Ishkur’s Guide to Electronic Music has long recognized by fans of electronic music for its comprehensive and irreverent descriptions of the numerous and protean sub-genres of the musical form. Kenneth John Taylor, the author of Ishkur’s Guide, makes this observation about Miami bass:

Every few years, like clockwork, a Miami Bass track will come out of nowhere and get REALLY big on the Top40 charts. It happened with Tag Team’s “Whoomp there it is”. It happened with 69 Boyz’ “Tootsee Roll”. And it happened (unfortunately) again with Baha Men’s “Who Let the Dogs Out.” For such a fun genre, I’m still trying to figure out why this happens with only a select few songs, and not all of them. Like, for instance, why did Tag Team’s “Whoomp! There it is” make it big and not 95 South’s “Woot! There it is”, when they are practically the same song?

One of the Miami bass groups that did get really big on the charts was 2 Live Crew — the group had seven studio albums that entered the Billboard 200 during the 80’s and 90’s. Sometimes called the “godfathers” of Miami bass,1 the Crew was also notorious for writing lyrics that, to say the least, would make a sailor blush.

In 1989, the group released their third album, As Nasty as They Want to Be. At the same time, a “sanitized” version of the album, As Clean as They Want to Be, was released.2 In a curious stroke of circumstance, both of these albums resulted in the band going to court, but for entirely different reasons.

Prurient Interests and Parody

As Nasty as They Want to Be was almost immediately criticized for its objectionable lyrics. Several record store employees in various parts of the country were even arrested for selling the album to minors. 2 Live Crew fought back in Broward County, Florida, in response to actions taken by the Sheriff’s Department to discourage sale of the album.

The ensuing case made its way to the 11th Circuit Court of Appeals, which had to determine whether the album was considered “obscene” under the test laid out by the Supreme Court in Miller v. California.3 Under the Miller test, obscenity is determined by asking “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In Luke Records v. Navarro, noting that this was “apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition,” the 11th Circuit concluded that, since there was no evidence presented that the work lacked “serious artistic value,” the album was not obscene.4

Just eight days after the 11th Circuit’s decision in Luke Records was handed down, 2 Live Crew’s lawyers were in front of the 6th Circuit for oral arguments in a separate case.

Along with cleaned-up versions of songs, As Clean as They Want to Be included the song “Pretty Woman”, not present on As Nasty as They Want to Be. The song was a raunchy take on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” Music publisher Acuff-Rose Music had denied 2 Live Crew a license to parody the song; 2 Live Crew recorded and released it anyway, and Acuff-Rose sued for copyright infringement.

The 6th Circuit reversed the District Court’s holding that 2 Live Crew’s version of the song was a fair use,5 and the decision was appealed to the Supreme Court. In one of copyright’s seminal decisions, the Supreme Court reversed the 6th Circuit and held that 2 Live Crew’s parody was a fair use, despite its commercial nature and the amount of expression borrowed from the original.6

As the Court pointed out in Campbell, fair use often serves the same function of copyright protection itself — to promote the progress of the useful arts. Twenty years earlier, a different court had noted that “the development of ‘fair use’ has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection ‘To promote the Progress of Science and the useful Arts.'”7 This promotion of the progress, said the Court in Campbell, is “generally furthered by the creation of transformative works” — works that include parody, which “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”

Had either case gone the other way, we would have had some interesting results. 2 Live Crew’s music could have been found to be both lacking “serious literary, artistic, political, or scientific value” yet promoting the progress of the useful arts, or vice versa.

Content Industries’ Defense of Free Speech

While 2 Live Crew’s coinciding legal battles involving free expression and copyright are interesting trivia, they lead me to a broader point about connections between the two issues. Copyright is sometimes criticized as stifling creativity — yet 2 Live Crew’s success at the Supreme Court shows otherwise. And if we dig deeper into the Crew’s obscenity case, we can begin to see, perhaps, that copyright law even played some part in the favorable outcome for the group there.

In the past decade or so, there has been increasing academic interest in the relationship between the First Amendment and copyright law.8 Additionally, as content industries look for more effective methods of addressing online piracy, critics have ratcheted up their attempts to equate copyright protection with censorship.9

But what’s often ignored is the contributions of content industries to the protection and expansion of first amendment rights.

Artistic expression, political dissidence, and religious heterodoxy form a sort of free speech triumvirate that has been the target of content regulation most frequently by most societies throughout history. I previously discussed the proclivity for regulating creativity in Artistic Expression, the First Amendment, and Copyright. As the RIAA states, “The history of our nation’s music is also a history of those who would censor that creative expression, afraid of what it explores and exposes.” For a closer look at how pop music in particular has been targeted, check out The History of Banned Rock ‘n’ Roll by blogger Nikkieg23, which includes such anecdotes as this one from 1955: “Police in Bridgeport, Connecticut cancel a dance at the Ritz ballroom featuring Fats Domino. Authorities say the cancellation is because they discovered that ‘rock and roll dances might be featured'”.

2 Live Crew’s brush with obscenity resulted in a flood of academic attention.10 But the tension between ‘obscene’ music and the law had been increasing for some time before the 11th Circuit’s decision.

In 1985, the Parents Music Resource Center (PMRC) was formed to confront what was seen as a problem with pop music lyrics that were sexually suggestive or glorified violence. The Center’s founding members included several wives of politicians, including Tipper Gore, so it was able to quickly gain traction in Washington. Its goal was to pressure the music industry into taking a number of steps to prevent children from being exposed to explicit music, though some of the Center’s husbands wanted the government to step in.

Senator Hollings, whose wife was affiliated with the PMRC, said at a Senate Committee hearing on Contents of Music and the Lyrics of Records, “I will be looking from the Senator’s standpoint, not just to bring pressures to try to see if there is some constitutional provisions to tax, but an approach that can be used by the Congress to limit this outrageous filth, suggestive violence, suicide, and everything else in the Lord’s world that you would not think of. Certainly the writers and framers of our first amendment never perhaps heard this music in their time, never considered the broadcast airwaves and certainly that being piped into people’s homes willy nilly over the air.”

The RIAA strenuously opposed the PMRC’s efforts. It did agree to place warning labels on records with explicit content after initially resisting the idea, but refused the other steps suggested by the Center, seeing them as an affront to its members’ expressive integrity. In a letter to the PMRC, the RIAA said, “the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts”.

The parental advisory labels adopted by the RIAA were inspired in part by the movie rating system which the MPAA uses.

Since practically the beginning of the movie industry, the medium was subject to censorship. By the 1920’s, encouraged in part by a Supreme Court decision that the First Amendment did not protect motion pictures,11 numerous states and local governments had censorship boards — administrative bodies whose job was to determine what individuals were allowed to see. But as the film industry grew in size and importance, it began to make moves against the outright censorship of motion pictures.

The forerunner of today’s MPAA, the Motion Pictures Producers and Distributors Association, was formed in 1922 as an industry trade and lobbying organization. It began self-regulating the content of its members, fearing that censorship might make it to the federal level. From 1930 until 1968, the Motion Picture Production Code (commonly referred to as the “Hays Code” when it began) set guidelines for film studios about what type of content was appropriate. It was eventually replaced by the movie ratings system that we’re familiar with today, a voluntary system that describes rather than proscribes the content of films.

