The following is the Foreword text from Tentative Draft No. 2. Of Restatement of the Law, Copyright. This draft will be presented to ALI’s members at the 2021 Annual Meeting.

In October 2014, the ALI Council launched the Restatement of the Law, Copyright. The goal of this Restatement is to provide guidance to the courts in areas, including ones that have clear common-law origins, where there is significant scope for judicial discretion. Examples include the following:

• the subject matter of copyright, including the boundary between copyrightable expression and uncopyrightable ideas, facts, systems, principles, processes, concepts, discoveries and methods of operation;
• the scope of the exclusive rights granted by copyright;
• the rules governing ownership and transfer of copyrights;
• the standard for copyright infringement;
• rules regarding the circumvention of copyright protection systems, and the removal or alteration of copyright management information;
• defenses to copyright infringement, including the “first sale” limitation and fair use; and
• remedies, including actual and statutory damages, the availability of attorneys’ fees, the availability and scope of preliminary and permanent injunctive relief; and the imposition of criminal penalties.

In contrast, the Restatement will not focus on narrow and detailed provisions that are litigated infrequently because the statute provides clear answers.

            Traditionally, our Restatements dealt with areas of state common law. Of course, they recognized the existence of state statutes, but those statutes were generally treated as constraints that displaced discrete common-law rules in particular jurisdictions. For the most part, we did not provide courts with guidance on how to interpret those statutes. But, in the last few decades, we have undertaken significant efforts in many areas. For example, our Restatement of the Law, Unfair Competition, published in 1995, deals extensively with subject matter covered by the Lanham Act. Similarly, the Federal Sovereign Immunities Act governs broad swaths of one of the three current components of our Restatement of the Law Fourth, The Foreign Relations Law of the United States, published in 2018. And, the Federal Arbitration Act is the governing authority for significant components of the Restatement of the Law, The U.S. Law of International Commercial and Investor−State Arbitration, which was approved in 2019 and is soon to be published. The Indian Civil Rights Act, the Indian Child Welfare Act, and the Indian Gaming Regulatory Act are the authority for the relevant Sections of our ongoing Restatement of the Law, The Law of American Indians.

While the Restatement of the Law, Copyright, differs from these projects because the Copyright Act covers many of the subjects on which the Restatement will focus, the conceptual issues are identical. In this Restatement, as in our earlier forays into areas covered by significant federal statutes, The American Law Institute will provide guidance to the courts in instances in which judges are called on to exercise their discretion, thereby furthering our mission of clarifying and simplifying the law.

This Restatement, which has been discussed at several meetings of its Advisers and Members Consultative Group, is coming before the membership for the first time. The bulk of the first three Chapters will be presented for membership approval: Chapter 1 on Subject Matter and Standards: Generally; Chapter 2 on Subject Matter of Copyright: Scope of Protection; and Chapter 3 on Initial Ownership, Transfers, Voluntary Licenses, and Termination of Grants.

The drafting of this Restatement is being done by an extraordinarily talented team led by Christopher Jon Sprigman of New York University School of Law. Four Associate Reporters are taking the lead in drafting specific portions: Daniel J. Gervais of Vanderbilt University Law School, Lydia Pallas Loren of Lewis & Clark Law School, R. Anthony Reese of University of California, Irvine School of Law, and Molly S. Van Houweling of University of California, Berkeley School of Law. I am very grateful to each of them, as well as to the Advisers and Members Consultative Group, who contributed a great deal to the various drafts.

To request a copy of this or any of ALI’s drafts, please contact communications@ali.org.  Tentative Draft No. 2 of the Copyright Restatement has not yet been presented to, or approved by, ALI membership.  Therefore, it is not the position of the Institute and should not be cited as such.