The Truth Behind Google’s Copyright-Bills Hysteria — Great piece on the hyperbole that became the norm over recent legislation. “The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.”

The MTP Interview: Indie Film Maker David Newhoff — Chris Castle sits down with the creator of Gone Elvis and talks about indie filmmaking and the challenges and opportunities provided by the internet.

Wright & Diveley on Expert Agencies & Generalist Judges — When Senator Wyden announced the OPEN Act, he announced that one of its advantages was putting the adjudication of sites dedicated to piracy “in the hands of the International Trade Commission – versus a diversity of magistrate judges not versed in Internet and trade policy.” But is this an advantage? This new paper examines the general claim that administrative judges produce better decisions than generalist judges. The conclusion: “there is little empirical basis” for these claims.

Academic publishing is full of problems; lets get them right — The Copyright Librarian (Nancy Sims of the Univ of Minnesota) gives a comprehensive overview of how academic database JSTOR works, along with a look at some of the challenges facing academic publishing. Great read.

Creative Commons for Music: What’s the Point? — “Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States … The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so.”

The Summers’ Tale — Nicholas Carr rebuts recent statements by former Harvard president Lawrence Summers concerning 21st century learning. “This idea that knowledge can be separated from facts – that we can know without knowing – really needs to be challenged before it gains any further currency.”

Who is the A$%#hole? — Music information researcher Paul Lamere, who has long done exciting work in the field, remarks on yet another “enlightened” blog post in the wake of SOPA called Can we kill the music business too? Says Lamere, “James is certainly right – you can’t have a great music startup without great music, but he goes off the rails if he thinks that companies protecting themselves from theft infringement are assholes. A music startup, or any business should not be able to build a business on top of  someone else’s IP without compensating them for the use. It is easy to build a company that makes money by giving away someone else’s property. But it is not legal.”

Last week’s indictment and arrest of Megaupload and seven of its execs added a strong dose of drama to an already dramatic couple of days in the copyright arena.

The US Department of Justice calls this “among the largest criminal copyright cases ever brought by the United States,” though I wouldn’t be surprised if it is actually the largest such case — I’m not aware of any larger criminal actions.1 No doubt the proceedings will be followed closely by many over the next few months.

Already, the arrest has had a sharp effect online, with other cyberlockers scaling back or shutting down altogether.

While the federal government’s action against Megaupload — which had been in the works since March 2010 (months before ICE even began its Operation In Our Sites) — will obviously have many ramifications for the future of copyright law online, I wanted to focus specifically on one of the legal issues that may be implicated in the case.

Does the DMCA apply to criminal infringement?

Perhaps the most novel legal issue that may arise during the Megaupload proceedings is whether the DMCA safe harbors provide the defendants with any defense.

As an initial matter, it seems to be an open question whether the DMCA safe harbors are available to any criminal defendant. The U.S. appears to adopt the view that they aren’t.2

The indictment notes without further explanation that “Internet providers gain a safe harbor under the DMCA from civil copyright infringement suits in the United States if they meet certain criteria [emphasis added],” although it subsequently offers reasons why the Megaupload defendants wouldn’t qualify for the defense anyway.

The language of the statute plausibly supports this view. Though it references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Deduplication and the DMCA

Regardless, the indictment alleges that even if the DMCA safe harbors are available to criminal defendants, the Megaupload defendants failed to satisfy the conditions for eligibility.

Among other things, Megaupload used deduplication, a common technical process used by online services to reduce the amount of storage needed for data. In Capitol Records v. MP3Tunes, Capitol argued that a similar process made the defendant liable for public performances of sound recordings, but the Southern District Court of New York disagreed, calling it a “standard data compression algorithm that eliminates redundant digital data” that didn’t give rise to liability.

It was a small win for MP3Tunes, however, since the court held that its failure to remove the actual files stored on its service when it received a DMCA takedown notice, rather than just links to the files, disqualified it from safe harbor protection.

The indictment alleges that Megaupload operated much the same way. When a user uploads a file already present on the system, “the system provides a new and unique URL link to the new user that is pointed to the original file already present on the server. If there is more than one URL link to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail because the additional access links will continue to be available.”

If the Eastern District of Virginia follows the same reasoning as the MP3Tunes court, this doesn’t necessarily mean Megaupload is ultimately liable, but it would mean that it wouldn’t be protected by the DMCA.