Attitudes about the legitimacy of motion pictures as expression also changed during this time. The Supreme Court went from considering films as “spectacles”, not a “part of the press of the country”  or an “[organ] of public opinion”, as stated in Mutual Film Corporation, to having “no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment” in 1948.12 In 1952, the Supreme Court overturned the holding in Mutual Film Corp. and recognized that the First Amendment extends to motion pictures.13 The Court declared a number of movie censorship laws unconstitutional in the years that followed.14

Today, content industry groups like the MPAA and RIAA continue to work toward protecting the free expression rights of their mediums and members. For just one example, see the MPAA’s brief, joined by other trade groups and unions, in Schwarzenegger v. Entertainment Merchants Association, currently before the Supreme Court, arguing that California’s prohibition on the sale of violent video games to minors is unconstitutional.

Copyright’s Role in Protecting Rights

It’s fair to say that creators of all stripes today in the US are more free to express themselves than in decades past. Audiences too can access a wider range of ideas because of this freedom — making their own choices of what to experience rather than having those choices made for them.

And as discussed above, industry groups and trade organizations have undoubtedly played some role in the expansion of that freedom. That they have should not come as a surprise. True, they are motivated largely by self-interest. A company engaged in producing and distributing content wants the broadest latitude of what is acceptable content in a society as possible. Government limits on that latitude, like obscenity laws, increase the risks and costs of the company — either subjecting the company to liability after publication or increasing the time and money spent on ensuring compliance before publication. But self-interest is not a bad thing, as Adam Smith pointed out over 200 years ago.15 And when self-interest coincides with expanding fundamental freedoms for everyone, that’s certainly a good thing.

It also seems evident that the expansion of these rights would not have been as quick or effective absent these groups. Groups have bigger influence than individuals on policy, especially when the interests at stake are diffuse, as is the case with freedom of speech.

Most importantly, however, is the fact that the existence of content industries, and the fact that they have been able to grow and develop to such an extent, owes a great deal to the existence of copyright. The law provides a stable rights system that has encouraged the development of industries devoted solely to the creation of content for content’s sake. The amount of investment in the creative industries would be greatly diminished absent such a system.

Copyright’s role in protecting free speech rights is just one of the values it has for society. It is just one of the reasons why, despite the challenges of the law posed by digital technology and the internet, copyright should continue to serve as the framework for producing and distributing creative works rather than be discarded or hamstrung.

It’s unlikely that James Madison had this concept in mind when he talked about the Copyright Clause of the Constitution in the Federalist Papers, but his words are just as applicable. When it comes to copyright, “The public good fully coincides … with the claims of individuals.”16


  1. John Leland, Singles column, Spin Magazine, pg 76 (February 1989). []
  2. I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows. []
  3. 413 US 15 (1973). []
  4. 960 F.3d 134 (1992). []
  5. Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992). []
  6. Campbell v. Acuff-Rose Music, 510 US 569 (1994). []
  7. Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973). []
  8. I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17. []
  9. See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement. []
  10. See Deflem’s article linked above. []
  11. Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916). []
  12. US v. Paramount Pictures, 334 US 131, 166. []
  13. Joseph Burstyn v. Wilson, 343 US 495. []
  14. See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968). []
  15. “It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776). []
  16. Federalist No. 43. []

Hit songs, blockbuster movies, best-selling books — most creative industries are driven by sales of a small handful of the most popular releases.

In 2004, Wired editor-in-chief Chris Anderson wrote that the internet would render this model obsolete.

Physical limitations of the bricks-and-mortar world led to a focus on blockbusters in the first place. As Anderson explains in Rise and Fall of the Hit, “The world of shelf space is a zero-sum game: one product displaces another. Forced to choose, each link in the entertainment industry naturally selects the most popular products, giving them privileged placement.” Less-popular, obscure, and niche products remained unavailable to consumers because of the “tyranny of physical space.” In addition to this, creative markets are notoriously uncertain and inefficient; focusing on blockbusters helps lower these risks.

The internet, of course, doesn’t have the same physical limitations as warehouses and retail outlets. Shelf space is virtually infinite. Content can be easily and cheaply distributed around the world. The shift from an analog to a digital world is radical. In the music world, for example, what once took a vast amount of infrastructure and hundreds of millions of dollars — distributing music to consumers across the nation1 — could be done digitally for pennies.2

In his influential book, The Long Tail: Why the Future of Business is Selling Less of More, Chris Anderson suggests that these changes will result in a shift away from the blockbuster effect. In a traditional retail sales distribution curve, blockbuster products make up a large “head” that contribute to the majority of sales, while the rest of products reside in a smaller “tail” that eventually reaches to zero — most commonly this is referred to as the 80/20 rule, where 80% of sales come from 20% of  products. The “Long Tail” theory states that since online retailers have unlimited “shelf-space,” the tail can extend much further; wide product selection and worldwide access increases demand for less popular and niche products in the tail as well, until the majority of sales come from the tail instead of the head.

If the Long Tail theory is correct, what does that mean for copyright? Anderson and others have predicted that a shift in demand away from hits would reduce the role of those companies that have traditionally invested in content creation — record labels, film studios, publishers, etc. These companies typically rely on a solid framework of copyright law to operate. Content creators in the “tail”, it is argued, are less concerned with copyright’s protections, which could result in a “less rigorous de facto regime for the majority of works.”3

Which brings us to our next question. Is the Long Tail Theory correct?

Anderson presents several case studies consistent with his theory. But while a few studies done since the book was published have reached similar results,4 the full range of evidence shows a decidedly mixed bag.5

Billboard Magazine’s Glenn Peoples highlighted some of this recent research and other statistics which show that, despite Anderson’s predictions, demand for content remains concentrated around blockbusters. In The Long Tale?, Peoples writes:

So far, at least according to Nielsen SoundScan data on U.S. music sales from January 2004 through October 2009, that revolution hasn’t arrived—although the demand for albums has changed. Sales of albums, especially digital ones, became significantly less concentrated around hit releases since 2004. But sales of digital tracks—which this year account for 56% of digital sales by track volume—have grown more concentrated in hits during the same time period.

These findings are consistent with other research, including that conducted by Will Page and Anita Elberse. In his recent article, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, Brian Day explains, “The results of both Page and Elberse‘s studies suggest that consumer demand for music has remained fairly constant despite the digital transition, with the vast majority of sales clustered around a small group of extremely popular titles.”6

If any conclusion can be gleaned from this, it is that the Long Tail Theory is not a natural phenomenon, caused solely by the economics and architecture of the internet. Factors besides these drive demand to content located in the tail.

And even though there are benefits to increasing the importance of “tail content”, “head content” still plays an important role. The success of hits and blockbusters provides the capital for content industries to take more risks, investing in the creation of non-mainstream and niche content. The importance of hits remains remarkably the same at every level across many different artistic fields — consider how many ballet companies rely on Christmas productions of The Nutcracker Suite to sustain themselves.7

In short, the demise of “traditional” creative companies predicted by The Long Tail, and any changes in the role of copyright law that may accompany that, has yet to occur in practice. Brian Day offers his own conclusions drawn from the discussion above specifically relating to the music industry — conclusions that I both agree with and think are just as applicable to other types of works covered by copyright law:

The Internet has thrown open the floodgates of music,offering consumers more selection than ever before. As the previously discussed studies demonstrate, however, increased access to music does not suggest that consumers’ appetite for music has changed or that record labels have artificially restricted musical diversity or creativity. To the contrary, the studies demonstrate that record labels successfully satisfy consumer demand by providing useful art to consumers. Without record labels, the long tail would likely grow even longer, requiring consumers to sift through thousands or perhaps millions of songs in hopes of stumbling upon a hit. Labels provide expertise in determining which songs and artists will appeal to specific groups of consumers, and invest significantly to market and promote their selections. A review of Billboard’s Top 100 most popular songs affirms the continuing popularity of label-funded music and artists.8


