I’ve been a fan of singer-songwriter Lelia Broussard since hearing her song ‘Satellite’ on thesixtyone.com and seeing her perform live along with the equally talented Allison Weiss and Bess Rogers.

Like most emerging artists, Lelia makes full use of the internet to promote her music. Besides her website and thesixtyone, she’s on YouTube, Twitter, and  Bandcamp. She has a Kickstarter page to raise funds. And, of course, the tried and true email list.

Earlier this month, Lelia sent out an email to her list. Part of it read:

For those of you new to my music, I have been putting out music and touring since 2005 on an independent basis. I have several records out, a good bit of my music is on Itunes, and my newer CD is in the store on my own website, but if you can’t get enough of my music and want more more more, I recently decided to release a digital collection of all my old records that I have put out and a TON of unreleased rare tunes that I won’t ever release…some acoustic, some live, and some are full on studio recordings that never made it onto a record. However, because of some of the upcoming events and if all goes according to plan, I am only going to be able to offer this for a short time longer.

A few days later, Ms. Broussard followed up with another email. Apparently, many of her fans thought she had meant she was giving away all this music for free. Not so.

What followed was an impassioned message about the struggle musicians like Lelia face getting to the point where they can sustain a musical career.

I do give away a lot of music to my fans, when you join the email list and throughout the year and will absolutely keep doing that, no question! But I can’t give away everything!! #youguys

Please hear me out for a sec on this. I am at this moment in time, a very poor, underpaid musician. Right now, I am not even permanently living anywhere…it may sound like a jet set life, traveling here and there for shows, but believe me, its not! I wouldn’t trade if for anything, I can’t NOT make music, I just have to…but there you go, that’s the truth, not so glamarous and jet setty! #newword

Even if I were on a major record label, that could still be the case. Unless I start selling out much bigger clubs than I am currently playing, I am losing money when I go out on tour, and unless I independently sell at least 10,000 records, I am barely breaking even on putting out a record because of all the costs that come with that.

That is why you see me busting my ass doing fund  raising along with music, it’s the only way for me to fund my life and continue to write and record, and tour, and its how I am able to pay for some PR, radio campaigns, keeping all the things running that I do have. I haven’t raised enough for all of those things yet, but am working on it, which is why I keep at it like this and ask for support.

A lot of people just simply do not buy music anymore, they just illegally download it. I don’t like it, my musician friends don’t like it, but we realize its part of our world now, so we try to do  and release music/things that fans might want that they can’t get elsewhere and  that they would purchase, because they do want to support us.

I think Lelia’s message highlights some important points. The question of illegal downloading is often cast as generational, with young people seeing it as a way of life. It is also often framed as only an industry problem: corporate suits wanting to control culture versus new artists embracing the “benefits” of piracy. These are useful narratives for proponents of weaker copyright, but as Lelia attests to, they don’t necessarily hold up when compared to reality.

Although Lelia sells her music online, she also provides a good deal of it for free, either streaming or available for download. Some musicians choose to give all their music away online, others don’t even allow digital downloads for sale. Which is the best choice? I don’t know. But the bottom line is that it should remain the artist’s choice. Many copyright critics would rather take that choice away from artists, gussied up in a “it’s for your own good” argument.

Becoming a full-time musician is tough work. Yes, people would still create without the copyright incentive. But that’s not the best way to ensure our lives are enriched with the songs and sounds that connect with us emotionally and give us meaning. And as much as the internet has opened up new avenues for artists to connect with their fans, twitter followers, touring, and t-shirts are not enough to sustain a musical career.

Crafting good music often involves talents beyond that of individual artists like Lelia — talents of people like producers and engineers. Getting that music heard requires the investment of a great deal of time and money, and it also is aided greatly by other talented individuals like video producers and promoters.

Creativity provides many benefits. The question lurking beneath the copyright debates is “where should those benefits go?” Should they all flow to those looking for a cheap way to fill up their iPods and web sites looking for cheap ways to attract traffic and sell ads? Or should the law ensure that some of those benefits go back to those who devote their time and talents to create?

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On January 19, 2011, members of New York City’s theater community and human rights supporters gathered to mark the one month anniversary of Belarus’ contested presidential election. The election was widely condemned as fraudulent, accompanied by the arrests of many peaceful protesters in Belarus with thousands more beaten.

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Members of the Belarus Free Theatre joined the gathering, having recently wrapped up a show in the City. In Europe’s last dictatorship, the Belarus Free Theatre is illegal. Shows are held in secret, with theater members and audiences subject to arrest. The members are barred from attending state universities or working in state employment. When the Belarus Free Theatre left for New York, they did so in the middle of the night, hidden in car trunks in order to avoid detection by the government. Once in the US, they heard news of their homes being ransacked, and their children being declared orphans — the government considering them “dead to the state.” The members fear arrest once they return to Belarus.1

Their crime? Performing theater.

That’s censorship.

Enforcing copyright law — whether through DMCA takedown notices, domain  name seizures, etc — is not in the same league. Yet, copyright critics almost reflexively apply the label of “censorship” to any attempt at better protecting the rights of creators.

I’ve written about free speech and copyright several times in the past: noting the sometimes shaky relationship between artistic expression, the first amendment, and copyright; discussing the chilling effect of copyright infringement and the oft-forgotten speech interests of creators; and examining first amendment arguments against COICA and domain name seizures.

Today, I want to put a bookend on these previous discussions of free speech and copyright by looking at some of the broader issues in the debate.

On Censorship

The “copyright as censorship” comparison permeates much of the discussion surrounding free speech and copyright. It’s often noted that early copyright law grew out of press licensing statutes that were passed to both protect proprietary rights of book publishers and allow governments to control seditious publications. The dual purpose of copyright law at the time is probably more coincidental than anything; France, for example, had no copyright law at that time, yet still maintained censorship over the press.2 Nevertheless, copyright law today is completely divorced from any sort of government control over content. If copyright is censorship, it hardly resembles the type of censorship the Belarus Free Theatre faces.

Supreme Court Justice John Marshall Harlan II described what he calls the “typical censorship situation” and its associated dangers in a 1964 dissent:

In the typical censorship situation material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower and the danger that protected expression will be repressed is less.