I don’t know for certain how big a role the DMCA safe harbor will play in the case; only time will tell. But I’ll definitely be keeping a close eye on the legal developments of what promises to be a watershed moment in copyright history.

Footnotes

  1. The closest seems to be Operation Safehaven in 2003. []
  2. The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].” []

Slow news week, right?

Other than a Supreme Court decision, one of the largest criminal copyright infringement indictments in history, and an internet protest against SOPA that resulted in nearly 1.5% of the US population contacting their representatives.

Inevitably a lot of links today will deal with issues surrounding SOPA and the PROTECT IP Act. One of the more interesting developments I’ve noted is the reaction to the overreach and hyperbole of the “internet blackout.” Many who didn’t necessarily support the specific language of the bills raised concerns over the tactics involved and even expressed some sympathy for supporters of the bills — probably not an intended consequence of those behind the protest.

For example: Evan Brown, a whip-smart lawyer who blogs at Internet Cases, writes If you critique SOPA, read the text. If you read the text, read it right, noting the “misguided” arguments made by the Khan Academy in a video against SOPA. U of Chicago philosopher Brian Leiter says of the blackout that the “knee-jerk opposition of cyber-libertarians, who readily turn a blind eye to all the ugliness of cyber-space, is itself suspect in my view.” Bloggers at the well-respected IPKat blog offered sobering analysis here and here. Finally, NY Times technology columnist David Pogue cautions that “the scare language used by some of the Web sites was just as flawed as the Congressional language that they opposed.”

If The Tech Industry Had Its Way, Hollywood Would Be Zynga — TechCrunch’s Alexia Tsotsis casts a critical eye at venture capitalist Paul Graham’s latest statement: Kill Hollywood. Graham had previously called SOPA supporters like Hollywood “un-American” and promised to not work with anyone on the list of supporters.

An Elegy for the Piracy Wars (On the Occasion of the SOPA/PIPA Blackouts) — An epic rant by author Chris Ruen. At 4000+ words, few perhaps will agree with all his sentiments, but there’s certainly much food for thought.

The False Ideals of the Web — Jaron Lanier’s book You Are Not a Gadget is recommended reading for anyone interested in digital issues. In this NY Times editorial, Lanier reitirates his skepticism of a worldview where “the Internet is a never-ending battle of good guys who love freedom against bad guys like old-fashioned Hollywood media moguls.”

Starving the Artist is FREE Forever. Download the Free E-Book — Author William Aicher has made his book Starving the Artist: How the Internet Culture of “Free” Threatens to Exterminate the Creative Class and What Can Be Done to Save It’ available as a free download. I just started reading it this weekend, good stuff so far.

Explainer: How can the US seize a “Hong Kong site” like Megaupload? — Nate Anderson at Ars Technica has a good overview of the jurisdictional issues implicated in Thursday’s arrest of Megaupload executives.

165 French File-Sharers Now On 3rd Strike, “iTunes Up 22.5%” — Less than 2 years after France began its graduated response approach to piracy, reports show encouraging statistics. Those receiving second warnings represent less than 10% of those receiving first warnings.

With sites like Wikipedia and Google holding a protest today, many people are likely hearing about proposed copyright legislation — the Stop Online Piracy Act in the House and the Protect IP Act in the Senate — for the first time today. So I figured I’d dispense with my usual writing — footnotes and all — to provide a brief introduction and explanation to the bills.

To call some of what is being said about these bills “hyperbole” would be an understatement. Then again, hyperbole is what the internet does best, second only to cat videos. If you’re looking for a somewhat more rational look at these bills before coming to an informed conclusion, read on.

What is the Problem?

Nearly everyone, even those who oppose the bills, agree that piracy is a problem. “Copyright industries” — everything from newspapers and periodicals, to motion pictures, recorded music, radio and television broadcasting, and computer software — are vital not only to our economy but our society as a whole. Online piracy has led to lost jobs and revenues in these industries.

Online piracy hurts creators. Many outside the creative industries are ambivalent to this. In large part, this is because the issue of online piracy has been framed as one affecting only record labels and movie studios — and rock stars and movie stars don’t evoke much sympathy. While everyone deserves protection of the laws, the ambivalence is understandable.