  1. It’s estimated that a national record distribution operation cost $125 million a year in the mid-1980s, according to David Nelson, Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution, 78 Southern California Law Review 559, 563 (2004). []
  2. Although there are still significant costs involved with preparing the music for digital distribution, and the costs of creation remained relatively similar. []
  3. William Patry, A Long Tail Effect on Copyright?, Patry Copyright Blog (Dec 19, 2006). I disagree with the contention that attitudes toward the appropriate scope of copyright protection can be generalized in this fashion. Indeed, there are many examples that can be used to show the opposite. []
  4. Brynjolfsson, Hu, and Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales (January 1, 2011); Haro, Sainz, and Somalo, Is One Long Tail Enough? (Cuando Una Long Tail No Es Suficiente) (2008). []
  5. Òscar Celma, Music Recommendation and Discovery in the Long Tail, (2008). []
  6. 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011). []
  7. For example, The Washington City Paper notes that The Nutcracker provides 20% of the Washington Ballet’s total ticket revenue each year; The Cincinnati Ballet received 51% of its annual revenue from the Suite in 2008-09. []
  8. In Defense of Copyright, pp 87-88. []

Copyright Blog | Arguments, debates and ideas about copyright — Dominic Young has started a new blog, bringing his extensive experience working with copyrights from a business (rather than legal) perspective. Young hopes to counter the many voices critical of copyright, believing it instead to be “a hugely positive driver of many of the things it stands accused of inhibiting.” He already has a number of excellent and thought-provoking posts, like Mish-mashing-up (on mash-ups), How do we know copyright is working?, and Perfect economies (on “freemium” business models).

How I learned to stop worrying and love the copy — Many of the arguments made in favor of copying music and video are just as applicable to copying money, as James Gannon humorously points out. “Gutenberg did not invent the printing press so that it would be controlled in the hands a few rich and powerful central bankers who desperately cling to outdated business models. With the advent of digital technologies, everyone can and should be free to copy their own money.”

Innovation and the Creative Community — The Copyright Alliance’s Sandra Aistars refutes the oft-repeated notion that copyright somehow stifles innovation. It instead promotes innovation, in sometimes striking ways. Just one example provided by Aistars: “A lighting system created by Luminys Systems for film sets now is in use by car companies for crash test videos that help make cars safer.”

Raising Movie Funds on Kickstarter — Screenwriter John August (credits include Charlie and the Chocolate Factory, Big Fish, Go) has notes from a talk by  Kickstarter founder Yancey Strickler during Sundance. Some numbers specifically related to film funding through the site as well as useful tips for indie filmmakers looking at fan funding. $15 mil raised in 2 years for film projects is heartening news for new and emerging film-makers, though still a far bit away from what established studios invest in making movies.

Losing Independence — Andrew Keen, writing for the DGA Quarterly, points out that piracy hurts low- and mid-budget films the most. Keen says, “[Jason] Reitman [director of Up in the Air and Juno] has a term for the type of motion picture facing extinction because of piracy. He calls them ‘tweeners’—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the ‘tweener’ as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which ‘push cinema forward,’ producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.”

The truth about TV ratings, online viewing, and sci-fi shows — Craig Engler, GM and SVP of Syfy Digital, does a tremendous job explaining the complex and sometimes confusing inner workings of the television biz to the general public. This is an older article, but well worth a read. Engler is also on Twitter (@Syfy), where he often takes biz-related questions from his followers.

The IP and Entertainment Law Ledger— the online-only newcomer to law journals from NYU School of Law has just “published” its Spring 2011 issue. I highlighted Andrew Berger’s article on statutory damages in yesterday’s article about the Tenenbaum case. Also worth checking out, Graham Ballou’s Substantial Disparity: Copyright Chaos in the Second Circuit.

Working as a Musician — Cynical Musician Viridian Faza has some advice for making money as an indie artist. Hint: it doesn’t involve giving it away and making up for it in volume.

The Wrecking Crew — “From the start of rock ‘n’ roll through the nineteen eighties, there were about two dozen people who played on seemingly every hit record produced in Los Angeles.” Collectively known as “The Wrecking Crew”, Music Industry Newswire takes a look at the amazing group of session players and the forthcoming documentary based on them.

Stories of heroic legal battles, typically involving underdogs fighting against all odds for truth and justice, are popular fodder for books and films.

Gideon’s Trumpet tells the tale of a poor, uneducated man, in and out of jail most of his life, who doggedly pushes his latest conviction all the way to the Supreme Court and wins — in turn, setting the precedent that the Constitutional right to an attorney applies in State courts.

The Buffalo Creek Disaster recounts the aftermath of a devastating coal mining disaster that wiped out a West Virginia town and the efforts of a group of attorneys to hold the mining company responsible for failing to prevent the bursting of the dam.

The film Erin Brockovich portrays the tale of a single mother without a formal legal education who launched a successful fight against a large utility company alleged to be contaminating groundwater and sickening the local population, leading to the largest settlement paid in a direct action lawsuit in US history.1

Perhaps Joel Tenenbaum and his legal team are hoping one day to have their legal battle memoralized in a similar story. Regarding Tenenbaum’s appeal of the $675,000 — $22,500 per song for 30 songs — awarded as damages for copyright infringement, one of the law students working on the case expressed “real hope for Joel, for justice, and for rationality.”

Justice, it seems, must save college students from the tyranny of having to pay 99 cents to own a song.

Don’t get me wrong, $675,000 is a lot of money, and Tenenbaum was one of the unlucky quarter of 1/10 of one percent of illegal filesharers to be sued by the record labels between 2003 and 2008,2 and of those, one of only 2 out of 18,000 defendants to have gotten a jury award of statutory damages against him.

But is $675,000 an unconstitutional amount to be awarded against an individual who has engaged in P2P infringement? That is the question currently facing the First Circuit.

On July 9, 2010, Judge Gertner reduced the jury’s award of $675,000 to $67,500 on constitutional grounds in Sony BMG Music Entertainment v. Tenenbaum.3 This is in contrast to the reduction of the jury award in the Jammie Thomas case, which was made under the common law procedure of remittitur4 — and, in fact, Judge Gertner relied in part on the fact that the plaintiffs in Thomas-Rasset had rejected the remitted award to support her conclusion that the constitutional question in Tenenbaum could not be avoided.5

Both parties appealed the decision to the First Circuit, joined by the United States as plaintiff-intervenor. You can read the appellate briefs here.

Oral arguments were held April 4, you can listen to them here:

[wpaudio url=”″ text=”Oral arguments – Sony BMG Music Entertainment v. Tenenbaum” dl=”0″]

Several bloggers attended the oral arguments in person and have written up their accounts: these include Joel Sage at Legally Sociable and Steven Ayr at AyrLaw.


There is a wealth of information online that explores the issues involved in this appeal.

Just yesterday, the NYU IP and Entertainment Law Ledger published What are the Constitutional Limits on Awards of Statutory Damages? by Andrew Berger, which examines the Tenenbaum appeal and its legal issues in depth.

First up is an excellent debate between Ben Sheffner and Pamela Samuelson about whether statutory damages in P2P cases are unconstitutionally large at PENNumbra.

Also from Sheffner, check out Due Process Limits on Statutory Civil Damages? Unprecedented Ruling in Copyright Case a Double-edged Sword for Businesses, published by the Washington Legal Foundation.

The Intellectual Property Colloquium has a podcast available on the same subject. UCLA professor Doug Lichtman hosts the thorough examination of many of the issues raised in Tenenbaum’s case with guests that include Tenenbaum’s attorney Charles Nesson, general counsel for the RIAA Steven Marks, and several academic experts on punitive damages.