There are built-in elements in any system of licensing or censorship, the tendency of which is to encourage restrictions of expression. The State is not compelled to make an initial decision to pursue a course of action, since the original burden is on the citizen to bring a piece of writing before it. The censor is a part of the executive structure, and there is at least some danger that he will develop an institutionalized bias in favor of censorship because of his particular responsibility. In a criminal proceeding, however, the burden is on the State to act, the decision-maker belongs to an independent branch of the government, and neither a judge nor a juror has any personal interest in active censorship.

One danger of a censorship system is that the public may never be aware of what an administrative agent refuses to permit to be published or distributed. A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines.3

Thankfully, this “typical censorship situation” is largely an anachronism in the US today. It is worth noting some of Harlan’s points about what makes administrative censorship so dangerous to free expression, especially an institutionalized bias in favor of active censorship. Also notable is the distinction between executive censor and criminal proceeding — with less danger of restrictions on expression under the latter. This danger is attenuated further when we’re in a civil proceeding between two private parties, as most copyright infringement cases are.

However, what Harlan doesn’t talk about in this particular passage is the sine qua non of censorship: restricting expression because of disagreement over its content. Government censorship is typically targeted at suppressing politically dissident speech, or obscene and other “inappropriate” speech. This is where copyright as censorship arguments falter. It’s illogical to say that enforcement of piracy is based on a disagreement about the content — a copyright owner agrees completely with the content.4 Cases of creative or transformative infringement do sometimes present issues where a copyright owner sues to stop a subsequent use she disagrees with, but as we’ll see, the doctrine of fair use provides a safeguard against censorship.

Prior Restraints

Closely related to censorship is the idea of “prior restraints.” In the First Amendment realm, prior restraints — suppression of speech before a final judicial determination that it is unprotected speech — are considered worse than punishment after speech has been made.5 Courts consequently take a deeply skeptical look at any type of law or regulation that resembles a prior restraint. This includes preliminary injunctions in civil lawsuits because they are granted only on the basis that speech is likely to be unprotected.

Yet courts routinely award preliminary injunctions in copyright infringement cases. The Supreme Court has even gone so far as to say that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”6

What is it that makes courts treat copyright cases differently than other speech cases? The following excerpt provides a hint:

Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts. But in the words of New York’s Chief Judge Fuld:

“The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.”

Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.7

First Amendment Opportunism

Before delving into the issue of the First Amendment and copyright, I want to take a quick look at the issue of “First Amendment opportunism.”8 Free speech is one of the foundations of a democratic society. Censorship, the kind the Belarus Free Theatre faces, is ugly. As we’ll see, the question of whether copyright law adequately accounts for free speech is increasingly being asked, as well it should. But coloring the debate by alleging censorship — comparing the removal of a dancing baby video from a corporate video site to violent suppression of political dissidents — is a damaging use of hyperbole. It both minimizes the horrors of true censorship and paints opponents as evil rather than wrong.

At the same time, such language is merely an outgrowth of First Amendment opportunism in the copyright realm. What do I mean by this?

In some ways, the First Amendment is the “won’t somebody think of the children” of the legal world.

First Amendment scholar Frederick Schauer explains, “[T]he First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority. The individual or group gaining the support of the First Amendment often believes, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also appears to strike fear in the hearts of many who do not want to be seen as being against it.” Schauer calls this “First Amendment magnetism” and says it “leads strategic actors to gravitate to it as easily as politicians gravitate to the flag, motherhood, and apple pie.”

The magnetic force of the First Amendment generates two distinct phenomena. First, actors in the public arena (defined here to exclude the courts) are likely to rely on the First Amendment in pressing their causes, in the often-justified expectation that doing so will disproportionately, compared to relying on other dimensions of the law, attract allies, generate favorable attention by the press, and arouse the sympathies of other public actors. Second, lawyers representing clients with claims and causes not necessarily lying within the First Amendment’s core or traditional concerns will add First Amendment arguments and claims to their core claims, or will modify their core claims to connect them with First Amendment arguments, all in the hope that doing so will increase the probability of their success.9

David McGowan has attributed much of the growing trend in constitutionalizing copyright to this First Amendment magnetism. He notes:

Many copyright scholars object to the way Congress deals with their subject. With good reason, they feel Congress wields a copyright ratchet: terms get longer, and the scope of rights gets wider, but never the reverse. The rare exception occurs when publishers ask Congress to shore up fair use rights to make it easier for authors to get information they need to produce works. On this account, Congress is simply a tool rich media conglomerates use to soak consumers, who are rationally ignorant of the shameless fleecing their “representatives” give them.

It’s no fun beating one’s head against a wall. So if the representative branches sell out, at least by academic standards, their power to do harm must be limited. Two things are needed: a non-representative forum, to limit the power of producer wealth, and a law that trumps Congress’s Article I power to grant exclusive rights to authors. The First Amendment seems like just the thing. Like copyright, it deals with expression, which makes almost any argument facially plausible. More importantly, in a conflict with Congress’s Article I power, the First Amendment trumps.10

This isn’t to say that First Amendment magnetism is the same as naked opportunism, though it’s worth noting that this opportunistic use of free speech shows its head in practice. In 1879, one writer observed that “the ever active demagogue has been able to frame a cry of “free books for free men.” It is wonderful what an amount of things “free” men are entitled to have free. Free books, free and unlimited currency, free support from the State, etc., are supposed to have some connection with free speech, freedom of religion, and free trade, and therefore to be proper and valid cries.11 Courts have called out alleged infringers for “hiding behind the first amendment.”12 Even free speech critics have made note of a naked First Amendment opportunism. L. Ray Patterson notes that courts have consistently rejected First Amendment defenses in infringement actions but states that “in general, these cases were sound in rejecting the free speech defense as being the last refuge of an infringing scoundrel.”13

What we’re talking about here is an opportunism in the nonpejorative sense. Recognizing the existence of this First Amendment magnetism is important when discussing copyright law. The issue is not one of copyright versus free speech, no matter how often it is framed as greedy creators against defenders of the First Amendment.

With that in mind, let’s take a look at the brief history of copyright and the First Amendment.

