Beastie Boys Can’t Escape ‘Paul’s Boutique’ Sampling Lawsuit — Great summary (as usual) by Eriq Gardner of a recent decision involving allegedly infringing samples used in the Beastie Boy’s classic album Paul’s Boutique. A link is provided to the actual decision, which will delight hardcore copyright nerds, as it extensively discusses the law’s substantial similarity doctrine and how it applies to sampling.

“Artists Should Expect Nothing” from Spotify says George Howard — The Trichordist has an excellent answer to that claim from Howard.

The end of kindness: Weev and the cult of the angry young man — Greg Sandoval has written a compelling and thoroughly disturbing (don’t read if you don’t have a strong stomach) piece on internet abuse and free speech. “‘I have this beef with a lot of organizations, including EFF,’ Aurora said. ‘This is another case where they’re saying, ‘The cases we care about are the ones white men are interested in. We’re less interested in protecting women on the web.’'”

About that “graduated response doesn’t work” paper — Say you found evidence of a murder on Google maps, and the Internet will work tirelessly until it has debunked the claim. Say you found evidence that copyright protections don’t work, and that’s apparently good enough. Fortunately, IPI’s Tom Giovanetti takes a closer look at a recent study that claims graduated response efforts are ineffective and finds, among other shortcomings, that the study’s author “ignores or disparages data that disagree with her prevailing bias, and … draws predetermined conclusions.”

Which music services are growing, which are shrinking — Paul Lamere has an interesting collection of graphs showing search trends over the past decade for a number of major online music services. See which services are apparently growing in popularity and which ones seem to be struggling to stay relevant.

FilmOn Turned Off: Another Court Rejects Aereo’s “Unique Copies” Interpretation — Details on last week’s decision from a DC District Court enjoining FilmOn X after finding that it was likely publicly performing television broadcasts without permission.

Randolph May & Seth Cooper: Copyright’s Constitutional History and Its Meaning for Today — The Originalism Blog notes that May and Cooper’s excellent article, Literary Property: Copyright’s Constitutional History and its Meaning for Today, is now available at SSRN. Recommended.

Five Things Congress Could Do for Music Creators That Wouldn’t Cost the Taxpayer a Dime Part 4: Pay Unclaimed Royalties to State Unclaimed Property Offices — The latest installment in Chris Castle’s multi-part series on practical, common sense updates to the copyright laws that would improve the situation for musicians and songwriters.

Although published in 2011, I’ve only recently finished reading Robert Merges’ Justifying Intellectual Property. The book provides an examination of the ethical foundations of intellectual property — primarily copyright and patent — and an explanation of how they fit into a fair and just society. Merges has made a significant contribution to the field of IP while also advancing a positive view of a legal doctrine that has been the subject of increasing skepticism over the past two decades.

It could be said that Justifying Intellectual Property is actually two books in one.

In the first section, Merges explains his theory of the philosophical foundation and justification of intellectual property. He jettisons the utilitarian basis of IP that tends to dominate copyright debates (particularly in the academic arena). Essentially, the utilitarian seeks to maximize net social welfare; IP policy is working if its benefits outweigh its costs. But for Merges, when it comes to IP, this type of calculus is so complex as to be, for all practical purposes, impossible — like, he says, trying to design “a perfect socialist economy.” How do you measure the “optimal number” of copyrighted works? And how do you quantify the quality of works?

Instead, Merges uses property as his starting point, but not some narrow, primitive conception of property that only includes those things we can see or touch. As Merges explains, property is an incredibly adaptable doctrine that has developed a vocabulary that is just as useful for intangibles as it is for tangibles. But most importantly for Merges, property is built around an important core principle, a one-to-one mapping of owner to asset that allows for decentralized ownership and coordination.

Merges obviously doesn’t declare copyright to be property and call it a day. He synthesizes the work of three influential philosophers — John Locke, Immanuel Kant, and John Rawls — to create his normative foundation of IP. As he summarizes near the end of the book:

Locke has a simple but convincing story about initial appropriation, the conditions under which property rights originally arise. Kant understands ownership to be crucial to the development of a person’s full potential, which involves both extensive interaction with objects in the environment and also persistent rights over those objects, so that the individual can place his unique stamp on them. And for Rawls, property fits into the overall scheme of a fair and just society, taking its place alongside other institutions and rights that guarantee an equal chance at self-fulfillment to all citizens.

Locke in particular has fallen somewhat out of favor among academics for the relevance of his labor theory of appropriation to intellectual property. Merges joins several other legal scholars in rehabilitating the Lockean foundations of copyright.1 A big part of this rehabilitation comes from focusing on Locke’s “provisos” — limitations or conditions on property appropriation and ownership. Merges writes that these “provisos” — “sufficiency”, “spoliation”, and “charity” — have not received enough attention by scholars, particularly the “charity” proviso. But these provisos, says Merges, are central to Lockean property theory. If properly applied, they strengthen the justification for intellectual property, especially in ways that are relevant to current policy debates.

In the remaining sections, Merges departs from the normative foundation he established to argue, essentially, that normative foundations are not the most important guiding principles of IP law. That honor instead goes to midlevel principles, the “basic concepts that tie together a number of discrete and detailed doctrines, rules, and practices in a particular legal field.” The primacy of midlevel principles over foundational, or “upper-level principles” is a concept that Merges attributes mostly to John Rawls and his conception of pluralism in a modern state. Merges explains

I believe in the independence of … foundational normative principles from the operational details of the field, as well as from the midlevel principles that arise from and are shaped by those details. By “independence” I mean that there are a number of foundational normative commitments that may serve equally well to anchor the principles and practices of IP law. I offered the ones I did… because those are the ones I believe best justify the structure of IP law. But other foundations might serve as well. As I put it earlier, in my view there is “room at the bottom,” at the foundational level of the field, for various justificatory principles, including perhaps utilitarianism and various alternative ethical theories.

Midlevel principles engage foundational values in a number of ways, but they do not depend on any particular set of values for their validity. They spring from doctrine and detail, from the grain of actual practice. It is at the level of midlevel principles, therefore, that much normative debate in the IP field takes place. From a certain point of view, in fact, this is their role exactly: they enable normative debate — debate above the detailed doctrinal level — without requiring deep agreement about ultimate normative commitments. Because of this, they are the common currency of most debate over IP policy.

Merges identifies four plausible candidates for midlevel principles in IP law, though there are obviously other potential candidates: nonremoval (from the public domain), proportionality, efficiency, and dignity. While all are explored throughout the book, Merges sets aside an entire chapter to discuss proportionality in detail. As he describes it, proportionality is in many ways a corollary to the justification for intellectual property. If we accept that the act of creation or invention entitles one to property rights, then it follows that one is not entitled to anything beyond what one creates or invents. That is, the rights should be proportionate to what a creator deserves.

From this discussion of midlevel principles, Merges turns to contemporary issues in IP policy to show how the principles might be applied in practice. These issues cover a wide spectrum: from corporate ownership of copyrighted works and transaction costs, to property in the digital era (which includes remixes, collaborative creation, and open source licenses), to patents and drugs for the developing world.

Merges concludes his work by reiterating what he considers the basic elements of a workable theory of IP. Intellectual property law should (1) “Propertize creative labor,” (2) “Grant real rights, but not absolute rights”, and (3) “Accommodate the needs of consumers and users by (a) facilitating and encouraging cheap and easy IP permission and licensing mechanisms, together with (b) simple waiver techniques that permit binding dedication of rights to the public.”

At times, I felt that I was not reading specifically about intellectual property, but about property in general. Copyright skeptics often make the mistake that certain aspects of copyright — that it should provide a public benefit, that there are times when competing interests override exclusive rights — distinguish it from other forms of property. Quite the opposite. All property shares these characteristics, and intellectual property, at least how Merges conceives of it, comes the closest to the Platonic ideal of property.

While Justifying Intellectual Property may not be an easy read, it is certainly an accessible read — put another way, it requires mental stamina rather than mental agility. One does not necessarily need a legal or philosophical background to get what’s going on. Merges does not assume much prior knowledge on the part of the reader; concepts are explained fully as they are introduced. This is, in my opinion, one of the strengths of the book. Weak arguments are not disguised behind academic jargon. Instead, the clarity of writing reveals the clarity of thinking.

The other great strength, in my opinion, is that Merges does not take any of his assertions for granted. He moves carefully from point to point to ensure that each conclusion he makes rests on a solid logical foundation. And he anticipates counterarguments, many of which are familiar to those who have followed copyright debates closely over the past decade. So, for example, Merges replies to arguments that IP is not susceptible to being property because it is “nonrivalrous”; or that it is not justified because it creates “artificial scarcity.” He discusses open source licenses and “remix culture”, fan sites and the democratization of publishing (and not, lest one think Merges is a caricature of a “copyright maximalist”, in a negative manner).

Justifying Intellectual Property is a landmark work that provides a solid theoretical foundation to “what may be called the metaphysics of the law.” It should be on the shelf of anyone with a deep interest in intellectual property doctrine and policy.

