Christopher Jon Sprigman talks about leading ALI’s first-ever Restatement of copyright law
In May, members of the American Law Institute (ALI) voted to approve ALI’s first-ever Restatement of Law, Copyright, paving the way for its publication. Christopher Jon Sprigman, Murray and Kathleen Bring Professor of Law, oversaw the project in his role as Reporter, along with Associate Reporters Daniel Gervais of Vanderbilt Law School; Lydia Loren of Lewis & Clark Law School; R. Anthony Reese of University of California, Irvine School of Law; and Molly Van Houweling from University of California, Berkeley School of Law. The undertaking was momentous, addressing 83 subtopics and taking just over 10 years to complete. It also generated a good deal of controversy.
For decades, courts and practitioners have relied on ALI Restatements as highly respected and authoritative distillations of the law in a wide range of areas, from torts to property to conflict of laws. NYU Law faculty members have long played leading roles on ALI projects. Recently, for example, Professor Oren Bar-Gill and Boxer Family Professor of Law Florencia Marotta-Wurgler ’01 served as two of the three co-Reporters for the Restatement of the Law, Consumer Contracts, published in 2024. And in October, the ALI tapped Mark Geistfeld, Sheila Lubetsky Birnbaum Professor of Civil Litigation, to head its initiative looking at civil liability risks associated with artificial intelligence.
As a topic, copyright presented some unique challenges. We asked Sprigman about the project, including some of the highs and lows.
ALI Restatements in a number of areas of law date back to the first half of the 20th century. Why did it take them so long to tackle copyright?
The American Law Institute has been around for more than 100 years. It’s a group of about 4,500 lawyers, academics, and judges from all across the country, and also some participants from abroad, who work to produce Restatements, among other things. Restatements aim to set out a faithful understanding of a particular field of law, and also, where courts have been inconsistent or less than perfectly clear about a legal rule, to offer, if possible, some views on the best understanding of the law.
My sense is that the ALI’s decision back in 2014 to launch its first Restatement of the Law, Copyright reflects the growing importance of that legal field to the health of our economy and society. Plus the Copyright Act of 1976 has been around long enough now that there is a deep storehouse of judicial interpretations of many of the key provisions of that statute, so all the raw materials for a Restatement are in place.
Restatements typically have dealt with common law, while copyright is primarily statutory. How did that shape the project?
Yes, the Copyright Act of 1976 that I mentioned is at the center of the copyright field and so, of course, plays a central role in the Restatement. However, the Restatement does not focus only on the statute, because the Copyright Act is not, in any sense, comprehensive. For some central questions in copyright law—like “What is copyright infringement?”—the statute says not a word. So courts have been tasked with filling in all the details about how to determine whether particular conduct is or is not copyright infringement. The work of the copyright Restatement in this area is very like that of other Restatements—we focus on understanding what the courts have done.
Then there is the fair use doctrine, which is another central part of copyright law. There’s a fair use provision in the statute, 17 U.S.C. § 107, but it would be wrong to say that we just “apply” the text of that provision. Congress added that provision after courts had created and developed the fair use doctrine, and Congress intended for courts to continue their development of the doctrine. Every fair use case involves a kind of analysis that’s structured by that statutory provision, but is fitted by courts to the facts of particular cases. I think it’s accurate to say that courts are at least equal partners in the development of fair use law. And so in this area the Restatement appropriately focuses both on statutory text and its application by courts in different contexts.
Finally, there are some parts of the Copyright Act—for example, the very complex rules governing the so-called “mechanical” licensing of musical compositions—where the statute specifies rules in great detail, and where there is comparatively little room for judicial interpretation. The Restatement has little to add in areas like these, and so you’ll see we don’t have sections specifically on music licensing, or on other specific industry arrangements that Congress has specified in great detail.
In what ways did working on this project change how you think about copyright law?
Like every ALI project, the copyright Restatement benefited from the participation of a large group of advisors. These were experts from every corner of the copyright world, including Hollywood, the recording industry, commercial publishing, software, academia, libraries, and public interest organizations. Hearing from these experts gave me a deeper understanding of how these various parts of the community use, and view, copyright law. That is a particularly valuable part of the ALI process.
Restatements are snapshots of law as it exists at the time the Restatement is being compiled. But many say developments in information technology have far outpaced the ability of various bodies of law—including copyright—to keep up. How did this factor into your approach?