Copyright and the First Amendment: A Brief History

The US Constitution, which grants Congress the power to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” was completed September 17, 1787. It officially went into effect March 4, 1789. The first federal copyright law, the Copyright Act of 1790, was signed by President Washington on May 31, 1790. The First Amendment was adopted December 15, 1791.

For nearly 200 years, the relationship between the first amendment and copyright law received little if any attention from courts or scholars. This is not entirely surprising if you consider the fact that first amendment free speech jurisprudence as a whole has only emerged within the past hundred years.14

This changed in 1969 when Melville Nimmer asked Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?15 Two more articles, by Paul Goldstein and Lionel Sobel followed shortly afterward — with Sobel’s article presciently asking about a “gathering storm” between copyright and the first amendment.16 Over the next several decades, the clouds slowly gathered with occasional articles on the subject.17 With the enactment of the Copyright Term Extension Act and the Digital Millennium Copyright Act in the late 90s, the storm clouds finally broke; the relationship between copyright and free speech grabbed a lot of attention from scholars.18 Taken as a whole, the academic literature has shown an increased effort at “constitutionalizing” copyright, offering a “free speech critique” of copyright.19

But despite all this academic attention toward a conflict between copyright and free speech, courts have consistently rejected separate First Amendment defenses in copyright infringement cases. On its face, this point understandably creates confusion; it’s easy to think that copyright is thus corrosive to free speech values. That’s not the case though.

As it turns out, copyright itself incorporates many of the same speech values that the First Amendment does.

Copyright’s Free Speech Values

The Supreme Court has on several occasions described copyright as the “engine of free expression.” By providing incentives to invest in creating and disseminating works, copyright drives new expression and ideas into the public sphere, benefiting everyone. Copyright infringement, especially wholesale piracy, short-circuits these incentives, creating a chilling effect on the creation of new works. Creators also have a continuing speech interest in their works, which copyright helps protect.

Copyright and the First Amendment thus serve many of the same values, just in different ways. They coexist rather than contradict. Lon Sobel explains this coexistence by demonstrating that the two operate in different spheres of influence:

The purpose of the first amendment is to guarantee freedom of expression. As Thomas I. Emerson had indicated, freedom of expression is necessary 1) to assure individual self-fulfillment, 2) to attain the truth, 3) to secure participation by the members of society in social and political decision making, and 4) to maintain a balance between stability and change in society.

Clearly none of these reasons for free expression is violated by the Copyright Act.

Individual self-fulfillment requires that man be free to express the beliefs and opinions he has formed in the process of developing his mind. As Emerson explained, expression is in fact an integral part in the development of ideas. “Hence suppression of … expression is an affront to the dignity of man.”

However, the expression of the beliefs and opinions of another, using the exact words the other used, is not any part of the development of one’s own ideas. True, “‘A dwarf standing on the shoulders of a giant can see farther than the giant himself.’” But any consideration of the ideas of another which is thoughtful enough to provoke new ideas in the mind of the reader, should also be thoughtful enough to enable the reader to restate his own new ideas. Thus, the Copyright Act prohibition of word-for-word copying of another can hardly be thought of as “an affront to the dignity” of the one who would have otherwise copied. The Copyright Act is merely an impediment to the one who would reap where he has not sown.

The attainment of truth depends upon free expression because no person or group can possess all knowledge. Truth is distilled from the volatile mixture of opposing opinions. But the expression of an opinion already expressed by another — in the same words used by that other — adds nothing to the search for truth. It is merely the repetition of an opinion that was already available from its original source. Nor is it an answer to allege that the infringer may be supplying customers the copyright holder was unable to supply. It is freshman economics that supply — to the extent it is variable — will increase to meet the demand.

Since the ascertainment of truth depends upon the consideration of every relevant fact and opinion, it is important that all members of society participate in social and political decision-making. Freedom of expression is necessary in order for people to participate truthfully and fully. Moreover, since, as the Declaration of Independence states, governments derive “their just powers from the consent of the governed,” the governed must have the freedom to express their consent — or lack of it. However, what is important in this regard is the participation of one’s self in the decision-making processes. The man who has expressed and copyrighted his own views has already contributed those views. The government is not further assisted by one who merely parrots that which has already been said. Therefore, copyright laws do not impede any useful participation in the decision-making processes.

[…]

In the sum and substance, the first amendment was designed to encourage and protect the communication of diverse ideas. Copyright laws, protecting as they do only particular expressions, do not conflict with any of the first amendment’s purposes.20

Copyright’s Internal Handling of Free Speech

If copyright law and the First Amendment coexist, does that mean they never contradict? Of course not. But courts’ handling of First Amendment issues in copyright cases differs from its handling of First Amendment issues in other types of cases.

To understand why, we need to first look a little closer at how courts deal with free speech arguments in general. One District Court provides a little background:

Courts often have spoken of certain categories of expression as “not within the area of constitutionally protected speech” … But such judicial statements in fact are not literally true. All modes of expression are covered by the First Amendment in the sense that the constitutionality of their “regulation must be determined by reference to First Amendment doctrine and analysis.” Regulation of different categories of expression, however, is subject to varying levels of judicial scrutiny. Thus, to say that a particular form of expression is “protected” by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment.21

In one sense, all laws or regulations impact free speech to some extent. ”[E]very civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,” said the Supreme Court in Arcara v. Cloud Books.22 ”One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim. Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders.”

Frederick Schauer points out an important distinction between the “coverage” and the “protection” of the First Amendment. He notes:

Like any legal rule, the First Amendment is not infinitely applicable. Though many cases involve the First Amendment, many more do not. Thus, the acts, events, behaviors, and restrictions not encompassed by the First Amendment at all, that remain wholly untouched by the First Amendment, are the ones we will describe as not being covered by the First Amendment. It is not that the speech (or anything else) is not protected by the First Amendment. Rather, it is that the entire event does not present a First Amendment issue at all, and the government’s action is consequently measured against no First Amendment standard whatsoever. The First Amendment simply does not show up.

