On Friday, this site was the target of a distributed denial of service attack (DDoS) by a group operating under the umbrella of Anonymous. I first became aware of the attack through a tweet, and a look at my server logs confirmed it.

The attack was apparently a part of an operation to protest the Protect IP Act, a bill that moved to the Senate floor last week after unanimous approval by the Senate Judiciary Committee and supported by 43 state Attorneys General and nearly 200 companies, trade associations, and labor unions — unions that include over 400,000 members in the craft and creative fields. The main target appears to have been the US Chamber of Commerce, and other tweets indicate that the Independent Film and Television Alliance and the Copyright Alliance had also been hit.

Had it not been for the tweet, I would probably never noticed my site had been hit by a DDoS. There was no permanent damage, it only lasted for a few minutes, and it didn’t seem to prevent anyone from accessing the site. But the attack does highlight the sheer hypocrisy of those opposed to the bill.

The opposition is based in part on the idea that the Protect IP Act will usher in a new era of internet censorship with no recourse for those affected. In reality, the bill addresses conduct, not speech. Limited, narrow legal remedies are available against sites dedicated to copyright infringement — sites that have no other purpose but to copy, distribute, and stream other’s expression. The remedies are designed not to suppress speech, but to reduce the ability to profit off this type of infringement.

The censorship predicted by opponents of the bill is purely hypothetical and unsupported by the actual text of the legislation. And in order to voice their opposition, opponents are engaging in actual censorship — arbitrary action designed specifically to suppress the opinions of those who support the bill solely based on the message they are conveying. They have met the enemy, and the enemy is them.

That’s all I’ve done — expressed my opinion on pending legislation. I’m merely an individual blogger. I don’t get paid by anyone to write this blog. I do it only to share my thoughts with anyone willing to read them, like millions of others around the world who blog.

Some may claim that engaging in DDoS attacks is a form of civil disobedience. But where’s the civil disobedience in trying to silence a private individual?

Others may claim that the specter of government censorship justifies taking away another’s right to speak — that freedom of speech can only be infringed by the state. Not true. It is a bedrock principle of our society that one may not infringe on another’s liberty. It has also been established since the Enlightenment era that government exists primarily to enforce this principle. The rule of law protects against the rule of man, or “might makes right.” Any deprivation of liberty is only legitimate when it occurs within the due process of law.1

To coerce someone into silence because of disagreement over their message is repugnant to civil democratic society. To do so under the guise of protecting free speech is pure cant.

Complicit in this coercion are those sites that breathlessly report on every minute action by Anonymous, providing publicity and legitimacy to the group. Perhaps they have not been more vocal in condemning the actions of Anonymous because thus far the writers agree with the ideology of the members — embracing an Orwellian notion that freedom of speech means “you’re free to agree with me as much as you want.” But the DDoS tactics of Anonymous are easily adoptable by any ideological movement; one wonders how happily these sites will publicize the censorship of individuals by people they disagree with.

One would think one of the many public interest groups dedicated to protecting the freedom to speak one’s mind online would decry any attempt to coerce someone into silence, but not so with Anonymous. To its credit, the Electronic Frontier Foundation, the “first line of defense” against such attacks, has publicly stated that it “doesn’t condone cyber-vigilantism.” However, co-founder and current board member of the EFF John Perry Barlow has publicly voiced his support for the efforts of Anonymous.2 They, in return, embrace many of the ideas he has expressed in his famous essay, “Declaration of the Independence of Cyberspace.”3

This is the essay that proclaims, without a hint of irony, “We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”

It’s unfortunate that critics of copyright law and efforts to better protect creators cast aside the principles they purport to uphold and resort to such tactics. There’s an old saying among lawyers, “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.” Attempts to censor individual bloggers like me are ultimately just table-pounding. Despite this, I’ll continue to do my best to reasonably present the facts and the law so that my readers are free to make up their own minds.

Footnotes

  1. See, for example, John Locke’s Two Treatises of Government: “The liberty of man in society is to be under no legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what the legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us, O.A. 55, ‘A liberty for everyone to do what he lists, to live as he pleases, and not to be tied by any laws,’ but freedom of man under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where the rule prescribes not, not to be the subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of nature.” []
  2. http://twitter.com/#!/JPBarlow/statuses/12835190019727360http://twitter.com/#!/JPBarlow/status/12897738307928064. []
  3. See http://anonnews.org/?a=item&i=661&p=press: “Anonymous has no leader and no government (per John Perry Barlow’s Declaration of Independence of Cyberspace).” []

Tattoo Copyright — The lawsuit involving the tattoo in the Hangover 2 has generated considerable attention. Though the players involved and the medium of fixation amount for a good deal of the interest, I seem to think the actual legal issues involved are fairly mundane. Marisa Kakoulas, lawyer and self-proclaimed ‘tattoo nerd’, has one of the best write-ups I’ve seen on the various copyright issues involved at the Needles and Sins Tattoo Blog.

Why plagiarism is not flattery — Jonathan Bailey pens another excellent article at PlagiarismToday. Often, victims of plagiarism (or copyright infringement in general) are told not to worry about it, since “imitation is the sincerest form of flattery.” But most misappropriation isn’t done out of respect for the quality of the original work.

Conversation with Richard Masur and the Screen Actors Guild — Brett Caraway has posted a transcript of an interview with the former SAG president at Copygrounds. Masur talks about the past, present, and future of the guild, why it has turned its focus on IP issues, and advice for aspiring actors and directors. Very in-depth and highly recommended reading.

Senate Judiciary Committee Approves Anti-piracy Bill — The unanimous vote brought praise from the creative community: “As the unions and guilds representing more than 400,000 entertainment industry workers including craftspeople, actors, technicians, directors, musicians, recording artists and others whose creativity is at the heart of the American entertainment industry, we believe the Protect IP Act is critical to efforts to aggressively combat the proliferation of foreign ‘rogue websites’ that steal U.S.-produced content and profit from it by illegally selling it to the American public

Floyd Abrams on the Protect IP Act — As he did with COICA, the noted First Amendment lawyer looks at the pending legislation from a constitutional standpoint and believes it is well within the bounds of what Congress can do to address online piracy. He examines it with an eye toward both the First Amendment and due process. “The procedural protections under the Protect IP Act are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that any complaints in this area are not really with the bill, but with the Federal Rules of Civil Procedure itself, which governs all litigants in U.S. federal courts.”

The MTP Interview: Bob Ludwig of Gateway Mastering — Chris Castle interviews legendary mastering engineer Bob Ludwig about the loudness wars, making music sound good in an ear-bud world, and other topics.

Auto-Tune for Guitars? — Nooo! Actually, it’s not so bad. Antares, the makers of the (in)famous pitch-correcting software for vocals, is developing a system for guitars that looks like it can have lots of exciting applications beyond making mediocre players sound better.