But the fact is that, while piracy certainly affects larger entities, it is the smaller and independent producers that bear the brunt of piracy’s harm. The James Camerons and Lady Gagas of the world will survive the transition to a digital age. Independent producers and the next generation of creators, however, are hurting.

And this should be a concern, because these creators so often make the most valuable contributions to our culture. They express views that are not always expressed by mainstream producers. They take creative and financial risks. They also, unfortunately, do not have the resources to respond to commercial pirates online.

For example, in a recent Huffington Post piece, Kathy Wolfe, who runs a company that distributes gay and lesbian films, notes how difficult it is to “compete with free.”

The artists I work with and the films I have been privileged to be associated with have changed countless lives. Without a secure, fair and functioning online market, these stories of diversity will cease to be told and this “Freedom of Speech” will be compromised. American companies that are in the business of creating and distributing content shouldn’t be sacrificed to protect large-scale pirate profiteers who knowingly and blatantly flout the law and common sense.

Attorney Dorrissa D. Griffin expressed similar sentiments in an article last October. Said Griffin, “Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”

In an article last spring, Jason Reitman (Up in the Air, Juno) worries about what the future holds for art and entertainment in general if piracy continues unchecked:

Reitman has a term for the type of motion picture facing extinction because of piracy. He calls them “tweeners”—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the “tweener” as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which “push cinema forward,” producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.

Why is New Legislation Needed?

To understand SOPA and PROTECT IP, you have to first understand the law now. Under current law, anyone who copies, distributes, or publicly performs a work has infringed. A copyright owner can sue an infringer in federal court — which typically requires an attorney and thousands of dollars, with no guarantee of success. This makes sense if the infringer has deep pockets or is profiting off piracy. It makes less sense if the infringement is decentralized and dispersed, as often happens online.

Recognizing this, Congress passed the Digital Millennium Copyright Act in 1998. The DMCA protects sites that accept material uploaded by users — like YouTube and Facebook — from infringement liability if they comply with the law’s requirements. One of those requirements is taking down infringing material like a video or picture if the copyright owner sends a takedown notice to the service provider. Though users who upload material to such sites are still liable for copyright infringement, the notice-and-takedown regime has effectively shielded ordinary users from this liability as well. As the EFF has said:

As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users.

There’s certainly plenty of room for improvement in the DMCA. But most will agree that the balance it struck has generally worked in the past decade, allowing new venues of expression to flourish — sites like YouTube, Facebook, and Wikipedia, for example — while creating some semblance of a functioning market that provides consumers with legal and innovative ways to access movies, music, and other creative works online — whether through Netflix, iTunes, Hulu, or Spotify.

So why is SOPA/PROTECT IP needed? It’s still trivially easy to set up a site that offers illegal content and profit from it from advertising and subscriptions or sales. And when such sites are operated overseas, they are effectively impossible for copyright holders to reach through DMCA takedowns or an ordinary copyright infringement lawsuit, yet such services are available to anyone in the US with an internet connection.

These sites profit off the talents of creative Americans, stall the development of legal services for consumers, and give nothing back.

What Would the Bills Do?

SOPA and PROTECT IP would give the Attorney General and copyright holders more effective remedies designed to cut off the money flowing to these types of sites.

The internet is filled with misinformation about both bills, much of it inadvertant, some of it deliberate (as with any legislation). A lot of this misinformation could be remedied simply by reading the bills (H.R. 3261 and S.968). Not all of it, of course. Legislation can be difficult for even lawyers and Congressmen to understand — and copyright law is an especially difficult subject to grasp.

So a brief word first about what these bills don’t do.

Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back. All that talk about “censorship” or “blacklists” or “breaking the internet” (all characterizations I absolutely disagree with) is moot.

These bills do not change what is or isn’t copyright infringement; instead, they limit the availability of these remedies to only a narrow subset of illegal behavior. Under SOPA, for example, the remedies are only available to a copyright holder if a site is “primarily designed” for offering goods or services that infringe copyrighted works, “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” (Emphasis added). A stray infringing clip on a blog or social networking site won’t cut it under this definition.

If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant. The copyright owner may then move for court orders against any advertising or payment provider whose services are being used by the site to profit off piracy. If the court approves these orders, the providers must discontinue their services to that site.

It should be noted that both bills expressly limit the remedies available to copyright owners to these court orders — copyright owners can’t collect any monetary damages from sites under these bills.