When the First Amendment does show up, the full arsenal of First Amendment rules, principles, maxims, standards, canons, distinctions, presumptions, tools, factors, and three-part tests becomes available to determine whether the particular speech will actually wind up being protected.23

What sets copyright apart from other “speech” cases — obscenity, libel, “fighting words,” etc. — is that both the coverage and the protection of the First Amendment are handled internally rather than through the panoply of “rules, principles, maxims, standards,” and so on. The two major “built-in free speech safeguards” in copyright law are the idea-expression dichotomy and fair use.

Copyright protection doesn’t cover ideas, only the expression of those ideas. This distinction between ideas and expression has been called a “definitional balance” between free speech and copyright interests — a line between what is covered by the first amendment and what is not. Copyright provides an incentive to create and disseminate expression. By extension, the ideas expressed are also disseminated, benefiting the public. But protection ends where expression ends, and anyone is free to use the ideas in any given work. In a sense, the first amendment protects this “marketplace of ideas” but doesn’t extend to a “right to copy.”24 Or, as one court bluntly put it:

We do not find any denial of freedom of expression to the “tape pirate”. What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance.25

The fair use doctrine recognizes that some uses of copyrighted expression without the permission of the copyright owner are beneficial. Prior to the infusion of First Amendment rhetoric into the copyright realm, fair use was seen as an important component in furthering copyright’s constitutional purpose:

There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had gone before him.The scholar, like the ordinary user, of course could be left to bargain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference between the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author’s expense — to permit the second author to make limited use of the first author’s work for the public good.26

At the same time, fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright.27 The rationale is much the same. The only difference is a shift in framing the purpose of fair use as upholding first amendment values rather than progress of the useful arts and sciences values.

Think of it this way. the idea-expression distinction sets the boundaries of what is covered by the First Amendment. The question is not whether using another’s expression is “protected” or “unprotected” but rather whether it falls within the First Amendment’s scope at all. Even then, we have long recognized that some uses of expression should be allowed, and that’s where fair use kicks in. Fair use balances the free speech interests of the public and subsequent creator against those of the original creator.

Both these doctrines adequately address first amendment concerns within copyright law. The free speech critique of copyright essentially argues that courts should address these concerns a second time in a separate analysis. But to date, courts have found no need to ask the same question twice.

Footnotes

  1. For more on Belarus and the Belarus Free Theatre, see Zone of SilenceWhy Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest. []
  2. Visit Voltaire: Voltaire Bio. []
  3. Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964). []
  4. Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.” []
  5. Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.” []
  6. New York Times v. US, 403 US 713, White concurrence n.1 (1971). []
  7. Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985). []
  8. A term coined by Frederick Schauer in First Amendment Opportunism. []
  9. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004). []
  10. David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004). []
  11. Book Notices, 391 Yale Literary Journal 287 (April 1879). []
  12. Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972)United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972). []
  13. Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987). []
  14. See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999. []
  15. Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969). []
  16. Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971). []
  17. Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996). []
  18. See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). []
  19. A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). []
  20. Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971). []
  21. Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000). []
  22. 478 US 697, 706 (1986). []
  23. The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004). []
  24. See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” []
  25. US v. Bodin, 375 F.Supp 1265). []
  26. Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973). []
  27. For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978). []

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Earlier this month, Techdirt posted a rebuttal to my article on last November’s domain name seizures. If you recall, the warrant and affidavit for the seizure of five domain names as part of the US government’s Operation in Our Sites 2.0 made its way online. Techdirt initially pointed out what it saw as errors in the warrant and affidavit in a series of posts. I responded by noting that whatever errors are in the warrant and affidavit are largely irrelevant. Seizure warrants must only show probable cause that the property in question was used to facilitate the commission of a crime — not prove it.

Techdirt followed up:

[T]he biggest flaw in Hart’s argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required … In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause.

Fair enough. Let’s pay some attention to whether these seizures violate the First Amendment.

We’re talking here about “prior restraints”. The doctrine can be summed up as “speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment”,1 though the simplicity of that statement belies the complexities and nuances of the doctrine that courts have wrestled with as they’ve applied it.

In the US, prior restraints on speech are considered worse than punishments given after speech is made. Courts are especially suspicious of prior restraints; but at the same time, they recognize that simply labeling something a “prior restraint” does little. As the Supreme Court explained in Kingsley Books v. Brown:

The phrase “prior restraint” is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: “What is needed,” writes Professor Paul A. Freund, “is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.”2

In this case, we’re talking here about whether the seizure — the initial taking of the property into governmental custody to initiate forfeiture proceedings — is an impermissible prior restraint. Whether the ultimate forfeiture of these domain names violates the First Amendment is a completely separate question; though, for purposes of this article, I’m assuming that they would not. Forfeiture after a final judicial determination generally doesn’t raise First Amendment issues, even if it results in some blocking of protected speech.3

The argument that these domain name seizures violate the First Amendment comes down to timing: does the First Amendment require a hearing before the domain name is seized, or are the procedures available after a seizure occurs — the Rule 41(g) motion, the actual forfeiture proceedings, etc — adequate?4

The answer to that question is actually not an easy one to answer. As far as I know, no court has heard a First Amendment challenge to the seizure of a domain name as property used in the facilitation of a crime in order to be forfeited.5

As I see it, we’re actually dealing with three separate questions here.

  1. Are the domain names that have been seized considered “expressive content” such that a higher bar than seizure of ordinary property is required?
  2. Are the seizures predicated on presumptively protected speech — the allegedly infringing works disseminated on the sites — so that, in effect, they are akin to seizing expressive content and thus require the same higher bar?
  3. Is there a high enough burden caused by the seizures on the other expressive content on these web sites — message boards, blog posts, etc — making these seizures an impermissible prior restraint?

I’ll take a look at each of these questions in turn.

The Expressive Content of Domain Names

As Techdirt correctly points out, the seizure of expressive works differs from the seizure of other types of property. From Constitution of the United States, Analysis and Interpretation:

Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases. Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures … Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity.