Footnotes

  1. Others include Adam Mossoff, Saving Locke from Marx: the Labor Theory of Value in Intellectual Property, 29 Social Philosophy and Policy 283 (2012); Justin Hughes, Locke’s 1694 Memorandum (and other Incomplete Historiographies) (2006). []

FilmOn X, which is a commercial service retransmitting Plaintiffs’ television performances, is in no meaningful way different from cable television companies, whose relationship with broadcasters such as Plaintiffs was the primary motivation for the 1976 Act’s enactment.

Fox Television Stations v. FilmOn X, Opinion, No. 13-758 (RMC) at 27 (D. DC Sept. 5, 2013).

TV Broadcasters Granted Injunction Against Alki David’s TV Streaming Service — The District Court of D.C. yesterday became the second court outside the Second Circuit to consider an Aereo-styled Internet retransmission service and the second court to reject the Second Circuit’s erroneous interpretation of the Copyright Act’s public performance provisions. Judge Collyer saw through FilmOn X’s overly clever arguments, saying that the system was “hardly akin to an individual user stringing up a television antenna on the roof.”

The sharps and flats of the music business — Indie musician Zoë Keating speaks candidly about the challenges and opportunities that face musicians looking to earn a living from their craft today. “It sounds pathetic, but knowing that 60,000 people liked my albums enough to buy them gave me confidence I’d lacked and encouraged me to take my art seriously and make more of it… Now subscription streaming and YouTube are finishing what Napster began, and the revolution is fully corporatized. With music services spending millions of dollars to promote tag lines like ‘Never pay for music again,’ the story is no longer about a collective Robin Hood taking down a resented industry. Now it’s about plain old personal economics. Only a fool or a true fan would pay to own music that is available for free listening at any time on a subscription music service.”

U.S. Copyright Office Announces Ringer Fellowships and Kaminstein Scholars, Names Brauneis of The George Washington University — Congrats to Robert Brauneis for being named the first Kaminstein Scholar by the U.S. Copyright Office. And recent law school grads and recently minted attorneys interested in copyright law and policy should certainly check out the Office’s new Ringer Fellowship.

New (old) study on Megaupload’s demise features fuzzy methods and major omissions — Vox Indie’s Ellen Seidler takes a closer look at a study that purports to show that theatrical revenues from some films actually decreased after Megaupload was shut down following its indictment for criminal copyright infringement. Many smaller and independent films don’t rely so much, if at all, on revenues from theaters.

Thom Yorke, Trent Reznor and a Chorus of Artists Speak Out For An Ethical and Sustainable Internet — The Trichordist collects a series of quotes from artists and musicians. “Perhaps 2013 will be the year that we see as the tipping point in artists rights advocacy for an ethical and sustainable internet. There have been more artists speaking up vocally this year than in we can remember over the last decade.The hangover from an excess of hope that the internet would empower musicians has begun to set in as the evidence of more, and worse exploitation becomes increasingly obvious every day.”

Cross-posted on the Law Theories blog.

In the never-ending copyright debate, one often comes across certain words the usage of which both sides vehemently disagree upon. One such point of contention is the use of the word “theft” to describe copyright infringement. Ars Technica ran an article a few years back where Vice President Joe Biden was quoted as saying that “[p]iracy is flat, unadulterated theft.” Copyhype’s Terry Hart had a post a week later discussing the infringement-as-theft meme, mentioning the fact that even Justice Breyer, a copyright skeptic, had referred to deliberate infringement as “garden-variety theft.”1 The response from the other side of the debate was predictable, with the usual suspects demanding that copyright infringement is not theft—though the skeptics conspicuously neglected to define the word theft or to actually explain why it’s wrong to refer to infringement as theft.

The debate lives on today. Just a couple of weeks ago, Swedish Pirate Party founder Rick Falkvinge had a post on his blog addressing what he called “the most disturbingly false bullshit repeated by pro-copyright-monopoly pundits,” i.e., that “copying is stealing.” He offered several retorts for others to use when this particular issue inevitably arises in future debates. Falkvinge amusingly noted that when it comes to such debates, “it’s not a logic game but a numbers game,” and “[i]t’s about looking like the winning team.” He claimed that anyone referring to infringement as “stealing” is “trying to redefine words in a very dishonest way to frame the debate in a factually incorrect light.” To Falkvinge, stealing is defined as “losing an object,” and anyone who disagrees is “talking of horseless carriages.”

My favorite part of Falkvinge’s post is where he claimed that we “should look in the nearest lawbook” since “in no book of laws on this entire planet are property laws (where stealing is defined) and copyright monopoly laws defined in the same section.” This claim is easily refuted. For example, Section 2319 of the U.S. Code, which defines “Criminal infringement of a copyright,” is found in Chapter 113 of Title 18, which is entitled “Stolen Property.” Section 3931 of the Pennsylvania Crimes Code, which defines “Theft of unpublished dramas and musical compositions,” is found in Chapter 39 of Title 18, which is entitled “Theft and Related Offenses.” And Section 5/16-7 of the Illinois Compiled Statutes, which defines “Unlawful use of recorded sounds or images,” is found in Subdivision 5 of Article 16, which is entitled “General Theft.” It’s trivially easy to find many more examples just like these. Having read many posts by Falkvinge (as well as many law books), I don’t get the impression that he’s actually opened many law books himself.

In this post, I’ll look at the meaning of the word theft, and I’ll explain why it is I think it’s perfectly natural to think of copyright infringement as theft. I think that oftentimes people refer to infringement as theft in the colloquial sense of the word, but it’s the legal meaning of the term that I will focus on. At the outset, I note that theft is a term of art that has many different meanings since each state has its own theft laws that are interpreted differently. For all of the arguments and examples I give below, there certainly are apposite counterarguments and counterexamples. I don’t mean for my view to be taken as the only possible one, nor do I deny that some of what I’m about to say is in fact the minority view. But I’ll leave the opposing arguments for the cynics to make—although it would be nice if they discussed the actual law while making legal arguments for a change.

What is Theft?

Theft did not exist at common law. Instead, theft is an omnibus term of recent origin that subsumes previously distinct property crimes such as larceny, embezzlement, and false pretenses.2 The antecedent to what most people think of as theft is larceny. Larceny can be defined as the “unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently.”3 Under the common law, larceny required that the thing taken be tangible property.4 This is presumably why the skeptics think it’s wrong to refer to copyright infringement as theft. While copyright is personal property, it’s intangible property that, by its very nature, is nonrivalrous. Thus, if somebody infringes a copyright, they haven’t dispossessed the copyright owner of any tangible property, a necessary element for larceny under the common law.

To the uninitiated, the confusion about why copyright infringement is theft is understandable. But the line of reasoning that focuses on the old, common law definition of larceny neglects to take account of the fact that the modern definition of property for purposes of theft statutes has been broadened to include both tangible and intangible property.5 For example, the paradigmatic Model Penal Code, published first in 1962 by the sages at the American Law Institute, defines property for purposes of theft very broadly: “‘property’ means anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.”6

The Model Penal Code goes on to define theft by unlawful taking or disposition of movable property: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”7 “Property of another” is defined to include “property in which any person other than the actor has an interest which the actor is not privileged to infringe.”8 And “deprive” is defined to mean “to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value.”9 Thus, we can break theft of movable property under the Model Penal Code into three elements: (1) unlawful taking or control, (2) of movable property of another, and (3) with intent to deprive. The first two elements comprise the actus reus, while the final element is the mens rea.

Most, if not all, states have theft laws that substantially track the Model Penal Code. For example, in my state of Louisiana, theft is defined broadly as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.10

Florida defines theft in similarly broad terms:

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.11

Copyright opponents such as Falkvinge appear to have a greatly attenuated understanding of what property is and what it means to deprive someone of that property. For example, the Court of Appeals of Kentucky noted seventy years ago that “the word ‘property’ is so all-embracing as to include within its definition every physical object, intangible benefit, and prerogative susceptible of ownership, possession, or disposition.”12 Over a century ago, the Supreme Court of Washington noted that “property . . . consists not in tangible things themselves, but in certain rights in and appurtenant to those things,” and “it follows that when a person is deprived of any of those rights he is to that extent deprived of his property.”13 Or as the Supreme Court of New York, Appellate Division, put it over a century ago, property “is intended to embrace every species of valuable right and interest and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property.”14

In 1942, the Supreme Court of Iowa explained:

[P]roperty . . . is applied with many different meanings. Sometimes it is taken in the loose and vulgar acceptance to denote not the right of property or dominium, but the subject of such a right; as where a horse or piece of land is called my property. A little reflection, however, will suffice to convince any one that property is not the corporeal thing itself of which it is predicated, but certain rights in or over the thing. . . . These rights are the right of use, the right of exclusion and the right of disposition. . . . The dullest individual among the people knows and understands that his property in anything is a bundle of rights.15

Thus, property is a very broad term that refers not just to the thing itself, as laymen such as Falkvinge seem to think, but also to the rights, benefits, and interests that accompany ownership of the thing. Anyone who exercises dominion over the property of another, interfering with these rights, benefits, or interests, is depriving the property owner of his property. It matters not if the wrongdoer doesn’t prevent the property owner from also exercising dominion over the property. It is the act of doing something with the property that is inconsistent with the property owner’s rights, benefits, or interests that matters. When one understands these broad meanings of these legal terms of art, calling copyright infringement theft doesn’t seem so strange. But to really understand how theft applies to intangibles, I think it’s useful to look at some concrete examples.

