A funny thing happens when one reads about how “content industries hate technology.” See if you can tell what it is:

Historically, intellectual property rights holders had a tendency to initially complain about the adverse impact of new technologies only to find them later opening up new markets for their products and services. For example, well-known American composer John Philip Sousa testified before Congress about the challenge created by the manufacture and sale of phonograph records:

When I was a boy . . . in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape”

… Decades after Sousa’s testimony, the late Jack Valenti, the long-time lobbyist for the U.S. movie industry, made the same mistake. In his effort to lobby against the manufacture and distribution of videocassette recorders, he declared that the new device was “to the American film producer and the American public as the Boston strangler [was] to the woman home alone.”

Peter K. Yu, Digital Copyright and Confuzzling Rhetoric, 13 Vanderbilt Journal of Entertainment and Technology Law 881 (2011)


Moving into the 20th century, the claims about technology as a threat to content came fast and furious. The threats in the first decades of the 20th century were the player piano and the gramophone. John Philip Sousa wrote an article, The Menace of Mechanical Music, in which he argued that those infernal devices were a “threat to his livelihood, to the entire body politic, and to ‘musical taste’ itself. . . . The player piano and the gramophone [ ] strip[ ] life from real, human, soulful live performances.”

… By the late 1970s we get to the example that is perhaps the most familiar: the VCR. The free television model, augmented by cable, had been established for some time. Along came a technology that allowed people to copy this freely provided television content and do what they wanted with it. The content industry warned us that the VCR must be stopped. Here is Jack Valenti of the MPAA, speaking to Congress:

[T]he VCR is stripping . . . those markets clean of our profit potential, you are going to have devastation in this marketplace. . . . We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

If that were not enough, he went on to say, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Mark Lemley, Is the Sky Falling on the Content Industries? 9 Journal on Telecommunications and High Technology Law 125 (2011)


Over 100 years ago, the famous composer John Philip Sousa tried to block two new technologies, the gramophone (phonograph) and the player piano. In 1906, Sousa testified before Congress about his concerns: he “viewed the mechanical reproduction of music as an ominous threat.”

In an article attacking the new technologies, Sousa warned of “a host of other injuries to music . . . by virtue – or rather by vice – of the multiplication of the various music-reproducing machines.”

… In 1976, two movie studios sued Sony Corp. to try to block sales of Sony’s Betamax, a videocassette recorder (VCR or VTR), in probably the most famous example of the content industries’ attempts to block new technology. Overstatements about the supposed effects of the VCR were rampant. As quoted above, Mr. Valenti likened the VCR to the “Boston strangler.”

Viacom v. YouTubeAmicus Brief of Consumer Electronics Association (2nd Cir. 2011)


Copyright owners have greeted every new technology with panic. At the turn of the 20th century, sheet music publishers viewed the player piano, which used copyrighted sheet music in the pianos (and threatened to reduce revenue) with great alarm. John Philip Sousa bemoaned the introduction of the technology, predicting “a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestation.”

Eight decades later, Jack Valenti, then the head of the Motion Picture Association of America (MPAA), warned that the market for copyrighted movies would be “decimated, shrunken [and] collapsed” by the VCR, and that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Viacom v. YouTubeAmicus Brief of Michael Carrier (2nd Cir. 2011)


In the last century or so, which industry has a habit of being hysterical and hyperbolic about copyright issues… and which has a history of being right. Let’s start about a century ago, with John Philip Sousa, the composer. In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… Jump forward a decade or so, and we have the infamous statement of Jack Valenti comparing the VCR to the Boston Strangler:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mike Masnick, A History of Hyperbolic Overreaction to Copyright Issues, TechDirt (Nov. 9, 2011)


Besides, this is just another line like Valenti’s old “Boston Strangler” line. People who don’t know or understand culture or history always blame the new technology for “killing” off the old industry. The reality — as shown time and time again — is that it actually enhances and grows that industry. You see it again and again. The sheet music industry insisted the player piano would kill the music business. John Philip Sousa insisted that the phonograph would kill the music industry, because with it, no one would ever learn to play music or want to hear live music again.

Mike Masnick, What Happens When You Get Two Internet Haters Together? An Interview that Kills Brain Cells, TechDirt (Nov. 2, 2011)


The second reason for the threats to innovation is copyright owners’ panic upon the introduction of new technologies. John Phillip Sousa thought the player piano would lead to “a marked deterioration in American music.” Jack Valenti famously thought the VCR was to the American public as “the Boston strangler is to the woman home alone.”

Michael Carrier, Why Innovation is Under Attack, TechDirt (May 13, 2011)


At the turn of the last century John Philip Sousa argued that the gramophone was a grave threat to musicians. How could musicians earn a living if the public were free to listen to music in our homes?

… In the early 1970’s the Motion picture association argued that the video recorder would make the film and television industry “bleed and bleed and haemorrhage”, their president, Jack Valenti, claimed the VCR was as great a threat to film producers as the Boston strangler was to women home alone.

Conor Mulhern, Making money the only way they know how, conormulhern.com (May 2, 2011)


New technology has always caused great distress for copyright owners, going all the way back to 1903, American composer John Philip Sousa was worried the player pianos would destroy music as they then knew it. After that each new technological advancement which created a new method of transmitting information met fierce opposition from the content industry of the time from the radio, to the cassette tape to Mp3′s its always the same story. Not that all of their concerns were unwarranted or unfair but the rhetoric has at times been laughable. My personal favorite is this gem:

“I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” ~ Jack Valenti, Former President MPAA

t3chjurist, Us, Them and Copyright, techjurist.wordpress.com (Feb. 23, 2011)


Other companies, and their trade associations, instead attempt to avoid change of any sort. To quote Jack Valenti, the past President of the Motion Picture Association of America, in his testimony to the U.S. Congress about Video Cassette Recorders:

I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.

… Every Disruptive Technology has caused a reaction like Jack Valenti’s by the Corporations involved. Artists have also fought these new means of production and/or distribution. In a submission to Congress about the new-fangled phonograph John Philip Sousa, the great American Composer and Conductor said:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Wayne Borean, An Explanation of my Views on Copyright Part One, madhatter.ca (Sept. 7, 2010)


Home-use VCRs were available as far back as 1963, but didn’t catch on until mass-production dropped the price in the late 1970s. In an almost unrelated note: Shortly afterwards Jack Valenti, head of the MPAA, completely lost his shit.

Appearing before Congress–flecks of spittle presumably slinging from his red, swollen face and melting caustic holes into the floor–he proceeded to proclaim in all seriousness that “…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

…Pirated music is hardly a new development. In fact, there have been Metallicas in every age of man, making loud and opinionated asses out of themselves every time somebody accidentally coughs a note they once thought of using in a song. In this case, we’re referring to the “March King” himself, John Philip “Stars And Stripes Forever” Sousa.

In this piece first published in Appleton’s Magazine in 1906, Sousa argues that, “…I myself and every other popular composer are victims of a serious infringement on our clear moral rights to our own work…”

Ralf Bakr, 5 Insane File Sharing Panics from Before the Internet, Cracked (May 7, 2010)


The gramophone (or phonograph) was unleashed upon a music industry that reacted with predictable fear. The composer John Philip Sousa said:

These talking machines are going to ruin the artistic development of music in this country… We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

… The film industry has a similar fear-filled history. In the 1980s, Jack Valenti, president of the Motion Picture Association of America said:

…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Jeremy Keith, Fear is the Mind-Killer, Adactio (May 2, 2010)


Content owners have railed against technological change since before Big Content even existed, from John Philip Sousa’s denouncing of the player piano to former Motion Picture Association of America chief Jack Valenti’s famous comparison of the VCR to the Boston Strangler.

Cory Ondrejka, “Big Brother” versus “Little Brother”: Two Possible Media Futures, Futurist Magazine (March 1, 2010)


Hyperbole has characterized rights holder reaction throughout, from John Phillip Sousa complaining to the US Congress in 1906 that player pianos:

“are going to ruin the artistic development of music in this country…The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… to Jack Valenti, as President of the Motion Picture Association of America, testifying before the US House of Representatives in 1982 that:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone”.

Open Rights Group Briefing: Illicit P2P file sharing (2009)


Motion Picture Association of America (MPAA) President Jack Valenti made the following statement to a U.S. Congressional panel in 1982:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Yet the reality is that home video viewing, beginning with the VCR and later the DVD player, ultimately came to be the mainstay of movie studio revenues throughout the 1980s, 1990s and into the 2000s. British copyright commentator Tom Watson recently made these insightful observations on a similar phenomenon that occurred much earlier:

In 1906, composer John Phillip Sousa testified before the US Congress that the technological advance of his day would not only “ruin the artistic development of music” but also cause the vocal chord “to be eliminated by a process of evolution”.