The Supreme Court has struck down several large-scale seizures of allegedly obscene materials, which are presumptively protected by the First Amendment — Marcus v. Search Warrant, 367 US 717 (1961); Quantity of Copies of Books v. Kansas, 378 US 205 (1964); Fort Wayne Books v. Indiana, 489 US 46 (1989). Of these, though, only Quantity of Copies of Books explicitly held that a hearing was required before the seizure.6

The Court has also upheld as constitutional the seizure of a limited number of copies of materials to preserve as evidence — Heller v. New York, 413 US 483 (1973); New York v. PJ Video, 475 US 868 (1986). These seizures didn’t require a prior hearing, only a prompt adversary hearing.7

So how do we fit the domain name seizures within these cases?

We don’t.

All of the above cases involve the seizure of an expressive work because of the content. Whether the seizure is for the purpose of evidence or forfeiture, the fact remains that what was seized was seized because of the message it conveyed — most often, that message being allegedly obscene.

But with the domain names at issue, the seizures were not based on the content of the domain name itself. The web sites could be called “torrent-finder.com”, “xyyzzx.com” or even “piracy-harms-creators.com” — the name itself is irrelevant. Instead, these seizures were made because the domain  names are allegedly property8 used to facilitate the commission of a crime (copyright infringement).9

Domain names themselves can contain expressive content, though admittedly not much. Whether or not the First Amendment is implicated in any sort of regulation that targets domain names is all about context: domain names are not automatically entitled to or excluded from First Amendment protections. “The appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.”10

Perhaps the area where the First Amendment comes into play with domain names most often involves so-called “gripe sites.” The Anticybersquatting Consumer Protection Act (ACPA) allows for the forfeiture of domain names similar to a trademark owner’s mark when they were registered in bad faith — ie, for the sole purpose of selling the domain name to the trademark owner. But here, just as with obscene books, it’s the content of the domain name itself at issue. ACPA gives way to the First Amendment when the domain name is used to express an opinion rather than as a trademark.

The cases above just don’t apply here. The domain names seized are not like books — ICE didn’t target them because it disagreed with what the site owner called the site. Even if a court recognizes a specific domain name as containing an expressive element, it is unlikely to prohibit its seizure under these circumstances.11

Seizure as Pretext

Our analysis doesn’t stop here. It could be argued that the seizure of these domain names is predicated on their role in copyright infringement. If the seizures were, for example, predicated on allegedly being obscene or libelous, they might be impermissible prior restraints. That is, until there is a final judicial determination that the content of the sites is obscene or libelous, the content is assumed to be protected speech, so any attempt to block it before such a determination is not allowed by the First Amendment.

This argument can be quickly dismissed. Copyright infringement is simply not treated the same as obscenity or libel for First Amendment purposes. One example of this is that preliminary injunctions are routinely granted in copyright infringement cases while they are routinely denied in libel or obscenity cases due to the risk of prior restraint. While many have argued that copyright law should be subjected to heightened First Amendment scrutiny, the fact remains that courts have yet to accept this argument.12

But even among those who question the traditional treatment of copyright and the First Amendment, a distinction is made between creative and consumptive infringement. Mark Lemley and Eugene Volokh, who argue that preliminary injunctions in copyright cases are unconstitutional, don’t believe their argument reaches to “piracy and other ‘easy’ cases.” As they explain:

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 … courts can, pursuant to the Copyright Act’s authorization, preliminarily enjoin speech that clearly falls within the “copyright exception” without violating the First Amendment. So long as there’s a reliable determination on the merits that the speech does fall within the exception–rather than just a finding that the speech might fall within the exception–courts may act even based on only a tentative determination of other, constitutionally irrelevant, factors related to the copyright claim. This may inadvertently lead to temporary suppression of speech that ultimately proves to be noninfringing, but it won’t lead to temporary suppression of speech that is constitutionally protected. (Emphasis added)13

In other words, what Lemley and Volokh are saying, and what courts have implied over the years, is that the type of wholesale copying of a work present on the sites whose domain names were seized — as opposed to copying that falls within the bounds of fair use or is somehow transformative in nature — is not free speech within the First Amendment. It may be authorized by the copyright owner, but it is not protected by the Constitution.

We can think of seizures as cousins of preliminary injunctions — both deprive the alleged infringer of something before a full determination on the  merits. If preliminary injunctions in copyright cases — especially ones involving piracy or consumptive infringement — aren’t prior restraints, than neither are seizures.

Incidental Burdens

The final argument is that seizing these domain names impacts the expressive content on web sites unrelated to infringing works — forum and blog posts, articles, public domain works being shared, etc. There’s no question that seizing a domain name has some impact on whatever content exists on a web site. The question is whether this impact violates the First Amendment.

The challenge here is that one could argue that just about every law or regulation impacts free speech. Being thrown in prison limits your ability to speak to the public; a fine reduces the amount of money you have to spend on disseminating your message.14

We need some way to sort out when a law that isn’t aimed at speech but has an incidental impact on speech runs afoul of the First Amendment and when it doesn’t. The Supreme Court has provided one way to sort this out: when the conduct that a generally applicable law is aimed at contains an expressive element, then the application of that law in that case must take the First Amendment into consideration, otherwise, the First Amendment doesn’t apply.

In US v. O’Brien, the defendant was charged with destroying his Selective Service registration certificate during a protest. The Court noted that while the law prohibiting mutilation of such cards was aimed at nonexpressive conduct, in this case the burning of the card was done to express an opinion. The Court then provided a test, still followed today, to determine if the First Amendment was violated in situations like this. That test provides that, when conduct prohibited by law contains an expressive element, the First Amendment is not violated if the law in question (1) “is within the constitutional power of the Government”, (2) “furthers an important or substantial government interest”, (3) “the governmental interest is unrelated to the suppression of free expression”, and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”15 Ultimately, O’Brien’s conviction was upheld under this test.

If O’Brien applies to these domain name seizures, there is a chance they are not allowed under the First Amendment. The seizures almost certainly satisfy the first three prongs of the test: copyright is specifically authorized in the constitution,16 protecting copyrighted works from online piracy furthers an important government interest,17 and the seizures are certainly not aimed at suppressing whatever is being said on these web sites’ forums. That leaves the fourth prong, and while I can see making an argument that seizing the domain name of a web site places too great a burden on free speech, I’m inclined to think it doesn’t. The expressive content is still available online, it can be accessed by IP address, and getting a new domain name for the site is a nominal process (something many of the site owners did).18

However, it’s more likely that O’Brien doesn’t apply here. The Court in Arcara v. Cloud Books held that O’Brien only applies “where it was conduct with a significant expressive element that drew the legal remedy in the first place.” When the conduct a law targets lacks an expressive element, then the First Amendment doesn’t apply, even though the law effectively blocks incidental, protected expression.

