Astroturfing is something that we all know the progressive left does. Many people are not realizing, or even admitting that the things you see when an issue becomes heated suddenly become hot is only that: surface. There are years of effort behind what you see, and it’s not just in organization. Astroturfing even consists of creating the scientific and legal “research” pointing to the desired conclusion. We know that the oil and tobacco industries did this decades ago, but the practice wasn’t limited to that time and those industries. More recently, we’ve seen this happen with regard to gun control (Everytown and Bloomberg-funded “research), criminal justice (Soros-affiliated groups and think tanks fund research that is then used by District Attorney candidates to claim the “science” backs their “reimagining” efforts), and, of course, Critical Race Theory.
Copyright law is currently undergoing a huge astroturfing campaign. Anyone who creates creative content needs to be aware of this. As I wrote last week, there are major problems with the American Law Institute’s Restatement project, starting with how the project was initiated (at the request of a Google-funded, anti-copyright law activist professor) and the Lead Reporter’s unacknowledged conflicts of interest. Other prominent copyright scholars have pointed out major flaws in Restatement’s draft. These include a bipartisan group representing Congress and the Register of Copyrights, who is the director of Copyright Office, as well as Advisors. These groups all claim the Restatement wrongly interprets Copyright Act, and that Reporters’ policy preferences are not included. A letter to ALI from 10 of the project’s advisors states:
There are many problems with the Draft, including an inaccurate summary of the Copyright Act text, misleading explanations of key principles, and confusing illustrations. These problems, which are further explained below, reflect an unconstitutional view of copyright law, not compatible with the strong statutory rights that Congress granted to authors.
Is the problem that the Restatement draft is flawed, or is it that “progressive” forces and their capitalist enablers, such as Google and Spotify, are using the Restatement to create a new legal “gold standard” that their attorneys can use in court to get favorable rulings and set new precedent in the arena – effectively changing the law through judicial activism and not through the legislative branch?
When examining the backgrounds, prior statements on copyright issues, and money connections of the Lead Reporter, NYU law professor Christopher Sprigman, his Associate Reporters, and Advisor Pamela Samuelson, the it’s easy to conclude that changing the law through ALI’s Restatement is exactly what they intend to do.
Samuelson initiated the project. She made her goals clear to ALI by writing in February 2013. On September 13, 2013, Samuelson wrote to ALI with a “more concrete proposal” after verbally proposing a copyright Restatement at a February conference, laying out precisely what she wanted to do – “articulate principles that courts, lawyers and scholars can use without the need for legislation” and “provide an analysis and framework that would aid additional reform efforts.”
Sprigman’s intent was also clear to the ALI from the start. In a September 2014 proposal memo to Richard Revesz, ALI’s Director, Sprigman listed a number of areas in copyright law he believed would soon end up in the appellate courts, then stated (emphasis added):
These are important questions which courts will need to answer in coming years. Well-researched guidance provided by a Restatement of Copyright Law can help. likely to play an important role in shaping law.
Sprigman nominated the Associates Reporters to the Project. An analysis of these Associate Reporters shows they have unreported conflicts of interest, and that they are not neutral scholars of legal issues on the subject.
Given Sprigman’s pervasive conflicts of interest and known extremist views against copyright laws, it’s stunning that ALI thought he’d be a great candidate to lead the Restatement.
To start with, Google has funded five of Sprigman’s research projects since 2011. Although the awards were already made in 2011 when Sprigman began his work as Lead Reporter for the Restatement’s Restatement, only three of them had been published since then.
In addition, Sprigman has represented Spotify in major court cases in which he argued that since Spotify was simply streaming songs and not reproducing and distributing them, they didn’t owe mechanical royalties to the publishers and songwriters. The Bluewater v. SpotifyHe argued that:
“Plaintiff alleges that Spotify “reproduce[s]” and “distribute[s]” Plaintiff’s works, thereby facilely checking the boxes to plead an infringement of the reproduction and distribution rights. But Plaintiff leaves Spotify guessing as to what activity Plaintiff actually believes entails “reproduction” or “distribution.”
The only activity of Spotify’s that Plaintiff identifies as infringing is its “streaming” of sound recordings embodying Plaintiff’s copyrighted musical compositions.
But “streaming” – by its very definition – cannot infringe upon either the reproduction right under 17 U.S.C. § 106(1) or the distribution right under 17 U.S.C. § 106(3).
In Sprigman’s view, the purpose of US copyright law to “promote the progress of science and useful arts” is best fulfilled by nearly eliminating copyright protections because collaboration and creativity occur more frequently when everyone has access to someone else’s work. It’s evidently lost on him that creatives might need to be compensated for their work, and without any copyright protection they wouldn’t have any incentive to create. Who in their right mind would write a book knowing that some tech company could nearly immediately publish an online version – without paying the author for the rights – because they think everyone in the world should be able to read that book?
Sprigman’s “research” bears out his opinions, of course, and those opinions were very well-known before ALI greenlighted the Copyright Restatement project and named Sprigman to lead it. Sprigman gave evidence to the House Judiciary Committee in 2006. He testified about intellectual property rights. Bob Goodlatte, then-Rep.
Mr. Sprigman . . There is a complete record of opposition to any measures adopted by Congress, which were originated within this committee.
Sprigman is known for his dislike of the traditional way in which laws are passed or amended in this country.
He also wrote a book in 2012, “The Knockoff Economy,” which extols the virtues of knockoffs and claims that when there are no “restrictions on copying…creativity remains surprisingly vibrant,” and that “in some [industries] copying actually spurs innovation.”