Bell, Rogers, Shaw and TELUS, Submission on update to Copyright Act, Copyright Consultations, Canada (2009)


Similar predictions have arisen around every new technology for communicating ideas. John Philip Sousa argued passionately that musical recording would be the end of human singing, and Jack Valenti (then president of the Motion Picture Association of America) compared the video recorder to the Boston Strangler in its anticipated effect on the movie business.

Kevin L. Smith, Books and reading in the Google age, News & Observer (Nov. 30, 2009)


In 1906, famous composer John Philip Sousa took to Appleton’s Magazine to pen an essay decrying the latest piratical threat to his livelihood, to the entire body politic, and to “musical taste” itself. His concern? The player piano and the gramophone, which stripped the life from real, human, soulful live performances. … In 1982, when the movie and music businesses were engaged in a full court press to shut down the hot new VCR, the warnings about its sinister effects made Sousa sound like a wimp.

Chief movie lobbyist Jack Valenti appeared at a Congressional hearing on the VCR and famously went hog-wild. “This is more than a tidal wave. It is more than an avalanche. It is here,” he warned after reciting VCR import statistics.

… One lobbyist (rightly) contended that “the VCR is the greatest friend that the American film producer ever had,” to which Valenti responded, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Nate Anderson, 100 years of Big Content fearing technology — In its own words, Ars Technica (Oct. 11, 2009)


Emerging technology has often appeared as a bad omen to copyright owners. In 1906, three years before the enactment of the 1909 Copyright Act, famed American composer John Philip Sousa expressed his fears over the invention of player pianos when he said, “I foresee a marked deterioration in American music … and a host of other injuries to music in its artistic manifestations, by virtue–or rather by vice–of the multiplication of the various music-reproducing machines… .”

… Following the U.S. Supreme Court’s decision in Universal City Studios v. Sony Corporation of America, Jack Valenti, former-president of the Motion Picture Association of America (MPAA), foresaw the doom of the movie and television industries in the rise of the VCR: “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

Marques S. Johnson, Negotiating Digital: XM Satellite Radio, the AHRA, and Keeping Copyright Balanced, 51 Howard Law Journal 397 (2008)


During testimony, MPAA CEO Jack Valenti, in a performance that was worthy of an Oscar, famously said the following:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

… This was not the first time, or the last, that the entertainment industry has attempted to use the courts in order to eradicate a technology from existence. While the Betamax case has been the most important decision in years, and arguably the most widely known, there have been other cases that were just as significant. The industry has been short-sighted since its infancy.

In 1906, songwriters objected to the release of the player piano. John Philip Sousa, a famous American composer and conductor who was widely known for his various American military marches, had the following to say about the introduction of the player piano:

“I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines.”

Scott Jarkoff, Embracing File-Sharing is Essential for Industry Survival, Piratpartiet (July 24, 2006)


“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…”

-John Philip Sousa on the Player Piano (1906)

“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.”

-MPAA on the VCR (1982)

You’ve Heard This Song Before! Consumer Electronics Association advertisement, Roll Call (June, 2006)


“I foresee a market deterioration of American music and musical taste. An interruption of the musical development of this country and a host of other injuries to music and its artistic manifestation by and the virtue who are riding the vice of the multiplication of these various music reproducing machines.”

This was Mitch [Glazier] last week. Just kidding, this was John Philip Sousa in 1904, over a hundred years ago when he came to Congress, asking that it stop the production of these player pianos because they were going to be the death of the music industry. If you look back historically that was the same reaction that the music industry and Hollywood had to music on the radio, television and VCR. I remember the Betamax was to the American movie industry what the Boston Strangler is to the women at home, according to Jack Valenti, TiVo, the MP3 player and so forth.

Progress & Freedom Foundation, The Role of Music Licensing in a Digital Age (Michael Petricone remarks), Progress on Point 13.18 (July 2006)


But the entertainment industry has been crying wolf for a century, ever since John Philip Sousa claimed that the player piano spelled the end of music in America. Each new technology has been attacked as a grave threat to the sanctity of copyright, yet somehow the sanctity of copyright has survived. The Sony case again provides the best illustration of this fact. The Chairman of the Motion Picture Association of America testified before Congress that the motion picture industry would suffer devastating financial losses if the VCR were not strangled at birth. (“[W]e are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. . . . I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”)

MGM v. GroksterAmicus Brief of National Venture Capital Association (S.Ct. 2005)


When the phonograph hit the US market, conductor and military composer John Philip Sousa claimed in front of Congress that, along with hurting his business, it would deprive us of our ability to speak: “We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape!” In 1982, Jack Valenti, then spokesman for the MPAA, stood in front of the same body, calling the VCR “the Boston Strangler” of the American film industry, alleging it was quietly killing American filmmakers.

Alex Aylett, Copy That, This Magazine (July 2005)


This is really part of a much longer historical set of fights between new technologies and the entertainment industry, going back at least to the player piano at the dawn of the 20th Century. No less a figure than John Philip Sousa, the famous American composer, said “The player piano will be the end of music in America.” … that’s exactly the mantra they came up with during the fight over the VCR, and Jack Valenti, who was then head of the Motion Picture Studios, famously said that the VCR was to the movie studio as the Boston Strangler was to a woman alone.

The Shape of Film to Come (remarks of Fred von Lohmann), On the Media (April 1, 2005)


Exhibit I-1: Piracy Panics V. Technological Progress: Economic & Moral Catastrophes are Always about to Befall the Entertainment Industry

John Phillip Sousa, “The Menace of Mechanical Music,” Appleton’s Magazine, Vol 8 (1906)

…I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines…

Jack Valenti, “Home Recording of Copyrighted Works,” Committee on the Judiciary, United States House of Representatives, April 12, 1982

… I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mark N. Cooper, Time for the Recording Industry to Face the Music: The Political, Social and Economic Benefits of Peer-to-peer Communications Networks, Consumer Federation of America, et al. (March 2005)


In the propaganda campaign that preceded the Betamax case, Jack Valenti, president of the Motion Picture Association of America, declared that the video recorder was ‘to the American film producer and the American public as the Boston strangler is to the woman home alone’. Strange, then, that video rentals went on to become the film industry’s main source of revenue.

Established interests have never much liked innovation. Back in 1906 the composer John Philip Sousa predicted ‘a marked deterioration’ in musical tastes as newfangled gramophones ‘reduce the expression of music to a mathematical system of megaphones, wheels, cogs, disks, cylinders and all manner of revolving things’.

David Rowan, MGM v. Grokster (op-ed), The Times Magazine (March 26, 2005)


Several examples are telling. At the turn of the twentieth century, the invention of the player piano sparked much concern on the part of musical composers. In fact, renowned American composer John Philip Sousa published an editorial in 1906 attacking the player piano, declaring that it represented a threat to copyright owners and, indeed, the future of music in America. Of course, the player piano ultimately gave way to the phonograph, from which the entire modern music industry arose.

More recently, the motion picture industry attacked the video cassette recorder (VCR) as a threat to the future of film. In 1982, Jack Valenti, then-head of the Motion Picture Association of America (MPAA), famously declared, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

EFF, Letter to FTC (Jan. 18, 2005)


Jack Valenti, the head of the Motion Pictures Association of America, testified before Congress, and if you’ve seen him before Congress he often looks like this, and he said in 1982 to the Congress the following: “The VCR is to the American film producer and the American public as the Boston strangler (the notorious serial killer) is to the woman home alone.” Now that’s pretty strong rhetoric. But it’s not unprecedented in the history of copyright and technology in this country. When the phonograph was invented we heard the same kind of complaints from the music industry of the time. John Philip Sousa went before the Congress in 1906 and he said this: “These talking machines (meaning phonographs) are going to ruin the artistic development of music in this country. When I was a boy in front of every house in the summer evenings you would find young people together singing. Today you hear these infernal machines going night and day. We will not have a vocal chord left.”

Edward W. Felten, “Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media” (lecture) (Oct. 12, 2004)


Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry “as the Boston Strangler is to a woman home alone.”

Cory Doctorow, Microsoft Research DRM talk (June 17, 2004)

Everyone wins when copyright law adapts to new technologies

Did you catch it?

But on a serious note, the myth that “content industries hate technology” fails for several reasons. It requires fabricating a group (“the content industry”), ascribing a broad characteristic to it (“hates technology”), and then pulling together disparate quotes from anyone who has stated a concern over some new technology as proof of the theory.