In addition, advertising and payment providers are only required to take “technically feasible and reasonable measures” if served with a court order. Even then, they are only liable for court assessed penalties if they “knowingly and willingly” refuse to comply.

Finally, these remedies are not permanent. At any time after an order has been entered, a site owner can move to modify or vacate the owner if it disputes the original finding that it was primarily designed for infringement, if it has since changed its site so it no longer infringes, or even if “the interests of justice require” modification.

This “follow the money” approach would give copyright owners tools they don’t currently have to help reduce the harmful effects of online commercial piracy. It does so in a way that is fully compatible with our constitutional and civil rights and preserves the openness that has made the internet such a vital part of our everyday lives.

“It has been a generally accepted theory, but a false one, that infringement of copyright only takes place when copies are made for public sale or performance, and not when they are intended merely for personal use.” Musical News, vol. 8, pg. 314 (April 6, 1895).

SOPA  and Censorship Spillovers — Law professor Randal C. Picker takes on two of the arguments against rogue sites legislation: that the Internet should remain free from the rule of law and the claim that “the United States will  forfeit its moral authority to oppose the censorship of free speech around the world if the United States uses a similar capability in the name of preventing IP infringement.” Picker finds both claims unfounded. “Consider prisons. The United States puts people in prison who commit serious crimes such as armed robbery, burglary, and murder. China may put political dissidents in prison. No one would contend, I assume, that the United States should stop putting serious criminals in prison even though the Chinese are jailing political dissidents.”

How Much Does File Sharing Resemble Stealing—and Does it Matter? — Great article from the Atlantic’s Megan McArdle. Critics of intellectual property often throw around words like “scarcity” and “non-rivalrous” to argue against protecting these forms of property, but as McArdle points out, “I’m not sure how we settled on ‘it’s non-rivalrous’ as the reason that file sharing is a) not stealing and b) okay.”

Should Wikipedia protest SOPA on January 18th? — The online encyclopedia ditches its core policy of presenting a neutral point of view to enlist its users in supporting its lobbying efforts.

The Haves and the Want to Haves – For Free — “To achieve a rateless, perpetual, and irrevocable license for content owned by others Google must attack the very laws that stand in their way through lobbyist in Washington D.C. So now we are debating the historical “contract” between the U.S. government and intellectual rights holders that have been around since the founding of our Constitution. What will be the outcome? Who will win? In the future will innovators have to bow to the mere whims of website owners and corporate titans who feel they have the right to monetize copyrighted, trademarked and patented materials? Will innovators be forced to allow website owners and Silicon Valley corporations to monetize their innovation with no recourse?”

Piracy and Malware: Two Parts of a Single Problem — The ITIF’s Richard Bennett shows that malware and piracy often coincide online and wonders why there’s such strong opposition to using the same techniques used to combat malware against piracy. Bennett notes that this compartmentalization “is a policy judgment, not a technical one.”

Real cultural damage, and the phantom kind — Another excellent post from John Degen: “the folks most concerned about copyright terms and getting as many works outside of copyright as soon as possible are not the everyday consumers and culturally-minded Canadians Geist purports to speak for. No, those most looking forward to E.J. Pratt et al losing their copyright protection are the giant, multinational content aggregators like Google who want to suck up as much digitized content as possible without the hassle and bother of dealing with copyright licensing or permissions, so that they can continue to make gazillions of dollars selling advertising on top of other people’s ‘free’ content.”

What Will Anti-SOPA Blackout And Hearing Accomplish? — TPM doesn’t have a good answer to that question. And that was before provisions relating to DNS were stripped from both the House and Senate bills.

Whither Freedom of the Press? — Though not related to copyright, this recent law review article from Randall Bezanson should interest readers who have enjoyed my recent posts on the freedom of the press. It is also one of the most entertainingly snarky academic works I’ve read in recent history.

Amazon’s Plagiarism Problem — “Self-publishing has become the latest vehicle for spammers and content farms, with the sheer volume of self-published books making it difficult, if not impossible, for e-stores like Amazon to vet works before they go on sale … Writing a book is hard. All those torturous hours an author has to spend creating, crafting, culling until nonsensical words are transformed into engaging prose. It’s a whole lot easier to copy and paste someone else’s work, slap your name on top, and wait for the money to roll in. This creates a strong economic incentive, with fake authors–Sharazade thinks it’s possible they are organized gangs based in Asia–earning 70% royalty rates on every sale, earning far more than a spammer could with click fraud.”

