Last week, I’ve been taking a close look at the proposed Combating Online Infringement and Counterfeiting Act (COICA), which was unanimously approved by the Senate Judiciary Committee on November 18th. On Monday, I examined what the bill does, and on Wednesday I addressed due process criticisms.

Today I want to take a look at the most serious criticism: that COICA amounts to “censorship.” It’s a little tough, actually, to find discussion of COICA online that doesn’t mention censorship. Much of the criticism centers around the characterization of the COICA proceedings as a “prior restraint.” Others have expressed concerns that the bill would be “overbroad.”

Prior Restraint

The First Amendment says “Congress shall make no law … abridging the freedom of speech.” The Supreme Court has held that:

[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.1

The general rule regarding prior restraints, as restated by Mark Lemley and Eugene Volokh, is that “Speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment.”2 In practice, this means that courts are reluctant to grant preliminary injunctions in cases involving speech (permanent injunctions, however, are fine, since they come after a final judicial determination that the speech at issue is unprotected). But when it comes to copyright infringement cases, as Lemley and Volokh point out,

[P]reliminary injunctions are granted pretty much as a matter of course, even when the defendant has engaged in creative adaptation, not just literal copying. How can this be? True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn’t protect copyright-infringing speech against such a restraint.

COICA provides that a domain name may only be blocked after an in rem proceeding is commenced and a court issues an injunction — preliminary or otherwise. As such, under current law, COICA’s provisions are no more a prior restraint than the preliminary injunctions routinely ordered in infringement cases. Now, one may argue that preliminary injunctions shouldn’t be available in copyright infringement cases as a whole, that despite case law to the contrary, they amount to constitutionally prohibited prior restraints. This is the argument made by Lemley and Volokh. However, even accepting such an argument, there is one exception: “piracy and other ‘easy’ cases.”3 Lemley and Volokh explain that “most obvious cases of copyright infringement won’t implicate the prior restraint rule at all”:

The danger of preliminary injunctions is that they may temporarily suppress speech that ultimately proves to be protected. If a judge can, at the time of the preliminary injunction hearing, make a reliable finding that the speech is constitutionally unprotected, rather than just that it might be unprotected, then there should be no problem with issuing the preliminary injunction.

This could happen whenever the defendant has made identical or nearly identical copies of the plaintiff’s works, and there is no claim of fair use, but only some other copyright defense (such as that defendant has a supposedly valid license, or that plaintiff’s copyright wasn’t properly renewed, or something along those lines). Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category.

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement. Harper & Row, as we read it, divides uses of another’s work into two areas: on the one hand, use of another’s idea or facts, or fair use of another’s expression, which is constitutionally protected; on the other hand, use of another’s expression that’s not a fair use, which falls within the “copyright exception” to the First Amendment. So long as Congress and the courts restrict speech that’s within this copyright exception, there’s no First Amendment problem. And while the First Amendment imposes certain limits on copyright law — the requirement of copying, the idea-expression dichotomy, and some aspects of the fair use doctrine — it does not constitutionalize every nuance of the Copyright Act.

COICA’s provisions are targeted at these obvious cases of copyright infringement. The language of the bill reflects this: blocking only applies to sites “dedicated to infringing activities,” which include sites “primarily designed” to offer infringing works “in complete or substantially complete form” and only when “such activities are the central activities” of the site (emphasis added).

In Center for Democracy & Technology v. Pappert (CDT v. Pappert), a District Court case cited by several law professors in their letter in opposition to COICA, a Pennsylvania state law allowing websites to be blocked for containing child pornography was struck down as unconstitutional because it amounted to a prior restraint.4 The case has been used because of the similarities between the PA law and COICA in blocking internet sites based on content. However, the similarities end there. The Pennsylvania law provided substantially different procedures than COICA does, and it was specifically those procedures that led to the court’s conclusion.

As the court in CDT v. Pappert explains:

The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission’s practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1963) and a procedure that allowed courts to order pre-trial seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).

Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. [Citations removed]5

Unlike the Pennsylvania law, COICA requires the government to prove by a preponderance of the evidence that a particular site is dedicated to infringing activities, an in rem proceeding is not an ex parte proceeding, and the registrant of the domain name does receive notice and an opportunity to be heard.6 Thus, any comparisons between COICA and the law in CDT v. Pappert are inapposite and superficial at best.

Overbreadth

Besides the claim that COICA would act as a prior restraint, critics contend that the bill also violates the First Amendment because it would “suppress vast amounts of protected speech containing no infringing content whatsoever.”7 In other words, even though copyright infringement isn’t protected under the First Amendment, other speech that is protected will be affected when the domain name for the entire site is blocked.

Any law aimed at nonprotected speech, no matter how well written, can potentially reach protected speech. To reflect this reality without leaving lawmakers powerless to address harms of nonprotected speech or conduct, the Supreme Court has developed the “substantial overbreadth” doctrine: “particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep” — if it is, the law is void on its face.8

A law that is not substantially overbroad on its face may nevertheless be found unconstitutionally overbroad if a substantial amount of protected speech is affected by the law as it is applied. Laws affecting speech must be narrowly tailored so that even if they are not substantially overbroad on their face, a defendant engaged in protected speech does not find himself within the laws scope.9

A court may find a law not narrowly tailored if less restrictive means exist to accomplish the legitimate sweep of the law.10 In CDT v. Pappert the District Court took the less restrictive means test to mean that “if a statute regulating speech provides distributors of speech with alternatives for compliance and the majority of distributors reasonably choose an alternative that has the effect of burdening protected speech, the statute is subject to scrutiny as a burden on speech.”11

Courts are reluctant to declare laws substantially overbroad on their face. “[The overbreadth doctrine] has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.”12 The court in CDT v. Pappert, for example, held that the law allowing a website to be blocked for providing access to child pornography was not overbroad on its face; it did not prohibit nor chill protected speech.13

COICA is not substantially overbroad on its face as well. It targets only websites dedicated to infringing activities — conduct that is not protected by the First Amendment. Like the statute in CDT v. Pappert, it does not prohibit nor chill protected speech.