Facebook Post may Poke Holes in Northumberland County Lawsuit — Not copyright related, but it happened in my neck of the woods, and I haven’t seen it discussed much online. A court has ordered a plaintiff in a personal injury lawsuit to provide defendant with access to the personal areas of his social networking profiles for discovery. (One of the reasons defendants think it will help their case: plaintiff is claiming, among other things, that the injury left him with scarring on his leg making him embarrassed to wear shorts. But photos on his public profiles show him, yep, having fun while wearing shorts with his scar clearly visible.) Only a handful of courts have addressed the discoverability of private social networking profiles, and the court order here is thorough and well-reasoned, so it could become a “go-to” case for other courts faced with the issue in the future. The court opinion is available here.

Last week, Andy Sellars responded to a post I had made about the free speech critique of copyright mistake, where I provided his statement that “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed,” as an example of why it’s important to draw a distinction between how the word “content” can be used in a general sense and how the word is used in a specific manner in First Amendment jurisprudence, as shaped by US courts.

It’s well-worth a read. Today, I’d like to continue the discussion.

Sellars correctly notes that “The crux of Hart’s argument is that people like me (and Powell, Lange, Volokh, and Lemley) are using ‘content’ incorrectly in the First Amendment context. This is not pedantic. As Hart notes, the word ‘content’ carries a lot of weight in the First Amendment realm. Finding a restriction to be content-based invites strict scrutiny, from which few restrictions survive.”

Sellars response: “I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions.”

Sellars goes on to provide support for this argument in his post.

From a normative sense, there’s certainly no problem with Sellar’s contention that copyright should be considered a “content-based restriction of speech as First Amendment law traditionally defines that term.” Others have advanced that idea, and while I disagree with it, everyone is entitled to their own opinions.

But I disagree that this contention is correct in a descriptive sense.

Copyright is not a Content-Based Regulation of Speech

To reiterate, courts entertaining a First Amendment argument against a law are concerned with whether it acts to suppress ideas.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.1

Contrary to Sellars assertion, copyright law is not a content-based restriction of speech” under this definition. In fact, it is not even a content-neutral regulation in First Amendment parlance, a point made explicit by the Supreme Court in Eldred v. Ashcroft.

But again, this doesn’t mean copyright law is immune from the constitution’s proscription on infringing freedom of speech. As Eldred points out, copyright law has built-in free speech safeguards: the idea/expression distinction and fair use. The effect of these safeguards is the same as the tests used outside of copyright law, it’s just the legal terms of art that are different.

Perhaps nothing illustrates this idea better than Triangle Publications v. Knight-Ridder Newspapers. The lower court had — for the first time in US history — defeated a copyright claim based on a First Amendment defense.2 On appeal, the 5th Circuit affirmed the lower court’s decision — but on the grounds of fair use rather than a First Amendment defense.3

So when Sellars says:

Hart (and Prof. Greenberg, whom Hart cites) seem to be defining ‘content-based’ as efforts made to suppress ideas instead of means. Copyright is not ‘content-based,’ the argument goes, because ideas are not monopolized under copyright, and copyright makes no effort to preference certain ideas over others. Copyright addresses means. You can say what you want, you just can’t use protected expression to do so — we all know the quote from Eldred about using “other people’s speeches.” And they’re not alone in arguing this. The esteemed Chemerinski Treatise also suggests that “content-based” restrictions can be broken down into either (a) viewpoint-based or (b) subject-matter based, and those that are neither are content-neutral. Copyright is clearly neither.

This is an incomplete view of content-based restrictions.

He is ignoring the the clear import that law has given to the definition of “content-based.” It is not only me (and Prof. Greenberg) who has defined “content-based” in the way I described, it is the Supreme Court and lower courts — the same courts that came up with this language in First Amendment jurisprudence in the first place — that define it this way.

The Goals of Free Speech

Sellars next identifies some of the underlying goals of the First Amendment’s limit on abridging the freedom of speech.

The policies of the First Amendment similarly favor drawing “content-based” restrictions broadly, as the Court has. The concerns around government regulation of speech go beyond controlling content as a proxy for controlling viewpoint, a concern raised by Hart vis-à-vis Turner. The worry about undue interference in the marketplace of ideas is not our only concern in First Amendment law. There is a fundamental autonomy to speech that we identify and respect. We are all repulsed by the thought of someone telling us “you can’t say/print/post that,” whatever “that” is. We do not want to have to worry, or self-censor, or feel in any way restrained in our speech. (Imagine, for example, a law prohibiting the use of “filler words” in public discourse. Clearly not viewpoint or subject matter based, and yet certainly likely to receive strict scrutiny.) The right to unencumbered expression is a natural right recognized by the First Amendment, limited by our law only in areas where we have another overriding concern. And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not.

It’s correct that fundamental autonomy to speech is an important policy of the First Amendment — not the only policy, but perhaps the one that most people readily grasp.

But autonomy to act freely is not without its limits. One rather salient limit is on your freedom to act when it impinges on someone else’s own freedom. Or to put it another way, “Your right to swing your arms ends just where the other man’s nose begins.”4

“In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.”5 However one characterizes the species of rights secured by copyright law, these are rights that Congress protects pursuant to an expressly enumerated power authorized by the Constitution. What’s more, copyright creators have their own speech interests that must be considered under the question of infringement.6

Protecting the freedom of speech advances many goals beyond autonomy. The familiar refrain of Eldred that copyright is the “engine of free expression” illustrates most plainly how the First Amendment is only one tool of many for advancing these goals. Sellars, and other free speech critics of copyright, are concerned that the balance between copyright protection and the First Amendment limitation has tipped to the detriment of freedom of speech. But we should be equally as concerned that free speech can be negatively impacted if the balance tips the other way. As the Supreme Court noted:

It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “[T]o propose that fair use be imposed whenever the ‘social value [of dissemination] . . . outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” And as one commentator has noted: “If every volume that was in the public interest could be pirated away by a competing publisher, . . . the public [soon] would have nothing worth reading.”7

Despite the contrast in our approaches, however, Sellars and I reach the same conclusion. He writes:

But here’s the thing that may distinguish me from others that take this position: I’m okay with copyright existing as a content-based discrimination. I firmly believe that the First Amendment was not designed to trump the Article I power of Congress to provide limited-time exclusivity to writings.  I maintain that copyright (done well) is still an incredibly valuable tool for the creation and dissemination of culture. I agree with Hart when he argues that copyright is the engine of free expression. And I agree with Hart when he claims that copyright’s own “built in free speech safeguards” account for copyright’s First Amendment analysis. This is a perfectly accurate statement of the Court’s approach, at least in our post-Eldred pre-Golan world. (And I’m inclined to believe that this Court will only undercut the First Amendment role when it takes up Golan next term.)