Examples of Theft of Intangibles

In Dreiman v. State,16 the defendant had been convicted of burglary, i.e., entering a building with the intent to commit larceny, for breaking into his ex-girlfriend’s house, taking her keys and having copies made, and then returning the keys. At the time, Wyoming’s larceny statute provided: “A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.”17 On appeal, the defendant argued that there was no intent to deprive the victim of her keys since he had only borrowed them to make copies. The Supreme Court of Wyoming held that the defendant had deprived the victim of something, though that thing was intangible:

Copying those keys, therefore, was taking something from her and depriving her of her right to have exclusive access to her trailer house and automobile. Unauthorized copies of a person’s keys diminish the value of the original keys—keeping unwanted persons out of the trailer. In other contexts it has been said that property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys one or more of these elements of property to that extent destroys the property itself. . . . Thus, although the owner may retain possession of the original property, there has been nevertheless a deprivation of property when a copy is made and retained by another. The copies of the car and house keys . . . constituted sufficient evidence from which the jury could infer that appellant had the specific intent to steal when he unlawfully entered [the victim’s] dwelling.18

Thus, it’s theft to borrow someone’s keys and to make copies without their permission. This is so even if the original keys are returned to the owner. What makes it theft, which requires an intentional deprivation of the victim’s property, is the fact that the thief has taken from the owner of the keys the intangible benefits that go with having exclusive control over the set of keys. But this was not all that the defendant had taken. While in his ex-girlfriend’s house, the defendant copied down the victim’s unlisted phone number. The defendant argued that this type of information is not property which can be taken under the applicable larceny statute. The Supreme Court of Wyoming disagreed, finding that information “has been held to be property and a subject of theft in several criminal contexts.”19 Even though the defendant had merely copied down the phone number, he nonetheless had deprived the victim of something—the victim’s property interest in keeping her phone number private.

The same sort of deprivation occurs when someone photocopies or photographs documents that he has no right of access to. For example, in People v. Parker,20 the defendant was convicted of attempting to receive stolen property based on a scheme he had concocted to obtain confidential telephone directory supplements that were not publicly distributed. The defendant arranged to have the supplements delivered to him, which he would then photograph and return about an hour later. The defendant argued that since he was merely photographing the supplements and returning them shortly thereafter, there was no intent to deprive the telephone company of its property. The California Court of Appeal disagreed, and it upheld his conviction: “The supplements herein were property, had value and were the subject of theft within the meaning” of the applicable theft statute.21 Thus, even though the defendant promptly returned the supplements, he had nonetheless intended to deprive the victim of the intangible rights, benefits, and interests associated with the supplements when he photographed them.

In People v. Ellis,22 the defendant had been convicted of burglary for breaking into the home of his estranged wife’s mother for the purpose of locating his wife’s address in the mother’s address book. On appeal, the defendant argued that he could not be convicted of burglary since an address is an intangible thing that is not property that can be stolen. The California Court of Appeal disagreed, noting that “courts have shown no hesitation in broadly defining property in an effort to protect privacy and confidentiality in something that is deserving of being safeguarded from disclosure.”23 The defendant, who had obtained the address without consent, was “in a position to reap the benefits of this information by having unwanted access to the residence,” and it “destroyed” the mother’s “ability to limit those who knew” the wife’s new address.24 Thus, the appellate court held that the address was property that could be stolen by merely copying it down.

Lastly, in People v. Kwok,25 the defendant was convicted of burglary after he broke into his girlfriend’s house, removed the lock from one of her doors, and took it to a locksmith to get a key made. The defendant thereafter returned to her house and replaced the lock. On appeal, the defendant argued that he couldn’t be convicted of burglary since he had not taken the lock with the intent to permanently deprive the victim of it. The defendant claimed that making an unauthorized copy of someone’s house key is not theft, but the California Court of Appeal did not agree:

[P]roperty is something that one has the exclusive right to possess and use. A key to one’s residence is clearly one’s property. . . . [A] homeowner’s or tenant’s property interest in his or her house key is not just the right to maintain possession of a tangible object—the key—but also the right to control the intangible benefit conferred by ownership of the key, i.e., the ability to control access to one’s residence. Courts have said that the word property is all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition. . . . Making an unauthorized copy of a “borrowed” key . . . destroys the intangible benefit and prerogative of being able to control access to one’s residence just as thoroughly as outright theft of the key itself.26

The appellate court held that the defendant’s “acquisition of the key was theft” since he had “obtained a key in which he had no legitimate property interest.”27 Moreover, in the court’s opinion, the victim “was the rightful owner of the key, even though the key, as a tangible object, did not exist until appellant had it made.”28

As you may have guessed, I chose the foregoing examples because they involve theft of intangibles based on unauthorized copying by the defendant. Whether the thief returns the original property after copying it is irrelevant since the intangible rights, benefits, and interests in the property nevertheless have been stolen. Copyright opponents such as Falkvinge, however, hold a very narrow view of what it means to steal something. For example, Falkvinge claims that when it comes to copyright infringement, “[n]obody is stealing anything” since “[t]hey are manufacturing their own copies using their own property.” The examples above refute this claim. Not only are the rights, benefits, and interests in a copyright intangibles that can be stolen, but copyright itself is intangible property that consists only in those rights, benefits, and interests—that’s all that can be stolen.

Dowling and Copyright Preemption

The darling of the copyright opponents is Dowling, and no discussion of infringement-as-theft would be complete without discussing this Supreme Court opinion from 1985.29 Dowling was a 6-3 decision that looked at whether the National Stolen Property Act (“NSPA”), as codified at Section 2314 of Title 18, applied to bootleg recordings. The NSPA prohibits the transportation in interstate commerce of “any goods, wares, merchandise, securities or money” that are known “to have been stolen, converted or taken by fraud.”30 Dowling was accused of trafficking in illicit recordings of Elvis Presley for which no license had been obtained nor royalties paid. On appeal, Dowling did not dispute his conviction for copyright infringement, instead challenging whether the bootleg recordings he dealt in were stolen property under the NSPA.

The Supreme Court took the case to address the “apparent conflict among the Circuits concerning the application of the statute to interstate shipments of bootleg and pirated sound recordings and motion pictures whose unauthorized distribution infringed valid copyrights.”31 The Court started its analysis with recognizing that its job, consistent with the rule of lenity, is to interpret criminal statutes narrowly and strictly. Dowling argued that the goods he shipped were not stolen within the meaning of the NSPA since the phonorecords themselves had not been stolen—while the copies shipped were certainly infringing, the physical phonorecords themselves were not stolen property. The Court agreed with Dowling, holding that the phonorecords at issue were not “stolen, converted or taken by fraud” as required by the NSPA.

In the Court’s opinion, prosecutions under the NSPA required that the physical goods shipped be themselves tangible goods that have been stolen: “[T]he provision seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported.”32 This meant, in the Court’s view, that “some prior physical taking of the subject goods” was necessary.33 The Court rejected the government’s view that shipping illicit copies of copyrighted materials would fit the bill if the materials those copies were embodied in had not themselves been stolen:

[T]he Government’s theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. *** It follows that interference with copyright does not easily equate with theft, conversion, or fraud. ***

There is no dispute in this case that Dowling’s unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another’s protected work comfortably fits the terms associated with physical removal employed by § 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.34

It’s no wonder that copyright skeptics love this language, coming with the imprimatur of a majority of the Supreme Court, no less. In order to be convicted of transporting stolen goods under the NSPA, the Court held, the defendant had to have in his possession something tangible that was stolen. As the dissent pointed out, citing case law from multiple circuits, this holding was “contrary to the clear weight of authority.”35 You can read the dissent yourself to get other counterarguments, but for better or for worse, the Court read into the NSPA a distinction between tangible and intangible property. Only the former can be physically possessed as is required by the NSPA. A copyright, which is intangible and has no physical substance, simply can’t be carried across state lines.

But this doesn’t mean that copyright infringement is not theft. As the Second Circuit noted just last year, Dowling only stands for “the proposition that the theft and subsequent interstate transmission of purely intangible property is beyond the scope of the NSPA.”36 In other words, intangible property can still be the subject of theft, but the NSPA just doesn’t reach it. The First Circuit has noted that the NSPA simply “does not apply to purely intangible information, the theft of which is punishable under copyright law and other intellectual property statutes.”37 While the NSPA doesn’t apply to intangible property, the Economic Espionage Act still proscribes the “theft of trade secrets” in Section 1832 of Title 18, and the Identity Theft Penalty Enhancement Act still proscribes “aggravated identity theft” in Section 1028A of Title 18. Intangibles can be the subject of theft, there is no doubt; whether the NSPA reaches that theft is beside the point.