It is doubtful that COICA would also be overbroad as applied. The language of the bill — specifically the requirement that a website’s infringing activities must amount to the “central activities” of the site — limits the breadth of COICA to unprotected speech by definition. No doubt some protected speech would end up being blocked, but the First Amendment is not a shield for copyright infringement, and courts have little sympathy for defendants in situations like this who create an “all-or-nothing” predicament like this.14

That’s not to say that COICA would result in no cases where a substantial amount of protected speech may be blocked. No bill operates outside the constraints of the Constitution; the First Amendment is available to everyone no matter what law is at issue. It’s possible that a specific case could arise where a specific defendant’s freedom of speech is infringed by COICA. That doesn’t mean, however, that COICA itself is unconstitutional, and it certainly doesn’t mean COICA is a vehicle of censorship.15

Footnotes

  1. Nebraska Press Assn. v. Stuart, 427 US 539, 559 (1976). []
  2. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). []
  3. This is one example of why I think it’s important to draw distinctions between “creative” and “consumptive” uses of copyrighted works. []
  4. F. Supp. 2d 606 (ED Pa, 2004). []
  5. CDT at 656-57. []
  6. See my previous post, COICA: Due Process. []
  7. Law Professors’ Letter in Opposition to S. 3804 (Combating Online Infringements and Counterfeits Act). []
  8. Broadrick v. Oklahoma, 413 US 601, 615 (1973). []
  9. For simplicity’s sake I’m purposely avoiding discussion of the different levels of scrutiny that are involved in First Amendment analysis by courts. []
  10. See, for example, United States v. Playboy Entertainment Group, Inc., 529 US 803, 813 (2000). []
  11. CDT at 652. []
  12. Broadrick v. Oklahoma, 413 US 601, 613 (1973). []
  13. CDT at 648-49. []
  14. See, for example, Dr. Seuss Enterprises, LP v. Penguin Books, 109 F. 3d 1394, 1406 (9th Cir, 1997). []
  15. See, for example, Virginia v. Hicks, 539 US 113, 123-24 (2003). []

On Monday, I discussed the Combating Online Infringement and Counterfeits Act, which had recently been unanimously approved by the Senate Judiciary Committee. Among the typical litany of complaints, critics claim that the bill lacks due process.

  • Public Knowledge has posted a letter from NetCoalition opposing COICA, raising several concerns revolving around due process.
  • The Competitive Enterprise Institute warns that the bill lacks “crucial safeguards to protect against the unwarranted suspension of Internet domain names.”
  • Wired magazine says, “In short, COICA would allow the federal government to censor the internet without due process.”
  • Legal scholar David Post writes at Volokh Conspiracy, “It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity.”
  • Even notable IP blog IPKat has stated, “There is no provision in the Bill requiring a hearing, trial or defence from the party served with one of these orders.”

Does COICA lack due process? To answer this question, let’s take a closer look at what we mean by “due process” and then see if the bill lacks it.

Due Process of Law

Due process is an ancient and fundamental concept in the rule of law. In his book Due Process of Law Under the Federal Constitution (1906), Lucius Polk McGehee describes it like this:

DUE Process Of Law, as the meaning of the words has been developed in American decisions, implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. The phrase is and has long been exactly equivalent to and convertible with the older expression “the law of the land.”

“Notice” and a “hearing” are important components of due process of law. COICA provides for both of these. Let’s look at the hearing first.

Hearing

In order to block the domain name of a site “dedicated to infringing activities,” the Attorney General must commence an in rem proceeding in a federal district court. As I said on Monday, an in rem proceeding is a full-blown lawsuit, except the defendant is property rather than a person.

That means the Attorney General has to present evidence to a judge and establish — by a preponderance of the evidence1 — that the particular site is “dedicated to infringing activities” as defined in the bill. This is how any lawsuit works. The idea that COICA provides some kind of automatic process where the AG can blacklist any site at will, as some critics seem to suggest, is entirely off-base. Courts are not in the business of “rubber-stamping” legal claims, even those made by the government.

But if the defendant in an in rem proceeding is property, do we truly have an adversarial hearing? Contrary to David Post’s odd statement that the property itself would have to show up for an adversarial hearing, it is the owners of the property in an in rem proceeding who intervene in court to argue the case. Generally, anyone with a colorable ownership or possessory interest in the property can appear in an in rem proceeding.2

COICA also provides that:

On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any further activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure.

Again, the court would issue any of these orders the same way it would issue them in any other case — no due process infirmaries present. But some critics have suggested that the legal obligations these orders trigger cause due process concerns.

Once an injunction is issued under this provision of COICA for a non-US domain, the Attorney General can serve the order on internet service providers, financial transaction providers, and online advertising providers. Those providers are than required to block the domain or prevent it from using their services.

These requirements are very limited. Service providers need only take “technically feasible and reasonable steps” to comply with the order and are not required “(aa) to modify its network or other facilities to comply with such order; (bb) to take any steps with respect to domain name lookups not performed by its own domain name system server; or (cc) to continue to prevent access to a domain name to which access has been effectively disabled by other means.” The other providers are also only required to take “reasonable” measures. Any entity receiving one of these court orders is granted legal immunity from any cause of action arising out of the reasonable measures taken to comply with the order.