And, ironically, the myth neglects the fact that in most cases, copyright law in the past adapted to new technologies.

In the case of Sousa, for example, while he admitted at the time that his remarks may have been a bit over the top, his primary concern was that gramophone manufacturers were appropriating his work without compensating him.1 Just a few years after his essay and testimony, Congress revised the Copyright Act to provide that mechanical reproductions of musical compositions were part of a copyright holder’s exclusive rights. The result was the recording industry — which greatly benefited composers, recording artists, technology manufacturers and the general public.

Similar stories played out with other technologies, like radio2 and cable television.3 Again, the law adapted, the creative and technology companies thrived, and the general public and consumers benefited.

In all cases, the opposition is not to new technologies, but to those who think the introduction of a new technology gives them the privilege of misappropriating someone else’s work.

Just something to keep in mind the next time someone trots out Sousa and Valenti to oppose legislation to adapt copyright law to new technology.

Footnotes

  1. In the essay quoted many times above, Sousa writes “I am quite willing to be reckoned an alarmist”, but “Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns, by hiding back of the diaphanous pretense that in the guise of a disk or roll, his composition is not his property?” []
  2. A series of court decisions in the early 1920s, including M. Witmark & Sons v. L. Bamberger, 291 Fed. 776; Remick & Co. v. American Automobile Accessories, 5 F.2d 411; and Remick & Co. v. General Electric, 16 F.2d 829, solidified in law the proposition that a radio broadcast of a musical composition is a public performance. []
  3. The 1976 Copyright Act provided that retransmission of a broadcast by a CATV operator constitutes a public performance; see Capital Cities Cable v. Crisp, 467 US 691, 709 (1984). []

With rogue sites legislation moving through Congress, there have been some suggestions that, even if the bills were changed to address the (largely unfounded) criticisms of them, the PROTECT IP Act or Stop Online Piracy Act are simply not worth it. Some say that online piracy is not an enforcement issue but a business model issue, or that enforcement just doesn’t work.

The case for the need for such legislation has been made by many others. Judiciary Committee Chairman Lamar Smith noted the harm that rogue sites cause by profiting off the work of others in a statement issued for the Stop Online Piracy Act hearings earlier this month. Smith also pointed out how the DMCA is ineffective against the types of sites targetted by the bill.

I’ve examined the specific provisions in both the House and Senate bills previously, and they are very much likely to change as they move through Congress — Smith says he hopes to markup SOPA by the end of the year. But broadly speaking, is more effective enforcement necessary to protect the incentive for the creation of expressive works?

I think the answer to that is yes. I don’t think online piracy is solely an enforcement issue — just as it’s not solely a business model issue, or a technology issue. It’s all of these and more. There are a range of reasons why consumers pirate, a range of obstacles to building successful digital business models. It defies common sense to completely remove an entire approach from the table.

Ensuring a climate that doesn’t create incentives for pirate services

Harvard law professor Joseph William Singer sums this up eloquently in his recent paper, Subprime: Why a Free and Democratic Society Needs Laws. Singer talks specifically about the subprime mortgage crisis, but from a broader perspective, one that is just as relevant to the market for creativity:

The truth is that markets function because we have the rule of law, and liberty is possible only if we have a robust regulatory state. Markets are defined by a legal framework that sets minimum standards for social and economic relationships. And because we live in a free and democratic society (or aspire to do so), our regulations must be compatible with the norms, ideals, and values that democracies represent.

The exclusive, limited rights of copyright provide the minimum standards for the social and economic relationships at the heart of the market for expressive works. Free Ride author Robert Levine sums it up succinctly when he says “an information economy needs a functioning market for information. Traditionally, that market was created by copyright, but those laws haven’t been enforced effectively online.” Or, as Singer puts it, “Markets are enabled by law; without law, one cannot have a market.”

Any business relies on some level of legal framework — through enforcement of private property rights or contractual obligations. Businesses that rely on intellectual property are even more reliant on legal protection because of the intangible nature of their work. Enforcement of this legal protection remains a vital component of ensuring a functioning market for creative works.

Current law is insufficient to provide this protection online. Economists Olivier Bomsel and Heritiana Ranaivoson explain that

As a consequence, incentives arise all along the vertical chain to let the consumer free ride on copyright. Innovation signals can be then distorted in the sense that copyright infringement may drive industrial research and development, with the consequence of increasing more and more copyright enforcement costs. In other words, as long as the consumer can free-ride on copyright at nearly no cost, the whole copyright institution and the growing benefits it can bring to creative industries are threatened by the powerful incentives given to new infringing means.1

Though Bomsel and Ranaivoson were talking specifically about efforts against end users, the same holds true for online intermediaries. Without effective protection of copyright, intermediaries have every incentive to misappropriate other people’s work as part of their business model. This forestalls the development of legitimate business models — ones that give consumers what they want while also ensuring that the type of high-quality content they want can continue to be produced in the future. And it shows why the solution to online piracy cannot be an either/or choice between better enforcement and better business models: just as enforcement alone won’t lead to increased revenues if there are no legal alternatives for consumers, legal alternatives for consumers have difficulty developing without proper enforcement against infringement.

The Evidence

Album sales reversed their downward trend for the first time in years in 2003 and 2004, after the major record labels began end user litigation.2 More recently, we’ve seen music sales rise following Limewire’s demise. According to Nielsen, after Limewire was shut down by a federal court, “The spike in sales was immediate, noticeable and lasting.”

These effects are likely short term due to the one-off nature of litigation. More lasting effect must come from improved enforcement through legislation.

The March 2009 Final report by Oxford Economics on Economic impact of legislative reform to reduce audio-visual piracy surveyed evidence of the positive effect of enforcement. It noted the following research:

• Short term indications from recent UK research (Entertainment Media Research 2008) of 520 users who obtained unauthorised content digitally indicated 70% would stop their activities if they received an email or call from an ISP.

• Likewise BERR (2009b) refers to international evidence that two thirds of copyright infringers change their behaviour after receiving notification that their conduct is unlawful.

• Waterman et. al.’s (2007) review of the history of film piracy notes how the MPAA tackled the earlier problem of VHS piracy. This involved the introduction of harsher penalties against commercial piracy in 1982, which were further strengthened with the Digital Millennium Copyright Act (DMCA) in 1998. US states simultaneously began to increase penalties. The MPAA also brought prosecutions and raids against video retailers involved in the 16 manufacture and distribution of counterfeit videos. The authors report that losses from US video piracy fell from some 10-15% of legitimate video release revenues to studios in 1987 to roughly 7% of all legitimate video revenues in 2005. While they note the role of changing retail practices and technology, the authors clearly point to enforcement of legislation as an effective deterrent.

• A more sceptical assessment of historical copyright theft – Alexander’s (2007) analysis of legal attempts to confront illegal sheet music in the early 20th century – also acknowledges that the introduction of specific legal measures (the Musical Copyright Act 1906) played an important role in curbing this form of IP theft. She also pointed to the negative relationship between crime rates and the likelihood of conviction. Alexander reviewed these issues in the context of the Gowers Review and the question of whether history could throw any light on the effectiveness of criminal sanctions.

• Walls (2008) conducts a 26 nation cross-country quantitative analysis of film theft in which the cost of enforcing legal contracts (to prevent film theft) is a statistically significant dependent variable. That is, the greater the obstacles to legal methods such as enforcement, the higher the rate of piracy. Likewise, Proserpio et al’s (2005) 64 country study finds a higher degree of likely enforcement of international IP agreements is statistically related to lower movie piracy levels. Andres’ (2006) survey of software piracy in 23 European counties over three time periods (1994,1997 and 2000) finds a statistically significant negative relationship between software piracy and an index of copyright software protection (based on data from national copyright laws as well as civil and criminal codes and international data). Thus, countries with stronger antipiracy legal provisions tend to have lower software piracy levels.

• Finally, on a theoretical level, Harbaugh and Khemka (2001) point to the fact that broader based copyright enforcement (i.e. which captures a wider range of copyright theft rather than just “high value” types such as government and business) can ultimately lead to both lower consumer prices and higher industry profits. So there are social welfare benefits from enforcement. They also argue that private enforcement by copyright holders will tend to be “insufficiently extensive”. This suggests there is a need for government intervention through explicit copyright protection measures and that such measures should be broad in their scope.

The report itself concluded that changes to UK copyright law — including “Anti-camcording legislation”;ƒ “Regulation of car boot sales and occasional markets”; “Effective codes of practice with ISPs, underpinned by legislation”; “Implementation of additional damages regime”; andƒ an “Ongoing copyright awareness campaign” — would result in a direct increase of  revenues in the film and television industries of £268 million.

