Copyright As Censorship: American Law Institute Uses Copyright To Stop Discussion Of Controversial Publication Prior To Vote

The American Law Institute, among other things, publishes various "Restatements" of law, which it describes as follows:

Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.

Courts frequently rely on these "Restatements" to better understand the state of the law today, including how various courts have ruled on the law (so-called "common law.") For that reason, the Restatement process can get fairly controversial (including an ongoing controversy over the Copyright Restatement, which legacy copyright insiders are falsely claiming is somehow biased against legacy copyright companies). Leaving that particular controversy aside, it does appear that the ALI itself may need a refresher course on how copyright works, because it's currently abusing copyright law to try to prevent open discussion about another controversial Restatement.

ALI's proposed Restatement of the Law of Consumer Contracts has similarly been beset by vociferous criticism from a variety of different parties. There's a vote pending on the latest draft next week, on May 21st at the ALI's annual meeting. Georgetown law professor Adam Levitin posted a draft of the proposed Restatement on Dropbox so that his followers could read it and understand what was in it prior to the vote.

Apparently, the ALI had other thoughts in mind and, after first threatening Levitin, it issued a DMCA takedown to Dropbox to remove the file. It did this after first emailing Levitin and demanding he take it down and then (falsely) insisting that "fair use is excerpts" and saying that it relies on its copyright "to pay the light bill."

After Levitin told them he believed it was fair use, ALI went ballistic. As described by Public Citizen's Paul Levy:

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 then there's the second bit:

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.

This is a key point that we have argued over for years. The notice-and-takedown provision of the DMCA raises serious 1st Amendment issues, in that it acts as a way to use the power of the state to silence speech without any judicial review. That would seem to be unconstitutional.

Levy also sent a letter to ALI explaining why it is wrong concerning its u