In addition, the only means of enforcing these court orders is for the Attorney General to file for injunctive relief in court. Again, the party is afforded all due process of the law as anyone would have when sued for injunctive relief. COICA also provides for an additional defense for such parties: “A showing by the defending party in such action that it does not have the technical means to comply with this section, or that the order is inconsistent with this section, shall serve as a defense to such action to the extent of the inability to comply or such inconsistency.”

Finally, the bill provides that any owner or operator of the domain name, as well as any entity receiving a court order under COICA, may petition the court for modification of the order. The court may modify, suspend, or vacate the order based on evidence that “(A) the Internet site associated with the domain name subject to the order is no longer, or never was, dedicated to infringing activities; or (B) the interests of justice require that the order be modified, suspended, or vacated.”

Given all of the above, it’s difficult to see how the charge that any party affected by COICA won’t get the chance to be heard can hold up.

Notice

Due process requires the government to provide notice, or notification, to anyone whose life, liberty, or property is subject to deprivation in a legal proceeding. The notice must be sufficient; “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”3

COICA requires the Attorney General to both send “a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available” and publish “notice of the action as the court may direct promptly after filing the action.” These notice provisions are sufficient under existing law.

Some critics have raised the concern of a website whose domain name registrant is different from the owner or operator, leading to the problem that the owner of a website wouldn’t receive notice of a COICA action. It is difficult to see how this is relevant for due process. COICA provisions are limited to an in rem proceeding against the domain name itself, not the website. The universe of people aside from the registrant who can show a colorable ownership or possessory interest in the domain name to intervene in the in rem action would likely be very small.

Conclusion

I believe COICA satisfies due process under existing law. But you don’t have to take my word for it.

The Anticybersquatting Consumer Protection Act, passed in 1999, provides for in rem actions against domain names. That’s over ten years where courts have heard due process challenges, many of which are similar to the ones being raised concerning COICA.4 The provisions in COICA reflect that experience and are written in a way to ensure the due process of law.

Footnotes

  1. 18 USC §983(c). []
  2. US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009). []
  3. Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983). []
  4. See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000). []

This past week, the Senate Judiciary Committee unanimously approved the Combating Online Infringement and Counterfeits Act (COICA, S.3804). The bill is targeted toward websites whose central activity is dedicated to infringement. It allows for seizure of the domain names of such sites when they are located in the US, and it requires service providers, advertising providers, and financial transaction providers to take reasonable measures to prevent their services from being used by such sites located outside the US.

COICA was introduced by Senator Patrick Leahy and cosponsored by seven Republican and eleven Democratic senators. Along with the unanimous approval by the Judiciary Committee, the bill has wide support among labor unions, business and trade organizations, and companies.

But as with any effort to promote the progress of the useful arts and sciences, the Judiciary Committee’s approval has set off a fresh round of cries that the “sky is falling” on free speech, internet freedom, and due process. Those who believe that copyright should benefit everyone except those who actually create the stuff that enriches our lives are ramping up their rhetoric of “blacklists” and “censorship.”

I wrote previously about COICA. Since it is moving closer to becoming law, I thought it merited some more attention to clear up some of the misunderstandings surrounding the bill. Specifically, I wanted to take a closer look at why COICA is needed and what it does.

Why COICA is Needed

The last bit of US legislation to substantively address online infringement was the Digital Millennium Copyright Act (DMCA), which was passed twelve years ago. The web was still in its infancy — Google was a month old when the bill passed. Since then, content industries have struggled to find ways to reduce internet piracy. The recording industry at first targeted intermediaries such as Napster and Grokster, moving next to its much-publicized lawsuits against individual filesharers, a campaign that ended nearly two years ago. More effective methods are needed.

Comic book artist and writer Colleen Doran provides a first-hand account of the effects online piracy has had on small creators and why legislation like COICA is needed. In The ‘Real’ Victims of Online Piracy, published in The Hill’s Congress Blog last Wednesday, she writes:

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

[…]

Everyone gets paid – manufacturers of computers, iPads, electricity, bandwidth – everyone except the creators of content.

It costs big bucks to finance these pirate sites. Major advertisers and open source ad providers like Google pay them.

Congress is moving on a bill that promises to cut funding for pirates, and the usual suspects who have become accustomed to getting whatever they want online without paying for it are crying foul.

Both Bob Pisano, president of the MPAA, and the Global Intellectual Property Center have also recently written about the detriment of online piracy to creators and consumers and how COICA helps address the difficulties and challenges of enforcing copyright online.

Others have noted the specific need for encouraging advertising providers to block their services from rogue pirate sites, sites that often rely primarily on ad revenue for their profits. As Patrick Ross points out, advertising providers may be reluctant to block such sites since it would mean giving up market share or subject them to liability. COICA solves these problems by clearly identifying sites with primarily illegal purpose and extending legal immunity to service providers who take reasonable and technically feasible measures to block service to those sites.

The idea for a bill like COICA has been percolating for some time now. The Information Technology & Innovation Foundation identified a need for the types of policies enshrined in COICA in December 2009 in its report Steal These Policies: Strategies for Reducing Digital Piracy. From the executive summary:

Other approaches, however, such as blocking websites, may require governmental approval before industry can act. Toward this end, there is a need for a process by which the federal government, with the help of third parties, identifies websites and organizations around the world that are materially engaged in piracy so that ISPs and search engines can block them, advertising networks and other companies can refuse to place ads with them, and banks and credit card companies can refuse to process payments to them.

What COICA Does

The Combating Online Infringement and Counterfeits Act targets the worst of the worst infringing sites — what have been called “rogue websites.” These sites offer little except access to first-run movies, entire television series, or album after album of music. The bill refers to these sites as “dedicated to infringing activities.” “Infringing activities” includes:

offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays.

A site is “dedicated” to such activities if, “when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.”