Copyright’s Procedure

Where we depart is at Sellar’s concern that the First Amendment is not adequately represented in the latest approaches to protecting copyright:

But this does not mean that the First Amendment has no role to play in the copyright context. As an unprotected category of speech, it is still subject to the procedural protections that govern all speech regulation. Because another concern guides our First Amendment jurisprudence: the fear of overeager or premature action by the government in the name permissible speech regulation. As I detail fairly extensively in my article above, when adjudication of legality depends entirely on the exact words used and their meaning, courts wait to make sure that the speech meets one of the proscribable categories before they take it out of circulation. Our doctrine has created procedural protections to make sure that lawful, legal speech is not retrained or punished in the name of getting unlawful, proscribable speech (like infringing speech). The law does not require full adjudication, as Freedman v. Maryland shows, but it requires a neutral party to make that determination before speech is enjoined. This is the central problem I identify with Operation In Our Sites: no serious effort is made by any neutral party to determine the legality of speech before websites find their domains seized.

I disagree for several reasons — though the following reasons differ from my reasons for saying that the seizure of domain names is allowed under current First Amendment jurisprudence (namely, that no content is seized or removed from circulation, it remains in the custody of the site operator.)

First, it makes sense to deal with different kinds of speech with different approaches to what procedures are constitutionally adequate, a point glossed over by Sellars. While it seems attractive to have consistent rules for any case involving the First Amendment, that does little to advance its goals. The justifications for regulating obscenity differ greatly from those for regulating libel; the dangers that can arise out of overzealous regulation also differ greatly. Courts generally avoid treating First Amendment jurisprudence in different types of speech cases interchangeably. For example, the DC District Court noted in 2003 that “The Supreme Court has not extended Blount’s requirements of ‘built-in safeguards’ and judicial review beyond the obscenity context,  and lower federal courts have declined to apply Blount and its progeny in other contexts.”8

Second, the unbroken history of the types of procedures, and procedural protections, available in copyright infringement cases lends support to the idea that existing copyright procedure is constitutionally adequate. Preliminary injunctions are common in infringement cases, and even ex parte injunctions, while rare, are not unheard of.9 Large seizures of pirated and infringing goods are made every year by federal and state law enforcement. Federal administrative seizures of mass quantities of infringing goods are also common. I don’t see any systemic suppression of ideas or viewpoints throughout this history — or what benefits additional procedural protections could bring, and if they are worth the trade-off in detriments they would bring.

Finally, copyright law is simply ill-suited to being called a “government regulation” of speech. Although courts provide the forum for infringement suits, the dispute is a private rather than a public one. The free speech critique of copyright relies substantially on infringement lawsuits as a state action, since the First Amendment doesn’t limit the actions of private individuals.

David McGowan explains the problems he has with the “state action” argument:

It is false to say that copyright “targets” protected speech. The rights do not distinguish between protected and unprotected expression. Specific suits target speech, but in general these are not brought by government officials. They are brought by rights holders, as a trespass action would be brought by a landowner. For all the similarities in analysis, employing the language of general and specific regulations obscures a fact that a straightforward state-action analysis would stress: To the extent that there is “targeting,” or potentially worrisome motives, they involve private rights holders, who probably are after revenue or their own artistic vision, and not government officials trying to feather their nests, hide their misdeeds, or perpetuate their power.10

McGowan’s comparison of copyright infringement to trespass is illuminating. We generally wouldn’t worry about the freedom of speech of someone who breaks into a home, no matter how much they are talking.

Noted First Amendment scholar Lillian BeVier considers this analogy between, on the one hand, the First Amendment and trespass and, on the other hand, the First Amendment and copyright and concludes that it is particularly apt.11

In the following passage, she takes a broader look at why copyright law resembles little the content-based regulations of First Amendment jurisprudence, providing a fitting conclusion:

Rubenfeld’s implication that copyright law is at odds with the First Amendment’s aversion to content regulation takes no account of a very important fact: even if the question of whether the defendant has infringed turns in every case on the “content” of both the plaintiff’s and the defendant’s work, the nature of the inquiry into content will not bring into play any of the reasons for the aversion to content regulation. The Court’s express distrust of content-based regulations is more than a convenient knee-jerk doctrinal guideline. It reflects a number of concerns that emerge from consideration of the First Amendment’s animating values. For example, it reflects a concern for equality —that particular categories of speech be treated equally so as to deflect the government from attempting to manipulate public discourse. Second, it reflects a concern to prevent government from regulating speech based on its communicative impact, thus forestalling restrictions of speech that surreptitiously rely on constitutionally disfavored justifications. It reflects a concern to foreclose the possibility that government will deliberately distort debate by preventing the communication of particular disfavored ideas, viewpoints, or items of information. Finally, it reflects a concern with improper legislative motivation.

But a judgment that a copyright defendant’s work reproduces the plaintiff’s, or is based upon it, or distributes or publicly performs it, though it will of course be based on the content of both the plaintiff’s and the defendant’s speech, simply raises none of these concerns. It does not jeopardize the equality of treatment of particular categories of speech so as to enable government to manipulate discussion. It does not turn on the speech’s communicative impact. And it does not raise the risk of an improper government motivation to prevent the dissemination of particular ideas, viewpoints, or items of information that the government disfavors. In fact, the predicate for copyright liability is not the communicativeness of an infringer’s speech at all. It is, rather, its similarity to the plaintiff’s — and even then it is only its similarity to the plaintiff’s expression, not to the ideas or facts therein.

Footnotes

  1. Turner Broadcasting System v. FCC, 512 US 622, 641-43 (1994). []
  2. Triangle Publications v. Knight-Ridder Newspapers, 445 F. Supp. 875 (D Fla 1978). []
  3. Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir 1980). []
  4. Zechariah Chafee, Freedom of Speech in War Time. []
  5. Wheaton v. Peters, 33 US 591, 672 (1834) (J. Thompson dissent). []
  6. I’ve previously written on this subject, see Speech Interests of Creators and The Chilling Effect of Copyright Infringement for example. []
  7. Harper & Row v. Nation Enterprises, 471 US 539, 559 (1985). []
  8. In re Verizon Internet Services, 257 F. Supp. 2d 244, 262. []
  9. For example, see the Order granting a TRO in Capitol Records v. Bluebeat (Nov 5, 2009). []
  10. David McGowan, Some Realism about the Free Speech Critique of Copyright, 74 Fordham Law Review 101, 113-14 (2005). []
  11. Copyright, Trespass and the First Amendment: An Institutional Perspective, 21 Soc. Phil. & Pol’y 104 (2004). []

Copyright is Not Dead — Though maybe it will be after tomorrow, what with the world ending and all. Anthony Accardo pens an excellent editorial over at Harvard Business Review. “It would be much easier for content owners to explore innovative suggestions about pricing, distributing free content for promotion, and using distribution technologies such as bitTorrent, if they saw any material steps taken by the tech community to help them, not challenge them, in the copyright arena.”

Google Shows Its True Colors — The Copyright Alliance comments on remarks by the search giant’s chief executive Eric Schmidt regarding its opposition to rogue sites legislation. Among the remarks, Google says the US should be held responsible for other countries copying our laws to infringe on their own citizens’ rights, even though the US doesn’t have the right and ability to control them.