I think actually that copyright is future-proofed a bit better than many areas of the law. If you look at copyright law’s core principles, they are framed in general terms that are meant to be technology-neutral. And, as we’ve shifted from an analog to a digital world, the law has mostly stayed stable, with some adjustments, such as the Digital Millennium Copyright Act, which was enacted in 1998, just as the Internet was gaining wide use. That’s not to say that there aren’t some difficulties as courts have worked to apply copyright law in new technological and social contexts. But it’s not accurate to say that copyright law is outdated, either.
A huge issue now is whether artificial intelligence companies are infringing copyright by vacuuming up vast quantities of content from the internet (such as newspaper websites and photo archives) and using it to train their large language models. Where does the Restatement of Law, Copyright come down on this?
The short answer is that the Restatement doesn’t have a particular view on the training of generative AI models, because there is no law yet on that particular point to restate. However, the Restatement does have a very detailed chapter on fair use, and the principles outlined in that chapter are the ones that will undergird the analysis in the judicial opinions that will soon address that issue.
Can you describe some of the controversy that surrounded this project?
Restatement projects have designated “advisors” and “liaisons,” who serve in a consultative capacity. Some of our advisors were against the project from the start, arguing that there was no need for a Restatement because the Copyright Act tells us what copyright law is. For the reasons I’ve explained, that is simply not accurate.
Some other advisors, in particular certain of those who come from content-producing industries, were wary of the ALI entering the conversation—partially, I think because they are not familiar with the ALI process, and then also partially because once they became familiar with it they saw that they could not influence it in the way they are accustomed to—i.e., by lobbying. What matters in the ALI process is the quality of your arguments. Not other forms of pressure.
Then there were the usual disagreements over substance—but I would note that these were in general relatively minor. These kinds of disagreements are entirely normal and, indeed, inevitable in a project of this scope.
Now, there were some advisor and liaison resignations prior to the approval of the Restatement. Some of the resigning advisors were people we’d never received comments from, and others only once or twice closer to the beginning of the project. For other resigning advisors who were more involved in the process, the complaint was that we hadn’t taken their advice or hadn’t listened to them. And I just have to say, respectfully and without rancor, that is simply not true. The Reporter team kept careful records over a decade of what comments have come in and how we’ve responded to each of them, and every comment that has come in—literally every one—has been considered by the Reporter team and discussed. In fact, many of them have been adopted, including comments from the people who were against the project from the get-go. Not all comments we received were adopted. But of course, that’s always true in a Restatement process. No one’s views are adopted in full. Including mine.
In any event, the controversy, such as it is, didn’t appear to have an effect on the ALI Membership, which voted overwhelmingly to approve the final Tentative Draft. There were several hundred members in the room, and I didn’t hear a single nay vote. So at the end of this process, the positive vote of the ALI Membership represents the Institute’s confidence in this project.
What impact do you expect the controversy to have on how the Restatement is regarded?
I expect that courts and practitioners will rely on the copyright Restatement for the same reason they have long relied on Restatements generally, which is that they trust the ALI process—in fact, to a certain extent, the ALI’s process is the product. You can get a good deal of detail about that process on the ALI website, but in brief, every section of the Restatement went through several drafts: the Preliminary Draft, the Council Draft, the Tentative Draft. And every section received input from the advisors, from the Members Consultative Group, from the ALI Council, and from ALI members. The Reporter team reviewed and discussed every comment we received, and drafts changed over time to reflect those discussions.
The most important point is that the ALI process produces a consensus. Not a consensus that everyone agrees to in every part—no one, not even the Reporters, agrees in full with every point in any Restatement. The idea is to achieve a consensus to the work in aggregate, which is arrived at through a process that takes years and requires a lot of work by a lot of people. And that makes it very different from a treatise or a law review article, which is usually the work of a single author or at most a small group.
I think the reason courts rely on Restatements is because they emerge from the ALI process, which makes sure that different views are heard, considered, and where appropriate, adopted.
What did you enjoy most about working on this project?
For me the best part of this project was the chance to work with the Associate Reporters—Molly Van Houweling from Berkeley, Lydia Loren from Lewis and Clark, Daniel Gervais from Vanderbilt, and Tony Reese from the University of California, Irvine. We worked together as a team on all 83 sections of the Restatement. One of us might write most of the first draft of a particular section, but then all of us would edit and revise.
We had weekly calls where we would do this together on zoom. Over a period of more than 10 years, we had zoom calls virtually every week—we took to calling it our “copyright cave,” and it was a great retreat from some of the crazy stuff that’s happened to America and the world in the past decade. Working with the team was a wonderful experience for me, because these are terrific copyright scholars and great people, and we work so well together. I will miss that!