The Progress & Freedom Foundation hosts The ‘Lessigation’ of Copyright Scholarship: A Review of Statutory Damages in Copyright Law: A Remedy in Need of Reform, which provides an overview of the history and purpose of copyright’s statutory damages.

Finally, Copygrounds has a post written by Matthew Oppenheim explaining the role of statutory damages in P2P cases from the record labels’ perspective that’s worth a read.

Issues at Stake

The key issue in the Tenenbaum appeal is whether the Due Process Clause of the Constitution can limit the amount of damages awarded by a jury under copyright’s statutory damages provision — and if it can, how is that determined?

The lower court noted that due process “prevents the awarding of damages without adequate procedural protections, but it also seeks to define the outer limits of what excessive punishment is,” noting also that it has both a procedural and a substantive component.

Judge Gertner concluded that the damages were unconstitutional using the analysis from BMW of North America v. Gore.6 There, the Supreme Court set out three guideposts for determining whether an award of punitive damages runs afoul of the Due Process Clause: (1) “the degree of reprehensibility of” the defendant’s acts, (2) “the disparity between the harm or potential harm suffered by [the plaintiff and the] punitive damages award”, and (3) “the difference between this remedy and the civil penalties authorized or imposed in comparable cases.”

The record labels and government disagree with Gertner’s choice of standard. They argue that the damages should be analyzed under the more deferential standard of St. Louis v. Williams7 because, unlike the punitive damages involved in Gore, statutory damages are set by law. The Court in Williams was tasked with determining whether a penalty set by statute violated the Due Process Clause. It concluded that governments “possess a wide latitude of discretion” in setting statutory penalties, and the limitations of the Due Process Clause only come into play when a penalty is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

Due process certainly plays a role in punitive damages awards. Since the amount of such an award is not set by law, potential defendant’s have no notice of the amount of liability they may face in the course of their business, the amounts awarded by different juries for similar cases may vary so greatly as to be unfair, and juries may award damages that are simply unreasonable in light of the harm caused.

These due process concerns are attenuated when the amount of damages, even a range of damages available as in copyright infringement, is set by Congress rather than left to the discretion of a jury. Potential defendants have a sense of what their maximum liability can be — and given the FBI warnings on every DVD, it’s fair to say that statutory damages for copyright are one of the most well-known federal statutes concerning damages. The range of damages may be broad, but they are confined. And Congress presumably considers the reasonableness of the damages in light of the range of behaviors that would trigger an award.

The record labels, along with Sheffner and Berger, point out that the Gore guideposts are inapt for testing the constitutionality of statutory damages for these reasons.

What’s more, the issue of whether the award is unreasonable or unfair has to be viewed in light of the fact that it is roughly half the average of every jury award of statutory damages in P2P infringement cases that reached a jury verdict.8 All four juries that considered these cases, seeing the evidence with their own eyes and hearing the testimony for themselves, and weighing the amount of damages to award in light of the circumstances, have found it appropriate to hold P2P infringers liable for an average of $43,662.50 a song. The argument is essentially that each and every jury has acted unreasonably and unfairly.

Of course, both sides argue that it doesn’t matter which standard is applied. According to the record labels, the damages award is constitutional under both Gore and Williams; Tenenbaum argues it is unconstitutional under either.

If the First Circuit reaches the Due Process issue, much of the conclusion may rest on what measure of the harm caused by Tenenbaum is accepted. Were his actions, as Judge Gertner held, similar to the theft of a small number of individual songs? In that case, the harm would be relatively small — $21 by Gertner’s calculations. Or are his actions more like those of an unrestricted licensee of the songs at issue — meaning the potential harm caused approaches the entire value of the copyrighted work.

It’s also likely that the court will have to take a look at whether or not Congress intended for the statutory damages provision to apply to the type of conduct Tenenbaum engaged in, though even here, both sides disagree over how to characterize his conduct. Is it simply personal, noncommercial copying, or is it “easy and ubiquitous” infringement that harms copyright holders on a scale beyond even large-scale commercial physical piracy? Whichever view the court takes will play a role in determining the reasonableness of the damages award.

A Broad Attack on Statutory Damages

All the parties raise other issues besides Due Process in their appellate briefs. Most notably, Tenenbaum raises two issues attacking the very validity of copyright’s statutory damage provision.

Tenenbaum first argues that statutory damages were “never intended for consumer copying,” relying primarily on legislative history to reach this conclusion. Commenting at Legally Sociable, one of the members of Tenenbaum’s legal team expressed dismay that First Circuit Chief Judge Lynch expressed “hostility” toward this point during oral arguments and intends to “elevate textualism over Congressional intent and rationality.”

But, with all due respect to Tenenbaum’s legal team, this seems to conflate textualism, a theory of statutory interpretation, with textual rules of statutory construction — specifically, the plain meaning rule.

Statutory interpretation, under any theory, is used by courts when the plain meaning of a statute can’t be determined. Perhaps a term or phrase is ambiguous, or perhaps the language of the statute can be taken more than one way. In these situations, courts need to look at other things to determine what the law means, like the intent of its drafters or the underlying goals of the statute.

But if the meaning of the statute is plain on its face, there is typically no need for further interpretation.9 Presumably, Congress intended the law to mean what it wrote it to say.

And I think the language of the statutory damage provision of the Copyright Act is quite clear. Statutory damages apply to any “infringer of copyright.”10 An “infringer of copyright” is “anyone who violates any of the exclusive rights of the copyright owner.” (Emphasis added).11 In contrast, other provisions expressly take commercial use into consideration: for example, fair use (“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”)12 and criminal copyright infringement (“Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—(A) for purposes of commercial advantage or private financial gain”).13 There’s simply nothing in the language of the Copyright Act that supports a commercial/noncommercial distinction for awards of statutory damages.

Tenenbaum’s second argument asserts that the Supreme Court declared the current statutory damages provision unconstitutional in Feltner v. Columbia Pictures Television.14 It’s a creative argument, and one Feltner himself made after his case was remanded from the Supreme Court.15 The 9th Circuit rejected this argument as unpersuasive, a position “contrary to the express language of the Supreme Court’s decision” and one based on a failed understanding of the holding in that case. Nevertheless, Tenenbaum hopes to convince the First Circuit that the 9th Circuit was mistaken.


It’s unclear what effect an affirmance by the First Circuit would have on P2P litigation specifically. The record labels are no longer pursuing lawsuits against individual infringers; only one other case has reached the jury stage. And while other copyright holders have notably tried the strategy of suing end-users in the past year, I have doubts that this is an effective strategy from a financial standpoint. Individual copyright holders don’t have the resources that an industry group has to sustain mass lawsuits through the trial stage, these lawsuits are already facing procedural setbacks, and at the end of the day, judgments, whether thousands of dollars or hundreds of thousands of dollars, are difficult to collect — especially from individuals. They just don’t have the money. In other words, litigation of end users as a “business model” is, I think, unlikely to be sustainable no matter if there are limitations on statutory damages or not.

But the effect of an affirmance will have an effect on lawsuits outside this specific arena, and that effect will be felt most by smaller copyright holders. Andrew Berger writes:

Affirming the result in Tenenbaum will negatively impact copyright enforcement for years to come for a number of reasons.

First, affirmance will cause many meritorious copyright claims never to be litigated. That is because Tenenbaum, contrary to the Copyright Act, requires copyright owners to prove actual damage as a pre-condition to recovering statutory damages. But many copyright holders will be unable to show actual damages. The value of a copyright, especially at inception, is often impossible to estimate. How much is an unpublished novel by a first-time author worth?