The Oxford Economics report noted broader results of implementing new antipiracy legislation: “Improvement of the theatre-going experience”, “Higher spending/employment on sets”, “Improved visual effects (UK)”, “Increased production of films”, “Improved employment opportunities for UK actors”, and “Better range/quality of legal online products”.

It also noted some negative effects of not improving the laws: “Loss of first release rights/prestige”, “Camcording in small cinemas and community effects”, and “Exodus of artistic talent”.

For creativity and culture to thrive in the online environment, a host of factors need to work in conjunction: effective enforcement, improved legal business models, more efficient licensing, increased awareness of copyright issues. None of these on their own represent a “silver bullet”, but each is a necessary component.

Footnotes

  1. Olivier Bomsel and Heritiana Ranaivoson, Decreasing Copyright Enforcement Costs: The Scope of a Graduated Response, 6 Review of Economic Research on Copyright Issues 13, 24 (2009). []
  2. Kristina Groennings, An Analysis of the Recording Industry’s Litigation Strategy Against Direct Infringers, 7 Vanderbilt Journal of Entertainment Law & Practice 389 (2005), in response to RIAA litigation, “album sales increased for the first time in several years by 4.7 percent in the last quarter of 2003. In January 2004, sales showed a 10.4 percent increase since January of the previous year”; David Blackburn, On-line Piracy and Recorded Music Sales, Harvard University working paper (2004), “lawsuits brought by the RIAA have resulted in an increase in album sales of approximately 2.9% during the 23 week period after the lawsuit strategy was publicly announced. Furthermore, if files available on-line were reduced across the board by 30%, industry sales would have been approximately 10% higher in 2003″. []

“If you would understand anything,” said Aristotle, “observe its beginning and its development.”

Understanding the historical relationship between copyright and the First Amendment is especially relevant today, with free speech concerns raised over pending rogue sites legislation — the PROTECT IP Act in the Senate and the Stop Online Piracy Act in the House — and domain name seizures — the Second Circuit will be hearing arguments about whether the seizure of the Rojadirecta domain names constitute a prior restraint in December.

Copyright law has long provided for preliminary injunctive relief (I believe the provisions of PROTECT IP and SOPA can be seen as a species of preliminary injunctive relief), and to a lesser extent, seizure and forfeiture. Over much of the 20th century, courts have turned to the First Amendment to strengthen procedural requirements in cases involving obscenity, libel, or news reporting. Yet preliminary relief for copyright infringement — whether injunctive, through actual seizures, or otherwise — has remained immune from any successful procedural First Amendment challenge.

Why is this?

The question is difficult to answer because most of the attention on the relationship between copyright and free speech has come only recently. Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent. Since then, however, and especially after the passage of the Digital Millennium Copyright Act and Copyright Term Extension Act in the late 1990s, many have turned their attention to finding contradictions between free speech and copyright.1

While the focus on contradictions is recent, earlier scholars had noted that copyright infringement at the very least plays by different rules when it comes to the First Amendment:

It is quite evident that no new principles of liberty were intended to be set forth by the First Amendment, and that, however enticing a philosophical theory of freedom of the press and of speech may be, the guaranty must be construed with reference to the common law which gave it birth. When Blackstone declared in 1769 that the liberty of the press consisted in placing no previous restraints upon publications, he was not laying down a new principle of constitutional theory, but merely stating what he believed to be the existing law. Apparently his generalization was too broad. Injunctions against the infringement of a copyright were not infrequent in his day.2

This quote suggests that the reason why equitable remedies for copyright infringement — injunctions and seizures especially — have withstood First Amendment scrutiny where those same remedies would fail in other cases remains somewhat of a mystery.

The beginnings and development of copyright and the First Amendment are still under-observed: Eldred v. Ashcroft devoted a scant two sentences to that history to show that, since the Copyright Act of 1790 and the First Amendment were adopted close in time, they are compatible.

I believe a closer look at the historical record can shed more light on this mystery (though I don’t mean to suggest in any way that I am the first to do so).3 I think this historical record shows a number of reasons why copyright law, though not “categorically immune from challenges under the First Amendment”,4 has nevertheless existed comfortably alongside the First Amendment.

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Literary Property

Of course, any mention of “copyright” and “property” in the same sentence nowadays can cause some to go in a tizzy. Partly this is due to an impoverished concept of property; that property only refers to tangible objects (forgetting about intangibles like stocks, bonds, promissory notes, and other financial instruments), or that copyright can’t be property because infringement doesn’t deprive the holder of possession or ownership (except if I smash your car window, we’d say I violated your property rights even though you still possess the same amount of glass). Setting aside these naive arguments, the modern critique of copyright as property goes something like this: Although it is entirely correct to characterize copyright as property in a descriptive sense, we shouldn’t characterize copyright as property in a normative sense, because that would be bad, from a policy standpoint.5 These arguments are beyond the scope of this article — I’m concerned with whether copyright was thought of as property when the First Amendment was first enacted.

Indeed it was. In 1792, James Madison wrote that “property” has a “larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage“; this meaning includes more than just “a man’s land, or merchandize, or money.”6 Legal scholar Adam Mossoff describes this concept of property as the “dominant” understanding of property in 18th and 19th century America.7

And copyright certainly fit within this understanding of property at the time — it was referred to as “literary property” more often than not. Copyright was expressly described as property in several of the State copyright acts that predated the US Constitution.8 The Supreme Court has classified and referred to copyright as property throughout its history — in 1823, for example, the Court stated, “The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source. It extends to literary property, the fruit of mental labour.”9

In 1839, the New York Chancery Court decided Brandreth v. Lance, a libel case and “the first American court decision setting aside a government action on constitutional free speech or free press grounds.”10 But in refusing to enjoin the libelous publication, the court implicitly notes that an injunction for copyright infringement would not infringe upon the liberty of the press:

It is very evident that this court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. …

The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. …

But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence.11

The court also notes in a footnote, “There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright” (Emphasis added).

Liberty of the Press does not Limit Copyright Injunctions

The idea that copyright is a property right and injunctions to protect property rights do not infringe free speech remained throughout the 19th century and into the 20th. The Columbia Law Review wrote in 1913:

This immunity from an injunction, while applicable to libels, is not similarly applicable to other forms of injurious publications where the historical requirement of a jury trial is not so pressing. Accordingly, where the act of publication results in intimidation and coercion it is treated as an ordinary crime, and the liberty of the press does not then limit the jurisdiction of equity to protect property. Furthermore, according to the prevailing view, it seems that a publication, no matter how innocent in itself, may be enjoined if it is made in pursuance of a scheme which has an enjoinable element. Thus, although the courts are at variance as to whether an injunction may issue against a boycott, they are agreed that wherever such is the case, publications in aid thereof, even if libels, cannot claim the protection of the guaranty. In establishing this doctrine they assert that the right to engage in a lawful occupation is not less essential than that of free speech. In order, therefore, to obtain the greatest possible freedom of action and speech equally for all, these conflicting constitutional rights must be exercised in accordance with the maxim, Sic utere tuo ut alienum non laedasCertainly, the press should not be employed unjustifiably to ruin another’s occupation, and where such ruin is imminent the injunction, though a dangerous weapon, becomes a proper one [Emphasis added].12

And in 1971, Justice White of the Supreme Court itself weighed in, noting that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”13

Today, preliminary injunctions are common in copyright cases, and seizures of infringing goods are common, both through courts and administrative agencies. At the same time, while defendants have increasingly raised First Amendment defenses in the past 40 years, those defenses have almost without exception been unsuccessful.14

Call it what you will — a permissible prior restraint, a First Amendment exception, or a recognition of competing liberty interests — there is an unbroken historical practice of providing remedies for copyright infringement that would constitutionally fail in other areas of the law. This practice is premised in part on the view that copyright is a property right, and freedom of expression does not shield a defendant from invasions of property rights. As seen above, this premise appears to be established by the time of Blackstone’s Commentaries and has been alluded to several times since then.

Unbroken historical practice is obviously not ipse dixit proof of the constitutional firmity of a practice. But the development of the historical practice does increase our understanding of these issues today. Also, as mentioned earlier, the historical record reveals other reasons why the conflict that critics see between free speech and copyright has not been embraced by courts, reasons that I hope to write about in future posts.

Footnotes

  1. More detail on the history of copyright and First Amendment scholarship at my post, Copyright and Censorship. []
  2. Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913). []
  3. See, for example, Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies (2008) — and I’m always interested in learning about other examples. []
  4. Eldred v. Ashcroft, 537 US 186, 221 (2003). []
  5. See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, “What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”;  Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. “We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.” []
  6. James Madison, Property. []
  7. Is Copyright Property? 42 San Diego Law Review 29, 41 (2005). []
  8. “Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783)New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).