Right to Register? — The big news from the UK this week was the release of the Hargreaves review. Dominic Young shares his thoughts.

HADOPI Study Says France’s Three-Strike Law Having Positive Impact on Music Piracy — The independent body in charge of administering France’s gradual response program released results of its first study on the effect of the law, which began last October. So far, it appears to be reducing

Is Google News Legal? — A Belgium court found Google liable for copyright infringement earlier this month. While many reported on the decision, few looked closely at the actual decision. Barry Sookman rectifies that and offers up some in-depth analysis of the important case.

Pearls Before Breakfast — The Washington Post sends one of the world’s best violinists, with one of the world’s best violins, to play some of the world’s best classical music in a DC Metro station to see what happens. I was a little leery when I started reading this, as these pieces tend to devolve quickly into overly broad pop sociology, but the story turned out to be interesting and though-provoking at times.

The Garner Transcripts: That v. Which, and Other Supreme Court Writing Tips — Writer Bryan Garner managed to interview 8 current and former Supreme Court Justices about the black art of legal writing. Now, the full transcripts of those interviews are available online. Highly recommended reading for law students, practicing lawyers, and fans of writing and/or the law.

A good bill just got better. On May 12, Senator Patrick Leahy and other Senate Judiciary Committee members introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). The text of the bill is available here.

The bill is designed to advance two goals: enhancing the enforcement against overseas rogue websites and taking the profit out of piracy. It allows those ad servers and payment processors who only want to count legitimate businesses as their customers to cut off service to rogue sites without risking liability, and it encourages providers that are less inclined to cut off customers using their services for illegitimate purposes to act more responsibly.

This legislation is important in ensuring that laws protecting the progress of the arts and sciences keep up with the rapid progress of digital communications. A wide cross-section of the public recognizes this importance. In A Broad Coalition Indeed!, Kate Spence of the MPAA lists a few of the many organizations, unions, and trade associations that support the bill. The Copyright Alliance provides links to public statements in support of the bill in Join the Chorus: Voices Against Digital Theft. And, just a few days ago, forty-two state Attorneys General announced their support of the bill.

The PROTECT IP Act is a substantial rewrite of last session’s Combating Online Infringement and Counterfeits Act (COICA). The impact of provisions on existing secondary liability doctrine and the DMCA is made more explicit. Procedural protections for operators of web sites and third-party providers served with orders under the act are beefed up. Most notable is the addition of a private right for action under the law, though court orders by an individual rights holder are limited to financial service providers and advertising providers — court orders requiring search engines and domain name system servers to block access to a web site can only be made in actions initiated by the Attorney General, and even then are limited only to nondomestic domain names.

Perhaps one of the biggest changes from COICA is PROTECT IP’s requirement for the Attorney General or rightsholder to file a personal action against a registrant of a rogue site before proceeding against the domain name. Under COICA, the Attorney General could go straight to an in rem action against the domain name. The provision:

(2) IN REM.—If through due diligence the Attorney General is unable to find a person described in subparagraphs (A) or (B) of paragraph (1), or no such person found has an address within a judicial district of the United States, the Attorney General may commence an in rem action against a nondomestic domain name used by an Internet site dedicated to infringing activities.

Note that this provision is the same under both sections 3 and 4 of the Act; that is, an individual rights holder can only pursue a claim under the Act against a personal defendant. In rem actions remain solely within the Attorney General’s power.

It’s also worth noting that this provision is reminiscent of the language of the Anticybersquatting Consumer Protection Act, passed in 1999 as part of the Trademark Act.

(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if— … (ii) the court finds that the owner— (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1).1

The PROTECT IP Act includes a provision for the development of guidelines, largely similar to a provision in COICA, for the Department of Justice, law enforcement agencies, and intellectual property rights holders regarding the implementation of the act. It also provides for two separate reports to measure the effectiveness of the bill after it is enacted:

(1) REPORT ON EFFECTIVENESS OF CERTAIN MEASURES.—Not later than 1 year after the date of enactment of this Act, the Secretary of Commerce, in coordination with the Attorney General, the Secretary of Homeland Security, and the Intellectual Property Enforcement Coordinator, shall conduct a study and report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the following:

(A) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) [required actions for operators of nonauthoritative domain name system servers] on the accessibility of Internet sites dedicated to infringing activity.

(B) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) on the deployment, security, and reliability of the domain name system and associated Internet processes, including Domain Name System Security Extensions.

(C) Recommendations, if any, for modifying or amending this Act to increase effectiveness or ameliorate any unintended effects of section 3(d)(2)(A).

(2) REPORT ON OVERALL EFFECTIVENESS.— The Register of Copyrights shall, in consultation with the appropriate departments and agencies of the United States and other stakeholders—

(A) conduct a study on—

(i) the enforcement and effectiveness of this Act; and

(ii) the need to modify or amend this Act to apply to emerging technologies; and

(B) not later than 2 years after the date of enactment of this Act, submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on—

(i) the results of the study conducted under subparagraph (A); and

(ii) any recommendations that the Register may have as a result of the study.

Cut and Paste

Anyone reading the proposed bill will be struck by the similarities between sections 3 and 4. I was curious about how closely the two mirrored each other, so I worked up a side-by-side comparison, which I’ve included below in a PDF. Differences are highlighted in red, while language only appearing in one of the sections is highlighted in yellow.

[scribd id=55679464 key=key-p1p2uj8th023u48ugcs]

After comparing the two sections like this, my curiousity was piqued even further. As you can see, aside from the fact that the first section deals with nondomestic domains, which only the Attorney General can proceed against, while the second deals with all domains, which the Attorney General or rights holders can proceed against, the vast majority of the provisions are exact duplicates. Even more curious, there are a tiny number of insubstantial differences in the two — compare (3)(d)(C)(ii), (3)(d)(3), (3)(e)(3), and (3)(f)(2)(A) to (4)(d)(2)(B)(ii), (4)(d)(3), (4)(e)(3), and (4)(f)(2)(A). If these sections were simply cut and paste, we would expect zero differences in the similar language; if they were written independently, we should expect differences throughout the same provisions. But instead, the language is identical except in four (that I’ve found) instances.

My larger question is, why is the bill drafted in this way? I agree that juggling the differences between the two provisions might result in some inelegant language, but separating them out like this — resulting in lengthy, duplicative provisions — seems like far less elegant drafting. My best guess is that there is a substantive reason for drafting the law in this fashion, but I’m hard-pressed to think of exactly what the reason would be. Planning for severability to mitigate the effects of a court striking down any provision in the future? That still doesn’t strike me as especially convincing, though, so I’d be interested to hear thoughts from my readers on this.

Footnotes

  1. 15 USC § 1125(d)(2). []

Did you hear that Florida just outlawed sex?