COICA would provide the US Attorney General with the authority to commence in rem proceedings against the domain name of a web site that is dedicated to infringing activities. Most civil litigation involves someone suing someone else — an in personam proceeding. A proceeding in rem, by contrast, is against specific property — often represented in court by the owner of the property as a third-party claimant. Aside from the difference in who’s suing whom, in rem and in personam proceedings are, by and large, the same: they are commenced in the same courts, subject to the same rules of evidence and rules of civil procedure, and end up in trial if not resolved before then.

Along with federal court rules and constitutional limitations that apply to all in rem proceedings, domain name forfeiture proceedings under COICA are governed by Title 18, §983 of the US Code, General Rules for Civil Forfeiture Proceedings. These provide, among other things, that the government has the burden of establishing by a preponderance of the evidence that the property is indeed subject to forfeiture — that is, the Attorney General has to prove to the judge that the web site is “dedicated to infringing activities.” They also explicitly provide for an “innocent owner” defense where the owner of the property had no knowledge that it was used for illegal purposes.

Upon commencement of the in rem proceeding, the court may issue a temporary restraining order, preliminary injunction, or permanent injunction against the domain name. These types of court orders are governed by existing law. To get a preliminary injunction, for example, the Attorney General “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”1

Any order granted against a domestic domain is then served on the domain name registrar or registry, which is required to suspend operation and lock the domain name. Orders granted against non-domestic domains are to be served on service providers, financial transaction providers, and online advertising providers. Those providers are then required to take reasonable measures to prevent their own services from being used by the web site associated with the domain name.

In my previous post on COICA, I mentioned some of the advantages such a proceeding has over other methods of enforcing copyright in the online realm. I also mentioned how COICA is not really a significant departure from existing law. It is more an optimization of existing law to address some of the most difficult challenges of online piracy.

Asset forfeiture has played an important role in law enforcement for centuries. Today, in the US, asset forfeiture is typically available either as part of sentencing for a criminal defendant or separately through an administrative or civil in rem proceeding. Civil forfeiture authority, however, is not inherent; it must be provided through legislation.2

Forfeiture of infringing materials and property used to commit or facilitate the commission of copyright infringement is already provided for by law. This past summer, US authorities carried out Operation in Our Sites, an initiative that, among other things, resulted in the seizure of seven domain names for websites engaged in online piracy.

COICA is not the first law to expressly allow for civil forfeiture of domain names via in rem proceedings: the Anticybersquatting Consumer Protection Act (ACPA, 1999) provides for them as well. Provisions in COICA involving situs and venue mirror those found in ACPA.

Financial service providers and online advertising providers who provide services to sites dedicated to infringing activities already exists in the law. Last month, luxury goods manufacturer Gucci got a permanent injunction against two financial service providers that provided services to websites selling counterfeit goods. Not long after that, on October 29th, Warner Bros. and Disney won damages and an injunction against Triton Media, a company responsible for placing advertising on sites dedicated to copyright infringement.

Essentially, COICA sets forth an expressly defined procedure for reducing online piracy through civil forfeiture of domain names, as opposed to an ad hoc approach that could be cobbled together under existing law. In addition, it establishes clear safeguards to ensure the process is effective and legally sufficient. It gives clear guidelines to third-party operators like financial transaction providers and advertising providers so that they are assured of knowing what is expected of them as legitimate businesses while also providing immunity from liability resulting in technically feasible and reasonable measures to block sites operating outside of the law.

Later this week, I’ll take a closer look at some of the criticisms and concerns that have been raised over COICA.

Footnotes

  1. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). []
  2. LII Backgrounder on Forfeiture. []

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life.1 Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:


(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.”2 Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws.3 The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4 are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes5 and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright.6 It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne,7 when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS.8 musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.”9 This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd,10 and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

Footnotes

  1. Who’s Who, 1907, pt II, pg 433. []
  2. See the New York Times for an explanation of this saying. []
  3. According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” []
  4. Property is theft” — Pierre-Joseph Proudhon. []
  5. Roughly, “bees make honey not for themselves.” From Virgil. []
  6. I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” []
  7. I.e., prior to the Statute of Anne, considered the first modern copyright law. []
  8. MS. = manuscript. []
  9. The Copyright Act 1842 extended copyright to musical compositions in England. []
  10. Thomas Noon Talfourd. []

Earlier this month, I wrote about the Copyright Principles Project, an independent initiative that presented twenty-five recommendations for reforming copyright law for the digital age. One of the reasons I felt it was worth mentioning was because, unlike many other reform efforts, the Copyright Principles Project included participants from a wide variety of perspectives: academics, content industry representatives, and private practitioners.

One of the contributers to the Project was Jeremy Williams, Senior Vice President and Deputy General Counsel of Warner Bros. Entertainment. This past April, Williams joined Pamela Samuelson — the Project’s coordinator — and several other Project contributors for a two-day conference marking the 300th anniversary of the Statute of Anne, the first modern copyright law. Hosted by the Berkeley Center for Law & Technology, the Copyright @ 300 symposium used the anniversary as an opportunity to look back at “the law’s influence on the history and evolution of the Anglo-American copyright tradition” and look forward to copyright law’s challenges in the future.

Williams spoke to attendees at a seminar titled “Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.” The Berkeley Center has audio from the event available online. I recommend giving it a listen; Williams talks about the importance of copyright attitudes for the future and touches on a number of themes I’ve discussed here from a perspective that is seldom seen in online discussions and academic literature.

Copyright attitudes

Williams joshingly introduces himself as a “defender of those poor, down-trodden Fortune 500 companies.” The health of copyright in the future, he states, depends entirely on the attitudes of “Digital Natives.” It will not be long before the generation that never knew a world where everything is connected will be “lawmakers, norm-makers, and consumers.” Williams goes on to ask, “How do we promote respect for good copyright attitudes” when millions are simultaneously authors, distributors, and infringers.