    “An act for securing to the authors of literary works an exclusive property therein for a limited time.” Virginia Copyright Statute (1785) (title).

    “An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785). []

  9. Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”; Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright; Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”; Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”. []
  10. Eugene Volokh, Flag Burning and Free Speech, Wall Street Journal, July 3, 2009. []
  11. Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839). []
  12. Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 1917), “In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.” []
  13. New York Times v. U.S., 403 US 713, J. White, concurrence, n.1 (1971). []
  14. I provided examples in previous posts, including ICE Seizures Criticism: Magic Words, Responding to Sellars: Copyright and Content-based Regulations, and Rojadirecta seeks refuge in First Amendment. []

Should we move from copyright to workright? — John Degen picks up on Abraham Drassinower’s paper Copyright Infringement as Compelled Speech (which I highlighted last week). Degen looks at some of the big sticking points in copyright debates and wonders if it’s time to start conceptualizing the law as a workright rather than a copyright. Interesting stuff.

Starz CEO: Netflix Became an ‘Albatross’ — The entertainment company’s boss explains the reasoning behind the decision not to renew its licensing agreement with Netflix. Part of it was the reluctance of Netflix to incorporate tiered pricing for premium streaming like Starz provides, and part of it was Starz’s ongoing reemphasis on original programming over licensed feature films.

Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications — A scholarly article from Aaron B. Rabinowitz that finds, among other things, “prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes.”

Appeals court rejects request by serial downloader — The First Circuit denied Joel Tenenbaum’s request for a rehearing en banc after it had previously reinstated the original jury award of $675,000 and remanded to the District Court for further proceedings.

YouTube, NMPA reach ‘unprecedented’ deal to pay independent music publishers — The terms of the settlement reached between Google and the National Music Publishers Association stemming from litigation related to the current lawsuit involving Viacom are now available. YouTube will pay a percentage of ad revenue derived from videos that incorporate songs to indie music publishers that opt in.

Following a Supreme Court deadlock, Costco beats Omega on remand by invoking the equitable doctrine of “copyright misuse” — You can’t slap a copyrighted logo on the back of a watch to limit its importation under Copyright Act provisions. Costco should’ve thought of this seven years ago when it was first sued.

Universal Music sees recorded music near turnaround — Billboard reports positive news: execs at major label Universal believe the record industry may reach its inflection point toward “the end of 2013.” The growth of digital sales and new online services are helping to bring the decade long decline that halved the recording industry to an end.

[With the House Judiciary Committee holding a hearing underway on H.R. 3261, the Stop Online Piracy Act, I’d like to share my thoughts on the bill on a more personal level.]

I’m passionate about the framework provided by copyright law because I am passionate about the expressive works that have been created in the US over the past 200 plus years because of this framework. From the silly to the sublime, to those that educate and those that entertain, these works have advanced our society, our culture, and our economy.

As a media and cultural consumer, I am excited by the increasingly innovative new ways I can access the news, movies, television shows, music, and other works I love online, and I strongly hope that those who create them can continue to create. I believe the Stop Online Piracy Act is both necessary and carefully crafted to ensure creators have effective recourse against sites that profit off misappropriation of their work.

Effective copyright protection, on a fundamental level, is a significant governmental interest, and one of the few enumerated powers of the federal government in the Constitution. In 1832, the Supreme Court said “To promote the progress of the useful arts is the interest and policy of every enlightened government.”1

Only two years later, Supreme Court Justice Thompson said in his dissent to the seminal opinion in Wheaton v. Peters, “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.”2

The history of copyright law presents a common theme of technological advancement bringing challenges to creators. In the past, we’ve seen these challenges with the introduction of new forms of media that allowed the recording of sound, images, and motion pictures; broadcasting in the form of radio and television; and even advancements in transportation that have made our world smaller and more connected. Today, creators face challenges to adapt to digital technologies and the Internet, which allows global communication on an unprecedented scale.

But no matter how rapidly technology advances, we should not lose sight of the fundamental principles of “justice, equity, morality, fitness and sound policy” that the protection of expression is built on.

In the words of James Madison, “The public good fully coincides” with “the claims of individuals” under copyright law.3 The introduction of new expressive works, whether in the form of books, music, films, television, or photographs, do much to advance this public good. They teach, entertain, and shed light on the human condition. So it is vitally important that those works are protected just as much online as they are offline.

Copyright Online

The Internet today looks vastly different today than it did in 1998, when the Digital Millennium Copyright Act was enacted. There was no Google, no YouTube, and no Facebook. The technologies that make rich, fully-interactive sites like these possible simply didn’t exist at the time. It would be hard to imagine a world wide web like this today. Today’s web allows a myriad of ways for people to engage in communication, commerce, social networking, entertainment, and learning. This is possible because the technology behind the web continued to progress, rather than being frozen in place. The same should be true of copyright law.

The consensus is that the DMCA has generally worked well for copyright holders and service providers. Its safe harbors shield service providers from liability for material uploaded by users where the service provider doesn’t have knowledge that the material is infringing, doesn’t receive a direct financial benefit from the infringing activity where the provider has the right and ability to control the activity, and acts expeditiously to disable access to uploaded material when it receives a notification of claimed infringement.

These notice-and-takedown provisions can be more effective and efficient for removing infringing material than litigation. They work well, in other words, for good faith, legitimate service providers who cooperate with copyright holders to detect and deal with online infringement.

They should not, however, provide cover for service providers who deliberately set out to build sites based on infringement — where, for example, the site was primarily designed to have no other purpose than to engage in or facilitate infringing acts, the site operator has taken deliberate action to remain unaware of a high probability that the site is used for infringement, or the site operator has taken affirmative steps to promote the use of the site for infringing acts.

The DMCA safe harbors were crafted to provide legal certainty in the new online world and protect service providers from the risk of liability for inadvertent or incidental infringement that they aren’t aware of or can’t monitor or control. They certainly weren’t crafted to protect against those who actively and deliberately design and operate their sites to profit off piracy.

In practice, the DMCA notice-and-takedown provisions are ineffective against sites like this. Many creators would find it a full time job to send notices against these types of sites. And the provisions are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Sections 102 and 103 of the Stop Online Piracy Act fill this gap by giving the Attorney General and copyright holders new tools that directly target rogue sites. The goal of this legislation is not to completely eradicate online piracy, or allow copyright owners to “go back to the way things were.” Piracy is inherently part of the copyright landscape, and it will always exist in some form or another.

The goal is rather to allow creators and legitimate intermediaries to continue to develop sustainable business models that allow both widespread dissemination of content and the ability to be remunerated for investing time and money creating that content. Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role.

Nearly forty years ago, former Register of Copyrights Barbara Ringer delivered an essay at a time when Congress was in the midst of reforming the Copyright Act to ensure it would remain relevant in the information age. Like today, it was a time of rapid technological change, with new stakeholders emerging and contentious debate. But though the technologies and players were different, Ringer’s words remain just as relevant today:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.4

Copyright Law and Freedom of Expression

The introduction of the Stop Online Piracy Act has raised free speech concerns from various parties. It’s absolutely vital that the proposed bill — any bill for that matter — conforms with the First Amendment, which, I believe, it does. Noted First Amendment expert Floyd Abrams believes the bill is fully compatible with First Amendment protections as well, as he explained in a recent letter.

But it’s also important to keep in mind that copyright law itself serves an important role in furthering the goals of freedom of expression. This role has been recognized since the founding of the United States. As the Supreme Court said in Eldred v. Ashcroft, “the Framers intended copyright itself to be the engine of free expression.”5

Founding Father and second president John Adams once wrote, “Property must be secured, or liberty cannot exist.” Our fourth president, and the Father of the Constitution, James Madison added, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

The Copyright Clause in the Constitution incorporates both these ideas, thus serving as a critical component in the protection of liberty. It gives Congress the power to secure to authors the exclusive rights in their writings in order to promote the progress of the useful arts and sciences. The importance of this power cannot be understated, and neither can the importance that these exclusive rights be truly secure in order to promote progress and spur diffusion of new expression.

That copyright law complements rather than conflicts with freedom of expression has been recognized many times since then.

For example, in an 1844 article appearing in The Reasoner magazine, the author writes: “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

And in an 1880 treatise on the liberty of the press, the author characterizes the “valuable property in the hands of the author who composes and publishes his thoughts” as one of the forms “which the right of free speech and thought assumes.”

