The Illusion of More

ALI Restatement of Copyright Law with Professors Balganesh & Menell

Episode Summary

In this episode, David talks with professors Shyamkrishna Balganesh and Peter Menell about their February 2021 paper criticizing the American Law Institute's Restatement of Copyright Law project.

Episode Notes

In 2015, the American Law Institute announced that it would produce a Restatement of Law for U.S. Copyright. In response, many copyright advocates, as well as the Copyright Office and Congress, expressed some deep concerns with the project. Chief among these is the fact that the ALI has never in its hundred-year history issued a Restatement in any area of primarily statutory law.  See IOM blog post from January 2018.

Link to Professor Balganesh.

Link to Professor Menell.

Link to paper, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts.

Episode Contents

• 58:12 - Overview of ALI and Restatements of Law
• 06:13 - Restatements have never addressed areas of primarily statutory law.
• 08:53 - Development of the 1976 Copyright Act
• 15:17 - "Why we are not opposed to the idea of a Restatement."
• 25:09 - Criticism of the project's lack of transparency.
• 31:28 - Criticism of the project's methodologies.
• 42:44 - The distribution right & shifting judicial philosophies.
• 51:50 - Rewriting copyright law without the legislature.
• 54:17 - Can the Restatement still have a good outcome?
• 01:01:43 - "the worst sausage factory"
• 01:05:24 - Hypocrisy