Second, removing the teeth from the statutory damage scheme, which is what Judge Gertner essentially did, relegates litigants to actual damages. But they are often inadequate for a number of reasons. First, actual damages may be less than the cost of detecting, investigation and, for sure, litigating. So why bother? Second, actual damages, often requiring extensive accounting analysis, may be prohibitively expensive to prove. Third, although actual damages in copyright litigation include the infringer’s profits attributable to the infringement, there may be none to collect either because an infringer earned none, conveniently lost its sales records or never kept any.



  1. According to Wikipedia. []
  2. This is a back-of-the-envelope calculation, derived from InternetWorldStats number of US internet users in 2005, Interpret’s percentage of internet users who have downloaded illegally, and record label court filings indicating the number of named defendants contacted during the litigation campaign. []
  3. 721 F.Supp.2d 85 (D. Mass). []
  4. Capitol Records v. Thomas-Rasset, 680 F.Supp.2d 1045 (D. Minn 2010). []
  5. As Gertner observed, it is a generally accepted principle that courts should “avoid confronting constitutional questions when they can reasonably rest their holdings on other grounds.” []
  6. 517 US 559 (1996). []
  7. 251 US 63 (1919). []
  8. Tenenbaum’s liability of $675,000 for 30 songs comes out to $22,500/song. The award in Jammie Thomas’s first civil trial was $9,250/song, in her second $80,000/song, and in the third trial, which concerned the amount of damages only, the jury awarded $62,500/song. []
  9. US v. Ron Pair Enterprises, 489 US 235 (1989). []
  10. 17 USC § 504(a). []
  11. 17 USC § 501(a). []
  12. 17 USC § 107. []
  13. 17 USC § 506(a). []
  14. 523 US 340 (1998). []
  15. Columbia Pictures v. Krypton Broadcasting, 259 F.3d 1186, 1192-93 (9th Cir. 2001). []

5 Mistakes “Anti-Copyrights” Constantly Make — PlagiarismToday’s Jonathan Bailey has an excellent article looking at the common errors of those who want to drastically reduce or eliminate copyright protection. I think number one is an especially common mistake: “Blaming the law for morons.”

A Mounting Crusade for Criminal Activity — A news conference was held this past week addressing recent efforts to reduce the ease and profit of digital piracy. The Copyright Alliance notes the predictable and troubling rhetoric from those opposed to such efforts — including the misuse of terms like “censorship”, which “is at best silly and at worst a dramatic and somewhat shocking shift in the definition of the very important principle of free speech.”

Direct Reporting: Tenenbaum Oral Argument — Oral argument for Sony BMG Music Entertainment v. Tenenbaum was heard this week. Joel Sage, at Legally Sociable, attended in person and shares his thoughts. You’ll find lots of links to the briefs and other analysis there, a link to the audio of the arguments, and a lengthy comment from one of the law students working on Tenenbaum’s appeal.

Google Books Settlement Unraveled — On March 30th, the Copyright Clearance Center presented a webinar to discuss the rejection of the Amended Settlement Agreement in the Google Books Settlement. The webinar is archived on the site, along with a link to a text transcript. Really great discussion regarding the issues in the case and what the rejection means, as well as an excellent and succinct history of the litigation. That alone is well worth a read if you want to know what the Settlement is all about.

The Discography — Billing itself as the “Legal Encyclopedia of Popular Music”, this site features “1,300 entries covering 2,400 court opinions (including over 30,000 pieces of data) spanning almost 200 years, fully summarized and searchable by numerous variables, featuring nearly every artist you’ll think of (many you won’t), covering copyrights and contracts, trusts, torts and more.” Quite a great resource!

Facebook Self-Publishing Ventures Keep Cloning — Not particularly copyright related, but fascinating nevertheless. Did you know there are currently at least seven different services that offer on-demand publishing of your Facebook profile in book form? Leading future archaeologists to the inevitable conclusion that ” Gosh, twenty-first century people sure ‘liked’ a lot of stuff.”

Beastie Boys – Make Some Noise — Finally, for any Beastie Boys fans out there, the group has released a track from their upcoming album, Hot Sauce Committee Part 2. The trio also has a companion short film with quite a cast list: Will Ferrell, Elijah Wood, Seth Rogen, Danny McBride, John C. Reilly, Jack Black, Susan Sarandon, Stanley Tucci, Will Arnett, Ted Danson, Steve Buscemi, and many more.

Check the preview below (warning: adult language).


The briefs for Viacom’s appeal against the District Court’s decision in its lawsuit against YouTube have been filed. Last June, the Southern District of New York granted the video hosting site’s motion for summary judgment, saying the DMCA’s safe harbor immunizes YouTube from liability for copyright infringement by its users.

The crux of the case involves the interpretation of 17 USC § 512(c)(1)(A) and §512(c)(1)(B) — whether YouTube had actual knowledge of infringing works that were uploaded and whether it had the right and ability to control the uploading of infringing videos.

Today, however, I wanted to look at one of the other, and (to me, at least) more interesting issues raised on appeal. Does YouTube even qualify as a “service provider” under the DMCA in the first place?

Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act, provides “safe harbors” for online service providers that limit their liability for copyright infringement arising out of specific situations. The one YouTube and most user-generated content sites claim protection under regards “information residing on systems or networks at direction of users” and is found in §512(c). Specifically, 17 USC § 512(c)(1) provides that “A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”.

Viacom argues that YouTube’s activities go beyond the collateral scope of the storage functions described in §512(c). If the 2nd Circuit agrees, this means YouTube wouldn’t receive the DMCA’s harbor no matter what “knowledge” or “right and ability to control” mean — its liability would be analyzed under traditional secondary liability doctrines. And some have suggested that, absent this safe harbor, there is a likelihood that YouTube could end up liable for copyright infringement of its users — at least as far as its operation during the time that is at issue in this lawsuit.1

Under Construction

The internet looked a lot different in 1998 when Congress passed the DMCA. The amicus brief filed by the Washington Legal Foundation provides a good look at the differences:

At that time ‘service providers’ were generally thought of as the ‘doorways’ to the Internet — the means by which individual users accessed the Internet to exchange electronic mail, view websites, and download files.  Common service providers in the 1990’s were America Online, Compuserve, and individual educational and work institutions.

User content was typically located on that user’s individual web page, which was ‘hosted’ on the service provider’s computer systems.  In this manner, a user’s individual web page was made available to other Internet users around the world.  These individual web pages often contained copyrighted material belonging to others — at that time mainly photographs and music recordings.

Content owners, to protect their intellectual property, brought lawsuits against both the website owner (often an individual) for placing the content on the web page and the service provider for ‘hosting’ the web page.  Service providers were thus faced with exposure to copyright liability solely by virtue of their desire to provide to individuals the ‘doorway’ to the Internet.

The problem confronted by Congress in the 1990’s with respect to the Internet and intellectual property rights was how to strike the balance between protecting a content owner’s rights, on one hand, and encouraging service providers to continue to offer Internet access on the other.  Congress thus sought, through the DMCA, to address this problem.

As stated in the floor debates: ‘One of the things we do here is to say:  ‘If you are on-line service provider, if you are responsible for the production of all of this out to the public, you will not be held automatically responsible if someone misuses the electronic airway you provide to steal other people’s property. There is a balance here.  We want to protect property, but we do not want to deter people from making this [the Internet] widely available.  We have a problem here of making sure that intellectual property is protected, but we do not want freedom of expression impinged upon'” …

The DMCA was enacted with that balance in mind:  encouraging access to the Internet while at the same time protecting intellectual property.

