Saturday, June 05, 2021

Race, Class, and Copyright: Rethinking the American Law Institute (ALI) Project on Copyright


The American Law Institute prides itself on being a collection of elite members of the American legal establishment (full disclosure I have been a member since the mid 1990s). It describes itself tis way:

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.

It has become quite influential in the United States, and is now connected globally as part of the international network of jurists, lawyers, judges, and academics who seek to coordinate an ideologically unified approach to the legalization of  their respective societal orders and its expression in memorialized expressions of rules with authoritative glosses.  The projects, however, are also deeply imbued with ideology, and that sometimes makes for contention when, as in the contemporary United States, ALI project reporters assume the role of societal vanguards (our version of Lenin's professional revolutionaries; or perhaps the American version of institutionalized public intellectuals as Bourdieu understood the term in the context of the Corporatism of the Universal) leading the rest of us through meaning making exercises that would reshape the law to their own liking. I have written about this tension in the ALI's Model Penal Code Project respecting Sexual Assault (see HERE: The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions). 

Other projects have some important race and class issues embedded within its technical development.  One of the most interesting, and perhaps important, is the ALI Project on Copyright (see HERE). Copyright does not just touch on ownership of creative activity, but also the allocation of power to exploit and profit from these activities.  And it tends to create quite adverse interests among the creators--usually young, poor, and sometimes from traditionally marginalized groups (other than the generally marginalized group--the poor)--and the distributors, packagers and influencers who serve as the critical link between creation and profitable exploitation of the ting created.  Clearly both are necessary, and neither is entirely free of ethical challenges.  Yet money and power--especially institutional power, tends to be a substantially important voice in shaping the law around which the relationship between creators and exploiters are arranged (optimally to mutual profit and to the enhancement of collective life within a society). 

It is in that context that the Black Music Action Coalition (BMAC), the Songwriters of North America (SONA), and the Music Artists Coalition (MAC) recently distributed a letter to ALI members  might be worth considering. It does not engage with the details of the ALI Copyright project.  Rather it asks the core questions about starting premises and principles from out of which the scope and meaning of copyright--especially in its allocation of rights and obligations--are created through law (for some press coverage HERE ("ALI’s ongoing quest to serve as a kind of CliffsNotes for litigators has not been without controversy. It turns out when one tries to condense vast reams of complicated legal subject matter into simplified, broadly readable formats, biases can slip in.") Ibid.).

 The original letter with signature follows along with information about BMAC, SONA, and MAC. The statement is remarkable for its semiotics.  It suggests what is commonly understood though rarely spoken of except in terms of the construction and disciplining of elite ideological principles: that statutes are empty vessels until their meaning is constructed.  That meaning making is formally meant to be a public function; but the reality is that glosses by authoritative elite collectives might effectively fill the objects (words) of the vessels (statutes) of political collective command in ways that effectively adversely affect other societal values that works to the benefit of one set of collectives (those who control the mechanisms of exploitation in this case) against another (the producers of exploitable material).  This produces a semiotics of politics which occurs outside of the formal processes for political participation and favors those with access (as useful a sorting device for power as any other distinguishing characteristic that promotes group solidarity, though one that might be anathema to other societal values). At the same time the letter acknowledges the underlying reality that statutes (like death in occult movies) is only a portal to meaning but not meaning itself. If that is the case then the excavation of the principles, outlooks, objectives, and societal placement (in terms of vertically arranged caste relationships) of those who serve as influential glossators--as the sources of meaning making, might became as much an object of conversation as the meaning they seek to inject into the (now clearly substantially empty word-objects are are aggregated as) statute.


The letter reads in full as follows:

June 4, 2021

RE: ALI Restatement of Copyright

Dear American Law Institute Member,

We are three organizations whose sole purpose is to represent and advocate for the interests of individual music creators (more information about us is below our signatures). On behalf of the many individuals who rely on copyright protections for their livelihoods, we implore you to vote against the proposed sections of the Restatement of Copyright. The Copyright Restatement Project is deeply flawed in its approach and unquestionably aims to erode protections for creators.

Rather than relying on the Copyright Act, the governing federal statute, the Restatement invents its own set of “black letter” rules for copyright. This alone should be reason enough for you to reject this project. But even beyond this, it is undeniable that the fictitious “black letter” and accompanying analysis is consistently oriented to diminish the rights of creators. In draft after draft, the Restatement reporters invariably advocate for interpretations of the law that are legally unjustified and harmful to those who depend upon copyright for a living. In presenting a biased and false view of copyright, the ALI not only harms creators and does a disservice to judges and lawyers, but damages its own reputation as well.

We are aware of the litany of concerns about this project dating back to its earliest days—from Congress, the Copyright Office, the American Bar Association, judges and legal academics—and that the concerns have not been addressed. It is hard enough to make a living today as a musician or songwriter. Our work is already threatened by piracy and reduced income in the digital age. We don’t understand why the ALI, historically a respected institution, would be engaged in such a mission. As you consider your vote, please remember that ultimately, the issue is not about large corporations, but individuals who should be able to make a living as artists. Please do not endorse a project that purposely deviates from the balance Congress struck in the Copyright Act and would undermine creator rights.
The original letter with signature follows along with information about the groups

About Black Music Action Coalition (BMAC)

BMAC is an advocacy organization formed to address systemic racism within the music business. BMAC advocates on behalf of Black artists, songwriters, producers, managers, agents, executives, lawyers and other passionate industry professionals. Visit BMAC online at

About Songwriters of North America (SONA)

Songwriters of North America (“SONA”) is a non-profit trade organization founded in 2015 by songwriting partners Michelle Lewis and Kay Hanley along with music attorney Dina LaPolt. SONA advocates on behalf of professional songwriters before Congress, in the courts, and in other arenas where songwriter interests are at stake. An overarching concern for SONA and its members has been the precipitous drop in songwriter income in the digital age. Visit SONA online at

About Music Artists Coalition (MAC)

MAC believes music creators should be driving the strategy and conversation about the issues that shape their lives. Artists decide their musical fate every time they write a song or step on stage. MAC believes artists should have the opportunity to decide how to best protect the fate of their music and their other rights. The time is now. MAC lobbies on national and state levels regarding issues that impact creators. MAC partners with other industry organizations where appropriate. Music Artists Coalition will speak solely and exclusively on behalf of music creators – performers and songwriters. MAC speaks for artists without compromise. Visit MAC online at

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