The conduct targeted here is copyright infringement, not posting in message boards. The unauthorized distribution of copyrighted works is not protected by the First Amendment. These web sites were not involved in any sort of expressive activity through such copyright infringement. Since the seizure of their domain names was aimed at preventing this conduct, Arcara controls, and the First Amendment is not implicated.19

Conclusion

The effectiveness of these seizures remains to be seen. This story indicates that in some cases, they do seem to have had some disruptive effect. And if Congress passes a new version of the Combating Online Infringement and Counterfeits Act, this method of addressing online piracy will become even more effective.

Regardless of their ultimate effectiveness, the fact remains that reducing online piracy requires innovative approaches. Seizing domain names of sites dedicated to piracy is one such novel approach — one that does not damage freedom of speech.

The Supreme Court has said in the past:

It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice. See Tigner v. Texas, 310 U. S. 141, 148. If New York chooses to subject persons who disseminate obscene “literature” to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that “Liberty of speech, and of the press, is also not an absolute right,” 283 U. S., at 708, it likewise made clear that “the protection even as to previous restraint is not absolutely unlimited.”20

Footnotes

  1. Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). []
  2. 354 US 436, 441-42 (1957). []
  3. See, eg, Arcara v. Cloud Books, 478 US 697 (“Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises”); 511 Detroit Street v. Kelley, 807 F.2d 1293 (6th Circ. 1986) (“We refuse to hold that a statute threatening fines that could impair the operation of a business is an impermissible prior restraint on expression, even where that business also involves dissemination of protected materials. The fact that a person does some business disseminating protected materials cannot immunize that person from large fines that may be imposed for violation of criminal law”); A&M Records v. Napster, 114 F.Supp.2d 896 (ND Ca 2000) (“In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.’”); US v. Pryba, 674 F.Supp. 1504 (ED Va 1987) (“The First Amendment cannot be a shield for criminal activity … The forfeiture remedy, properly construed and applied, does not impermissibly restrain further dissemination of speech”). []
  4. Techdirt, then, is not quite correct in asserting that the domain name seizures have occurred with no adversarial hearing. As I pointed out earlier, the forfeiture complaint for the first round of domain name seizures was filed in court last month, providing for a hearing. []
  5. In CDT v. Pappert, 337 F.Supp.2d 606, a District Court struck down a state law requiring ISP’s to block access to web sites providing child pornography because it was overbroad for First Amendment purposes. But while the process used to block access to the sites was sometimes similar to the procedure used by ICE to seize these domain names, the similarities end there: (1) the state law involved obscenity rather than copyright infringement,  (2) ISP’s frequently blocked entire IP addresses rather than single domains, resulting in the blocking of thousands of unrelated and innocent web sites since multiple web sites can share the same IP address, and (3) the law provided no meaningful notice or hearing to owners of sites that had been blocked. CDT is simply not applicable to these seizures. []
  6. Some courts and commentators have stated that Fort Wayne does as well. However, I would argue, as at least one other court has, that Fort Wayne does not, in fact, state such a rule. The rule the Court did state is far more elusive: “while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” A Missouri District Court, however, explains that rather than a lack of pre-seizure hearing, theFort Wayne seizure was improper because “it was premised upon the fact that ‘the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect.’ Since there had been no preseizure hearing to establish probable cause on the issue of obscenity, the Court reasoned that probable cause to believe a RICO violation had occurred was inadequate to remove allegedly obscene books or films from circulation.” BAP v. McCulloch, 994 F.Supp. 1131, ED Mo. 1998. []
  7. Another case I’ve seen mentioned is Bantam Books v. Sullivan, 372 US 58 (1963). I don’t believe the case is applicable here; what’s more, it says little about the issue of the timing of hearings for prior restraint, saying only that prior restraints are tolerated when the judicial determination is “almost immediate.” []
  8. As to the question of whether or not domain names can be considered property used to facilitate a crime for purposes of 18 USC § 2323, the answer is most likely yes. The 9th Circuit has used a three-part test to determine if something is property: (1) “There must be must be an interest capable of precise definition”, (2) “it must be capable of exclusive possession or control”, (3) “the putative owner must have established a legitimate claim to exclusivity”. (Kremen v. Cohen, 337 F.3d 1024). The court concluded that “domain names satisfy each criterion.” In addition, courts have ordered the forfeiture of domain names as part of criminal copyright infringement sentences — see, eg, here and here. Under 18 USC § 2323, the definitions for property subject to criminal forfeiture and civil forfeiture are the same. []
  9. As to the question of whether linking to infringing material can be considered facilitating the commission of copyright infringement, the answer again is likely yes. See Eugene Volokh, Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), citing “Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (holding that the publisher of a link to an infringing site may be contributorily liable for the infringement that the link facilitates); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293-96 (D. Utah 1999) (enjoining defendants from ‘post[ing] on defendants’ website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff’s copyright’); 17 U.S.C. § 512(d) (2000) (providing a safe harbor from damages liability to people who link or refer to infringing material, but only if they didn’t know it was infringing); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455-58 (2d Cir. 2001) (enjoining publication of links to a page containing material that violated the Digital Millennium Copyright Act)”. []
  10. Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Circ. 2005) quoting Name.Space v. Network Solutions, 202 F.3d 573 (2nd Circ. 2000). []
  11. For a similar First Amendment analysis, check out Aaron Burstein, Stopping Internet-Based Tobacco Sales, 16 Health Matrix 279 (2006) which concludes that domain name seizure is a permissible commercial speech regulation. []
  12. See Eldred v. Ashcroft, 537 US 186 (2003): “The First Amendment securely protects the freedom to make— or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.” “Or, we add, to copy, or enable the copying of, other people’s music,” In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). []
  13. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). []
  14. See Arcara v. Cloud Books, 478 US 697, 706 (1986). []
  15. 391 US 367, 377 (1968). []
  16. US Const. Art 1 § 8. []
  17. See, for example, the 2010 Joint Strategic Plan on Intellectual Property Enforcement: “Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that.” []
  18. I also don’t think the burden these seizures place on the site visitor’s right to access the content on these sites violates the First Amendment, in line with Supreme Court rulings like Kleindienst v. Mandel, 408 US 753 (1972). []
  19. See Sequoia Books v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) for a court applying Arcara to a case involving forfeiture. []
  20. Kingsley Books v. Brown, 354 US 436 (1957). []

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“No one would create without monetary incentives.”