Moreover, the Dowling majority’s claim that “interference with copyright does not easily equate with theft” can be easily rebutted by looking at theft statutes that have been preempted by the Copyright Act. Congress made clear in Section 301 that it intended to expressly preempt the entire field of state law where the Copyright Act applies. Generally speaking, a state law is preempted by the Copyright Act if (1) the work at issue comes within the subject matter of copyright as defined by Section 102, and (2) the rights granted under the state law are equivalent to any of the exclusive rights granted by Section 106.38 To survive preemption, the state law must protect rights that are qualitatively different than the rights granted by copyright. In other words, the state law claim must be based on some extra element which changes its nature.39 If “the right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights,” then it is preempted.40

There are many examples in the case law of state theft statutes being preempted by the Copyright Act, but I’ll focus on just one—the Eleventh Circuit’s opinion in Crow v. Wainwright.41 Crow was a bootlegger who had been convicted by a Florida state court for violating Section 812.019 of the Florida Statutes Annotated, which prohibits “[d]ealing in stolen property.” The stolen property Crow was convicted of trafficking in was not the underlying copyright or the bootleg eight-track tapes themselves, but rather it was the private contractual rights that a certain performer held to collect royalties from a certain copyright owner. The Florida Court of Appeal and the Supreme Court of Florida upheld Crow’s conviction, finding that the state theft statute at issue was not preempted by the Copyright Act.

Crow then turned to the federal courts for relief. The Eleventh Circuit ran through the Section 301 preemption analysis, finding that the sound recording at issue clearly fell within the subject matter of copyright under Section 102. The state had justified its conviction of Crow “by attempting to characterize the stolen property rights as contract rights not within the exclusive scope of section 106.”42 The Eleventh Circuit rejected this argument, noting that since Crow was not a party to the contract between the performer and the copyright owner, the action could not be maintained under state contract law. Instead, the “stolen property rights sold by Crow,” said the federal appellate court, were the exclusive rights to distribute and to reproduce the work—i.e., rights granted exclusively under Section 106 of the Copyright Act.43 As such, the Eleventh Circuit held that Florida’s theft statute was preempted by the Copyright Act:

Despite the name given the offense, the elements essential to establish a violation of the Florida statute in this case correspond almost exactly to those of the tort of copyright infringement. The state criminal statute differs only in that it requires the prosecution to establish scienter [i.e., intent], which is not an element of an infringement claim, on the part of the defendant. This distinction alone does not render the elements of the crime different in a meaningful way.

Section 506 of the Copyright Act, which sets forth criminal penalties for copyright infringement, also requires the prosecution to prove scienter as an element of the case. The additional element of scienter traditionally necessary to establish a criminal case merely narrows the applicability of the statute. The prohibited act—wrongfully distributing a copyrighted work—remains the same. Section 301 clearly prohibits Florida from prosecuting Crow in this case, and we conclude that Crow’s conviction is null and void.44

Thus, the Eleventh Circuit did not accept the state’s argument that its theft laws could be applied to Crow’s copyright infringement. If anything disproves the statement in Dowling that “interference with copyright does not easily equate with theft,” it’s the fact that courts do easily equate copyright infringement with state theft laws when doing a preemption analysis under Section 301.

Copyright Infringement as Theft

The word “theft” without any qualification usually refers to the criminal variety of theft, but it should be noted that there exists both criminal theft and civil theft. Whereas criminal theft claims are brought by the government, civil theft claims are instituted by private parties. A civil theft proceeding can be initiated by the victim against not only the original taker of his stolen property, but also against any subsequent person having possession of it. The civil theft action typically permits the victim to recover his stolen property and to collect three-times his damages. Colorado’s civil theft statute is representative of such statutes:

All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property. In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater . . . .45

Like theft, copyright infringement also comes in two varieties: civil infringement and criminal infringement. Civil infringement actions are brought by private parties under Section 501(b) of the Copyright Act, which permits “[t]he legal or beneficial owner of an exclusive right under a copyright . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.”46 Criminal infringement actions, on the other hand, are instituted by the government under Section 506(a) of the Copyright Act against “[a]ny person who willfully infringes a copyright . . . .”47 It might be tempting to equate civil theft with civil infringement and criminal theft with criminal infringement, but it’s not that simple. A civil theft statute creates a private right of action, but it still requires the property at issue to have been the subject of criminal theft. In other words, to succeed in a civil theft claim, the plaintiff still has to show that his property was stolen under the state’s criminal theft statutes.48

The civil theft analysis thus collapses into an analysis of the criminal theft statutes, and there can be no civil theft unless there is an underlying criminal theft. But the civil and criminal varieties of copyright infringement do not work the same way. All criminal infringements are also civil infringements, but not all civil infringements constitute criminal infringements. The primary difference between civil and criminal infringement lies in the mens rea element. Civil infringement is an intentional tort such that the defendant must have intended to do the copying, but it is also a strict liability tort such that there is no need to prove an intent to infringe in order to establish the defendant’s liability.49 Since civil infringement is a strict liability tort, whether the defendant acted innocently or willfully goes to the issue of damages, not liability. An innocent infringer is just as liable as a willful one, but the latter faces the possibility of being on the hook for more damages than the former.50

Criminal infringement, on the other hand, requires that the defendant must have willfully infringed in order to be guilty, that is, that he not only intended to copy but also that he intended to violate the law by copying.51 In other words, a defendant cannot be found guilty of criminal infringement unless it is proved that he had the specific intent to commit copyright infringement. Thus, this intent to infringe element distinguishes criminal from civil infringement. Besides the necessity of willfulness, criminal infringement also differs from civil infringement by requiring that it be done in one of three ways: (1) “for purposes of commercial advantage or private financial gain,” (2) by reproducing or distributing “during any 180-day period” one or more copies of one of more copyrighted works “which have a total retail value of more than $1,000,” or (3) “by the distribution of a work being prepared for commercial distribution . . . if such person knew or should have known that the work was intended for commercial distribution.”52

Turning back to the Model Penal Code’s definition of theft, “[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”53 I mentioned above that this can be broken down into three elements: (1) unlawful taking or control, (2) of movable property of another, and (3) with intent to deprive. While it may be tempting to compare only criminal infringement with criminal theft since civil infringement doesn’t have a specific intent element, i.e., civil infringement doesn’t require an intent to infringe, we must not forget that there is such thing as willful civil infringement. Section 504(c)(2) provides for increased damages awards when civil infringement is done willfully, that is, when the defendant intends to infringe.54 In other words, just because liability for civil infringement doesn’t require there to be an intent to infringe, that doesn’t preclude the possibility that there was such an intent element present when the defendant infringed.

To see why intentional copyright infringement, whether civil or criminal, is theft, we simply have to run through the Model Penal Code’s elements of theft. The first element, unlawful taking or control, is straightforward. Copyright infringement involves both an unlawful taking and unlawful control. As demonstrated in the examples of theft of intangibles mentioned above, this element doesn’t require the defendant to physically dispossess the victim of something tangible. Rather, the thing taken can be intangible. With copyright infringement, the infringer takes the intangible rights, benefits, and interests that go with copyright ownership, including the right to exclude the infringer from copying. Moreover, if you unlawfully copy my work, you’ve taken from me some part of the economic value of my copyright. And by making that illicit copy, you have exerted unlawful control over my property—you’ve taken it upon yourself to exert dominion over my property in a way that conflicts directly with my exclusive rights.

The second element, that copyright constitutes movable property of another, seems exceedingly obvious to me, but I know that skeptics such as Falkvinge define property so narrowly that intangibles such as copyright aren’t property under their definition. But as noted above, the modern definition of property, especially in the context of theft statutes, is extremely expansive. As the Supreme Court of Nevada has noted, “property is a broad concept encompassing every intangible benefit and prerogative susceptible of possession or disposition.”55 For a more rigorous definition of property, the Ninth Circuit has formulated the following three-part test:

[T]hree criteria must be met before the law will recognize a property right: First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity.56

Copyright easily meets this definition of property. A copyright is capable of precise definition as Section 106 delineates the specific exclusive rights that a copyright owner may do or authorize. Similarly, a copyright is capable of exclusive possession or control since the Copyright Act provides that a copyright owner has certain exclusive controls over his copyrighted work. That the work is not naturally excludable doesn’t take away from the fact that it is de jure excludable. Lastly, a copyright owner’s exclusivity is legitimate as it is specifically granted under the Copyright Act, which Congress enacts pursuant to its enumerated Article I power.

