Between Code and Treatise: The Hard Challenge of the Restatement of Copyright

Abstract

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of law governed by a comprehensive federal statute? In this Response, I suggest that, while the existence of a comprehensive federal statute is an important difference between the Restatement of Copyright and common law restatements, an equally important and underappreciated difference is the existence in copyright of an institutional body that is the authoritative interpreter of that statute: the U.S. Supreme Court. Unlike a common law restatement, the Restatement of Copyright must operate in the shadow of an authoritative body charged with bringing clarity and consistency to the law of copyright, the precise task that Restatements are generally charged with. This difference in institutional structure makes the task of the Restatement of Copyright even more challenging, in ways that have not fully been appreciated, and potentially limits the ability of the Restatement to serve as a lasting source of guidance. This in turn suggests that greater care and attention may need to be paid to the ultimate purpose of, and audience for, the Restatement of Copyright.