Hulu CEO Jason Kilar: We Now Have 1.5M Paid Subscribers — The streaming service showed impressive growth in 2011, tripling its number of paid subscribers and increasing revenues by 60%. Kilar says the company is looking to continue growing in 2012, with plans to invest “half a billion” in licensing new TV shows and films.

Cyberlockers, social media sites and copyright liability — While 2011 was a big year for legal developments involving cyberlockers and social media sites, 2012 is likely to be even bigger. Barry Sookman takes a look at several cases dealing with these issues already in the new year.

How Google profits from illegal advertising — and keeps the money even after getting caught — Ben Sheffner highlights recent reports that Google making money from illegal activities is fairly common. “This is all just a reminder that many of the opponents of SOPA and PROTECT IP, while they like to portray themselves as brave Internet freedom-fighters, are in reality doing little more than protecting their own business interests. They profit from illegal activities, and they will vigorously resist legislation that seeks to put this practice to an end.”

Google caught pilfering Kenyan business directory in sting operation — It hasn’t been a good week for the tech giant, as Ars reports on news of allegedly fraudulent activity by Google employees in Africa.

Heritage Foundation Misses the Market on Rogue Sites — Chris Castle provides a point-by-point rebuttal to the conservative think tank’s opposition to SOPA. “No one in the creative community expects a market with zero piracy.  We have always had piracy and we always will have piracy.  What is new about piracy on the Internet is the scale and the participation of publicly held companies that use their vast resources raised in the public financial markets to fight compliance with the law in order to free ride on the work of others that they seek to commoditize.”

The following is an excerpt from Brandew Matthews‘ article, The Evolution of Copyright, which originally appeared in Political Science Quarterly in December, 1890. It traces the “prehistory” of copyright — from ancient Greek and Roman times to the development of the printing press — and gives one explanation for its development.


Perhaps a consideration of the evolution of copyright in the past will conduce to a closer understanding of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold’s phrase, have afforded to the individual author the sanction of the law in possessing what he has produced; and it is no less instructive to note the successive enlargements of jurisprudence by which property in books—which is, as Lowell says, the creature of local municipal law—has slowly developed until it demands and receives international recognition.

The maxim that “there is no wrong without a remedy,” indicates the line of legal development. The instinct of possession is strong; and in the early communities, where most things were in common, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance—much as a dog defends his bone, growling when it is taken from him, or even biting. If public opinion supported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recognition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin; but this action steadily widened in scope until it became an action for recovery; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self-assertion and the resulting pressure of public opinion, which, as Lowell once tersely put it, is like that of the atmosphere: “You can’t see it, but it is fifteen pounds to the square inch all the same.”

The individual sense of wrong stimulates the moral growth of society at large; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more modern periods of development, the recognition of new forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other individuals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed—this being an effort to command the conscience of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the fullness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legislative declaration of rights is still going on all about us and in all departments of law, as modern life develops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering’s definition of a legal right as “a legally protected interest.”

As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was (probably first recognized in the tools which early man made for himself, and in the animais or men whom he subdued; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things—to actual physical possession—to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature; it was not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works.

The Greek dramatists, like the dramatists of today, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents—more than twelve thousand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author’s rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the invention of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong; he had thought mainly of the honor of a wide circulation of his writings; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit; and as soon as the author saw this profit diminished by an unauthorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims.

It is after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 1451. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474.

In the beginning these printers were publishers also; most of their first books were Bibles, prayer-books, and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero’s Offices—” the first tribute of the new art to polite literature,” Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuna, the revision of the text, called for scholarship of a high order; this scholarship was sometimes possessed by the printer-publisher himself but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer’s task; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author’s writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presentation of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin of the fruit of his labors; and the earliest legal recognition of his rights was granted less than a score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledgment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.

This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen; it gave but a limited protection; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent—a precedent which has broadened down the centuries until now,’ four hundred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a territory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully’s Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the publicist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phoenix —the first recorded instance of a copyright awarded directly to an author. Other Italian states “encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics,” and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book; and if the work went to press again, the publisher had to seek a second patent.