This was pointed out by Southern Fried Scientist, after reading of a Florida bill that prohibits “knowing sexual conduct or sexual contact with an animal.” Humans are, after all, animals, so by definition, Florida has just made normal sexual relations a crime.

Obviously, that’s not what happened. As Rick Hasen at Election Law Blog points out, “A court facing a question of interpreting the statute would almost certainly read the statute’s use of the term ‘animals’ as ‘non-human animals,’ both to avoid absurdity and to conform with (1) the intent of the drafters; (2) the purpose of the statute; and (3) a commonly used (if scientifically inaccurate) understanding of the term ‘animal’ to exclude humans.”

But it does provide a good example of language in the law. Law, in many respects, is semantics. It is based on words written down in constitutions, statutes, and court opinions, and shaped by how courts, lawyers, and the public interpret those words.

Underneath the veneer of the plain meaning of language in law is a mass of complex and sometimes inscrutable precepts. Hasen, above, advances three such precepts to explain why ‘animal’ doesn’t include humans in the Florida law. To a lawyer, understanding how language works in law is second nature, but to the layperson, much of it may seem like “the art of the puzzling and confounding.”

Law professor Frederick Schauer describes this better than I do:

There are times when law uses language of its own making, often in  Latin — replevin, assumpsit, quantum meruit, habeas corpus, res judicata — and sometimes even in English—bailment, demurrer, due process, joinder, interpleader, easement. Such terms have little if any meaning for the layperson, but they can still have plain meanings in law and for lawyers and judges. So as long as one believes in anything close to plain or literal meaning at all, such terms, when used inside the legal world, do not present special problems. Like the words of ordinary language, the meaning here is determined by the rules of use of the relevant linguistic community, but here that community is the community of legal actors rather than the men on the Clapham omnibus.

Things become somewhat more problematic, however, when terms have both ordinary and technical legal meanings. We know that ‘due  process’ in the Fifth and Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart. The  women on the D train are no more likely ever to use the term than are the men on the Clapham omnibus. But the same does not hold true for ‘speech’ and ‘religion’ in the First Amendment or ‘arms’ in the Second or ‘searches’ in the Fourth. Here there are both ordinary and legal meanings, and the question is about the relation between them. So too outside of constitutional law, where words such as ‘trespass,’ ‘complaint,’ and even ‘contract’ have legal meanings that diverge from their nonlegal ones.1

When is content not content?

What does this have to do with copyright?

Well, some critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech.2 A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.”3 (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws.4 But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content?

The answer lies in understanding how language is being used. Law professor Marc Greenberg explains:

The strength, and weakness, of this argument lies in the definition of the term ‘content’ in the Free Speech context, in the context of judicial interpretations of the First Amendment, and in the copyright context.  I submit that content in the free speech context refers both to the ideas a speaker presents, and the language or other expressive means used to present that idea.  For courts applying the term ‘content’ in a strict scrutiny context seeking to determine if a statute violates the First Amendment by banning certain works, the term ‘content’ is focused on the ideas expressed, and not on the means of expression used. Finally, copyright, in particular infringement cases, focuses purely on the means of expression used, since the statute expressly precludes protection for ideas. The Critics seek to use the free speech definition as a basis for challenging copyright—arguing under this definition that since copyright clearly ‘deals’ with content, it is a content-based law which requires strict scrutiny and a bias in favor of finding that it violates First Amendment protections.  The problem with this approach is that content, when subject to any copyright law analysis, only pertains to expression, and therefore the claim that for constitutional purposes it means more than that is erroneous. Professor Baker supports the Critics’ view by suggesting that under a strict scrutiny analysis, warranted because copyright deals with content, the market incentive concerns underlying copyright do not rise to the level of a compelling government concern, and proposes that perhaps those concerns can be addressed by less restrictive means. He writes: “If content must be examined to determine if a law is violated then the law is content based.” Does  this  mean that reporting a theft of art from your home, in which the police must have a description of the art, means that art theft is a content-based law?  Similarly, in a case of the theft of a rare book, a description of the book, the art on the cover, and its subject matter is required—does this make the theft law subject to a content-based strict scrutiny?  Additional examples from art and music illustrate the problems with this approach.  A copy of a musical piece focuses on the sequence of notes, not the underlying melody or musical concept embodied in the piece.  A derivative copy of a piece of artwork repeats elements of the composition, not the content, consisting of the concept of the piece.

The question that should be asked is whether the restriction on content found in copyright law really abridges someone’s freedom of expression and whether there is a fair policy in saying that anyone is free, for example, to paint a portrait.  However, they are not free to take someone else’s property, their painting of a portrait, and use that for their own benefit.  Interestingly enough, what this argument does is turn one of copyright’s attributes, the ability to reuse the work via copies without diminishing it, against the creator.  There is no question that if I wanted to paint a portrait, and saw a similar portrait you did on your wall,  that I cannot, in my expression of free speech, come into your house, take your painting, cut out the face in it, and put it in my painting.  But because art in the digital world can more easily be reproduced through mechanical means, suddenly it is a violation of your freedom of expression to take a copy of the work, which is sold with the express understanding that it may not be used by you, and use it for your own purposes, be they commercial or noncommercial.5

This point shouldn’t be dismissed as merely arguing semantics. It’s important to make the distinction between “content” in the ordinary sense of the word and “content” in the First Amendment sense of the word. And not because it lets copyright law escape constitutional protections.

How does copyright deal with content?

The First Amendment protects against government control over “content” in the ordinary sense.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. (Citations removed).6

The Supreme Court has developed doctrines to test whether general laws violate the First Amendment. These doctrines aren’t applied to copyright law — not because it is immune from First Amendment scrutiny, but because copyright law’s own “built-in free speech safeguards” already account for First Amendment analysis. And these safeguards mirror the tests developed by the Court surprisingly well.

When you recognize “content” as the ideas conveyed by a speaker, and recognize that a government cannot generally suppress these ideas, you see that copyright law already accounts for this through the idea/expression distinction — the law only protects the specific expression of an idea, not the idea itself.

Traditional First Amendment jurisprudence recognizes that laws that don’t specifically target the “content” of speech may nevertheless violate free speech principles. Such laws are typically analyzed under the test set out and explained by the Supreme Court in US v. O’Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it.7

Copyright’s analogue to the O’Brien test is found in the fair use doctrine. That is, when does copyright law allow the speech that is made with the normally prohibited conduct of copying another’s expression?

Like O’Brien, courts use a balancing test. The balancing test is the familiar four-part fair use analysis, which looks at: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”8

Implicit in the fair use factors are the same prerogatives of the O’Brien test. Along with the preamble, enumerating several purposes of fair use, the factors guide courts in considering whether a specific use promotes the progress of the useful arts. The qualitative and quantitative factors, along with the effect on the potential market, ensure that the restriction on using copyrighted expression is no greater than necessary to promote that progress.