This past Monday, I pointed out a recent paper that sheds some light on what these “Digital Natives” currently know and think about copyright law. Williams’s talk reflects a recognition of what the authors of that paper have found to be true. With those current attitudes in mind, he lays out what he considers should be the two main goals of copyright policy as it looks ahead:

  1. Empower individuals as creators. Policymakers and stakeholders should try to steer clear of talk about the “wrongness” of noncommercial copying. Extending this goal to small producers, content creators should strive to make licensing of their content for creative uses cheap and easy, and give wide berth for fair use.
  2. Move enforcement away from individuals and toward digital intermediaries.

Creative vs. Consumptive Uses

Next, Williams discussed the importance of distinguishing between creative and consumptive uses, a distinction I have previously made on this site. I wrote that the distinction is important to make because you’re dealing with an entirely different set of questions when you talk about fair use, remixes, and mashups then when you talk about filesharing. As it turns out, this is exactly the approach that Williams suggests is important for the future of copyright.

He says that promoting healthy copyright discussion requires a different approach for both types of uses: increased tolerance toward creative uses and increased focus on widespread, uncompensated dissemination of consumptive uses and the harm they cause.

From his own experience at Warner Bros., Williams identifies the primary creative uses that major creative companies deal with most often: fan uses and, as he puts it, ad hoc uses, like mash-ups. He suggests that companies like his should tolerate and support noncommercial uses — even tolerate some commercial uses. This is the approach he has taken, giving the okay to fan sites even when they use incidental advertising to support the site but drawing the line at fan merchandising. For third-party user-generated content sites like YouTube, he advocates “smart” technological filters that can identify uses of copyrighted works but allow creative uses like mash-ups.

Most importantly, Williams reiterates that these kinds of discussions should not revolve around copyright law. Rather, the focus should be on fostering mutually respectful behavior between creators and users.

Individual vs. Industrial Responsibility

The rest of Williams’s talk seemed to continue a meta-theme of drawing distinctions to further the health of copyright in the future. The next distinction he discussed was between individual responsibility for upholding copyright protection and “industrial” responsibility.

Basically, Williams says we should move away from placing responsibility on individuals as much as possible. People should be able to enjoy copyrighted works without thinking about copyright law.

The digital intermediaries — user-generated content and social networking sites — should instead be induced to help reduce the harm of widespread, uncompensated dissemination of copyrighted works, and copyright owners should be allowed to share in the value their works provide to these sites. Interestingly, Williams believes we should reduce the present focus on secondary liability doctrines. These doctrines suffer two disadvantages: because they require a showing of direct infringement, there is still a focus on individual behavior, and the factors involved in determining secondary liability — knowledge, inducement, etc. — are difficult to apply, leading to an uncertain and muddy legal landscape.

Williams’s recommendation? “Be direct about it.” Those who can protect copyright, should protect it. Those who can are likely to be the previously-mentioned social networking and user-generated content sites. Williams thinks the best way to implement this is through voluntary agreements and reasonable technological measures, with the law operating in the background as a way of inducing these sites to help solve problems in ways that are not commercially harmful to them.

Protest vs. Obliviousness

While you can find those people who embrace piracy as a “cause”, who believe they are making a “statement” or protesting against somebody or something when they share files without permission, the majority of people, especially digital natives, download simply because they can. Williams relates a conversation he had with his daughter. He asked her what her friends “think” when they choose to download music off p2p or torrent sites; she answered, “they don’t think.”

Unauthorized files are simply “there,” and unless you know otherwise, it is not unreasonable for someone to assume that if you find something online, you can download it. The future of copyright depends on addressing this obliviousness and helping the next generation understand the value copyright gives to creators.

Good Guys vs. Bad Guys

Williams wraps up his remarks by pointing out the one distinction that shouldn’t be made. Both sides in the copyright debates need to move past an “us vs. them” mentality, a “good guy-bad guy” way of thinking. Copyright is good for society and culture. Most people recognize the value of creativity and of artists. The emphasis should move away from the rules of copyright — ie, the notion that copyright exists solely to punish infringers — and toward the role of copyright.

Media Law Prof Blog points out a recent paper that examines the attitudes and beliefs of youngsters about copyright: Youth, Creativity, and Copyright in the Digital Age, by John Palfrey, Urs Gasser, Miriam Simun, and Rosalie Fay Barnes. The abstract reads:

New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, “Digital Natives” — young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways — are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.

The paper is worth reading and should prove valuable to other scholars and commentators for its research. The conclusions of the authors shouldn’t be too surprising to many of you, but it is useful to have confirmation of the assumptions of attitudes about copyright law among young people. In addition, the authors provide quite a few interesting quotations from “Digital Natives” which adds depth to the qualitative findings.

Among other things, the researchers found that confusion about copyright starts with the very basics: what does copyright ‘mean’? “Many of the young people we spoke to confused copyright with notions of plagiarism or patent protections; for example, one high school student wrote: ‘[copyright is] protected by law so you can’t steal ideas.’” Anyone familiar with copyright law won’t be surprised by that finding, as conflation of copyright with patents or plagiarism persists in any age group.1

Perhaps the confusion between copyright infringement and plagiarism — issues that are distinct but overlap — isn’t really a big deal. Of greater concern is the increased number of the younger generation who see nothing wrong with copyright infringement or plagiarism. As Jonathan Bailey has pointed out, the number of students who view plagiarism as “serious cheating” has decreased in the past decade.

Along with the basics, confusion over copyright specifics is prevalent in younger generations too. Again, this shouldn’t come as a surprise since such confusion is prevalent among the population as a whole. Last week, a minor scandal arose on the internet after an exchange between a writer and the editor of Cooks Source magazine after the writer discovered the magazine had reprinted one of her articles without permission.2 In a rather condescending reply, the editor, although claiming over three decades experience in the publishing industry, incorrectly told the author that “the web is considered ‘public domain.’”