It’s easy to forget how much has changed since then. According to an article on, the top 10 websites in 1997 were:

  1. Geocities
  2. Yahoo and Yahooligans, Yahoo Sports and My Yahoo
  3. Starwave Corporation – Where More People Click
  4. Excite, Magellan and City.Net
  5. PathFinder, and Time/Warner and CNN sites: Warner Bros., HBO, DC Comics, Extra TV, Babylon5, CNN , CNN Financial Network and AllPolitics
  6. AltaVista Search Engine
  7. AOL Member Home Pages
  8. CNET, Search.Com, News.Com and
  9. The New York Times on the Web
  10. Ziff Davis and HotFiles

Many of the things we take for granted on the internet today had yet to arrive back then. Wikipedia launched in 2001. Social networking sites didn’t take off until after the new millennium — Friendster launched in 2002, Myspace in 2003, Facebook in 2004. Terms like “blog” and “Web 2.0″ were years away from becoming over-used. And, of course, YouTube itself didn’t launch until 2005.

But perhaps nothing illustrates the evolution of the internet from the time of the DMCA to now better than this note from the Working Group on Intellectual Property Rights White Paper. Established as part of the Information Infrastructure Task Force (IITF), the Working Group was charged with examining the adequacy of IP law in the online world and recommending any changes needed. It released a preliminary draft of its report (the “Green Paper”) in 1994, and the final draft (the “White Paper”) in ’95; the DMCA was largely the end result of the IITF’s work.

The note in the White Paper explains to readers how to access copies of the Green Paper and other IITF documents online:

“The IITF Bulletin Board can be accessed through the Internet by pointing the Gopher Client to or by telnet to (log in as gopher).  The Bulletin Board is also accessible at 202-501-1920 using a personal computer and a telephone modem.”2

This comparison of the internet at the time the DMCA was passed and now illustrates the challenges courts face in interpreting its provisions. Despite being little more than a decade old, the law is called upon to deal with circumstances largely unforeseen when it was written.

Service Provider or Content Provider?

Viacom argues in its brief that “YouTube’s performance and licensing of user-uploaded copyrighted content are not the type of storage activities that the DMCA immunizes from liability.”3 The “storage” services protected by the safe harbor of § 512(c) were meant to cover things like “server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users” — the safe harbor doesn’t “suspend liability for other [non-storage] acts in which the service provider might engage with respect to the user-posted content.”

Viacom points to several YouTube functions that it considers “non-storage acts.” (1) “YouTube transcodes user uploaded material into a standard format for display, distribution, and performance of the content on its website and third-party platforms”; (2) YouTube’s playback function, where a visitor can view a video stored by another user on a “watch” page containing an embedded video player; (3) the automatic recommendation of additional videos that YouTube displays after playback of a video has finished; and (4) YouTube’s licensing of uploaded videos to third parties, such as Verizon Wireless.

“Congress did not intend to give content-based entertainment enterprises an unfair advantage over traditional media merely because they operate on the Internet,” says Viacom, casting the safe harbor as one intended to apply to “passive providers of storage” that provide “server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users.”

But YouTube, as Viacom argues, “is an integrated media business that ‘compare[es] [it]sel[f] to, say, abc/fox/whatever.'” The functions YouTube engages in are done “not to facilitate storage, but to facilitate activities that are necessary for wide public dissemination of the works” and “performed ‘as a course of its normal operation … uninstructed by the user.'”

Bruce Lehman, who chaired the previously-mentioned Working Group on Intellectual Property Rights and helped develop the DMCA, adopts a similar argument in the amicus brief filed by the International Intellectual Property Institute:

Companies who receive their value from hosting or otherwise enabling the spread of infringing content are not service providers — and they certainly are not proving a service that contributes to the ‘speed and capacity of the internet.’ … These companies provide content.

The defendant’s stated goal was to create a media business ‘just like TV.’ … It succeeded: users who upload media provided programming which the defendant licensed, controlled, and broadcasted in order to receive ad revenue. This business model is not new, unique, or worthy of a special status under the law simply because it disseminates its media over the Internet.

Lehman relies on the Working Paper to support a distinction between companies providing internet infrastructure — which are protected by the DMCA safe harbors — and “content providers.” YouTube, the brief argues, is a content provider. It calls itself a “consumer media company.” It provides “user access to its servers to upload video files” and “reformats the videos and broadcasts them over its website for its customers” in order to” create a business model which was ‘just like TV.'”

Such a model depends on advertising revenue, which depends on “attracting the greatest possible viewership”; high-value, infringing content draws a lot of traffic, giving YouTube an incentive to do as little as possible to prevent users from uploading this type of content. In short, a “content-based business model” like YouTube forecloses protection under the DMCA.

Interpreting the Statute

Viacom’s interpretation of the storage activity safe harbor was rejected by the District Court. The court relied largely on how the provision was interpreted by other courts dealing with similar situations to come to its conclusion.

In Io Group v. Veoh Networks, the plaintiff argued that a video-hosting site very similar to YouTube was engaged in acts beyond the storage activities protected by the DMCA. But the court disagreed based on the “structure and language” of the safe harbor provisions:

The statute itself is structured in a way that distinguishes between so-called “conduit only” functions under Section 512(a) and those functions addressed by Section 512(c) (and other subsections as well). Perhaps most notably, OCILLA contains two definitions of “service provider.” 17 U.S.C. § 512(k). The narrower definition, which pertains only to service providers falling under Section 512(a), “means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the materials as sent or received.”

By contrast, no such limitation as to the modification of material is included in the broader definition of “service provider,” which the parties agree applies to Veoh. Instead, “the term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).” Had Congress intended to include a limitation as to a service provider’s modification of user-submitted information, it would have said so expressly and unambiguously. (Citations removed.)4

A different court came to the same conclusion in UMG Recordings’ lawsuit against Veoh:

Under UMG’s interpretation, § 512(c) would apply only to operational features that provide or constitute storage—and nothing more. But there is no language in § 512(c) that so limits its applicability. Congress did not provide merely that “a service provider shall not be liable for storing material at the direction of the user” or that “a service provider’s liability shall be limited only for conduct that is storage.” Instead, as the language makes clear, the statute extends to functions other than mere storage; it applies to “infringement of copyright by reason of the storage at the direction of a user ….” In short, the narrow construction of the statute that UMG advocates is not the one Congress enacted. (Citation removed.)5

The court in UMG Recordings also accepted Veoh’s argument that the “by reason of the storage” language in § 512(c) is “broad causal language that is clearly meant to cover more than mere electronic storage lockers.” Its reasoning was adopted wholesale by the Viacom court to reach its conclusion. Said UMG Recordings:

Common sense and widespread usage establish that “by reason of” means “as a result of” or “something that can be attributed to ….” So understood, when copyrighted content is displayed or distributed on Veoh it is “as a result of” or “attributable to” the fact that users uploaded the content to Veoh’s servers to be accessed by other means. If providing access could trigger liability without the possibility of DMCA immunity, service providers would be greatly deterred from performing their basic, vital and salutary function—namely, providing access to information and material for the public.

The Viacom court described those acts “attributable” to a user uploading content as within the “collateral scope of ‘storage’ and allied functions.” Anything outside that collateral scope would fall outside the protection of the safe harbor and have to be analyzed under traditional doctrines of secondary liability, but in this case, YouTube’s “replication, transmittal, and display of videos” are within the provision’s scope.

The Issue on Appeal

The case law doesn’t seem to give Viacom much room to argue on this point, but keep in mind that the above-cited cases are only district court cases. Viacom argues that the lower court’s broad interpretation of the “by reason of” language goes against Supreme Court precedent that interprets the same language in other contexts as implying some form of proximate causation rather than the mere “but for” causation embraced by the lower court.

