. If it’s so unpopular then get Congress to change the law. No one voted for the ALI. The ALI has no power to make law. The current statute is what is. It is an limited exclusive right given to individuals. We don’t do twitter polls on individual rights. It is also quite confounding to have to remind the ALI that individual rights are always unpopular with the public and “young people.” At least until their rights are violated. Then they are enormously popular. Most of the public and especially “young people” would prefer beer be free. At least until it’s their beer that gets given away for free. Does “unpopularity” of rights of individuals in certain quarters seem like a starting point from which an honest legal scholar would start? No it doesn’t and David F Levi (if he’s paying attention) should know this. Read the letter Sprigman wrote to the ALI to launch the project. It is appalling. In it he admits to launching this project because he thinks congress is not going to make the changes he and his cronies think should be made to copyright law. He freely admits it is an end run around the legislative process and courts. I quote from the letter:
“In sum, Congress is unlikely to proceed any time soon with copyright reform. As a consequence, it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies. Fortunately, the current copyright law is open-texted enough that its coherence and effectiveness could be advanced significantly via common law development. Unfortunately, however, aside from a few notable exceptions, there is a relatively low level of interest or expertise in copyright law among federal judges.
In light of these facts, I think it’s plain that a Restatement of Copyright Law – at least if undertaken with the object of assisting the courts and mindful always of copyright’s constitutional mandate to promote progress – could 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.”
This is not a guy that intends to faithfully interpret the statute and recent jurisprudence. No way.
Sprigman and Google.
Let’s go back to Sprigman’s statement about the law being unpopular with certain demographics. If you replace the phrase “public and young people” with “internet companies” I think we get much closer to the truth. IMHO Sprigman wants to make copyright law more friendly for his benefactors. Hear me out.
Sprigman appears in the Google Academics Inc database. According to this report he received money from Google to write/cowrite five papers that (lo and behold) mostly supported positions favorable to Google. It is not illegal for him (or anyone else) to take money from Google (or any other company) for academic work. It should be disclosed. But it’s not illegal. The problem is that he appears to have taken some of that funding after he started this project. As far as I can tell the ALI does not disclose this important fact anywhere. I highly doubt they disclosed this to their membership. The only reason anyone knows about this is the Above The Law article referenced above.
It’s worth noting that the dude is seriously defensive about Google funding. Like numbered-tweet-storm defensive about this fact. When I mentioned the Google connection in a tweet last week he launched a numbered-tweet-storm at me, which ended hilariously with him demanding his money back on a show I performed in 1987. Something I did in 2018 requires me to reverse a transaction in 1987 that somehow retroactively became unsatisfactory? He’s a time traveller. His DJ name should be DJ Ex Post Facto. We should jam. We’ll get that guy who rapped the middle part of the big Soup Dragons hit.
What are the odds he performs the same sort of time traveling while restating/remixing copyright?
I would assume Sprigman is particularly sensitive about the Google thing because it makes him appear less than impartial. But this is a problem of his own making. I’m not impartial on copyright. And I don’t pretend to be. I also don’t try to anoint myself as the final arbiter on copyright in the US. Sprigman seems to lack basic common sense, that little voice that says “don’t pretend to be impartial on issue when you are not.” Most lawyers have enough common sense to not try to lead an ALI “restatement” of copyright when there is even a hint of impropriety. For it tends to ruin careers. This lack of common sense alone should disqualify him to lead this project.
RIP American Law Institute 1923-2018
But what really saddens me is that I have to report to artists once again: another prestigious American institution appears to have taken the side of powerful Silicon Valley monopolists against artists. The fix is in. The current oligarchy at ALI, a clique of lawyers from a handful of elite academic institutions seem to be living in a bubble in which sycophants from those same academic institutions, sing their praises assuring the they are building a gleaming city on a hill, a beacon of hope and fairness for all. What a joke. In fact they are helping prop up a powerful and decadent group of crony capitalists, the likes of which we have not seen since the robber barons. This sounds like a joke, but it’s an open question whether our republic will even survive the predations of these powerful billionaires as many are openly hostile to the notion of democracy and the nation state.
This is the side the ALI willingly chose to take. Shameful.
The question now: Are there any decent and conscientious men or women in positions of power in business, government or academia that will ever stand up for the little guy again? Who in position of power or authority has the guts to argue for the middle class songwriter, performer, photographer, filmmaker or author against the billionaires of Silicon Valley and their legal enablers? Does anyone even have the minimal amount of backbone required to go against the grain and oppose their old law school chums. Isn’t there at least one decent lawyer out there tired of the current climate of law douchebaggery? Legal scholarship which seems to exist only to celebrate the successful exploiting of loopholes and generally helping the parasitic class get away with crap?