Perhaps the best examination of the complementary relationship between copyright and freedom of expression comes Barbara Ringer, who noted:

[I]t is important to recognize that the Statute of Anne of 1710, the first copyright statute anywhere and the Mother of us all, was enacted precisely because the whole autocratic censorship/monopoly/ licensing apparatus had broken down completely. As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under common law principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles : recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

She later observes, “It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom.”

Prior restraint and censorship are antithetical to the First Amendment, but doing nothing in the face of rampant online piracy disgraces the goals of freedom of expression as well. The Stop Online Piracy Act helps secure creators’ rights online. Rogue sites jeopardize the ability of creators and firms to invest time and resources into creating new expression that advances society and culture. Current law is insufficient to address this harm; this bill would help restore the security of copyrights online.

Due Process

The rule of law is one of the most central and vital aspects of a free society. The US Constitution guarantees fair and impartial proceedings, protects citizens from arbitrary and unequalapplications of law, and limits what the government can do before depriving someone of life, liberty, or property.

But like freedom of speech, the concept of due process encompasses more than just Constitutional limits. Due process requires that rights have effective remedies available. Doing nothing violates the spirit of the rule of law.

The Stop Online Piracy Act strikes the correct balance between giving copyright holders an effective process for addressing sites whose only purpose is profiting off of the misappropriation of their works and ensuring that legitimate site operators are not punished.

I looked at the process of SOPA in more detail in previous posts: providing a walkthrough, showing why the bill will hit what it aims at, how it complements the DMCA, and why it merely provides new remedies for existing liability.

Conclusion

Sections 102 and 103 of the Stop Online Piracy Act represent a good start for creators who have long noted the injustice of others profiting from online piracy and escaping liability. Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

With this bill Congress can help secure the exclusive rights of creators. Doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content can continue.

Footnotes

  1. Grant v. Raymond, 31 US 218. []
  2. 33 US 591 (1834). []
  3. Federalist papers, No. 43. []
  4. Barbara Ringer, Demonology of Copyright (1974). []
  5. 537 US 186 (2003). []

That every person for every injury done him in his goods, land or person, ought to have remedy by the course of the law of the land and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land.1

Ineffective remedies are often just as bad as no remedy at all. While innovative, sustainable services continue to develop, offering consumers exciting and convenient new ways to enjoy content that remunerates creators, rogue actors still find it easy to profit off the misappropriation of someone else’s time and talents.

The Stop Online Piracy Act (H.R. 3261) gives creators more tools to address this type of commercial piracy. Since it was introduced, however, it has been subject to much criticism, and with the House Judiciary Committee holding a hearing on the bill Wednesday, the criticism is sure to continue.

While some of the criticism is legitimate — few bills are perfect when they are first introduced, hence the need for hearings — a lot of it is unfounded. One thing that should be kept in mind is that SOPA does not expand the scope of copyright law, of what is protected or what is not.

The Stop Online Piracy Act creates new remedies, it does not create any new liability.

Section 103 of SOPA provides for a procedure, similar to the notice-and-takedown procedure of the DMCA, that allows copyright holders to better protect their work against commercial misappropriation. This procedure is limited to use against sites that are, as the bill terms them, “dedicated to theft of U.S. property.” The bill includes three separate definitions for a site “dedicated to theft of U.S. property.”

To see why SOPA doesn’t expand the scope of copyright law, compare its definitions to current law. These definitions, for sites “dedicated to the theft of U.S. property”, incorporate existing standards of liability. That is, sites or services that fall within the scope of these definitions are already potentially liable for copyright infringement. All Section 103 of SOPA does is give copyright holders a new tool to more effectively protect their work from commercial misappropriation.

No legitimate purpose

The first definition of a site “dedicated to the theft of U.S. property” under SOPA is one that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement.

The language of this definition mirrors that of the existing provision in the DMCA that prohibits devices that circumvent technological protection measures:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.2

But in a broader sense, this definition draws upon the theory of liability originally set forth in Sony Corporation v. Universal City Studios — the “Betamax” case. There, the Supreme Court held that the sale of a good “does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” This holding borrowed from the staple article of commerce doctrine in patent law. A corollary to this doctrine is that “where an article is ‘good for nothing else’ but infringement … there is no injustice in presuming or imputing an intent to infringe.”3

There is recognition in Sony itself that its holding on contributory infringement doesn’t extend to products or services which have no purpose other than infringement. Justice Blackmun said in his dissent, “If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed.” Blackmun’s dissent bore a strong resemblance to an earlier draft of what, at one point, was the majority opinion in Sony.4 The language of that draft bears an even stronger resemblance to SOPA’s definition of a site “dedicated to theft of U.S. property”: “Sony can be liable for contributory infringement only if the Betamax’s ‘most conspicuous purpose’ or ‘primary use’ is an infringing use.”5

Willful Blindness

Willful blindness is sometimes also referred to as “Nelsonian knowledge“, after flag office Horatio Nelson, who fought for the British Royal Navy in the late 1700s and early 1800s. The following story explains why — this particular story also serves as the origin of the phrase “turning a blind eye.”

When some of your great grandfathers were little boys, there was a great war between England and France. Many of the battles were fought at sea. England had good ships and brave sailors and bold captains in plenty; but the best sailor and the boldest captain of them all was Lord Horatio Nelson.

[…] In one battle this brave officer lost an eye. In another he lost an arm; but though he had but one eye and one arm, he was always the first in the fight and the last out. He never would give in. At the battle of Copenhagen two of his ships ran aground. Admiral Parker, who had command of the fleet, thought Nelson had no chance of winning: so he hung out the signal to “stop fighting.”

But Nelson took no heed of it. His one eye danced with glee as the guns roared, and ropes and bits of timber flew through the air. When a shot struck the mast of his own ship and broke it to hits, he only said. “Warm work this! But I wouldn’t lie out of it for all the world!” Some one told him that the signal was up to “stop fighting.”

He laughed: and putting the glass to his blind eye, he said: “I don’t see the signal. Keep mine flying for closer battle. Nail it to the mast.” And he kept on fighting till he won the battle; and for his great victory he was made lord admiral of the fleet.6

The second definition of a site “dedicated to theft of U.S. property” under SOPA is a site where “the operator of the U.S.-directed site is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” copyright infringement.

The language is taken directly — word for word — from last May’s Supreme Court opinion for Global-Tech Appliances v. SEB. The Court stated that “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.”

Global-Tech presented the Court with the question of whether willful blindness can satisfy the knowledge requirement of 35 U.S.C. § 271. However, willful blindness itself is an incontrovertible part of the law. The Court explains:

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.

The Court notes the wide acceptance of the concept of willful blindness. It begins its survey with a case from 1899 which embraced the idea and traces the doctrine through the 20th century. Today, “every Court of Appeals—with the possible exception of the District of Columbia Circuit, has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes.”

Finally, the Supreme Court presents a general formulation of willful blindness. “While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”

The doctrine of willful blindness applies to copyright law just as much as it does to law in general.7

Inducement

The final definition of a site “dedicated to theft of US property” under SOPA is a site operated “with the object of promoting, or has promoted, its use to carry out acts that constitute” copyright infringement, “as shown by clear expression or other affirmative steps taken to foster infringement.”

Like the definition for willful blindness, this definition is taken directly from the Supreme Court. In Metro-Goldwyn-Mayer v. Grokster, the Court stated that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

The Court dubs this “inducement”, and it has been recognized as a form of secondary liability within copyright law for decades. In 1971, for example, the Second Circuit said that “one who, with knowledge of the infringing activity induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”8

Effective recourse

The Stop Online Piracy Act incorporates long standing principles of liability, principles that have applied to service providers and web site operators since the beginnings of the world wide web. The actions that would subject a provider to SOPA’s provisions are the same ones that would subject it to a copyright infringement suit under existing law and are actions that would not be protected under DMCA safe harbors.

What has been missing has been effective remedies against operators and providers that clearly fall within the scope of this liability: sites that have been purposely designed for the sole purpose of infringement, sites whose operators have taken deliberate steps to blind themselves from the use of their sites to engage in wrongdoing, and sites whose operators have actively promoted the use of their sites for piracy. For smaller content producers and individuals especially, this lack of effective recourse has proven damaging.

The goal of SOPA is to remedy this lack of effective recourse, and ensure that creators have “justice and right” freely, fully, and without delay for the injury caused by rogue sites.

Footnotes

  1. Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9. []
  2. 17 USC § 1201(a)(2). []
  3. Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005). []
  4. Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993). []
  5. Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983). []
  6. The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900). []
  7. In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005). []
  8. Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162. []

Eleven links for 11/11/11…

Give the Gift of Music — Winning essays from Give the Gift of Music’s autumn contest. Incredibly moving stories of how music and lyrics have inspired and helped others.

