by Paul Alan Levy
The Proposed Restatement of the Law of Consumer Contracts has been discussed on this blog many times. It is exceptionally controversial: it has been opposed by a large coalition of consumer and civil rights advocacy groups (including Public Citizen) as well as attorneys general from roughly half the states. The US Chamber of Commerce and a large coterie of banking and other industry trade groups has also opposed the Draft from a different perspective. As part of his campaign to get the draft rejected by the ALI membership, Georgetown law professor Adam Levitin posted the draft on Dropbox so that his readers could readily access the document and thus understand the basis for the objections. He intended to leave it posted only until the ALI membership conducted its vote on the draft, scheduled to be held at ALI’s annual meeting on May 21.
On the eve of that meeting, ALI’s leadership stepped in with a series of peremptory emails demanding that the document be taken down. It asserted that Tentative Drafts are subject to ALI’s copyright, and that ALI finances its activities by selling copies of its Restatements; in response to Levitin’s invocation of fair use, it insisted that only excerpts can qualify as fair use.
Yesterday, I responded to ALI’s demands, showing that copying the entirety of a copyrighted work can be fair use when justified by the purpose of the use, such as criticism, showing that the other fair use factors supported Levitin’s right to show the public the full proposed draft, and arguing that ALI was engaged in copyright misuse, attempting to disable the "vote no" campaign.
Unfortunately, ALI upped the ante in ways both petty and effective. First, the petty: without any notice or due process, it disabled Levitin’s access to the ALI web site. ALI’s bylaws allow ALI officials to suspend members only for non-payment of dues; members can only be suspended for good cause or for extended nonparticipation in ALI work, and then only by action of the full ALI Council. When the suspension was challenged, ALI restored his web site access fairly promptly.
But its more effective response was to serve a DMCA takedown notice on Dropbox. As a result, I cannot link to the Dropbox so that readers of this blog post can judge the controversy for themselves, Although we have served a counternotice, the delays associated with the DMCA notice and counternotice procedure mean that, unless ALI voluntarily drops its takedown complaint, the Tentative Draft will remain off Levitin’s account until after the Annual Meeting next week. As I have argued previously, the DMCA gives the copyright holder the equivalent of a TRO, without any notice and indeed without any independent judicial consideration. It is a statute that is ripe for change.
Another solution remains possible. Even if ALI does not retract its demand, the best traditions of the Internet call for users to route around the damage. If others choose to post the Tentative Draft to help explain its merits and demerits, not to speak of discussing this controversy, they, too, should be protected by fair use.
A response from ALI's Stephanie Middleton firmly defends ALI's position on the copyright issue, but urges the public to move on from the controversy over its copyright bullying to focus instead on the merits of the proposed Restatement. I give ALI full credit for responding promptly to put this dispute behind it.
We will have to agree to disagree about the copyright issue. She tells us that ALI has issued DMCA takedowns and demand letters in the past, and the implication is that ALI is going to do so in the future. Perhaps these are just brave words trying to show strength instead of humbly admitting a retreat, but if that's what they plan to do, it does seem to me that litigation over this issue is inevitable. Perhaps, however, ALI's leadership will draw some conclusions from this controversy and revise its stance on the extent to which it makes the full text of its drafts publicly available in advance of adoption.