In England, in 1518, Richard Pynson, the King’s Printer, issued the first book cum privilegio; the title-page declaring that no one else should print or import in England any other copies for two years; and in 1530 a privilege for seven years was granted to John Palsgrave ” in the consideration of the value of his work and the time spent on it; this being the first recognition of the nature of copyright as furnishing a reward to the author for his labor.” In 1533 Wynkyn de Worde obtained the king’s privilege for his second edition of Witinton’s Grammar. The first edition of this book had been issued ten years before, and during the decade it had been reprinted by Peter Trevers without leave—a despoilment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured protection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhering bases the struggle for law on the instinct of ownership as something personal, and the feeling that the person is attacked whenever a man is deprived of his property; and, as Walter Savage Landor wrote: “No property is so entirely and purely and religiously a man’s own as what comes to him immediately from God, without intervention or participation.” The development of copyright, and especially its rapid growth within the past century, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.

Happy 2012 everybody!

Joshua Johnson’s KQED Forum on Rogue Sites — KQED recently hosted a discussion of rogue sites legislation featuring EFF-attorney-turned-Google-lawyer Fred von Lohmann, indie filmmaker Ellen Seidler, Rep. Darrell Issa, and NBC Universal general counsel Rick Cotton. Chris Castle takes a good look at some points that didn’t come up or weren’t fully addressed.

Does the DMCA Work? — Interesting analysis from Dr. Christopher S. Harrison on the recent decision in UMG v. Veoh and Megaupload’s recent lawsuit against Universal. “These two cases exemplify the Bizarro World the DMCA has become, in which the business models of service providers require copyright infringement on a massive scale … but labels get sued over takedown notices.”

The Original and Traditional Meaning of “Freedom … of the Press” — Eugene Volokh announces his recent article arguing that “freedom of the press” as it was understood by the Constitutional Framers refers to the press-as-technology rather than, as some have argued, press-as-industry. A good read for those who have been following my own series on copyright and the freedom of the press.

Finding a Job in Film (for Prop Makers) — My brother Eric, recently transplanted to North Carolina from NYC, where he served as assistant props master at the Public Theater, provides some useful advice for theater professionals looking to transition into the film world.

Reddit has gone mad with power — After calling for a boycott on GoDaddy for its support of SOPA, (the number of GoDaddy subscribers actually increased during that time, according to the article) users of the web site turned their attention to defeating political supporters of the bill in the upcoming election. They eventually chose Rep. Paul Ryan (who hasn’t stated a position on the bill). As Gawker notes, “The thinking of the internet hive mind is shallow and frantic, scrambling from one outrage to the next.”

France Animation v Robinson – a case comment — Barry Sookman examines a recent decision from the Quebec Court of Appeals that he calls a “gold mine for copyright lawyers.” Among the many interesting portions is the Court’s discussion that punitive damages are available under Quebec law because copyright infringement violates fundamental rights and freedoms.

Removing the legal eye patch — The Boston Globe came out in support of SOPA this week. “While opponents of the bill cry censorship, their fears seem to based on the belief that it somehow creates a slippery slope – that blocking an illegal download of an Adele album will be logically followed by blocking a search for information about the Arab Spring. The government already has cracked down on online child pornography without a corresponding attack on civil liberties. There’s no reason that the First Amendment would be endangered if the Justice Department beefed up its enforcement of copyright law as well.”

In a Big Year for New Soul, a Small But Influential Label Turns 10 — I’ve long been a fan of Daptone Records, the pioneers of the retro-soul sound that was most famously featured on Amy Winehouse’s Back in Black. The Atlantic takes a look at the label as it celebrates its first decade.

Does copyright conflict with free speech? The idea that it does has gained a lot of traction recently. Yet arguments of a conflict between copyright law and the First Amendment in the United States are relatively new — understanding why the two co-existed for nearly two centuries before these arguments began to appear should prove valuable to current scholarship.

In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions. Copyright laws were passed by the States after provisions for freedom of speech and the press were enshrined in law, indicating that the two were viewed as compatible. At that time, Liberty of the press was defined primarily as an absence of government licensing — even under broader definitions, protecting an author’s copyright was not viewed as offensive to a free press. In part, this was because copyright was conceived as a property right, and liberty does not extend to invasions of other’s rights.