Moreover, YouTube notably doesn’t address the fact that it actually licensed user content to third parties in its reply brief; if anything would fall outside the collateral scope of storage functioning, I would think this type of act would.

We may get a preview of how successful Viacom ultimately is on this issue before the 2nd Circuit issues its ruling. The 9th Circuit is currently hearing UMG Recordings appeal in the case discussed in the previous section. UMG advances the same argument in its brief. Considering the similarities between the two cases, and the fact that the UMG appeal began months before Viacom’s appeal, the 9th Circuit’s eventual holding could forecast the willingness of appellate courts in narrowing the currently accepted scope of § 512(c) at the district court level.

Left unsaid at the district court level is any sense of the “outer bounds” of what service providers can do with material stored at the direction of users and remain within the DMCA’s safe harbor. Each part of the statutory language has been given its broadest meaning. A service provider obviously has to meet the other requirements of the DMCA to be immune from liability — but considering how broadly the Viacom court read the “knowledge” and “right and ability to control” requirements, the DMCA seems to be stretched far beyond what Congress had intended in 1998.

Is YouTube a service provider or a content provider? Should this distinction play a role in whether it qualifies for safe harbor? And, in the broader sense, is the DMCA as a whole, considering the evolution of online communications since it passed, still capable of striking the balance between innovation and protecting that content that gives value to that innovation?



  1. Trevor Cloak, The Digital Titanic: The Sinking of in the DMCA’s Safe Harbor, Note, 60 Vanderbilt Law Review 1559, 1573-78 (2007). []
  2. White Paper, pg. 4, n.11. []
  3. The entire argument is found at pp. 49-55 of the Opening Brief for Plaintiffs-Appellants. []
  4. 586 F.Supp.2d 1132 (ND Cali 2008). []
  5. UMG Recordings v Veoh Networks, 620 F.Supp.2d 1081, 1089 (CD Cali 2008). []

Two weeks ago, I discussed some of the criticisms of domain name seizures in ICE Seizures Criticism: Magic Words. It was, in part, a response to those who argue the seizures are unconstitutional — among them US Representative Zoe Lofgren and attorney David Mackarewicz, who continued the discussion in his response, Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections.

I made it a point to highlight the use of certain “magic words” in the debate — like “prior restraint” and “due process” — not, as Mackarewicz says, to “question the motives” of the seizures’ critics, but to bring to the forefront how they can be used in constitutional arguments.

Nobody wins popularity contests defending the constitutionality of a government action. It’s not hard to imagine a typical debate going like this:

“I think x is unconstitutional.”

“I disagree.”

“Why do you hate the constitution?”

Mackarewicz provides a perfect example of this right in the title of his response, claiming that supporters of these seizures “undervalue” constitutional protections. Presumably, this would include noted First Amendment advocate Floyd Abrams among those who undervalue the constitution, since he has concluded that COICA (which would use in rem forfeiture of domain names) does not run afoul of free speech protections.

Others are more blunt. Mike Masnick writes, “One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns,” citing my article as an example.

So you can see why constitutional arguments have special considerations different from other types of arguments. The temptation is always there to label those who don’t accept the argument that something is unconstitutional as foes of freedom.

Contrary to these accusations, I do value the Constitution and its protections against censorship and undue process. I can’t speak for others who believe the domain name seizures are constitutional — literally millions of Americans1 — but I imagine they value it too.

With that said, I want to respond specifically to some of the arguments raised by Makarewicz.

Due Process

It bears repeating what the due process issue is here: whether a hearing is needed prior to the seizure of domain names, alleged to facilitate copyright infringement, for the purpose of forfeiture, to give any claimants the opportunity to challenge the government’s probable cause determination.2 There is little doubt that, assuming the process is constitutional, domain names can be forfeited, it’s just a question of what process is constitutional.

Makarewicz writes, “The most troubling issue has undoubtedly been the series of Government domain name seizures, through which the DHS takes the domain names of accused infringers without first giving the accused a chance to defend their site at a hearing.” Later, he refers, quite correctly, to the rule that “a Government taking prior to notice and a hearing is not the norm, but is limited to “extraordinary circumstances.” There are only a few recognized exceptions to the rule that requires notice and a hearing prior to a deprivation of property.

However, one of those exceptions is when the government seizes property for the purpose of forfeiture. The Supreme Court has plainly said this on more than one occasion in recent history. In her concurrence-dissent of US v. James Daniel Good Real Property, Justice O’Connor writes:

We have already held that seizure for purpose of forfeiture is one of those “extraordinary situations,” Fuentes v. Shevin, 407 U. S. 67, 82 (1972) (internal quotation marks omitted), in which the Due Process Clause does not require predeprivation notice and an opportunity to be heard. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 676-680 (1974). As we have recognized, Calero-Toledo “clearly indicates that due process does not require federal [agents] to conduct a hearing before seizing items subject to forfeiture.” United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); see also United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986). Those cases reflect the commonsense notion that the property owner receives all the process that is due at the forfeiture hearing itself. (Emphasis added).3

Prior Restraint

As Floyd Abrams points out, “injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations.” Arguments that actions similar to seizure of domain names are prior restraints have been raised and answered by various courts already.4

But even if the seizure of a domain name could be considered a prior restraint, as Makarewicz argues, it doesn’t necessarily follow that a pre-seizure hearing is required.

When seizures raise First Amendment concerns, courts have only gone as far as to say that they require “rigorous procedural safeguards” to conform with the Constitution.5 For instance, in Roaden v. Kentucky, the Supreme Court held that the First Amendment, at a minimum, requires a warrant before seizing obscene materials. “The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression,” said the Court.6 But in a footnote, it added, “This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte.7

That same year, in Heller v. New York, the Court reiterated the fact that seizures of expressive works do not always require an adversary proceeding prior to executing the warrant. “This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.”8 It explained that its reversal of a Kansas State Court judgment ordering the seizure of 1,715 copies of 31 novels in A Quantity of Copies of Books v. Kansas,9 based in part on the lack of an adversary hearing on the matter, did not create a blanket rule. “In Mishkin v. New York,383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing.”10

The “classic” notion of a prior restraint involves some sort of licensing for publications or censor board to review whether certain items could be distributed to the public. That notion has been gradually broadened over the decades to include a range of government actions and laws that suppress speech before a final judicial determination that it is unprotected by the First Amendment.

Even so, while looking at prior restraint doctrine as courts and scholars have examined it, it seems to me that prior restraint still requires some kind of, well, restraint.

One common thread in these cases is that a prior restraint involves a prohibition on future expressive conduct. So, for example, the RICO forfeiture order examined by the Supreme Court in Alexander v. United States was not an improper restraint because it didn’t forbid the owner from any expressive conduct or require approval for any future expressive conduct. Said the Court, “the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials.”11

In Vance v. Universal Amusement Co., the Court held that a Texas nuisance statute (specifically, the portion of the statute naming the “commercial exhibition of obscene material” as a prohibited use) could not be used to close down movie theaters. Any such injunction would effectively prohibit the “future exhibition of unnamed films.”12

Another thread you see in the prior restraint cases is that they involve the removal of speech from circulation.

  • But there is no doubt that an effective restraint—indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public’s opportunity to obtain the publications was thus determined by the distributor’s readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized.13
  • “It is our view that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. … A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.” (Emphasis added).14
  • “In this case, of course, the film was not subjected to any form of ‘final restraint,’ in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.”15 “But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.”16
  • “Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.” (Emphasis added).17
  • “In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.”18

Looking at the above and other cases involving prior restraints, it’s difficult to see how seizing the domain name of a website dedicated to infringement is a prior restraint without taking too many logical leaps. No one is prohibited from expressing themselves now or in the future. The content on the websites remains in circulation.