I’ve talked a lot about the intersection of free speech and copyright on this site. The notion that the two areas of law are in conflict should be put to rest — I’ve even advanced the notion that copyright helps expand free speech rights. A careful analysis of the language we use, and how legal doctrines incorporate that language, show that the two are wholly consistent with the values that underlie our concept of what a free and just society should embody.

Footnotes

  1. A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008). []
  2. See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms. []
  3. Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011). []
  4. Eldred v. Ashcroft, 537 US 186, 218-19 (2003). []
  5. Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007). []
  6. Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994). []
  7. United States v. O’Brien, 391 US 367, 376-77 (1968). []
  8. 17 USC § 107. []

Content and Technology is not an Either/or Choice — The Copyright Alliance disputes the framing of efforts to better protect IP rights as a choice betweencopyright and innovation. “The copyright community and the technology sector drive and sustain each other.  They each contribute disproportionately to the wealth of this nation, and both sectors depend on a vibrant, legal marketplace of digital content.”

Celebrating World Press Freedom Day, and What the First Amendment Means to the MPAA — The Motion Picture Association of America’s new chairman Chris Dodd reflects on the role of the organization in defending free speech rights for filmmakers, a theme I discussed on this site recently. “Many people don’t realize that the MPAA itself was born as an answer to government censorship.  Before the establishment of the MPAA’s Classifications and Rating Administration, early filmmakers battled a mishmash of local, state and federal boards that mandated strict ‘moral standards’ that often destroyed the artistic integrity of films or kept them from being shown at all.”

Limewire Case Settles, Mid-Trial, For $105 Million — Thursday evening brought news that the file-sharing service reached a settlement agreement with the record labels that had brought suit against it before the close of the first week of the jury trial to determine damages. Q: How much of the settlement is going to the artists? A: More than they got from Limewire.

MPAA v. Zediva is Shaping up to be Quite the Legal Showdown — Remember Zediva, the video-on-demand startup that streams movies online from actual DVDs in remote DVD players to avoid licensing fees? They were, of course, sued by film studios. PaidContent reports that both sides seem to be placing a high priority on this lawsuit, considering the high-power lawyers being called on for litigation.

YouTube boosts movie rentals with over 3,000 Hollywood titles — The video-sharing site joins online movie providers like iTunes and Amazon, allowing users to watch films for a couple of bucks. The titles include classics like Goodfellas and newer releases like Inception.

Library of Congress and Sony create the National Jukebox — The record label has made thousands of previously unavailable historical recordings available to the general public through a joint effort with the Library of Congress. According to the LA Times, “The collaboration between Sony and the Library of Congress is intended to keep any cost to taxpayers to a minimum and to make the streaming files available quickly. In return, Sony will receive data on which recordings are streamed most frequently to help determine which may have commercial potential.” Win-win-win.

Interview: The Art of Video Games at the Smithsonian — Boing Boing contributor Rob Beschizza interviews the organizer and exhibition curator of the Smithsonian’s upcoming Art of Video Games exhibition. “We want to show people that video games are more than they might appear on the surface, that they can have incredible depth, beauty, and emotion.”

4 Predictions for Copyright Reform Attempt 4 — With the recent Canadian elections completed, it is likely that the new government will resume the efforts to reform the nation’s copyright law. Attorney James Gannon offers his predictions on what changes to expect this time around in light of recent developments in copyright law and digital technologies.

The E-Book Gold Rush — Author Lee Goldberg injects some reality into the recent success stories of self-publishing authors in the digital world. Yes, authors can find new opportunities with e-books and shouldn’t ignore their potential. But the fact remains that a new system that makes it easier for an author to spread her work makes it easier for every author to spread her work — bringing us back to square one in the amount of time and effort needed to build an audience.

Google Books and the Rule of Law— Howard Knopf pens this op-ed about the broader rule of law and international law implications of the Google Books project. “The Google Books project has frequently been likened to a reincarnation of the Library of Alexandria in a digital, fireproof format—because it could include virtually all the world’s important books in an instantly accessible database. However, what has been shown to be technically achievable and widely praised is far from clearly legally viable. There is considerable concern from those who care about core values in copyright and international law, and indeed the rule of law itself. Nobody is above the law—not even Google. Class actions were never intended to usurp legislation and treaties.”

GAO Still Stonewalling on Sources for “Stealing is Good” Report — Chris Castle documents his efforts requesting information from the Government Accountability Office regarding the unnamed experts who advanced the idea of positive effects of piracy in last year’s report on “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.”

Cheezburger Networks of sites suck — A very short blog post from photographer Terry Border at Bent Objects, but a great excuse for me to point people to his work. Border uses everyday objects to create whimsical scenes — circus peanuts performing in a circus, for example. Here, he complains about the popular image aggregator sites which misappropriate photos from the web, routinely without regard to attributing the original authors. Says Border, “I’ve heard a couple of comments that blame the submitters to their sites, and not Cheezburger themselves. Well, who put together the way their sites work? They can try to wash their hands of wrong-doing, but it’s their system, and they know the end result will be lots of anonymous images thrown into the furnace of their giant money making machine.” Hm, sounds familiar.

Finally, from the academic world, I recommend the following:

Copyright, Complexity and Cultural Diversity (via Legal Theory Blog) — In this forthcoming Chapter, available at SSRN, Michal Shur-Ofry-

“challenges the prevailing view pertaining to the connection between broad copyright protection and lack of cultural diversity. Prominent scholarship in the field of copyright links the lack of diversity in cultural consumption to the broad copyright protection afforded to cultural works. Copyright, so goes the argument, constitutes a major basis for the activities of mass media corporations, which flood our cultural sphere with formulaic cultural products, whose sole purpose is to appeal to the taste of the masses. The limitation of copyright, so the argument proceeds, would diminish the cultural domination of mass media products, and promote audience exposure to ‘other’, more diverse works.

“The Chapter questions the importance attributed to copyright law in this context. Based on complexity and network theory dealing with the evolution of popularity and the self organization of complex systems, it illuminates the fact that the inclination towards popular cultural works is an intrinsic phenomenon of social networks, and does not depend upon copyright protection. It continues to analyze recent ‘long tail’ data, which indicates that positive changes in the degree of cultural diversity occur even under a broad copyright regime. In light of these observations, the Chapter attempts to offer a broader perspective on diverse cultural consumption, relying on socio-cultural research. This literature indicates that cultural diversity is a complex and multi-faceted issue. The non-linear nature also implies that the level of diversity cannot be easily calibrated by changing the scope of copyright protection. Rather, the attempt to promote diverse cultural consumption must address a series of difficult questions which are outside the scope of copyright law.”

In the world of current lawsuits dealing with the future of the DMCA, the Viacom and YouTube appeal in the 2nd Circuit may win a popularity contest, but the UMG and Veoh appeal in the 9th will cross the finish line first.

The similarities between the two cases are striking. Like YouTube, Veoh had operated a site allowing users to upload and share videos. Like Viacom, UMG sued the site for failing to do enough to prevent infringing content from appearing in its system. And like the Southern District Court of New York, the Central District Court of California granted summary judgment in favor of the defendant after determining that the safe harbor provisions of the DMCA immunized the site from liability for its users’ actions.