Today I want to present perhaps one of the most important reasons copyright has historically escaped free speech scrutiny.

During their formative years, the liberty of the press and recognition of copyright were seen as means to an end. They shared the same goal — the advancement of knowledge, the arts, and sciences. And they were viewed as complementary, rather than conflicting, means to reach this goal.

Freedom of the Press Goals and Purpose

During the 18th century, at a minimum, the freedom of the press meant an absence of prior restraints on publishing — whether through government licensing or censorship. Noted jurist William Blackstone, who ensconced this minimalist definition of press liberty in his Commentaries on the Laws of England, described the aversion to previous restraints: “To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”

The Founding Fathers viewed the liberty of the press as promoting broader goals then this. In a 1774 Letter to the Inhabitants of the Province of Quebec, the First Continental Congress wrote:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

To the Continental Congress, the primary purpose of press liberty was political: a democratic government needs to be openly examined to function. But note the secondary purpose: “the advancement of truth, science, morality, and arts in general.” This is strikingly similar to the later constitutional purpose given for Congress’s copyright authority: “To promote the Progress of Science and useful Arts.”

A Free Press Promotes Knowledge

There are other examples from the 18th and 19th centuries of those who believed one of the purposes of free speech was to encourage knowledge.

The Cato Letters, a series of newspaper articles published in England in the 1720s that served as ideological inspiration for the Founding Fathers, included this oft-quoted passage on the freedom of speech: “Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius.”

In his preface to the 1738 edition of Milton’s Areopagitica, poet James Thomson1 writes about the importance of this goal of a free press to society:

What is it that distinguishes human Society from a brutish herd, but the flourishing of the Arts and Sciences; the free Exercise of Wit and Reason? What can Government mean, intend, or produce, that is worthy of Man, or beneficial to him, as he is a rational creature, besides Wisdom, Knowlege, Virtue and Science? Is it merely indeed that we may eat, drink, sleep, sing and dance with security that we choose Governours, subject our selves to their administration, and pay taxes? Take away the Arts, Religion, Knowlege, Virtue, (all of which must flourish, or sink together) and in the Name of Goodness, what is left to us that is worth enjoying or protecting? Yet take away the Liberty of the Press, and we are all at once stript of the use of our noblest Faculties: our Souls themselves are imprisoned in a dark dungeon: we may breathe, but we cannot be said to live.

Liberty of the press, as Milton argued for in what is considered one of the “most influential and impassioned philosophical defences” of the principle — here, taking the form of an absence of government licensing or censorship — is a prerequisite to the progress of knowledge, art, and science. Thomson was not alone in this sentiment.

Elsewhere, a London magazine from 1820 described the goal of the liberty of the press like this: “To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts”

And the first issue of the American Magazine of Useful and Entertaining Knowledge, published in 1834, included a brief article on newspapers, where it was writeen, “The progress of society has been onward, wherever there has been a free press maintained and encouraged. It has chased away much darkness from the civilized parts of the world, and spread light and knowledge in our path.”

Copyright Promotes Knowledge

The copyright statutes passed in the States prior to the drafting of the Constitution use similar language. The acts were passed with the purpose of “the encouragement of literature and genius” and the goal of, for example, “the improvement of knowledge, the progress of civilisation, and the advancement of human happiness.” The means of implementing this purpose to reach the goal was the securing of legal rights to “men of learning who devote their time and talents” to literature and genius.2

The impetus for these laws came in part from the efforts of authors like Joel Barlow. In 1783, he wrote the Continental Congress in favor of a copyright law. The famous poet and drafter of the Treaty of Tripoli told the Congress, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.”

Barlow’s letter encapsulated the reasoning behind the idea of copyright as an incentive to promote knowledge: literary and intellectual works took a considerable amount of time and resources to produce, and given the great public benefits that flow from them, some way of encouraging people to devote their time and resources to producing them was needed.

