Nerd alert. Dangerous nerd alert. And this time, it's not just Jaws and I coming near you for a visit...
The American Law Institute has announced several forthcoming Restatements of the Law, and I have some significant worries about how one of them is going to turn out. Restatements are unofficial — but highly influential, often being adopted by courts as nigh unto definitive — attempts to "restate" (as distinct from "establish") the existing state of the law in specific areas. Sometimes, this is a very good thing indeed: The First and Second Restatements of the Law of Conflicts of Law each advanced both efficiency and the causes of justice, and the Third Restatement appears to be in good hands. Sometimes, however, not so much. The Restatement of the Law of Contracts so blatantly reinforced the "sophisticated commercial parties" presumption in commercial contracts that it has actually inhibited start-up businesses by essentially insulating some unfair practices and clauses from review.
And that leads to a truly troubling problem area just announced: A proposed Restatement of the Law of Copyright. On one hand, it's actually a necessary and helpful concept. Even if the fragmentation of the circuit courts did not lead to illogical decisions when encountering "new" problems but viewed through only the circuit's own precedent (for example, the Second Circuit's obstinate refusal to actually overrule its 1909 Act fair use decisions), the Copyright Act itself is so badly written that it desperately needs clarification. My fear is that this will not be an even-handed effort — not through corruption, but through blind spots. All four of the Reporters identified for the Law of Copyright have backgrounds, and for that matter academic C.V.s, that reflect an incredibly strong pro-transferee bias in their thinking on copyright law. In theory, and even in practice, this can be overcome. It really shouldn't be necessary, though; the Restatement of the Law of Contracts included academics with extensive experience representing and arguing from the perspective of both buyers and sellers in a wide variety of industries.
The particular danger in dealing with copyright from such a limited perspective is that the abstraction called "copyright" is already far too broad, and neglects the process/fixation problem that transferees just never seem to acknowledge, let alone understand. Consider, for a moment, a sculptor. At some point during the production of a sculpture, the part that is being chipped away is still so extensive that the final result has not become clear to anyone (except perhaps — and only perhaps — the sculptor). As more is taken away, more people can infer a final result. At what point, though, does copyright come into play? If the sculptor's process is interrupted for an extended period of time — perhaps a lung infection caused by marble dust — and another sculptor finishes the piece to her own vision, would that infringe any copyright in the incomplete work, or constitute a fair use, or a derivative work? Could one apply the same reasoning to music... and, more to the point, improvisational performance? This is a potential danger of a Restatement approach to copyright: That it will further ossify the judicial tendency to treat all copyrightable works as having the same characteristics, in a rather ironic rejection of the phenomenon of negative space. Now throw in the "how many notes constitute infringement?" problem raised by some really strange decisions from the Sixth Circuit, and attempt to apply whatever principles one can extract from that in Restatement form to digital photography ("how many pixels?"), animation ("how many frames?"), poetry ("how many feet?"), narrative prose ("how many words?"), and so on. As silly as that sounds, that is exactly what courts are asked to do, and Justice Holmes's warning in Bleistein is directly on point — for all lawyers, not just judges.
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250–51 (1903) (citation omitted, emphasis added). I would more than quibble with the bolded phrase: If anything, judges and lawyers tend to be far less educated in the arts, and in the creative process, than the public at large, let alone actual creators of works, and what education they do have tends to be extraordinarily narrow. Indeed, the inherent reliance upon the derivative work as the operative mechanism of the law — and that's not just in the common law — results in a subtle devaluation of creativity in the fundamental thought processes of lawyers and judges that leads to foolishness like the (alleged) parody/satire distinction (which is the equivalent of saying that only sculptures made in marble with a chisel qualify as such, and that no metal castings or chainsawed logs are really "sculptures").
Another problem with a proposed Restatement of the Law of Copyright arises from the ex ante/ex post problem... and from multidirectional ignorance of other perspectives well beyond the failure of judges (and lawyers) to understand, or even acknowledge, creative process. Law based upon transferee rights is inherently ex post. A creative process is inherently ex ante. Although there's a little bit of cross-influence between the two, it is only at the margins — the wrong margins, because it leads to messes like the Garcia fiasco in which a failure to respect transfer (not creation!) formalities redefines what is a creation. There's not a lot to like about the reasoning from either the panel majority or the panel dissent in Garcia, if only because they persist in looking at the entire dispute through the current version of a Restatement (the Nimmer treatise) that is, to put it charitably, overtly written to favor certain transferees in its description of what the law "is" that all too often substitutes a pro-certain-transferees vision of what the law "should be" for "is."
And that, ultimately, is the unstated conceptual problem with a Restatement of Copyright: We already have one, in multiple volumes, in the Nimmer treatise. Whether I agree with it or not, it does represent what courts (and litigants, and even transactors) rely upon as authoritative. However, it's huge and indistinct and at least pretends to nuance. A Restatement, by its very nature, is none of those things. The ALI is a better-balanced source than is a single law professor with a lucrative side gig representing H'wood studios (and his son with a virtually identical background). The fundamental barrier, though, is that copyright is inherently about nuance — even when the particular copyright dispute is just between transferees, determining the scope of what they're fighting about requires substantial attention to particular facts and nuance. Given the market power of the Nimmer treatise — despite the general superiority of both the Goldstein and the Patry treatises, especially for photography/fine arts and music respectively, they've been unable to displace Nimmer, even in those areas — I don't see much hope of success (particularly given the tactics historically employed by the publisher of the Nimmer treatise... which raise copyright-related questions themselves...).