The authors present several ideas for increasing copyright literacy among “Digital Natives.” One of the challenges of copyright education is the disconnect between the law and what is considered socially acceptable behavior. The ease with which content can be distributed and accessed online, even on legitimate services like YouTube adds to the challenge of helping young internet users distinguish between what types of uses are allowed and what types of uses are not.

However, the authors note that the focus of any copyright curriculum should not lie solely on copyright as mere restrictions and prohibitions. More important is educating students about copyright’s goals and purposes of encouraging creativity and art. Showing how copyright protection helps artists, and how “Digital Natives” can work within the copyright system to become the next generation of creators, will achieve more than presenting copyright as a set of rules aimed at punishing young people.

Although the authors of this article show some skepticism toward industry copyright education efforts, I’d like to point them out. The RIAA has a section devoted to tools for educators on its web site, with different programs for elementary, high school, and university students. The Copyright Alliance Education Foundation presents a comprehensive array of related educational programs for teaching copyright to young people, as well as educators themselves, on its site.

I agree about the need for increased copyright literacy among young people, whatever the approach. I believe, however, as pointed out in a previous post, that there is an even greater need for increasing literacy about the law in general — and not just for young people.

Footnotes

  1. Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?” []
  2. Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010. []

In my previous post about the Copyright Principles Project, I highlighted those proposals that recommend a greater role for the US Copyright Office. Whether or not the Copyright Office should take on a greater role is a subject that undoubtedly can generate plenty of discussion. But today, I want to look at a different issue:

Can the Copyright Office take on a greater role?

Certainly, Congress could easily add new positions to the Copyright Office to bolster its expertise, or the Office can be more active in its advisory role; I’m not talking about that. The question I’m asking relates to those recommendations that contemplate the Office exercising substantive agency powers — creating regulations (rulemaking) and  resolving disputes in a quasi-judicial manner (adjudication). And the question is not whether taking on these powers is practical or worthwhile, but whether taking on these powers is constitutional.1

It’s kind of an odd question; after all, the Office currently does exercise rulemaking powers — creating exceptions to the prohibition against circumventing DRM and technological protections2 — and its sister department within the Library of Congress, the Copyright Royalty Board, exercises adjudicatory powers — determining certain compulsory license rates in a court-like setting. But unlike administrative agencies that were specifically created to exercise these types of powers, the Copyright Office began as a “paper-pushing” department and only over time “grew into” a more robust agency.

This unusual path from ministerial department to something approaching a full-fledged administrative agency has given rise to lingering concerns about the consitutionality of the Copyright Office’s authority to engage in rulemaking and adjudication. To understand these concerns, let’s first take a quick look at how federal agencies in general can exercise these powers in a constitutional manner and then trace the growth of the Copyright Office’s authority since its humble beginnings.

Agencies and Separation of Powers

Today, much of federal law is executed through administrative agencies. Congress passes a law, and then agencies — the EPA, the FCC, the IRS, etc. — create regulations to fill in the details of the law. Agencies might also engage in adjudication, resolving disputes or adjusting regulatory benchmarks within their purview through judicial-esque proceedings. The basic idea behind this system is that agencies have greater expertise and flexibility than Congress to address these details.

In one sense, administrative agencies act like mini-versions of a three-branch government: combining legislative (creating regulations), judicial (adjudication), and executive (enforcing regulations) functions. The Constitution, however, establishes a federal government based on separation of powers. Since the New Deal, Congress and Presidents have increasingly relied on administrative agencies to carry out many government functions, so the courts have had to figure out ways to fit this “fourth branch” of government within the constitutional framework while maintaining checks and balances.

The Constitution prohibits Congress from delegating legislative power to another body. But since 1825, courts have recognized a distinction between general, “important” legislative provisions and mere details.3 Today, agencies can create regulations to “fill up the details” when “Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”4

A second requirement to maintain constitutionally sufficient delegation is that the authority must go to an independent or executive branch agency; Congress cannot delegate quasi-legislative authority to a legislative agency.5 True legislation requires passage by both houses of Congress (bicameralism) and the President’s signature (presentment).6 If Congress retains any sort of control over the agency it delegates quasi-legislative authority to, courts view the delegation as a constitutionally improper circumvention of those two requirements. By control, I don’t mean mere influence. The control must be meaningful, like the ability to appoint or remove agency officers7 or the power to veto agency decisions.8

Growing into a Regulatory Agency

Many of the federal agencies today began during the New Deal, and were expressly authorized by Congress to regulate specific areas of the law. The Copyright Office, however, began a few decades earlier, without any substantive regulatory purpose as the goal. Under the first Copyright Act of 1790, copyright registrations were handled by district courts. This continued until 1870, when copyright administration was centralized in the Library of Congress. Congress created the Copyright Office in 1897 as a department within the Library dedicated to copyright administration. For most of the Copyright Office’s history, its duties were limited to processing registrations and other “ministerial” tasks.

The Copyright Office has had the authority to issue regulations since its creation, but it has historically exercised that authority in a limited manner — rules governing interest on late payments to the Office, for example.9 The triennial DRM exception rulemaking procedures set out in the DMCA in 1998 — 101 years after the Office was established — represents the first time the Copyright Office took on substantive rulemaking authority.

Perhaps because of the Copyright Office’s limited exercise of regulatory authority, little attention has been paid to whether that authority is constitutional. The notable exception is E. Fulton Brylawski’s 1976 article The Copyright Office: A Constitutional Confrontation,10 written during the build up to the passage of the Copyright Act of 1976. Brylawski argued that the Copyright Office was a legislative agency and the Act would give the Copyright Office rulemaking authority that exceeds what the Constitution allows. As discussed earlier, Brylawski is right on the latter point: a legislative agency can’t make regulations. But is he right on his first point? Is the Copyright Office indeed a legislative agency?