That’s not to say that a specific domain name seizure can’t be a prior restraint. If the government seizes a domain name for the purpose of suppressing speech on that site it doesn’t like, under the guise of copyright laws, child pornography laws, or any of the other laws where forfeiture of facilitating property is authorized, then yes, most likely that is an unconstitutional prior restraint.

But that situation can be dealt with if it ever arises. The possibility that a law can be abused doesn’t make it unconstitutional; otherwise, I don’t know if we’d have any laws left! The Supreme Court itself has weighed in on this subject. “The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them … Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.”19

Why Domain Name Seizures are Needed

One of the responses to this is to question why the domain names are seized at all if they are seemingly ineffective since the content remains online.

But they are effective. Remember, the domains are seized because they are property that facilitate criminal conduct —copyright infringement — occurring due to the sites. The domain name provides an easy to remember address that attracts more visitors to these sites. They allow better search engine optimization for the sites — in many cases pirate sites appear above sites offering the same content legitimately in search results. Most of these sites earn revenues from advertising — Brian McCarthy, arrested last month after his domain was seized, made $90,000 in three years off his site, and Torrent-Finder, seized last November, made over $15,000 in one year from only one of its advertising providers — so traffic and good search results are key to their success.

And the government has a legitimate interest in seizing domain names before a hearing. Seizure is needed to establish jurisdiction over the property for a forfeiture proceeding. Securing the exclusive rights of copyright holders is one of the enumerated powers of Congress listed in the Constitution, rights that the sites connected to the domain names are alleged to continually violate. While a domain name can’t be “destroyed” in the same sense as tangible property, a site owner can easily cancel the domain and get a new one if given a “heads up” by ICE, destroying the connection between the domain name and the site where the infringement is occurring. Finally, the infringement facilitated by the domain names causes irreparable and ongoing harm to copyright holders’ First Amendment rights, adding to the need for seizing without a pre-seizure hearing.20

Obviously, seizing domain names won’t eliminate piracy, but that was never their goal. Content industries have been dealing with one form of piracy or another as long as they’ve been around, so they know more than anyone that complete eradication is impossible. But the seizures do have an impact. They disrupt the operation of pirate sites, making it more difficult to engage in and profit off of infringement. And if a new version of COICA passes, the effect of the seizures will be even greater.

I don’t expect critics of the seizures to agree with the above. But they can express their disagreement without calling into question how much creators value constitutional freedoms — especially when they help fuel the “engine of free expression.”

To borrow some words of wisdom from the late Chief Justice Warren Burger, these critics “sound the alarm of repression.” But “to equate the free and robust exchange of ideas and political debate with” copyright infringement “demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press.'”21


  1. See the November 17, 2010 letter from nine unions representing over 3 million members to Senator Leahy in support of COICA; the Joint Statement Regarding ‘Combating Online Infringement and Counterfeits Act’ from four unions representing over 300,000 entertainment and media workers; and the January 18, 2011, letter from dozens of companies of all sizes supporting Operation in Our Sites for just three such statements of support. []
  2. See US v. James Daniel Good Real Property, 510 US 43, 78 (1993): “At any hearing—adversary or not—the Government need only show probable cause that the property has been used to facilitate a drug offense in order to seize it; it will be unlikely that giving the property owner an opportunity to respond will affect the probable-cause determination.” []
  3. 510 US 43, 74 (1993). []
  4. See Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394, n.11 (9th Cir. 1997); A & M Records v. Napster, 114 F.Supp.2d 896, 922-23 (ND Cali 2000); Universal City Studios v. Reimerdes, 82 F.Supp.2d 211, 224-27 (SDNY 2000). []
  5. Fort Wayne Books v. Indiana, 489 US 46, 62 (1989). []
  6. 413 US 496, 504 (1973). []
  7. 413 US at n.5. []
  8. 413 US 483, 488 (1973). []
  9. 378 US 205 (1964). []
  10. 413 US 483, n.8. []
  11. 509 US 544, 550-51 (1993). []
  12. 445 US 308, 314 (1980). []
  13. Marcus v. Search Warrant, 367 US 717, 736 (1961). []
  14. Quantity of Copies of Books v. Kansas, 378 US 205, 210 (1964). []
  15. Heller v. New York, 413 US 483, 490 (1973). []
  16. Id. at 492. []
  17. Fort Wayne Books v. Indiana, 489 US 46, 67 (1989). []
  18. Roaden v. Kentucky, 413 US 496, 504 (1973). []
  19. Caplin & Drysdale, Chartered v. US, 491 US 617 (1989). []
  20. See, for example, Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010): “‘[t]he loss of First Amendment freedoms,’ and hence infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury'; also see my posts on Speech Interests of Creators and The Chilling Effect of Copyright Infringement. []
  21. Inspired by his opinion in Miller v. California, 413 US 15, 34 (1973). []

I suspect that by the time this post appears, there will be many April Fool’s jokes fluttering around the Internet, but rest assured, all the following links are to actual stories.

Game on! Viacom, YouTube briefs on file in 2nd Circuit — The popular video site submitted its appellate brief yesterday. Shades of Gray has links to the document, as well as Viacom’s opening brief and the numerous amici briefs filed in the case.

There is no two without three: Bill C-32 is Dead — Late last week, the Canadian government dissolved, along with the latest attempt at reforming the country’s copyright law. IP Osgoode takes a look at the decade-plus effort to modernize the Copyright Act and implement changes needed under WIPO treaties, as well as what the future will hold after elections.

The Value of the Village — The Copyright Alliance blog discusses self-publishing superstar Amanda Hocking’s recent move to traditional publishing. “Having a variety of options as an emerging artist is great. But just as Ms. Hocking discovered, there is more to being a successful novelist than just the writing.”

Music Recommendation Engines Not Satisfying Fans — A new survey shows that music recommendation still has a long way to go before it’s ready for prime time. That much hasn’t changed since 2009, when researcher Paul Lamere gave his excellent talk on why music recommendation systems aren’t working, Help! My iPod thinks I’m emo. Meanwhile, MIT’s Technology Review reports on Myna, the music recommendation engine currently in development by the commissioners of the survey. I thought this part was particularly funny: “Music discovery, after all, is littered with media that aggregate the opinions of insufferable young people.”

The P2P Rebellion: Are Copyrights the Vietnam of Today’s Youth — The always entertaining Moses Avalon compares the P2P crusade against “Big Content” to the 60’s youth opposition to the Vietnam War. One notable difference between the two: “At the heart of the anti-war movement was the hope to stop bloodshed. Hippies rebelled against something serious– the draft. What is today’s P2P “sharing” movement about? Free tunes? Cheaper flicks?”

$100k appraisal for single page of original art from Frank Miller’s Dark Knight comic book — Heritage Auctions estimates the iconic image from one of comicdom’s most esteemed series will bring over six figures at auction. The full image of the page is quite amazing to see if, like me, you consider yourself a fan of comics. I especially like the inkwork of Klaus Janson and found this interesting interview of him for Comic Foundry magazine from 2005, in which he expounds on art, storytelling, and the comics industry over the past several decades.

Billboard’s Twitter 140 — Finally, for all of you on Twitter, shares its list of some of the most influential and informative Tweeters in the music industry.

If you have any stories, articles, blog posts, upcoming events, or anything else you think would interest Copyhype readers, drop me a line on the contact page. Hope everyone enjoys their weekend!