Where is our Joseph Welch? The Defense Department lawyer who finally stood up to the bully McCarthy? Where is that lawyer who will finally ask on behalf of artists “Have you no sense of decency sir, at long last? Have you left no sense of decency?”
Maybe David F Levi is simply unaware of the scandal that has occurred on his watch and maybe he will turn out to be our Joseph Welch. But I’m not holding my breath.
FURTHER NOTES ON CHRISTOPHER J SPRIGMAN
To support my contention that Sprigman came to this study with an agenda and thus should not be leading this project, I’ve provided a further reading list:
Professor Sprigman has a long history of attacking creators and copyright in general before he represented Spotify. His academic writings can be found on SSRN author profile: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=370802 At least five papers that are known were co-funded by Google http://www.googletransparencyproject.org/articles/google-academics-inc
–Wrote “The Mouse the Ate the Public Domain” in 2002 supporting Lessig’s Eldred v. Ashcroft attack on the Copyright Term Extension Act http://supreme.findlaw.com/legal-commentary/the-mouse-that-ate-the-public-domain.html
–Stanford fellowship produced 2004 article “(Re)Formalizing Copyright” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=578502 published by Stanford advocating a requirement of registration (which is core concept of Sensenbrenner HR 3350 database bill). This is also a core Lessig concept that he pushed during orphan works bills of 2006-2008 period (see “Little Orphan Artworks” http://www.nytimes.com/2008/05/20/opinion/20lessig.html?_r=1&oref=slogin)
–co-author with Lessig and Creative Commons of Creative Commons filing to “save” “Jewish cultural music” in 2005 orphan works consultation by Copyright Office https://www.copyright.gov/orphan/comments/reply/OWR0114-STM-CreativeCommons.pdf
—was lead counsel with Lessig in Kahle v. Ashcroft (later v. Gonzales) in 2006 https://en.wikisource.org/wiki/Kahle_v._Gonzales which unsuccessfully challenged the “opt out” provisions of eliminating the renewal requirement under the 1992 Copyright Renewal Act.
–Wrote “The 99 Cent Question” in 2006 attacking iTunes pricing https://papers.ssrn.com/sol3/papers.cfm?abstract_id=952019
–Member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated registration (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”)
There were no creator members of the Copyright Principles Project, and Samuelson was questioned sharply about this by the House Judiciary Committee, which appears to have lead to Samuelson founding the “Authors Alliance” https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/62270-founder-of-just-launched-authors-alliance-talks-to-pw.html
–Founder of “IP without IP” movement (and co-author of “The Knockoff Economy: How Imitation Sparks Innovation” (2012) https://www.amazon.com/Knockoff-Economy-Imitation-Sparks-Innovation/dp/0195399781/ref=sr_1_1?ie=UTF8&qid=1504971824&sr=8-1&keywords=sprigman
See also pro-piracy article Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412037
–Represented sculptor against Katy Perry in “Left Shark” case http://politicalsculptor.blogspot.com/2015/02/politicalsculptor-retains-legal.html
–Frequently writes on pro-piracy topics with Professor Kal Raustiala of the UCLA School of Law https://www.law.ucla.edu/faculty/faculty-profiles/kal-raustiala/
–Has written five academic papers funded by Google on copyright issues, including three against moral rights attribution. In addition, he filed comments in Copyright Office moral rights study that incorporated concepts in Google-funded papers and cited to one of them without disclosing Google’s funding in his Copyright Office filing. (https://www.regulations.gov/document?D=COLC-2017-0003-0019)
Valuing Publication And Attribution In Intellectual Property: Sprigman, Christopher, Christopher Buccafusco, and Zachary Burns. “Valuing Publication and Attribution in Intellectual Property.” (2012)
What’s A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property: Sprigman, Christopher Jon, Christopher Buccafusco, and Zachary C. Burns. “What’s a name worth?: Experimental tests of the value of attribution in Intellectual Property.” (2013)
What’s In, And What’S Out: How IP’s Boundary Rules Shape Innovation: McKenna, Mark P., and Christopher Jon Sprigman. “What’s In, and What’s Out: How IP’s Boundary Rules Shape Innovation.” (2016)
Experimental Tests Of Intellectual Property Laws’ Creativity Thresholds, Buccafusco, Christopher, Zachary C. Burns, Jeanne C. Fromer, and Christopher Jon Sprigman. “Experimental tests of Intellectual Property laws‰Ûª creativity thresholds.” (2014)
Even Further Reading
Supreme Court Justices Scalia and Thomas on the ALI and Restatements