Chris Castle investigates a suspicious development in the world of copyright, after the American Law Institutes moved to write up a "Restatement of Copyright", a project with some concerning ties to a lawyer with Spotify's best interests at heart.
Guest post by Chris Castle of Music Technology Policy
The anti-copyright crowd have a few different ways to turn astroturf into deceptively scholarly work product. One way is to take over otherwise credible brands to insert their own truthiness.
In a highly predictable move, the American Law Institute, a reliable old brand in the law, appears to have had some sudden interest in writing up a “Restatement of Copyright” treatise. The ALI’s restatements of the law have been around a very long time, but they mostly deal with bodies of law that rely heavily on judge-made law such as agency, property or contracts.
The advantage of having a Restatement that says what you want it to say is that those toiling against artists and songwriters can cite it as an authoritative source in legal briefs, scholarly writings, amicus briefs, etc. Handy, eh?
The ALI Restatement of Copyright seems to have been the brainchild of one Pamela Samuelson, she of the Samuelson-Glushko technology and policy legal academic centers–Silicon Valley’s answer to the Confucious Institutes. The project is nominally under the watchful eye of Professor Christopher Sprigman, from whose intellectual loins sprang Spotify’s defense of “sorry just kidding” in the Bluewater lawsuit for Spotify’s alleged nonpayment of mechanical royalties. Sprigman is trying to convince the court that mechanical royalties don’t exist, don’t you know.
The Restatement of Copyright has been on the horizon for quite some time as it takes a lot of effort to produce one of these treatises. So naturally, one must ask–why the sudden interest at the American Law Institute in such a costly project that we’ve struggled along without for a hundred years or so? You don’t suppose someone is…paying for the costs of this work? And who might be interested in picking up the tab for the project?
Perhaps the same company that paid for five–count ’em–five–research projects by Professor Sprigman. That we know of.
According to the useful “Google Academics, Inc.” database created by the Google Transparency Project, Google funded these articles co-written by Sprigman (two of which criticize moral rights):
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)
Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property: Bechtold, Stefan, Christopher Buccafusco, and Christopher Jon Sprigman. “Innovation heuristics: experiments on sequential creativity in Intellectual Property.” Ind. LJ 91 (2015): 1251
And speaking of astroturf, what’s also interesting is that Sprigman appears to have 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 as far as I can tell. (https://www.regulations.gov/document?D=COLC-2017-0003-0019).
So a perfect lawyer to advance the interests of Spotify, the savior of the music business and to gift the legal community with the Restatement of Copyright, a crystalization of his genius.