Surprisingly, many opponents of copyright firmly believe that the above statement accurately reflects the views of creators and the creative industries — that they think but for copyright, creativity would not exist.

It provides an easy target to knock down: “Clearly, people have created for thousands of years before copyright existed.” The conclusion seems to be that if copyright is not necessary, then it isn’t justified.

Law professor Eric E. Johnson is currently writing a series of posts on “the great fallacy of intellectual property“. He describes this fallacy this way: “The long understood theory for why IP rights are necessary has been that people won’t invent useful technologies or create worthwhile art and literature without having the right to profit from their labors.”

We can call this the “fallacy of intellectual property” fallacy.

It’s a fallacy because it doesn’t accurately state the theory behind copyright. The economic justification for copyright is that it is an incentive to create — not a necessary condition. True, there exists a base level of drive to create knowledge and culture. But, as knowledge and culture are fundamentally important to a democratic society, an incentive to create above and beyond this base level provides significant benefits to that society.

In addition, the “fallacy of intellectual property” fallacy fails to account for an arguably more important function of copyright. Copyright provides an incentive to invest in creation.

“In a private market economy, individuals will not invest in invention or creation unless the expected return from doing so exceeds the cost of doing so — that is, unless they can reasonably expect to make a profit from the endeavor.”1 Creative works require financial investment. Some, like movies, require more than others, but all works require some level of investment. The inherent risks of investing in creative works makes copyright protection more important. Creative works also require investment in time — not only the time spent creating, but the time a creator spends honing her skills.

How Piracy Harms Investment

First, let’s talk about how online piracy has harmed investment in creative works. I’m focusing mostly on creative intermediaries — book publishers, record labels, film studios, etc. Individuals certainly invest in their own works, but the bulk of investment comes from intermediaries.

Insufficient enforcement of online piracy has led to a reduction in investment of creating new works. The following chart shows how employment in the music industry and new releases both fell at the same time online piracy has grown.

Recorded music shipments and employment of musicians and artists 1999-2009

Additional evidence shows how weak copyright protection reduces investment in new works — harming new and local artists particularly. According to the IFPI’s Digital Music Report 2010:

  • “In Spain, which has one of the highest rates of illegal file-sharing in Europe, sales by local artists in the top 50 have fallen by an estimated 65% between 2004 and 2009;
  • France, where a quarter of the internet population downloads illegally, has seen local artist album releases fall by 60% between 2003 and 2009;
  • In Brazil, full priced major label local album releases from the five largest music companies in 2008 were down 80% from their 2005 level.”

Leveraging Investment

Intermediaries provide much-needed resources and expertise for producing high-quality works. But they perform another function that is just as important: aggregating the risk of producing creative works.

Economists sometimes refer to creative works as “experience goods“. The value of a book, movie, or song is difficult to judge beforehand, unlike other consumer goods. Consumers cannot determine if a particular work will be satisfactory until after they experience it.

Experience goods are thus risky to produce. How risky?

History suggests the risk is quite high. Remarks from several participants in the 1876 Royal Commission on Copyright in the UK cast light on the situation over 130 years ago. One William Smith said that “only one book in four” recoups its expenses, with one Anthony Trollope following up that he had heard from two separate publishers that “not one book in nine has paid its expenses.”2

These percentages hold true today. In the music industry, only about one in ten record albums sell enough copies to break even on expenses.3 Film is similar — perhaps even worse. One economist has calculated that less than 3% of independent films produced break even.

Yet, creative industries can thrive under these conditions with appropriate copyright protections. And those intermediaries that do build sustainable businesses continue to invest in the next generation of creative works.

According to the IFPI, record labels reinvest around 30% of revenues into developing and marketing artists — $5 billion a year globally:

Recording contracts typically commit artists and labels to work together to produce a series of albums. Artists benefit from heavy upfront investment that would be difficult to secure elsewhere and record labels have the opportunity to recoup their outlay over a period of time.

Achieving commercial hits is the basis of the “circle of investment”, by which music companies plough back the revenues generated by successful campaigns to develop new talent and help fund the next generation of artists.

Continually investing in new talent is a hugely risky business, as only a minority of the artists developed by music companies will be commercially successful in a highly competitive market. Estimates on the commercial success ratio of artists vary between one in five and one in ten.

By aggregating risks, intermediaries — record labels, book publishers, film studios — can leverage their profits on hits toward the creation of a wider variety of new works. The 10 or 20 per cent of projects that break even help fund the creation of the 80 to 90 per cent of projects which don’t. This benefits niche works, works without mainstream appeal, and new creators who have not yet gained an audience.

Cultivating Genius

The expenses of creation include not just money but time too. Writing a book — especially fiction — doesn’t involve much of a financial burden. But it does take a good deal of time — time that is in short supply for many.

More importantly, time is needed for developing creative skills. While people may have some level of natural talent, few if any are born fully-realized artists. Pop economist Malcolm Gladwell famously said it takes 10,000 hours to master a skill.4

In Wealth of Nations, Adam Smith writes:

And thus the certainty of being able to exchange all that surplus part of the produce of his own labour, which is over and above his own consumption, for such parts of the produce of other men’s labour as he may have occasion for, encourages every man to apply himself to a particular occupation, and to cultivate and bring to perfection whatever talent or genius he may possess for that particular species of business.

Copyright provides that certainty that encourages the investment of time to cultivating creative talents.

The alternative — relying only on innate motivation to drive development of creative talents — is not as attractive to a society that values creativity and culture. British historian Thomas Babington Macaulay recognized this as long back as 1841.

You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books.