The final element of the Model Penal Code’s formulation of theft looks at whether there is an intent to deprive. As demonstrated in the examples above concerning the theft of intangibles, this element is not as simple as intentionally depriving the victim of his tangible property. Instead, the issue is whether the thief has intended to deprive the victim of any of the rights, benefits, or interests that the victim has an exclusive claim to. When someone intentionally infringes, whether that infringement is civil or criminal, the infringer has purposefully deprived the victim of something—the intangible prerogatives appurtenant to the exclusive ownership of his property. It doesn’t matter that the copyright owner can still exert some control over his copyright. Any act that is inconsistent with the copyright owner’s exclusive rights deprives the owner of his property.

Thus, not only is all criminal infringement the same thing as criminal theft since there is the specific intent to infringe, but all willful civil infringement is criminal theft as well since there is also that same specific intent. This is presumably why Justice Breyer in Grokster said that “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”57 Intentional infringement, whether the civil or the criminal variety, does in fact fulfill the traditional elements of theft. This is so not only because property for purposes of theft statutes is defined broadly so as to include intangibles, but it’s also because intentional infringement involves an unlawful taking or control of another’s personal property with the intent to deprive the victim of his property. In many ways, copyright law has been ahead of its time. Long before the modern notion that theft can be applied to intangibles came into fashion, copyright law had recognized that interference with the rights, benefits, and interests in an intangible was a wrong.

Special thanks to Terry Hart for his valuable feedback in drafting this post.

Follow me on Twitter: @devlinhartline

Footnotes

  1. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 961 (2005) (Breyer, J., concurring). []
  2. See, e.g., Editors’ Notes, Model Penal Code § 223.1 (“The offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like, as well as the technical distinctions among them, are thereby replaced with a unitary offense [i.e., theft]”). []
  3. Black’s Law Dictionary (9th ed. 2009). []
  4. See, e.g. Bell v. United States, 462 U.S. 356, 360 (1983) (“[C]ommon-law larceny was limited to thefts of tangible personal property.”); People v. Zakarian, 121 Ill. App. 3d 968, 972 (1984) (“At common law, only tangible personal property could be the subject of larceny.”); People v. Ashworth, 222 N.Y.S. 24, 28-29 (1927) (“That which may be the subject of larceny is well comprehended in the following statement: It ‘should have corporeal existence, that is, be something the physical presence, quantity, or quality of which is detectable or measurable by the senses or by some mechanical contrivance; for a naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not a subject of larceny.’”) (internal citations omitted); 3 Subst. Crim. L. § 19.4 (2d ed.) (“At common law, larceny was limited to misappropriations of goods and chattels—i.e., tangible personal property.”). []
  5. See, e.g., N.Y. Penal Law § 155.00 (McKinney 2013) (“‘Property’ means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.”) (defining “property” under state larceny law); 3 Subst. Crim. L. § 19.4 (2d ed.) (“Modern statutes in all jurisdictions have broadened the scope of larceny to include such intangible personal property as written instruments embodying choses in action or other intangible rights.”). []
  6. Model Penal Code § 223.0 (emphasis added). []
  7. Id. at § 223.2; “movable” property is another name for personal property. []
  8. Id. at § 223.0. []
  9. Id. []
  10. La. Rev. Stat. Ann. § 14:67(A) (West 2013) (emphasis added); “Anything of value,” in turn, is defined to include “any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private.” Id. at § 14:2. []
  11. Fla. Stat. Ann. § 812.014(1) (West 2013); “Obtains or uses” is defined to mean “any manner of . . . [t]aking or exercising control over property” or “[m]aking unauthorized use, disposition, or transfer of property.” Id. at § 812.012(3); “Property,” in turn, is defined to mean “anything of value,” which “includes . . . [t]angible or intangible personal property, including rights, privileges, interests, and claims.” Id. at § 812.012(4). []
  12. Button v. Hikes, 296 Ky. 163, 168 (1943). []
  13. State v. Superior Court of King Cnty., 26 Wash. 278, 287 (1901) (internal quotations and citations omitted). []
  14. People ex rel. Short v. Warden of City Prison, 145 A.D. 861, 863 (1911). []
  15. Liddick v. City of Council Bluffs, 232 Iowa 197, 217 (1942) (internal quotations omitted). []
  16. Dreiman v. State, 825 P.2d 758 (Wyo. 1992). []
  17. Id. at 760 (internal quotations and citations omitted). []
  18. Id. at 761 (internal quotations and brackets omitted). []
  19. Id. []
  20. People v. Parker, 217 Cal. App. 2d 422 (1963). []
  21. Id. at 426. []
  22. People v. Ellis, A099357, 2003 WL 21513612 (Cal. Ct. App. July 3, 2003) (unpublished opinion). []
  23. Id. at *6. []
  24. Id. []
  25. People v. Kwok, 63 Cal. App. 4th 1236 (1998). []
  26. Id. at 1250-51 (internal quotations and citations omitted). []
  27. Id. at 1251. []
  28. Id. []
  29. See Dowling v. United States, 473 U.S. 207 (1985). []
  30. Id. at 208 (internal quotations and citations omitted). []
  31. Id. at 213. []
  32. Id. at 216. []
  33. Id. []
  34. Id. at 216-18 (internal quotations and citations omitted; paragraph breaks altered). []
  35. Id. at 230 (Powell, J., dissenting). []
  36. United States v. Aleynikov, 676 F.3d 71, 77 (2d Cir. 2012) (emphasis added). []
  37. United States v. Martin, 228 F.3d 1, 14 (1st Cir. 2000) (internal quotations omitted; emphasis added). []
  38. See, e.g., United States ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997). []
  39. See, e.g., Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 229 (4th Cir. 1993). []
  40. Id. (internal quotations omitted). []
  41. Crow v. Wainwright, 720 F.2d 1224 (11th Cir. 1983). []
  42. Id. at 1226. []
  43. Id. []
  44. Id. at 1226-27 (internal quotations and footnotes omitted; paragraph breaks altered; bracketed text added). []
  45. Colo. Rev. Stat. Ann. § 18-4-405 (West 2013). []
  46. 17 U.S.C.A. § 501(b) (West 2013). []
  47. 17 U.S.C.A. § 506(a) (West 2013). []
  48. See, e.g., Sullivan v. Delisa, 101 Conn. App. 605, 619-20 (2007); Steward Software Co., LLC v. Kopcho, 275 P.3d 702, 706-07 (Colo. Ct. App. 2010), rev’d on other grounds, 266 P.3d 1085 (Colo. 2011). []
  49. See, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 931 (7th Cir. 2003) (“Copyright infringement . . . is an intentional tort.”); Gnossos Music v. Mitken, Inc., 653 F.2d 117, 120 (4th Cir. 1981); Illustro Sys. Int’l, LLC v. Int’l Bus. Machines Corp., Case No. 06-cv-01969, 2007 WL 1321825 (N.D. Tex. May 4, 2007) (“[C]opyright infringement is an intentional tort.”); Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931) (“Intention to infringe is not essential under the act.”); United States v. Bily, 406 F.Supp. 726, 733 (E.D. Pa. 1975) (“Under the civil law, there is strict liability for infringement.”); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963) (“While there have been some complaints concerning the harshness of the principle of strict liability in copyright law, . . . courts have consistently refused to honor the defense of absence of knowledge or intention.”). []
  50. See 17 U.S.C. § 504(c). []
  51. See, e.g., United States v. Wise, 550 F.2d 1180, 1194 (9th Cir. 1977); Bily, 406 F.Supp. at 733 (“One cannot be convicted [of criminal infringement] unless he has willfully infringed.”); United States v. Moran, 757 F.Supp. 1046, 1049 (D. Neb. 1991) (“[U]nder 17 U.S.C. § 506(a) ‘willfully’ means that in order to be criminal the infringement must have been a voluntary, intentional violation of a known legal duty.”) (internal quotations omitted). []
  52. 17 U.S.C.A. § 506(a)(1) (West 2013). []
  53. Model Penal Code § 223.2. []
  54. See, e.g., Moran, 757 F.Supp. at 1050 (collecting cases). []
  55. M.C. Multi-Family Dev., LLC. v. Crestdale Associates, Ltd., 124 Nev. 901, 911 (2008) (internal quotations and citations omitted). []
  56. G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Service, Inc., 958 F.2d 896, 903 (9th Cir. 1992). []
  57. Grokster, 545 U.S. at 961 (Breyer, J., concurring). []

If other professions were paid like artists — “Jeez, people with jobs, why you keep demanding money and stuff?!”

Hugh Hansen’s One Thing After Another Blog — Noted copyright scholar Hansen has recently begun a blog which promises plenty of great thoughts on legal issues, including IP and copyright.

MPAA Fires Back at Piracy Study — A recent study that purports to show that some films were harmed by the shutdown of Megaupload in 2012 is unclear and full of speculation, according to the MPAA.

LGBT Cinema, Diverse Voices Quieted by Piracy’s Punch? — Ellen Seidler looks at a recent study by GLAAD that shows representations of LGBT characters in film has declined. There’s a number of reasons for the decline, but one in particular that Seidler has first-hand experience with: online piracy. Seidler concludes with practical tips for filmmakers to help ensure the release of their film is successful.

