Dina LaPolt: Beware a Sneak Attack on Creators’ Rights (Guest Op-Ed)

Uh oh, here we go again. Just this past January, I wrote an op-ed about copyleft professors using the American Law Institute (ALI) to underhandedly slip some copyleft crib notes to federal judges. The project paused and I thought ALI would put an end to it. But they are back after waiting many months to wage an attack when opponents least expect it.

You see, last week songwriters, recording artists, producers, publishers, performing rights societies, digital service providers, and record labels all gathered together in Washington D.C. to celebrate the passage of the Music Modernization Act (MMA). Congress passed the MMA unanimously and the President signed it on October 11. I spent five long years helping to get this legislation passed, but I was happy to join other music creator advocates pounding the pavement on Capitol Hill, drafting and reviewing comment papers, gathering stakeholders together to talk through issues, analyzing and remarking on the various stages of the legislation, and banging away on our phones, email, and social media to assemble an online music army to fight for songwriters’ and music creators’  rights.

It was hard work and we still have a lot of work to do to implement the law, but this is how it should be done in a democracy.

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Unfortunately, not everyone plays by the rules. For years, big technology companies have been lobbying Congress to roll back copyright protections so it’s easier for them to profit off creative works without including songwriters, artists, or other copyright holders (or getting their consent). They’ve bought and paid for copyleft academics to testify before Congress and speak at conferences espousing an “anything goes” view of copyright. As a matter of fact, they tried to stop the Music Modernization Act several times and fought to kill critical reforms in Europe. But they’ve been losing out — because in a democracy, coin-operated “experts” are no match for real engagement from people who really care, like songwriters and other creators and copyright holders.

But having lost in their bid to change the rules, these same tech giants have now moved on to trying to buy the refs – a backroom sneak attack that would stack the deck even further against creators trying to protect their rights.

I’d bet very few artists, musicians,  or songwriters have heard of the American Law Institute or its new “Copyright Restatement” project. The ALI is a group of prominent lawyers and judges who write influential summaries of the law called “Restatements.” These Restatements are used as cheat sheets or “Cliff’s Notes” by judges, scholars and lawmakers who need to understand the law. The ALI’s projects are trusted and admired for playing it straight and have always been known for their neutrality, clarity and precision.

But not this time.  The copyright project is being led by some of the most notoriously anti- creator copyleft irritators, many with financial ties to big tech companies – with a goal of tilting the playing field and producing a very biased Copyright Restatement that shortchanges songwriters, artists, and the copyright holders. The Copyright Office of the United States, the non-partisan lead copyright adviser to Congress, has called the ALI’s project an effort “to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it.”

It’s no wonder. The leading author of this Restatement is Chris Sprigman, who has argued that protecting creator’s copyrights is fundamentally harmful, that piracy is “a form of competition,” and that bootleg CDs and knock off merch made and sold by the Chinese government are really nothing to worry about.

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Another author, Daniel Gervais, has argued against music creator’s ability to control where and how their songs are used, saying that we should “limit [artists’] right to say no” and that online piracy is simply “a new form of social interaction.” Yet another author, Anthony Reese, claims shutting down pirate websites “is bad for society.” Capping it off, author Lydia Loren asserts that “the copyright system is broken” and only exists as a “profit maximizing tool for creators.”

Are these people for real?

If the current system is designed to create large profits for creators, it’s doing a terrible job.  Since 2000, the number of full-time songwriters in the music mecca of Nashville has declined by 80 percent. More to the point: why in the world would the ALI hire someone to summarize copyright law who thinks it’s “broken”?

Sprigman has authored five Google-funded Academic papers. Gervais has sided with Google in litigation. Another author even created a fake anti-copyright author’s group prompting the Authors Guild to warn its members not to join what it called an “astroturf” or fake grassroots organization. I wonder where the money came from for that organization?

The stakes are high. If the minions of the big tech companies are successful in rewriting copyright law, it will be easier for pirate websites to give your music away without paying you. These authors claim it’s all just “promotion” and your touring revenues will pick up the slack. Since when are songwriters making a windfall touring?! You might not have any recourse against Google for unlicensed use of your work at all, since these particular authors have argued for exempting search engines from copyright liability entirely. And get ready for fans to ask you to sign knock off t-shirts made in China.

Just as we rose up to pass the Music Modernization Act, we must rise up again to stop this rear-guard attack on our rights. The ALI should abandon or suspend this project until it can produce a Restatement that honestly summarizes existing law and lives up to the organization’s traditional high standards and objectivity. Until then we have declared war.

Dina LaPolt is the owner and president of LaPolt Law, P.C.