And this idea continues to be recognized today:

It has been said that people would create entertainment without being paid to do so, and I have no doubt some would. But everyone has to buy groceries and pay the rent. So the universe of those who would create for free would be limited to amateurs and the independently wealthy. Unless we’d be satisfied with their meager output, we need some way to provide financial incentives that permit people to create entertainment professionally, for a living.5

Again, notice no one is saying that without copyright, no one would invest in developing their talents in creative fields. What’s being said is that because of the “public goods” nature of expressive works, the amount of people able to make that investment is limited without copyright.

The copyright incentive increases the ability of creators to invest time in perfecting their skills, allowing a wider range of voices to be heard and a higher quality of works created.

Journeyman Hierarchy

Now consider all the ancillary skills that go into producing creative works: the skills of book editors, recording engineers, film crews. Copyright industries in the US employ millions of people beyond what we would consider “primary” creators. Yet their skills, and their mastery of those skills, are just as vital to creating high-quality works.

The idea that innate motivations to create are sufficient to ensure an optimal level of high-quality creative works fails to take into account these ancillary roles. They require even more of an incentive to invest in their development.

A system that protects the rights of creators also supports the ability of those outside the limelight to perfect and master their skills.

In an interview with Chris Castle at Music Technology Policy, Songwriters Guild of America president Rick Carnes calls this a “journeyman hierarchy”, and talks about how it results in higher quality works. He uses the example of Spike Lee, who began with a student film. Based on that success, he was able to get funding for his next film and begin a career as a filmmaker. Along the way, actors such as Denzel Washington got their start and behind-the-scenes workers developed their skills. This continual cycle is what creates the “next generation of art.”

Carnes notes that great films and great music delve into ideas that inspire and challenge. Professionals create these types of works better than anyone else because it’s their job; they do it day in and day out, giving up a great deal of their lives to do so. But if copyright is not properly enforced, than people cannot get a return on their investment; if people cannot get a return on their investment, they’re less likely to invest in the next generation of art.

Bad Literature Drives Out Good

Creators have a variety of incentives to create besides those provided by copyright. The “fallacy of intellectual property” assumes that, in the absence of copyright, these other incentives would ensure a sufficient supply of high caliber works of knowledge and culture. This assumption, however, is doubtful.

“Without copyright protection,” write William Landes and Richard Posner, “there would be increased incentives to create faddish, ephemeral, and otherwise transitory works because the gains from being first in the market for such works would be likely to exceed the losses from absence of copyright protection.”6 Think more “Reality TV”, less Mad Men. More remakes and sequels, less original works.

History shows this principle in action. In Piracy: The Intellectual Property Wars from Gutenberg to Gates, Adrian Johns describes the experience in France during the French Revolution:

Briefly, after 1789 the revolutionaries wanted to see enlightenment spread from Paris by its own natural force. They therefore abolished literary property … What ensued was an experiment in whether print without literary property would help or hinder enlightenment … This was a revolutionary utopianism of the commons … But as utopias do, it turned rotten. The craft of printing did expand rapidly — the number of printers quadrupled — but what it produced changed radically too. The folio and the quarto were dead. Reprints became legitimate, then dominant … [Printers] employed whatever secondhand tools they could lay their hands on, worked at breakneck speed with whatever journeymen they could get, and ensured a rapid turnover by issuing newspapers and tracts with an immediate sale. What books were still published were largely compilations of old, prerevolutionary material. In other words, a literary counterpart to Gresham’s Law took hold, and the triumph of the presses grises led to disaster.7

Investment of time and money in creators and their works leads to a wider variety and higher quality of expression that enriches all our lives. Copyright, when it is properly enforced, provides an incentive to make that investment.

Footnotes

  1. Mark Lemley, The Economics of Improvement in Intellectual Property Law, 75 Texas Law Review 989 (1996). []
  2. Minutes of the Evidence Taken Before the Royal Commission on Copyright. []
  3. “Most RIAA members report that less than 10% of their releases are profitable”, David Baskerville, Music Business Handbook and Career Guide, pg. 339 (Sage, 2006); “A 1980 Cambridge study showed … approximately 84 percent of record albums failed to sell the allotted amount in order to break even”, Patrice L. Johnson, Are Black Entertainers More Likely to Receive Unfair Contract Agreements Than Their White Counterparts? Independent study, 1998. []
  4. Check out Ericsson, Roring & Nandagopal, Giftedness and Evidence for Reproducibly Superior Performance: An Account Based on the Expert Performance Framework, 18 High Ability Studies 3 (2007), for some of the research behind Gladwell’s claim. []
  5. Lionel Sobel, Why the Digital Piracy War has to be Fought, November, 2002, DGA Magazine. []
  6. An Economic Analysis of Copyright Law, 18 Journal of Legal Studies 325, 332 (1989). []
  7. Pg. 53, University of Chicago Press, 2009. []

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I would like to wish a happy new year to all my readers and fellow bloggers. I hope everyone had a warm and happy holiday season. Here’s to a new year filled with happiness.

Just a few notes from around the blogosphere:

  • Entertainment attorney Lionel Sobel has a new blog — Entertainment Law Reporter. Sobel covers a wide variety of topics in the entertainment law realm; the blog is a great addition to anyone’s reading list.
  • The Washington Legal Foundation runs a blog with some great in-depth analysis of different issues. They’ve recently devoted a couple posts to copyright. Check out Video Game “Bot” Provides Platform for Latest Judicial Pronouncement on Copyright & Software, about the recent World of Warcraft case, and The Supreme Court Left Most Copyright Litigants Wanting in 2010, for a review of the copyright cases that the Court heard (or passed on) in the previous year.
  • Chris Castle’s Music Technology Policy recently posted the third part of its thorough (and thoroughly entertaining) four part analysis of Google’s recently announced anti-piracy initiative. Well worth a read.
  • Finally, this video has been making the rounds. Musician Mike Lombardo responds to a blog post titled “Filesharing will go down in history as the greatest thing ever to happen to music,” a sort of “best of” listing of anti-copyright arguments (example: creating art doesn’t cost anything).

    A tad long, but worth the watch:

    [youtube]EwAiLICevc4[/youtube]

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