Legislative or Executive?

At first glance, it might be difficult to see how anyone could say the Copyright Office is not a legislative agency. The Copyright Office is a department within the Library of Congress. The Library of Congress is, well, of Congress. Not surprisingly, then, the US government places the Library of Congress in the legislative branch.11 Courts, too, have characterized the Library of Congress as legislative.12 The Copyright Office’s own website states that it is “part of the legislative branch of government.” And if you look through the US Code, you’ll find repeated references to the Library of Congress being in the legislative branch13 — the Library itself is codified under Title 2, which governs the legislative branch.

Noted copyright expert William Patry considers the above conclusive evidence that the Library of Congress, and by extension the Copyright Office, is a legislative agency. Other scholars have found the need to address the characterization of the Copyright Office when discussing proposals to increase rulemaking or adjudicatory authority. Michael Carroll notes lingering concerns about this subject in Fixing Fair Use.14 Edward Lee cites the fact that the Copyright Office is a legislative agency as one of the reasons why it cannot be relied upon to fill in gaps in the law through rulemaking.15

So … case closed, right? Not quite. When it comes to separation of powers, labels are irrelevant. After all, if the Library of Congress was renamed the National Library, it would be silly to think the constitutional analysis would change. What matters is what branch of government the Copyright Office is an agency of, and agency is determined by control.

Let’s take a look at the two most popular indicators of control: appointment (and removal) power and veto authority over regulations. The legislature has neither when it comes to the Copyright Office. The Register of Copyrights is appointed by (and can be removed by) the Librarian of Congress, who in turn is appointed by the President. Congress does not retain any power to approve or veto Copyright Office rules. Brylawski’s assertion that the Library of Congress is under the control of the Joint Committee of Congress on the Library? — simply not true.16

Most strikingly, Congress debated at some length about what branch of government held sway over the Library of Congress when the Copyright Office was being created and if the Office would constitutionally have authority to issue regulations. The final bill gave the Copyright Office rulemaking authority, reflecting the fact that Congress was satisfied that the setup they settled on was constitutionally sound.17

Settle it in the Courts

Brylawski got an opportunity to take his arguments to the courts. In 1978, he was the attorney for the plaintiff in Eltra v. Ringer, one of the few times the constitutionality of the Register of Copyright’s rulemaking authority was raised. The Fourth Circuit rejected the “label” argument, stating:

It is irrelevant that the Office of the Librarian of Congress is codified under the legislative branch or that it receives its appropriation as a part of the legislative appropriation. The Librarian performs certain functions which may be regarded as legislative (i. e., Congressional Research Service) and other functions (such as the Copyright Office) which are executive or administrative. Because of its hybrid character, it could have been grouped code-wise under either the legislative or executive department. But such code-grouping cannot determine whether a given function is executive or legislative.

The court noted that other courts, including the Supreme Court, had given weight to Copyright Office regulations for decades. “It seems incredible,” said the court, “that, if there were a constitutional infirmity” for that long, no one ever noticed it. In the end, the court concluded that the Copyright Office was an executive office, operating under an officer appointed by the President, not Congress.

The characterization of the Copyright Office as an executive office was reaffirmed in a March 2010 DC Circuit memorandum order. In Live365 v. Copyright Royalty Board, Live365 challenged the constitutionality of the appointment of Copyright Royalty Board Judges.

Wait, what? What does the appointment of Copyright Royalty Board Judges have to do with the rulemaking authority of the Copyright Office?

As it turns out, quite a bit. The question in Live365 boils down to: “is the Library of Congress an executive or legislative agency”: the same question involved in determining whether the Copyright Office has rulemaking authority.

The DC Circuit rejected the argument that the Library of Congress is a legislative agency. The President, not Congress, appoints the head of the department, so it is an executive agency.18

That, along with the fact that Congress doesn’t retain any veto authority over the Library’s (and Copyright Office’s) regulations, leads to the conclusion that the Copyright Office does have authority to issue substantive regulations. So yes, the Copyright Office can take on a greater role in the administration of copyright law. The Copyright Principles Project and other proposals have advanced various recommendations embracing a greater role for the Office, whether through Congress delegating additional regulatory arenas or through the creation of new adjudicatory bodies. The question remains whether the Office should be given a greater role. Given the benefits an agency may provide — flexibility and expertise — I think this question merits further exploration.

Footnotes

  1. This article is largely adapted from a section I wrote in Copyright Reform Step Zero. []
  2. Technically, it is the Library of Congress which creates these regulations, after consulting with the Copyright Office, but for this article, I will be referring to the rulemaking authority of the Copyright Office regardless of which department ultimately promulgates the regulations. []
  3. Wayman v. Southard (1825): “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.” []
  4. Mistretta v. US, 488 US 361 (1989). []
  5. Buckley v. Valeo, 424 U.S. 1, 138-41 (1976). []
  6. INS v. Chadha, 462 U.S. 919, 946 (1983). []
  7. Bowsher v. Synar, 478 U.S. 714, 726 (1986). []
  8. INS v. Chadha at 954-59. []
  9. MPAA v. Oman, 969 F.2d 1154, 1156 (DC Circ 1992). []
  10. 44 George Washington Law Review 12. []
  11. United States Government Manual, 2009-2010 p. v. []
  12. See Harry Fox Agency v. Mills Music, 720 F.2d 733 (2d Cir. 1983) (“The Library of Congress … is a part of the legislative branch itself”); Barger v. Mumford, 265 F.2d 380, 382 (DC Cir. 1959) (“Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch of the Government”). []
  13. Check out 5 USC § 5531(4), for example. []
  14. Pp. 1131-32. I noted previously that the proposal he makes inspired one of the possibilities for advancing recommendation #4 in the Copyright Principles Project. []
  15. Warming up to User-Generated Content, 2008 University of Illinois Law Review 1459, 1475 (2008). []
  16. 29 Cong. Rec. 1947 (1896) (Rep. Dockery). []
  17. For a comprehensive list of citations to those debates, check out 1 William Patry, Patry on Copyright § 1:41 n.4, especially , e.g., 29 Cong. Rec. 318-19 (1896) (Rep. Dockery): “This Library of Congress is a department of the Government. It is an executive department and should be under the control of the executive branch”. []
  18. For a detailed look at this and the other issues raised in Live365 v. CRB, check out Department of the Inferiors? posted at CommLawBlog. []