Emphasis on “goo” – authors point out the many fallacies of Google’s book scanning defense — John Degen runs us through a memorandum filed by the Author’s Guild in opposition to Google’s fair use defense that it has raised in the ongoing Google Book Search lawsuit. “The Authors Guild (America’s version of The Writers’ Union of Canada), is proving itself, once again, to be the best friend of writers worldwide as it continues its David and Goliath legal fight with all-seeing search giant Google.”

Internet-Television Streaming Sites – Coming to a Circuit Court Near You — With lawsuits currently in four circuits, the dispute between television broadcasters and Aereo and its frienemy Aereokiller (now “FilmOn X”) over whether a commercial service can “design around” the public performance right can be difficult to keep track of. Alexandra Goldstein brings you up to speed on the latest developments in those cases.

Copyright Liability for Filelockers: Disney v Hotfile — Finally, I rarely link to my own posts here, but with news this week that film studios were successful in a copyright infringement suit against notorious cyberlocker Hotfile, and with the actual opinion under seal for the time being, I thought it would be helpful to point out a post I had previously written detailing some of the issues at stake and arguments made.

On Tuesday, a Ninth Circuit panel heard oral arguments in a case brought by television broadcasters against internet retransmission service FilmOn X (née Aereokiller). You can listen to audio of the hearing. The appeal arose over a preliminary injunction against FilmOn that was granted late last year by district court judge George Wu, who held that there was a likelihood that FilmOn X infringed the broadcasters’ public performance rights through its operation of a subscription based service that retransmits broadcast television over the internet.

On appeal, FilmOn X argues, essentially, that the Ninth Circuit should reverse the lower court’s decision and instead follow the lead of the Second Circuit, which, earlier this year, affirmed similar service Aereo as not infringing the public performance right. That decision followed the Circuit court’s Cablevision precedent, which adopted a non-statutory “unique copy” element to distinguish between non-infringing private performances and infringing public performances.

An interesting exchange occurred toward the end of the arguments (37:11), when Judge Brian Cogan asked FilmOn X attorney Ryan Baker the following:

What we’re really talking about is the definition of “to the public” in the Transmit Clause, and we know that “to the public” includes receipt of the performance at different times and at different places. I understand your point is “this is one antenna per person.” But let me give you two hypotheticals and ask you if they come out differently. One is the antenna goes to a house full of people, friends, alright, so it’s kind of public, it seems to me. And the other is it goes to a bar, which charges admission for everybody to come in and watch your signal from that one antenna to the bar. Are you still okay in that, even though the ultimate recipients of your retransmitted signal may not be? When I say “are you okay”, I mean are you violating the statute at that point, because you’re sending something to, in my extreme example, a commercial establishment, which is then selling it to the public?

Baker begins by correctly pointing out that the bar would be liable for publicly performing the broadcast, but then speculates that the worst FilmOn X could face is secondary liability, depending on its level of awareness of the bar’s activities and whatever specific facts are present.

Baker is wrong on this second point. FilmOn X would be liable for publicly performing works under Judge Cogan’s hypothetical. What’s more, it would be liable even under the Cablevision/Aereo “unique copy” interpretation of the Copyright Act’s public performance provisions that FilmOn X is relying on to escape liability. This is just one more reason why the Ninth Circuit should reject the argument.

A public performance includes each link in the transmission chain

Prior to the 1976 Copyright Act, the Supreme Court had held that CATV services, which picked up broadcast television signals and retransmitted them to subscribers, did not implicate the broadcasters’ public performance rights.1 Congress changed this with the new Act, bringing retransmissions within the scope of public performance (subject to several limitations and exceptions). Since then, courts have consistently held that this covers every intermediary that retransmits a performance.

The earliest and leading case comes from the Seventh Circuit. In WGN Continental Broadcasting v. United Video, the court began its analysis of the dispute by disposing of a threshold argument: whether United Video, a satellite common carrier, could be liable for publicly performing television superstation WGN’s works even though it was only an intermediary retransmitting the signal to other cable providers.2 The court said it could, in part because the Copyright Act contained a passive carrier exemption that would be rendered superfluous if all intermediary carriers were exempt from liability as a matter of rule. WGN ultimately held that a service “cannot be immune just because [it] does not retransmit [a] signal directly to the public” but instead transmits the signal to an actor who, in turn, publicly performs the broadcast.

Within two years, WGN would be favorably cited outside the Seventh Circuit. In Hubbard Broadcasting v. Southern Satellite Systems,3 later affirmed by the Eighth Circuit,4 the court adopted the reasoning of WGN and held that “a transmission is a public performance whether made directly or indirectly to the public and whether the transmitter originates, concludes or simply carries the signal. There is simply no practical basis for excluding certain transmitters from copyright liability based solely on their position in the distribution chain.”

The Second Circuit came to the same conclusion in NFL v. PrimeTime 24 Joint Venture.5 There, it said that “the most logical interpretation of the Copyright Act is to hold that a public performance or display includes ‘each step in the process by which a protected work wends its way to its audience.'”6

That gives us three circuits (and at least one additional district court in a separate circuit7 who have considered the issue and come to the same conclusion.

But what about the Ninth Circuit, whose holdings are binding on the FilmOn X litigation? The Circuit does not appear to have weighed in on the topic. Unless you ask the Second Circuit.

In PrimeTime 24 Joint Venture, after discussing the various decisions above that stood for the proposition that any retransmission of a public performance is itself a public performance, the Second Circuit said, “The Court of Appeals for the Ninth Circuit has suggested a different result.” It cited to Allarcom Pay Television v. General Instrument,8 noted that the decision received a good deal of “non-judicial criticism”, and ultimately gave “the decision little weight largely because it contains no analysis of the Copyright Act.”

But the Second Circuit read Allarcom wrong. According to the Second Circuit, when Allarcom was considering whether the Copyright Act preempted the state law at issue, the court said that “copyright infringement does not occur until the signal is received by the viewing public.” That’s not what Allarcom said. Allarcom actually said that the Copyright Act does not preempt extraterritorial acts of infringement. And under Ninth Circuit precedent, an act of infringement that does not occur entirely within the United States is considered extraterritorial. In other words, Allarcom didn’t say the retransmission was not infringing because it was not a public performance, it said it was not infringing because it was not received within the United States. Luckily, the Ninth Circuit is not bound to follow the Second Circuit’s interpretations of its own precedent.

Ditch the “Rube Goldberg” public performance interpretation

What this means for FilmOn X (and, by extension, Aereo) is that it would be liable for publicly performing, even under its own interpretation of the public performance provisions. If we go all the way back to Cablevision,9 the origin of the public performance interpretation that FilmOn X and Aereo are relying on, we find support for this conclusion. In Cablevision, the Second Circuit stated

[U]nder the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.

Cablevision assumes that the single subscriber equals a single person, making the transmission a private performance. But as Judge Cogan noted in the above quote, that single subscriber could be a bar full of people from the general public — and under WGN, Hubbard, and PrimeTime 24, that makes Cablevision, Aereo, and FilmOn X’s performances public ones.

So FilmOn X cannot escape liability for public performances even under the convoluted, inexplicably narrow interpretation of the public performance provisions that it wants the Ninth Circuit to accept. This provides only all the more reason for the court to instead rely on the plain meaning of the Copyright Act.

Neither Aereo nor FilmOn X can control whether their transmissions end up in a public place because they exert no control over who signs up for their service. The services are offered to anyone and everyone in exchange for a fee — the performances are transmitted, in other words, to the general public. This seems to me a far simpler and sensical interpretation of the public performance provisions than the dense thicket that Aereo has led us into.10 And it still leaves room for private performances to exist. A transmission to oneself is a private performance (something that is becoming increasingly more common with devices such as the Slingbox) as is a transmission to one’s family or immediate social group. But once one goes outside that intimate circle and starts transmitting to anyone, come one come all, it becomes very difficult to say with a straight face that that performance is not “to the public.”

Footnotes

  1. Fortnightly v. United Artists Television, 392 U.S. 390, (1968);Teleprompter v. Columbia Broadcasting System, 415 U.S. 394 (1974). []
  2. 693 F.2d 622 (7th Cir. 1982). []
  3. 593 F.Supp. 808 (D. Minn. 1984). []
  4. 777 F.2d 393 (8th Cir. 1985). []
  5. 211 F.3d 10 (2nd Cir. 2000). []
  6. Quoting David v. Showtime/The Movie Channel, 697 F.Supp. 752, 759 (S.D.N.Y.1988). []
  7. National Cable Television v. Broadcast Music, Inc., 772 F.Supp. 614, 651 (D.DC 1991). []
  8. 69 F.3d 381 (9th Cir. 1995). []
  9. Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008). []
  10. Cf., WNET v. Aereo, 712 F.3d 676, 698 (2nd Cir. 2013) (J. Chin, dissent), “Giving the undefined term ‘the public’ its ordinary meaning, a transmission to anyone other than oneself or an intimate relation is a communication to a ‘member[] of the public,’ because it is not in any sense ‘private'”; Jane Ginsburg, WNET v. Aereo: The Second Circuit Persists in Poor (Cable)Vision, The Media Institute (April 23, 2012), “when a transmission service, be it radio, cable, or Internet streaming, is offered to the public, every individual recipient is a ‘member of the public'”; Report on Copyright Law Revision, H.R.Rep. No. 94-1476, at 64-65 (1976), “a performance made available by transmission to the public at large is ‘public’ even though the recipients are not gathered in a single place …. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service.” []

Google and friends spin search piracy study — Vox Indie’s Ellen Seidler thoroughly eviscerates the white paper on search engines’ role in facilitating online infringement released earlier this summer by the CCIA. This is the same report that argued on the one hand that search engines don’t drive traffic to infringing content, and, on the other hand, the solution to driving traffic to legitimate content is to take advantage of search engines.