Because of these similarities, the 9th Circuit’s eventual decision may serve as a precursor to the ultimate outcome of Viacom v. YouTube.

Background and Oral Argument

The original court ruling was released September 11, 2009 and can be found at UMG Recordings v. Veoh Networks, 665 F. Supp. 2d 1099 (CD Cali 2009).)) Ben Sheffner offers his thoughts on the District Court’s holding.

The appellate briefs of both parties are available online: Brief of Appellee Veoh Networks, Brief of Appellant UMG Recordings.

Last Friday, May 6th, oral arguments for the appeal were heard by the 9th Circuit. You can listen to audio of the hearing here. Attorney Michael Barclay attended the hearings in person and offers his observations at IPDuck.

The appeal actually consolidates three separate actions. Besides the DMCA ruling, Veoh is appealing the court’s denial of attorneys’ fees, and UMG is appealing the court’s dismissal of infringement claims against Veoh’s investors. If you’re interested in those aspects of the case, Eric Goldman has analysis of the court’s attorney fees decision, and Ray Dowd offers his response to Goldman’s analysis. Check out “Capital” Punishment: Evaluating an Investor’s Secondary Copyright Infringement Liability After Veoh, by James L. Proctor, Jr.,1 for discussion on the latter.

Barclay estimates that the court’s opinion will likely take 2-6 months to issue; the 9th Circuit’s own website pegs the time frame at 3-12 months.

Scope of the Storage Safe Harbor

In Is YouTube a Service Provider or Content Provider?, I looked at one of the periphery issues raised on appeal by Viacom — whether, as a threshold matter, YouTube’s actions take it outside the scope of the §512(c) safe harbor, which immunizes online service providers from liability 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.” That issue plays a much larger role in UMG’s arguments, however, and took center stage at Friday’s hearing.

Because of this, it is likely that the 9th Circuit will be the first appellate court to consider the scope of what service providers can do with material stored on their systems at the direction of a user and still remain protected by the DMCA’s safe harbor.2

The key statutory language here is the phrase “by reason of.” Does it imply a broad “but for” causal relationship between a user’s act of storing material on a service and the infringing activities that are shielded from liability? Or does it imply a narrow proximate causation?

The former standard means that once a user has uploaded content, it becomes fair game for a service provider to transform and distribute as it pleases, and it is the standard the district court adopted in an earlier ruling. “Common sense and widespread usage establish that ‘by reason of’ means ‘as a result of’ or ‘something that can be attributed to ….'”3 Combine this with the broad readings of the other requirements for safe harbor protection made by the court, and the law is left to state that a service provider can operate a full-fledged, unlicensed content providing service so long as it essentially “launders” the content through its users — and experience shows that users need little encouragement to upload massive amounts of unlicensed and infringing content.

The latter standard is the one UMG argues the 9th Circuit should adopt. It provides legislative history that supports such an interpretation of the language. In addition, it calls upon the notion that when Congress uses specific language in a statute that is similar to language in other statutes, courts should presume that Congress intended for that specific language to be interpreted in the same way that courts have interpreted the similar language in the past.4 In this instance, the Supreme Court has, in the past, interpreted “by reason of” language in other statutes as incorporating a proximate causation standard.5

Judge Berzon prodded Veoh’s attorney on whether its, and the district court’s, interpretation of “by reason of” stood up to scrutiny. At one point, she asked directly, “What’s the stopping point?” While all parties agreed generally that the safe harbor contemplates some form of “access” to the stored material, she wondered if, based on the language and legislative history, there was a distinction between access through normal means — a third-party viewing the stored material through a web browser — and providing access and distribution through a service provider’s own system. If the DMCA was intended primarily to shield passive services that provide infrastructure and “backbone” services, like web hosts, BBS’s, and message boards, that would mean only the first falls within the scope of the §512(c) safe harbor. A broader reading of the statute makes such a distinction irrelevant.

Too Little, Too Late?

UMG admittedly faces an uphill battle with this argument. The district court’s interpretation of the scope of the §512(c) safe harbor is consistent with the interpretation of a number of other district courts, including the court in Viacom v. YouTube. Considering the rapid development of the internet since the DMCA was passed over a decade ago, the 9th Circuit may be hesitant to upend how the law has been interpreted in practice.

I think Wikipedia presents a good example of what I mean by how the law has been interpreted in practice. I think it would be difficult to make a case that Wikipedia is protected by the §512(c) safe harbor — users are only “storing” their contributions to articles in the strictest technical sense.

Yet, most operate under the assumption that Wikipedia is protected under the statute. The Wikimedia Foundation has a registered DMCA agent to respond to takedown notices for infringing material uploaded by users. And, though rare, Wikipedia has received and responded to takedown notices.6 I do want to point out that whether or not Wikipedia actually qualifies under the safe harbor makes much difference — the DMCA only removes liability for certain activities but otherwise plays no role in the ultimate question of whether a specific service provider is liable for copyright infringement directly or indirectly. Wikipedia receives so few notices in part because it has a strong copyright policy that is actively enforced by its users. I find it highly unlikely that any court would hold the site liable even absent safe harbor protection.

Wikipedia is just one example of many that shows how common practice seems to have stretched the meaning of §512(c) beyond what Congress may have initially intended for it. It will be interesting to see how the 9th Circuit approaches the question of the scope of the storage safe harbor.

Footnotes

  1. 6 Washington Journal of Law, Technology & Arts 217 (2011). []
  2. The closest is CoStar Group v. LoopNet, a 2004 case from the 4th Circuit. []
  3. UMG Recordings v. Veoh Networks, 620 F. Supp. 2d 1081, 1089 (CD Cali 2008). []
  4. See Cannon v. Univ. of Chicago, 441 US 677, 696-98 (1979). []
  5. Holmes v. Securities Investor Protection Corp, 503 US 258, 267-68 (1992). []
  6. See here, for example. According to Shun-Ling Chen’s article, Self-Governing Online Communities in Web 2.0: Privacy, Anonymity and Accountability in Wikipedia, the Wikimedia Foundation receives two takedown notices a year. []

As Trial Begins, Early Results Don’t Look Good for Limewire — This week, record labels and the P2P software company went in front of the jury. Limewire had already been found liable for copyright infringement last year; the trial is focused solely on the amount of damages it is liable for. Courthouse News Service offers some more insight into the first day of the trial. The lawsuit has already spawned two opinions on novel issues regarding copyright’s statutory damages — Loeb & Loeb provides background on them to bring you up to speed.

Star Wars and Transformers — Faza at The Cynical Musician has an interesting discussion of different approaches to merchandising in movies and how it may apply to the music biz.

Digital Radio Paid Musicians $36 Million More Than Paid Subscriptions Last Year — The RIAA released the 2010 numbers for its member labels this week. Among the insights is the fact that digital radio services like Pandora and Sirius XM are far outperforming streaming services like MOG and Spotify.