On September 28, a group of leading copyright academics and practitioners released the Copyright Principles Project: Directions for Reform (full report [pdf] available here). According to the press release, the Project “attempts to ignite an informed debate about how to best balance the interests of copyright owners and users” by examining “several ways to improve and update the law in an era of rapid technological change.”

The project is well worth a read. Participants in the project come from a variety of perspectives, including academics like project leader Pamela Samuelson, Jessica Litman, Michael Carroll, and Christopher Sprigman; copyright practitioners like Jon A. Baumgarten of Proskauer Rose LLP and Kate Spelman of Cobalt LLC; and corporate attorneys like Troy Dow of Walt Disney, Terry Ilardi of IBM, Jule Sigall of Microsoft, and Jeremy Williams of Warner Bros. Entertainment. Working together, they crafted twenty-five specific proposals that address “how current copyright law could be improved and how the law’s current problems could be mitigated.”1

The Copyright Principles Project came about in part from Samuelson’s idea of creating a “model copyright law” — akin to projects like the American Law Institute’s Model Penal Code — which could provide “an inchoate vision of a ‘good’ copyright law”; “provide a platform from which to launch specific copyright reforms”; and “prove useful as a resource to courts and commentators as they try to interpret ambiguous provisions of the existing statutes” and apply the statute to novel and unforeseen circumstances.2

Reaction to the report from the Copyright Principles Project has been generally positive. I haven’t been able to find too much analysis of the individual recommendations online, though there has been some. Copyright Chronicle’s Thomas Gulick, for example, points to recommendations that seem to “create imbalance for the sake of ease.”

Today, I want to look at those recommendations in the Project that call for an increased role for the US Copyright Office within copyright law. This topic is of special interest to me. In Copyright Reform Step Zero, I make the case for delegating substantive rulemaking authority to the Copyright Office as an important first step to maintaining an up-to-date and effective copyright law. Several of the recommendations in the Copyright Principles Project take the same approach while also envisioning adding adjudicatory functions to the Office.

Recommendation #3: The Copyright Office should develop additional policy expertise and research capability, particularly in the area of economics and technology.

The Copyright Principles Project specifically calls for two new positions to be created within the US Copyright Office: Chief Economist and Chief Technologist. These positions would help ensure that those areas of expertise which are most important for developing copyright policy in today’s world can be led by dedicated individuals. The Copyright Office already plays an important role preparing studies of specific copyright issues, advising Congress and other federal agencies on policy matters, and interacting with foreign and international organizations; so even if the Office didn’t take on a greater role in actual policymaking, it could still benefit by beefing up its expertise in these areas.

Recommendation #4: The Copyright Office should give serious consideration to developing some mechanism(s) through which users could receive guidance on “fair use.”

One of the mechanisms suggested by the Copyright Principles Project is the idea of a fair use “opinion letter,” likely inspired by an existing proposal from Project contributor Michael Carroll. In Fixing Fair Use, Carroll envisions as body within the Copyright Office that would hear from companies or individuals contemplating the use of a copyrighted work. The body would analyze if the contemplated use would legally be a fair use and issue an advisory letter with its opinion, similar to advisory letters that the IRS and SEC currently issue.

Recommendation #5: A small claims procedure should be available for resolving small-scale copyright disputes.

Interestingly, after orphan works, this recommendation may have the best chance for being adopted out of all the Copyright Principles Project’s recommendations. Although orphan works legislation failed to pass in 2006 and 2008 (and wasn’t even introduced in 2010), it is still considered by many to eventually become law. Both orphan works bills contained a provision commissioning the US Copyright Office to study the idea of a “small claims court” for copyright disputes which would otherwise stay out of courts because of legal costs.3

Recommendation #23: Contributions to computer programs should be considered as a new category of specially commissioned work eligible for treatment as works made for hire.

The Copyright Principles Project discussion of this recommendation included the following: “We considered, for instance, whether the U.S. Copyright Office should be given rule-making authority to add computer software contributions or other types of works to the specially commissioned work for hire rule. We did not reach consensus on this approach.” This statement describes an example of how substantive rulemaking authority would be exercised by the US Copyright Office as I contemplate it in my paper. Congress incorporates a doctrine like “work for hire” into the Copyright Act. It lays out the broad strokes of the purpose and principles behind the doctrine. But it then delegates the nuts and bolts to the Copyright Office. In this example, the Copyright Office would have the authority to add additional categories to types of works eligible for treatment as works made for hire — within the limits of the statute and guided by the principles expressed by Congress.

Footnotes

  1. Copyright Principles Project, pg. 2. []
  2. Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 3 Utah L. Rev. 551 (2007). Samuelson discusses how the model copyright law project served as a genesis for the Copyright Principles Project during her remarks at Berkeley Law’s “Copyright @ 300” conference, audio available under Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century. []
  3. HR 5439 — Orphan Works Act of 2006, Sec. 4; HR 5889 — Orphan Works Act of 2008, Sec. 6. []