 — An article at Volokh Conspiracy asked earlier whether we should expect an extension of copyright term in 2018. Why this prediction? Because in the make-believe world of copyright skeptics, copyright term is extended every 20 years.

Internet Policy Task Force Is (Still) Not Sending Cover Artists to Jail — In July, the Department of Commerce’s Internet Policy Task Force released a comprehensive green paper looking at the current state of copyright law. Included within were several recommendations, among them, an alignment of criminal penalties for unauthorized public performances with the existing penalties for reproduction and distribution. A week later, the Washington Post weirdly reported this as news that the Obama Administration wanted to revive SOPA; it also resurrected the entirely bogus claim that the recommendation would land Justin Bieber in jail. Future of Music Coalition legal intern Michelle Davis sets the record straight.

Your Big Break: Hollywood Studio Programs for Emerging Writings — Looking to be a screenwriter? The Credits has put together a list of writing programs offered by major film studios that will help you hone yours skills. And if you haven’t checked out The Credits in general yet, do take a look, as the site has been cranking out some great stories that take a look behind the scenes at making television and film.

Why We Don’t Need More Domain Extensions — As ICANN inches closer to unleashing hundreds of new generic top-level domains, Jonathan Bailey takes a look at some of the potential problems that could arise and wonders if they outweigh any potential benefits.

When You Can’t Tell Web Suffixes Without a Scorecard — The NY Times has more on the new top-level domains. “‘You are creating a business, like derivatives on Wall Street, that has no value,’ says Esther Dyson, a technology investor who served as the founding chairwoman of Icann. ‘You can charge people for it, but you are contributing nothing to the happiness of humanity.'”

The news hit on Friday that recording artist Robin Thicke (along with Pharrell Williams and Clifford Harris) has filed a lawsuit against Bridgeport Music and Marvin Gaye’s family seeking a declaration that his hit song “Blurred Lines” did not infringe the copyright in Funkadelic’s song “Sexy Ways” or the Marvin Gaye classic “Got to Give it Up.”

A complaint for declaratory relief is a pre-emptive filing to seek judicial determination of contested legal rights when litigation is anticipated; in this case, Thicke alleges that both Bridgeport and Gaye notified him that “Blurred Lines” infringed their copyright and if he didn’t provide a monetary settlement, they intended “to initiate litigation for copyright infringement” against him.

The filing has attracted considerable attention. While it is not clear what the basis for the infringement claims are, it does not appear to be the case that “Blurred Lines” sampled any portion of the two songs, nor did it copy any melody or lyrics. Instead, the claims would appear to be directed toward the similarities in style and groove of the tunes.1

It would make for an interesting infringement analysis — but if that’s what you were expecting to read here, you’ll be disappointed.

Instead, I want to look at a statement in one of the news stories covering the story. In the Quartz, writer Adam Pasick says, “It’s pretty well established by now that unauthorized sampling—the act of copying an actual recorded sound, no matter how brief—is a no-no.”

This is incorrect.

I don’t mean to pick on Pasick, his remark is actually representative of a commonly held belief when we discuss copyright issues related to digital sampling. That belief typically starts with a 2005 Sixth Circuit court decision.

Substantial Similarity and Sound Recordings

But let’s back up for a second.

Generally, to show copyright infringement, you have to show first that you own a valid copyright and then that the alleged infringer engaged in actionable copying. The latter is an intensely fact specific inquiry. Very broadly, courts will look at whether the two works are substantially similar. This is a qualitative and quantitative question; that is, did the defendant copy enough of the protectable elements of the plaintiff’s work to constitute infringement? Recall that copyright only protects expression — not ideas, facts, or stock elements — so not all copying is actionable copying. This is also typically where courts will consider whether the copying is de minimis — too trifling for the law to be concerned with.2

That is what the Middle District Court of Tennessee did in Bridgeport Music v. Dimension Films when confronted with a copyright infringement case involving the unauthorized digital sampling of a two-second portion of “Get off Your Ass and Jam”. (Yes, the same Bridgeport Music that is alleged to have complained to Thicke of infringement here.) The court concluded that “the sample here does not rise to the level of a legally cognizable appropriation” and dismissed the infringement claims.

On appeal, the Sixth Circuit reversed the district court’s ruling and departed from the traditional infringement inquiry with regard to sound recordings.3

This is one of the first cases involving digital sampling to reach an appellate court, arising from Bridgeport Music’s original complaint against over 800 defendants.4 The court, feeling a prerogative to establish a “bright-line test” to add “clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings”, held that the doctrines of de minimis and substantial similarity don’t apply to digital sampling of sound recordings — any taking of a sound recording, no matter how small or how much it is altered, is infringement.

The Sixth Circuit premised this holding largely on the language of the Copyright Act’s provision dealing with the exclusive right of a sound recording’s copyright owner. The relevant section states that “The exclusive rights of the owner of copyright in a sound recording … do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”5 The court took this to mean that “By using the words ‘entirely of an independent fixation’ in referring to sound recordings which may imitate or simulate the sounds of another, Congress may have intended that a recording containing any sounds of another recording would constitute infringement.”

Burning Bridgeport

This holding has been cited far more in academic literature (the vast majority critical of it) than by other courts — the court’s expository declaration, “Get a license or do not sample,” raised the hackles of many who are predisposed to see copyright as an impediment to creativity. But the decision deserves criticism for the far simpler fact that it is wrong. Professor Nimmer, author of one of the seminal treatises on copyright, calls the holding a logical fallacy: “By validating entire sound-alike recordings, the quoted sentence contains no implication that partial sound duplications are to be treated any differently from what is required by the traditional standards of copyright law — which, for decades prior to adoption of the 1976 Act and unceasingly in the decades since, has included the requirement of substantial similarity.”6

And at least one federal court has agreed with Nimmer’s view.7 The Southern District Court of Florida devoted a significant amount of space to explaining why it refused to follow Bridgeport’s lead in removing the substantial similarity requirement for sound recording claims in Saregama India v. Mosley.8 There, hip-hop producer Timbaland was sued for infringement after he used a one-second snippet of the Indian sound recording “Bagor Mein Bahar Hai” in the song “Put You on Your Game”, recorded by rapper The Game.

In its analysis of the infringement claim, the court first noted that “the Sixth Circuit’s decision to carve out an exception for sound recordings has not been followed in this Circuit. Indeed, the Eleventh Circuit imposes a ‘substantial similarity’ requirement as a constituent element of all infringement claims… Therefore, although factually similar, the Bridgeport court’s exception for sound recordings presents a departure from Eleventh Circuit precedent.”

It then rejected Saregama’s argument to adopt the Bridgeport approach, taking the time to explain that it is not clear “why the Bridgeport court’s reading of Section 114(b) follows inexorably from its text.” After its own analysis, the District Court concluded that “Section 114(b) does not seem to support the distinction between sound recordings and all other forms of copyrightable work that the Bridgeport court imposes.”

So, the legal effect of Bridgeport on digital sampling has been vastly overstated. And, as some have observed, the effect of the legal decision on industry practice has also been overstated.9

Digital Sampling and Copyright Law

In other words, it is inaccurate to say that it is “pretty well established” that “the act of copying an actual recorded sound, no matter how brief… is a no-no.” In the seven years since Bridgeport, courts outside the Sixth Circuit (which, it should be noted, is not a particularly influential jurisdiction when it comes to copyright law to begin with) apparently continue to look at substantial similarity between an original sound recording and the sampling work, including considering whether the use is de minimis.

And we haven’t even gotten to fair use yet. Despite some misconceptions, the Sixth Circuit in Bridgeport hadn’t decided whether digital sampling can be fair use. As the court said, “Since the district judge found no infringement, there was no necessity to consider the affirmative defense of ‘fair use.’ On remand, the trial judge is free to consider this defense and we express no opinion on its applicability to these facts.” There’s no reason why the fair use defense would not apply to sound recordings the same way it would apply to other copyrightable subject matter — and considering how expansively courts have applied the defense recently,10 it would not be surprising to see a vast number of unauthorized samples be able to successfully claim fair use.