Fight for the Future — Worcester Mag profiles the “Fight for the Future” group, which is based in Worcester, MA, and debate over rogue sites legislation. Some quotes from yours truly in there.

Everything looks like a nail: the “social music” fallacy — A thought provoking essay from Fingertips Music. “Music is made to be shared? No, it isn’t. Unless you happen to run a large, international social media company. In which case, everything is made to be shared.”

5 ways we ruined the Occupy Wall Street Generation — It’s from Cracked Magazine, but still pretty observant. Number 2: “Creating the idea that entertainment has no monetary value.” The author writes, “See, when piracy hit Hollywood, they didn’t stop funding blockbusters — they stopped funding edgy, creative movies. They’re going with safer and safer bets. Piracy did that. We got that ball rolling, and there is no going back. Instead of Reservoir Dogs, we get Jack & Jill … and you have no idea how deeply sorry I am for that.”

How movie money works — “When you read articles claiming every Hollywood movie loses money, an obvious question arises: ‘Why do they keep making them, then?'” Screenwriter John August answers this question via podcast. Very informative.

Authors and Book Piracy — Literary agent Rachelle Gardner gives authors information and advice about book piracy.

On rogue websites legislation: when you’ve got them by the bucks, their hearts and minds will follow — Chris Castle, writing at the Huffington Post, ponders about opposition to rogue sites legislation from venture capitalists. “The good guys know that there is a difference between innovation and theft — but while this seems obvious, that distinction seems to be lost in a grandiose belief that the positive effects of crime are justified by ‘innovation’ and ‘Internet freedom.'”

The facts on PROTECT-IP and the Stop Online Piracy Act: What are rogue sites? — Sandra Aistars separates fact from fiction about what types of sites are targeted by legislation in the US House and Senate. Says Aistars, “The bills don’t regulate the Internet. They regulate bad actors.”

Counterfeit Military Parts “Threaten the Safety and Mission Readiness of our Armed Forces” — Counterfeit parts, often defective, are a rising problem in defense supply chains. A recent Senate Armed Services Committee held a hearing on the subject, and rogue sites legislation in the House and Senate include provisions to deal with this problem.

Celebrating the Fortieth Anniversary of Justice Breyer’s Article The Uneasy Case for Copyright — The George Washington Law Review recently held a symposium to celebrate current Supreme Court Justice Stephen Breyer’s seminal article written 40 years ago. Six articles, plus an esssay by Breyer himself, are available at the GWLR site. I especially recommend Stan J. Liebowitz’s Is Efficient Copyright a Reasonable Goal?

Drassinower on Copyright Infringement & Compelled Speech — “Copyright infringement is wrong because it is compelled speech.” This academic paper from Abraham Drassinower develops a rights-based justification for copyright as a communicative act. Certainly not light reading, but very interesting.

The online safe harbors for copyright infringement liability, enacted as part of the DMCA in 1998, have been credited for everything from saving the web to removing former Egyptian president Hosni Mubarak from power.

But while there is certainly disagreement over the scope of immunity for online service providers — appeals are currently pending in the Second and Ninth Circuits over many of the details of the provisions, for example — the law is generally considered to strike the appropriate balance where it applies.

Now with the introduction of the Stop Online Piracy Act in the US House, critics are concerned that the bill — specifically Section 103, which creates a notice mechanism for preventing sites “dedicated to theft of US property” from profiting off infringement similar to the notice-and-takedown procedure in the DMCA for removing infringing content uploaded by a service provider’s users — will upend this balance.

The EFF warns that the bill threatens to “effectively eliminate the DMCA safe harbors.” Public Knowledge writes that “SOPA would undermine the DMCA.” The Internet abounds with others raising the alarm over what would become of DMCA safe harbors should SOPA pass.

I had previously written about the need for copyright law to continue to adapt alongside technology. It makes as much sense to freeze the law relating to the online world as it was a decade ago as it does to freeze the technologies that shape the web as they were.

The Stop Online Piracy Act in many ways represents an update to the Digital Millennium Copyright Act — DMCA 2.0 — rather than an end-run around it. The existing safe harbors are good for certain things — user-generated sites and social networking sites to name just two — but not good for others.

Active and Passive Infringement

One major feature of the safe harbors, which illustrates both why they are ineffective against the type of commercial piracy targeted by SOPA and why SOPA enhances rather than eliminates these limitations on liability, is that they are primarily concerned with passive infringement: infringement that occurs through services that is inevitable, but which would be overly burdensome to fully prevent.

The online safe harbors were intended to encourage content owners and service providers to cooperate in order to “detect and deal” with online infringement.  They were also meant to give “greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.”1 Note the passive “infringements that may occur” — the safe harbors weren’t made for service providers who set out to enable or facilitate infringement.

Perhaps the most popular safe harbor is the one laid out in 17 USC § 512(c), which immunizes service providers from liability for “Information residing on systems and networks at direction of users.” The text of 512(c) supports the idea that the safe harbor was designed for inadvertant and incidental infringement. It shields service providers for copyright infringement liability that arises only “by reason of the storage at the direction of a user of material.” The safe harbor does not apply if the service provider has actual knowledge that material or activity using the material infringes copyright, or if the provider receives a directly attributable financial benefit where it has the right and ability to control infringing activity.

It shouldn’t be controversial to say the DMCA safe harbors were crafted as a shield for service providers, not as a sword against creators and copyright holders. The notice and takedown procedure in Section 103 of the Stop Online Piracy Act thus builds upon the originally intended goals of the DMCA to target only those sites that actively set out to benefit from third-party infringement.

The provisions can only be used against sites that are “primarily designed or operated” to offer services in a way that “engages in, enables, or facilitates” copyright infringement; sites that take “deliberate actions to avoid confirming a high probability” that the site is used to carry out infringement; or sites that promote their use to engage in infringement “as shown by clear expression or other affirmative steps taken to foster infringement.”

Taken as a whole, the bill can only be used against sites that have purposefully taken actions to profit off piracy, actions that are well beyond the scope of the DMCA safe harbors.

DMCA safe harbors remain alive and well

This is not a departure from existing law. The third definition of a “site dedicated to theft of US property” repeats word-for-word the Supreme Court’s articulation of inducement — “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” [Emphasis added.]2 And as one court noted, “inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business.” [Emphasis added.]3

It’s also important to keep in mind that nothing in the bill negates the safe harbors. A copyright holder can only proceed in court against a site after it has sent a notice to an advertising or financial transaction provider and either those providers failed to comply with the notice or the site operator sends a counter-notification. Even then, the court is limited solely to granting an injunction against the site to cease and desist from doing further any of the actions described above that made it subject to a notification in the first place.4

In practice, the DMCA notice and takedown provisions are ineffective against site operators who take an active role in facilitating, promoting, or turning a blind eye toward the use of their sites for infringing copyright. Many creators would find it a full time job to send notices against these types of sites, and most find that specific content removed quickly returns elsewhere. This results in sites playing a game of “catch me if you can” while continuing to profit off the work of others. And they are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Rogue sites sidestep the rule of law by using the DMCA safe harbors to shield themselves from liability while they take deliberate steps to profit off of piracy. With the Stop Online Piracy Act, the US House is hoping to truly secure the exclusive rights of creators; doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content is not hamstrung.

Footnotes

  1. Final Conference Report on H.R. 2281, House 105-796, pg. 72 (Oct. 8, 1998). []
  2. MGM v. Grokster, 545 US 913 (2005). []
  3. Columbia Pictures v. Fung, CV 06-5579 SVW, Order granting plaintiff’s motion for summary judgment on liability (CD Cali. Dec. 21, 2009). []
  4. Which make the claims that SOPA would lead to increased litigation, “shakedowns” of new services, or a boon for trial lawyers absurd: copyright holders already can sue a site for copyright infringement, and if successful, can collect monetary damages. A cause of action that is much narrower than copyright infringement, for which only limited injunctive relief is available, isn’t exactly attractive to someone looking to make a buck. []

Return of the AmeriKat I: Berne takes a bite out of the US Constitution — The Supreme Court’s opinion in Golan v. Holder, which was argued last month, likely won’t be out for several months. In the meantime, IPKat offers a substantial look at the background and issues raised in the case.

Where are all those mashers and mixers we keep hearing about? — One of the central tenets of some “copyfighters” is that remixing and mashing up somehow represents the new paradigm of culture, replacing “traditional” notions of authorship. The takeaway being that corporations like Google should be given free reign to profit off the aggregation of such remixes and mashups without any regard to the original creators. John Degen points to a recent study that reveals that, contrary to this tenet, only 12% of the respondents said they engage in remixing.