Sprigman believes copyright to be an unjust barrier to entry. Sprigman said in an article for Houston Law Review:
Copyright can be considered a tax on knowledge. It’s a tax on culture. It also taxes speech. This tax is not only an inconvenience. For those who are unable or unwilling to pay the tax, it is a barrier.
And to those in the music industry who wouldn’t get mechanical royalties from streaming services if Sprigman had his way, he has even more to say, via The Knockoff Economy Blog:
If you remove illegal downloads from your system, it will stop a significant source for promotion.
In his mind, copying isn’t theft, anyway. Sprigman stated this in an April 2012 post on Freakonomics.
“[W]hen Hollywood or the U.S. government says that music or movie downloaders are ‘pirates’ or ‘thieves,’ they are indulging in a bit of loose rhetoric. There are, in general, good moral reasons not to take what doesn’t belong to you. But…copying is not theft.”
And if an “irrational” content creator doesn’t want to give permission for someone to use their copyrighted work, Sprigman believes the courts should be able to declare it fair use anyway. A University of Chicago Law Review article Sprigman wrote in 2011.
In the event that authors or owners of copyrighted materials make unreasonable demands for licensing, secondary works may not be licensed. . . . If a court can reliably identify the existence of creativity or endowment effects it may consider declaring secondary use fair and not infringing.
How could a court “reliably detect the presence of significant creativity and endowment effects”? This kind of information would, undoubtedly be found in the Restatement. (Yes, that’s sarcasm.)
Sprigman’s views are shared by the four Associate Reporters: Daniel Gervais, Lydia Pallas Loren, Molly Shaffer Van Houweling, and R. Anthony Reese.
In 2010 Gervais postulated that piracy was “a new form of social interaction,” and then in 2017, after the Restatement was well underway, argued in the Nashville Post that if we just give users “access to music, films, books, etc., wherever and whenever they want,” we will “limit unpaid unfair uses.” He graciously allowed that “proper financial flows for commercially significant uses” would have to be ensured, but again, who defines “commercially significant”?
Gervais, like Sprigman has close ties with Google.
Gervais was a key player in the prominent copyright suit against Google. Publishers claimed that posting book excerpts online shouldn’t be allowed due to copyright concerns. The ultimate solution would be allowing all books….to be available on the internet, Gervais said.
Van Houweling too believes that copyright just isn’t fair and claims that it “endangers [people’s] expressive opportunities.”
It is now necessary to discuss the risks to copyright and the creative opportunities for those who can’t afford permission to use copied works.
Coincidentally, around the time the Restatement was getting started Van Houweling founded the requisite astroturf “advocacy group,” whose members would undoubtedly churn out letters and “research” favorable to Google’s interests.
The soon-to-emerge Authors Alliance, a copyright revamp advocacy group, provoked skepticism and condemnation from authors’ rights groups, including the Authors Guild… ‘If any of you earn a living as a writer, or hope to, I strongly urge you not to join’ the alliance, said [Board Member T.J. Stiles], calling the alliance an ‘astroturf organization.’
Lydia Pallas Loren, Associate Reporter at Boston University and professor of law, believes copyright law has been misunderstood. Loren wrote in 1999, Open Spaces Quarterly:
The misunderstanding held by many who believe that the primary purpose of copyright law is to protect authors against those who would pilfer the author’s work threatens to upset the delicate equilibrium in copyright law….This dark side, this pervasive misconception, is turning copyright into what our founding fathers tried to guard against –a tool for censorship and monopolistic oppression.
Loren is apparently not a fan of the Music Modernization Act, and in December 2019 made that known in a Boston University Law Review piece entitled, “Copyright Jumps the Shark: The Music Modernization Act.”
And Associate Reporter R. Anthony Reese believes that shutting down illegal file sharing sites is “bad for society.”
There are many, many more examples of the Reporters’ bias and conflicts of interest and how they have manifested in the draft Restatement; the Authors Guild’s January 2018 letter to ALI is a good read, as is the Stop ALI report published by the Content Creators Coalition.
Christopher Sprigman and his colleagues were unable to influence legislation through Congressional testimony, and, as an industry blogger points out, Sprigman counsel on the losing side of two major copyright cases, and supported his mentor’s losing argument in another.
It also must be said that David Lowery and Melissa Ferrick’s class action against Sprigman client Spotify and Lowery’s case against Rhapsody were probably among the most consequential copyright cases (along with BMG v. Cox) in the last five years. Some would say that the Lowery cases set the table for the Music Modernization Act….
So, he was unable to effect change through precedent-setting court cases as the law currently is, and one of the cases he lost might have “set the table” for an update to copyright law that is extremely harmful to those who hire him or have sponsored his research. And now, according to the letter from 10 of the ALI Restatement Advisors referenced above, the Restatement draft contains errors and omissions in the “black letter” law and in some cases contains the Reporters’ own definitions/interpretations in areas that are the subject of spirited debate within the field and portrays them as black letter law.
The Advisors come right out and say that the problems “are not random mistakes.”
“The problems we identify are not random mistakes scattered evenly across copyright’s ideological spectrum. Rather, each of these examples is consistent with and advocates for an interpretation of copyright that does not comport with federal statutory law and restricts copyright protection in a manner not intended by Congress.”
Everything about this Restatement says that it’s an industry-funded attempt to screw individual creators out of proper copyright protections, to the benefit of Big Tech – all while couching the purpose as social justice.
Only question is: Do Sprigman, his associate reporters know what their roles are as useful idiots?
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