You can see this idea adopted and explained by others throughout the 19th century. In his famous speech to the English House of Commons in 1841, Thomas Babington Macaulay said:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

In 1853, Charles Bishop Goodrich published The Science of Government: As Exhibited in the Institutions of the United States, a popular early treatise on US government. His section on copyright takes the same view as Barlow and Macaulay:

Another power conferred upon congress was and is designed “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” … The propriety of the power, and of its enlarged and liberal exercise, cannot be doubted. Individuals cannot devote their time and lives to the attainment of extensive or important knowledge, unless they can derive some personal benefit from their labor. In every useful invention, in the production of useful writings, the public have as much, and frequently a greater interest than the individual inventor or writer can have. Every measure which can with propriety be adopted to enlarge and extend the progress of science and of the arts, is calculated to accomplish the elevation of the people, and must therefore be regarded as of the utmost importance. The effect of our system, and the encouragement which it affords to the promotion of knowledge, has been apparent. Much advancement has been made, in fact it may be regarded as characteristic, and may be said of the American people, that they are progressive, inventive, and suggestive, in all their operations.

Patronage

At this point, one might think that the shared goals of a free press and copyright are only coincidental: one could easily find references to other means of promoting knowledge at the time. For example, in his first State of the Union address, President George Washington told Congress, “There is nothing which can better deserve your patronage than the promotion of science and literature,” but left it to them to decide “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients.”

Yet as the ideas of a free press and copyright developed, the relationship between the two strenghthened. There was something specific about securing legal rights to authors so that they may profit off their writings that not only advanced the arts and sciences but also advanced the principles of a free press.

As noted above, Macaulay spoke about two ways to remunerate authors: patronage and copyright. He follows that with an explanation of why the latter is more preferable to a free society:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Like Macaulay, Supreme Court Justice Joseph Story tied the freedom of the press and copyright together. In an 1826 discourse, Story wrote:

One of the most striking characteristics of our age, and that, indeed, which has worked deepest in all the changes of its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other times this was the privilege of the few; in ours, it is the possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who had no relish for active employment, and of those, whose monastic lives and religious profession sought to escape from the weariness of their common duties. Its progress may be said to have been gradually downwards from the higher to the’middle classes of society. It scarcely reached at all, in its joys or its sorrows, in its instructions or its fantasies, the home of the peasant and artisan. It now radiates in all directions; and exerts its central force more in the middle than in any other class of society. The means of education were formerly within the reach of few. It required wealth to accumulate knowledge. The possession of a library was no ordinary achievement. The learned leisure of a fellowship in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers was the narrow avenue to public favor. I speak of a period at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of life.

The principal cause of this change is to be found in the freedom of the press, or rather in this, cooperating with the cheapness of the press. … The daily press first instructed men in their wants, and soon found, that the eagerness of curiosity outstripped the power of gratifying it. No man can now doubt the fact, that wherever the press is free, it will emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he might exclaim with all the enthusiasm of Archimedes, and with a far nearer approach to the truth, Give me, where I may place a free press, and I will shake the world.

One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon the smiles of a favored few. The patronage of the great is no longer submissively entreated, or exultingly proclaimed. Their patrons are the public; their readers are the civilized world. They address themselves, not to the present generation alone, but aspire to instruct posterity. No blushing dedications seek an easy passport to fame, or flatter the perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawingroom. Authors are no longer the humble companions or dependents of the nobility: but they constitute the chosen ornaments of society, and are welcomed to the gay circles of fashion and the palaces of princes. Theirs is no longer an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits.

Copyright: a Critical Component of a Free Press

It would seem that Story and Macaulay’s view of copyright as an integral component of a free press held sway throughout the 18th century and into the 19th.

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “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.”

British lawyer James Paterson, in an 1880 commentary on the liberty of the press, speech, and public worship, said that “When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom.”

Into the 20th century, we can find reaffirmation of these views. Historian Edward Bloom writes:

Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press.3

Finally, when legal scholars were just starting to develop the free speech critique of copyright, former Register of Copyrights Barbara Ringer offered these observations:

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … 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.4

The Engine of Free Expression

Nearly two centuries after the Bill of Rights and the first Copyright Act were passed, the Supreme Court said, “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”5

This metaphor, it would seem, accurately reflects the predominant historical view of copyright. Copyright and freedom of the press were seen as compatible, rather than contradictory, means to promote knowledge and learning. Liberty of the press freed the public from the caprice of the licensor, allowing diverse ideas and sentiments to disseminate. Copyright freed authors from patronage, providing security for the legal rights that encouraged devotion of time and talents to works that promote the progress of art and science.

Footnotes

  1. Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett. []
  2. See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786). []
  3. Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949). []
  4. The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974. []
  5. Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985). []