Public Safety Community Overwhelmingly Supports Rogue Sites Legislation — The Fraternal Order of Police and the International Association of Fire Fighters join an array of public safety organizations backing legislation aimed at online copyright infringement and counterfeit goods. Counterfeit safety equipment is a very real public safety issue.

Copyright Small Claims? — The US Copyright Office has recently begun seeking comments on possible remedies for small copyright claims. Attorney David Lizerbram takes a deeper look at the issue.

Does Culture Really Want to be Free? — Salon sits down with Robert Levine to discuss many of the issues he raises in his new book Free Ride. Full of choice quotes like this one: “I don’t think anyone is going to go to hell for downloading ‘Iron Man 2.’ But saying you have the right to download it is also pretty silly.”

5 Steps to Understanding Bill C-11 and “Digital Locks” — As Canada moves toward reforming its copyright law, concern has been raised over provisions dealing with technological protection measures. James Gannon explains what these provisions do and why they are needed.

The Entire $1.65B Acquisition of YouTube Took a Week, Was Negotiated at Denny’s — “Schmidt basically promised the founders unlimited resources in return for an “infinite amount of happy users” and an “infinite amount” of good content.” (Sadly, Schmidt could only promise a finite amount of Moons Over My Hammy.)

More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age — UCLA law student and friend of the site Brad Greenberg penned this forthcoming law review article about proposals to bring back copyright formalities in the digital age. Ultimately, he concludes that “returning to an opt-in copyright system via formalities would actually disincentivize authors who are presently motivated by copyright.”

Harold Camping has famously predicted the end of the world three times.

His first prediction — September 6, 1994 — came and went with little fanfare. His second attempt at setting a date for the apocalypse was far more successful. The Internet was abuzz as May 21, 2011 approached. But again, the world did not end.

Undeterred, Camping checked his math and announced a new date. October 21, 2011, would mark the final day of everything we know, for real this time. Wrong once again, the former leader of the California-based Family Radio has apparently retired from his role as apocalyptic soothsayer.

Apocalypse Now?

I mention Camping because a similar phenomenon occurs in the copyright realm. It seems that whenever new legislation is introduced, there are those who are ready to predict that if it passes, it will surely result in the demise of the Internet, or innovation, or some other thing we hold dear.

You can see this in action by taking a look at some of the headlines in response to the US House’s introduction of the Stop Online Piracy Act (SOPA):

This are just a sampling of the dire predictions about the epic catastrophes SOPA would bring if passed — the SOPAcolpyse, if you will.

But, like Camping, copyright’s skeptics have made these predictions before.

Sometimes they are done with striking consistency. Sci-fi author Cory Doctorow says SOPA “might be the worst-ever copyright proposal in US legislative history.” Not one to make use of hyperbole sparingly, Doctorow also declared a 2005 French proposal the “worst copyright law in Europe”; in 2007, it was an EU proposal that would surely be the “worst copyright law in the world!”; little more than seven months later, he stated that a Canadian legislative proposal “promises to be the worst copyright law in the developed world.”

The same goes for copyright activist Lawrence Lessig, a big proponent of the “break the internet” line over the years. Talking in 2003 about his idea for a compulsory license that would cover P2P activity, he said, “We have to buy [music and movie companies] off, so they don’t break the Internet in the interim.” That same year on PBS’s NewsHour with Jim Lehrer, it was DRM: “The response that the music industry has insisted on would be technologies that would essentially break the Internet.” Fast-forward to 2008, and Lessig, speaking at an event hosted by Harvard’s Berkman Center, Google, and the Family Online Safety Institute, again cautions against letting copyright law “break the Internet.”

The Sky is Falling

The doomsday scenarios began on day one. In February 1993, the Clinton administration put together the Information Infrastructure Task Force to study the advancement and development of information technologies, including the burgeoning Internet and infant web. Part of their mandate was examining the intersection of copyright law, digital technologies, and networked communications and exploring what changes were necessary.

The Working Group on Intellectual Property Rights released its report, Intellectual Property and the National Information Infrastructure (the “White Paper”), in September of 1995, sparking the first wave of the “parade of horribles” that would accompany copyright reform from then on out.

Copyright scholar Pamela Samuelson penned an article in Wired magazine that gave a laundry-list of reasons to oppose legislation proposed after the White Paper was released: “your online service provider will be forced to snoop through your files”, it would “transform the emerging information superhighway into a publisher-dominated toll road”, it would “eliminate fair-use rights”, “it can be construed as outlawing many activities widely believed to be lawful.”

Others concurred. “The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”

The initial legislation evolved to become the Digital Millennium Copyright Act (DMCA), which became law in 1998. Some still weren’t convinced the days of a free Internet weren’t numbered. A writer in the Berkeley Technology Law Journal predicted shortly after the DMCA became law that:

The post-DMCA Internet will feature even more of those damnable “404 – file not found” messages than it currently does. As media companies expand their demand-letter operations from commercial “piracy” to include negative commentary, transformative uses, and what they deem to be a little bit too much sampling or quotation, the ranks of the independent Internet publishers will be radically depopulated.

Ten years later, many of those same critics couldn’t praise the DMCA enough. Wired magazine calls it “the law that saved the web.” “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”

A Decade of Falling Sky

Since the DMCA, most copyright legislation has elicited similar responses.

The No Electronic Theft (NET) Act was passed in 1997, expanding the definition of “financial gain” in criminal copyright infringement and increasing criminal penalties. Among the opponents of the bill was the Association for Computing, which raised concerns that it would restrict dissemination of science, criminalize the transfer of information protected by fair use, and chill free speech in research institutions. Others warned it would greatly expand the scope of criminal infringement; “aggressive prosecutors would abuse their discretion to win convictions” or “bring weak felony cases to get quick misdemeanor plea bargains.”1

None of these concerns materialized. As Eric Goldman concludes after examining the five years following the Act, “the prosecutions to date appear generally consistent with Congress’ objectives for the Act.” None of the convictions could be fairly characterized as “de minimis“, none of the defendants could have raised a legitimate fair use defense, and universities and educators remained untouched by efforts under the Act.2

The Artists’ Rights and Theft Prevention (ART) Act of 2005 added provisions to criminal copyright law that expressly targeted “camming” and distribution of pre-release commercial works. Critics called it draconian, foresaw an uptick in prison sentences, and decried a lack of fair use in the Act. The provisions have instead been used judiciously; prisons have not been filled with cammers and leakers.

2008 brought the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, a broad bill that amended civil and criminal provisions of the Copyright Act and created the Intellectual Property Enforcement Coordinator position, currently held by Victoria Espinel.

The response? Michael Seman of NetSherpa wrote, “The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas,” one that “means we’re close to losing the flow of culture that the Internet so greatly facilitates.” Mike Masnick said, “All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.” And noted copyright scholar William Patry remarked, “The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself.”

Grokster pt. 2

Legislative proposals aren’t the only things that brings out the freedom and innovation pessimists.

The Supreme Court issued its decision in Metro-Goldwyn-Mayer Studios v. Grokster in 2005, holding that “one who distributes a device with the object of promoting its use to infringe copyright” may be liable for the resulting infringing acts by its users. In its amicus brief to the Grokster court, the National Venture Capital Association warned that a rule holding Grokster liable would “have a chilling effect on innovation.”

However, since Grokster:

[V]enture capital in the media and entertainment sectors grew faster than the rest of the VC market in four out of the six years. By comparison, in the five years before the Grokster decision, growth was lower in four of them. From 2000 to 2004, media and entertainment venture capital accounted for about 4.6 percent of total VC dollars invested. From 2006 through 2010, media and entertainment VC dollars grew to 7.1 percent of total VC dollars.3

This year alone, in a down economy, music-based startups have received nearly half a billion dollars in funding. And some of these startups are far more exciting than the mere hoarding of music files that Grokster and other P2P services offered.

Little difference that makes though. In a letter to Congress on the proposed PROTECT IP Act, a group of venture capitalists offer the same warning: the bill would “throttle innovation” and “chill investment.”

It’s the End of the World as We Know It

Despite this history, critics of the Stop Online Piracy Act promise that the bill spells the end of innovation, culture, freedom, and the very Internet itself, for real this time.

It won’t.

In the long term, the public benefits the most when both creators and innovators succeed. And our laws should continue to adapt to make sure that happens.

Footnotes

  1. Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003). []
  2. Id. 392-96. []
  3. Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011. []