MPAA Blog — The Motion Picture Association of America, under the new leadership of former Senator Chris Dodd, has recently begun its own blog. Says Dodd in the inaugural post: “I found myself wondering what DeMille, Goldwyn, Louis B. Mayer, Jesse Lasky and Adolph Zukor would have said if they could have seen Avatar—in a theater, in 3D.  What an incredible journey: We’ve come all the way from The Squaw Man to the blue N’avi in less than a hundred years.  That century has been marked—and, in many ways, defined—by the giants of our industry, their incredible creative visions, and their mind-boggling technological innovations.  Movies have come to shape the American psyche—and dominate the attention of consumers—like nothing else.” Check it out — and I’m not just saying that because this site made their blogroll.

Is the Dedicated Songwriter Going Extinct? — “Disruption invariably produces winners and losers, and stand-alone songwriters may just become the losers. That was the sentiment among several top composers at the Rethink Music Conference in Boston” last week, “most of whom were great at describing the problem but lost when it came to generating solutions,” reports Digital Music News.

Wrong Assumptions and Netflix — Ethan Kaplan, former SVP of emerging technology at Warner Music Group talks about why the Netflix business model wouldn’t necessarily work for music. An interesting discussion about the differences between how we experience different media.

That’s it for this week. Keep the great comments coming, and if you have any stories you want to bring to my attention, feel free to contact me.

I leave you from this quote from the Supreme Court made over a century and a half ago: “Whilst the remuneration of genius and useful ingenuity is a duty incumbent upon the public, the rights and welfare of the community must be fairly dealt with and effectually guarded. Considerations of individual emolument can never be permitted to operate to the injury of these. But, whilst inventors are bound to diligence and fairness in their dealings with the public, with reference to their discoveries on the other hand, they are by obligations equally strong entitled to protection against frauds or wrongs practiced to pirate from them the results of thought and labor, in which nearly a lifetime may have been exhausted; the fruits of more than the viginti annorum lucubrationes, which fruits the public are ultimately to gather.”1

Footnotes

  1. Kendall v. Winsor, 62 US 322, 329 (1859). []

One of the recurring themes seen in some criticisms of copyright law is that it is weighted too strongly in favor of creators and copyright owners, with the public good taking a back seat.

A couple of recent online posts provide examples of this argument. The first is from politician and Swedish Pirate Party founder Rick Falkvinge, who writes at TorrentFreak about Why the Copyright Industry Isn’t a Legitimate Stakeholder in Copyright. Journalist Julian Sanchez provides the second in Things that are Irrelevant to Copyright Policy.

Both provide similar views of what copyright policy should be. Falkvinge states that the purpose of copyright “is to maximize the available culture. Nothing more and nothing less.” To Sanchez, the question when considering copyright policy “is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.”

I don’t want to go into a deeper discussion of either article here (though I welcome readers to discuss them further in the comments). Rather, I want to address the broader point made, as it is emblematic of a point made by copyright critics.

It’s true that copyright’s ultimate beneficiary is the public. But the immediate beneficiary is creators. More importantly, the best way to ensure the public benefits the most from copyright law is by ensuring that creators have secure and stable rights to their creations. It makes little sense to argue otherwise — if the public benefits from the creation of new works, how is that interest served by reducing the incentive to invest in creating new works?

How Copyright Benefits the Public

In the US, the Constitution gives Congress the authority, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.”

Explanations of how the public receives its benefit through the law begin with the author of the Copyright Clause itself, James Madison. In the Federalist Papers, No. 43, Madison writes, “The public good fully coincides in both cases with the claims of individuals.”

Since then, the Supreme Court has expanded this explanation:

• “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.” (Emphasis added.)1

• “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” (Emphasis added).2

• “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”3

In Eldred v. Ashcroft, the Supreme Court took on the idea sometimes made that there is some kind of bargain implied in the Copyright Clause.4 It is not a quid pro quo, as the grant of patent rights entails. With copyright protection, “disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” As explained by the Court, unlike patent law, “copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”

Access to Culture

At times, copyright’s critics argue that the purpose of the law is not only to increase the creation of new works, but also to increase the public’s access to those works. This argument only works if we expand the meaning of “access” to include not only the ability of someone to read, watch, or listen to copyrighted works — the number of outlets for getting legal content has exploded in recent years — but the ability to do so instantly, in as many formats as possible, for as close to free as possible.

The four dissenting Justices in Sony v. Universal City Studios warned against this idea of access. It’s “tempting,” they said, to reduce the scope of copyright protection to “permit unfettered use” by new technologies “in order to increase access,” but doing so “risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create.”

The Justices added these remarks from Abraham Kaminstein, Register of Copyrights during the run-up to the 1976 Copyright Act revision:

I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commercial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize … ‘that the real heart of civilization… owes its existence to the author'; ironically, in seeking to make the author’s works widely available by freeing them from copyright restrictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among conflicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time.5

Conclusion

The public, rather than copyright holders, is the true beneficiary of the law. It benefits by the creation of works that might otherwise not have been created, and by the exclusive rights encouraging dissemination. Julian Sanchez even notes this, saying, “We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything [to] deserve a jot of it.”

Barbara Ringer, the first female Register of Copyrights in the US, provides the best summary of the argument against claims that the public’s interest is underserved by copyright law. Her words, spoken over 30 years ago, are just as relevant today:

The 1909 Joint Congressional Committee, in its report No. 2223, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.

I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author’s interests and the public’s interests conflict, the author must yield.

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.

I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

[…]

I think that the system that we have had has been based on the desire to induce dissemination, make works available to the public by offering protection to authors.

I think that this system is now subject to some difficulty because of the fact that the new technology has made it an absolute detriment to disseminate. In other words, an author in certain situations who lets the bird out of the cage, finds that there is no way to regain it, that once he has made a tape and it has been played over the radio or television, he finds suddenly it is being pirated or made in duplicates all over the country.

It is very, very difficult in that situation for him to realize any economic gain or reward for his creation and there may be situations in which he would prefer to keep his bird in its cage, so to speak.

I am speaking in terms of music, but I think the example is better in some areas where there is a more realistic possibility of exercising complete control.

The task of your committee, as I see it, is to try in some way to evaluate the impact of the new dissemination media on the basic task of giving authors a reasonable return and inducing them to let the work go out to the public.6

Footnotes

  1. Fox Film v. Doyal, 286 US 123, 130 (1932). []
  2. Mazer v. Stein, 347 US 201, 219 (1954). []
  3. Twentieth Century Music v. Aiken, 422 US 151, 156 (1975). []
  4. 537 US 186, 214-17 (2003). []
  5. 464 US 417, 481, n.34 (1984). []
  6. Copyright Law Revision Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives Ninety-Fourth Congress, First Session on H.R. 2223, pp. 116-17 (May 7, 1975). []