It will be interesting to see how Thicke fares in his declaratory relief suit — though it is often the case that high-profile sampling lawsuits like these are quietly settled or quickly dismissed, so it’s not likely that we’ll see any substantive court rulings. But it’s important to keep in mind that it is simply not the case that there is any bright-line rule against digital sampling. The Bridgeport decision is an overrated aberration; copyright’s traditional doctrines are normally flexible enough to distinguish between appropriate use of existing works and misappropriation.

Footnotes

  1. I immediately thought of Gaye’s “Got to Give it Up” the first time I heard “Blurred Lines”, as did many others based on the comments on various sites discussing the story — though, aside from the use of falsetto singing in both, I see little similarity with the Funkadelic song. See Ben Sisario, “Songwriters Sue to Defend a Summer Hit”, New York Times (August 16, 2013) for statements indicating “Got to Give it Up” served as an inspiration for the song, but nothing more. []
  2. 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F][5] at 13-146 (1996); Newton v. Diamond, 349 F.3d 591, 594 (9th Cir. 2003); Ringgold v. Black Entertainment Television, 126 F.3d 70, 74 (2nd Cir. 1997); MiTek Holdings v. Arce Engineering, 89 F.3d 1548, 1560 (11th Cir. 1996). []
  3. Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). []
  4. See Tim Wu, “Jay-Z Versus the Sample Troll: The shady one-man corporation that’s destroying hip-hop“, Slate (Nov. 16, 2006), for one take on Bridgeport’s operations and these lawsuits. []
  5. 17 USC § 114(b). []
  6. 4-13 Nimmer on Copyright § 13.03. Fellow copyright treatise author William Patry has also criticized Bridgeport’s holding. See The Sixth Circuit Reaffirms Controversial Sound Recording Opinion. []
  7. Interestingly, a New York state court also sided with Nimmer when asked to adopt Bridgeport’s rule in a case involving digital sampling of a common law copyright. EMI Records Ltd v Premise Media Corp, 2008 N.Y. Misc. LEXIS 7485(N.Y. Sup. Ct. 2008). []
  8. 687 F. Supp. 2d 1325 (S.D. Fla. 2009). []
  9. See, for example, Thomas W. Joo, Remix Without Romance, 44 Connecticut Law Review 415 (2011). []
  10. See, for example, Cariou v. Prince: Transforming Fair Use; Seltzer v. Green Day, Nos. 11-56573 and 11-57160 (9th Cir. 2013). []

Obama’s intellectual property chief steps down — A sincere thank you and best wishes to Victoria Espinel, who, it was announced this week, is stepping down from her post as Intellectual Property Enforcement Coordinator. Espinel was the first IPEC, appointed late 2009. Her office released a Joint Strategic Plan in June, detailing its work and goals over the next three years.

The ‘Breaking Bad’ example for why illegal downloading must stop — One of the many ways copyright benefits the public: “Since production began in 2007, “Breaking Bad” has spent an estimated $60 million to $70 million on goods, services and wages for crew members in New Mexico — not counting wages paid to actors, writers and directors.” The same holds true for any other television show or film being made. (And no Breaking Bad spoilers please, I’m still catching up on Netfilx!)

“Open Source” Doesn’t Mean There’s Not a License — Open source and other copyleft licenses are often thought of as alternatives to copyright, but they rely upon copyright to exist. Particularly, the noneconomic control that copyright provides to creators; it’s just that in the case of open source, the control is targeted at such things as limiting commercial use or requiring downstream modifications to be released to the public under similar license terms.

Tun-Jen Chiang: Rehabilitating the Property Theory of Copyright’s First Amendment Exemption — “A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts. There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine.”

The Night Eric Schmidt Joked About Killing Newspapers — “I said to him, ‘It’s going to be on your tombstone: “I killed newspapers.”‘ And he said, ‘No, I love newspapers.’ And I said, ‘But you’re taking all of our money!’ And he said, like a good CEO, ‘It’s our money now.’”

Cross-posted on the Law Theories blog.

As a follow-up to my last post about why copyright is a right and fair use is a privilege, I wanted to respond to some of the issues brought up by people on the ‘net about what I had written. Let me start by saying that I understand that, normatively, some are upset by the very notion that copyright is a full-fledged right while fair use is relegated to being merely a privilege. A right sounds so much more important than a privilege, and it makes fair use sound like some second-class citizen to call it the latter. I think some people dismissed my post completely just based on its title—the reasoning didn’t matter since the conclusions weren’t what those people wanted to hear. I think such closed-mindedness is unfortunate and counterproductive, and if we don’t stop to understand what others are saying—even when we don’t like it—we’re doomed forever to talk past each other.

One person brushed off my post as arguing semantics and meaningless labels, but I think that the feedback I got from both sides of the debate shows that labels matter significantly to people. Besides, why would a person bother to reach out and say that my labels are unimportant unless that person thinks that labels are actually important? Labels matter. For example, I don’t think that Mike Masnick refers to copyright as a “monopoly privilege” because he thinks labels don’t matter. I think he specifically chooses both of those words because of the negative connotations associated with each. There’s nothing wrong with caring about labels, of course, though I do fault those such as Masnick who appear to do so opportunistically and only for rhetorical effect. When discussing legal terms of art, I prefer precision over perception. I don’t get the sense that Masnick feels the same way.

This passage from Professor Tom Bell exemplifies such thinking:

Nonetheless, for right or wrong, copyright represents an exception to the general rule that we can freely speak the truth. It thus won’t do to call copyright simply a “property right.” We should at least append the qualifying phrase, “and an anti-property right,” because copyright’s power comes at the expense of our rights in our pens, presses, and throats. Should we also call copyright an anti-person right? It endures only at cost to our liberties, after all. At any rate, copyright hardly deserves the honorable title, “property”; we would do far better to call it “privilege.”1

Deciding whether something is a privilege based on our own subjective view as to whether the thing is “honorable” strikes me as an imprecise and inconsistent way to classify things. What makes more sense is a system that objectively classifies things, such as Hohfeld’s fundamental jural relations. Those who claim that copyright is a privilege and fair use is a right seem to be basing that view on nothing more than their gut feeling about the relative importance of each. The normative view that fair use shouldn’t be called a privilege because it’s just too important, I think, is based on the erroneous supposition that privileges are somehow less important than rights. Legally speaking, that’s not necessarily the case. This is demonstrated by the fact that a fair user’s privilege trumps a copyright owner’s right.

In fact, many of the “rights” that we hold most dear, guaranteed by the Bill of Rights, are not even rights in the Hohfeldian sense. The “Bill of Rights” should more accurately be called the “Bill of Privileges and Immunities.”2 Some faulted me for not mentioning the First Amendment in my post, but the fact that fair use is imbued with constitutional significance doesn’t change the fact that it’s a privilege. Moreover, I think that people are under the common misperception that the First Amendment creates Hohfeldian rights. It doesn’t. The First Amendment tells Congress that it can’t make any laws abridging the freedom of speech. In Hohfeldian terms, this creates in the government a disability and in us an immunity from laws that abridge our freedom of speech.3

One person expressed concern over the last sentence of my post where I said: “A rightholder, or anyone else for that matter, can make the exercise of a would-be fair user’s privilege as easy or as difficult as he likes—even impossible if he so wishes.” I think the point is rather obvious, but I’ll give an example. If I write a novel on my typewriter, I can take that manuscript and lock it up in my safe. Another has the privilege of making fair use of my novel, even if that privilege is somewhat diminished as the novel in unpublished, but that privilege doesn’t arm the privilege-holder with any sort of legally enforceable claim against me that I make the novel available to him so he can exercise his privilege. I can lock it up forever or loan it to everyone else in the world but him without any liability since I am under no duty of noninterference with respect to the would-be fair user.

This is not to say that the constitutional underpinnings of fair use are unimportant. They are. The immunities granted to us by the First Amendment have significant repercussions when it comes to the privileges we have, such as fair use, vis-à-vis the rights granted to copyright owners. As unnatural as it may seem to the uninitiated, an immunity, or even a privilege for that matter, can be a much more powerful weapon than a right. Great rewards await those who can get past the labels to examine the substances beneath, and to that end, in this post I’ll explain how the First Amendment implications of fair use operate doctrinally.

Ad Hoc Balancing vs. Definitional Balancing

The interaction of copyright law and the First Amendment is a favorite subject of mine, and I’d like to take a step back and discuss the Supreme Court’s current approach to the subject. It’s helpful to start with how First Amendment challenges to speech restrictions work generally. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .” Surely that means that all speech is protected, right? The answer, it turns out, is that not all speech is treated the same way, and, despite the minority view held by some absolutists, the First Amendment does not protect all speech. The tricky part is figuring out whether a particular instance of speech is protected or not.

Take, for example, the Sherman Act, which makes illegal agreements in restraint of trade.4 How should a court proceed if a defendant claims that the agreement he made with his codefendant is speech protected by the First Amendment, even if it’s in restraint of trade? The answer, as is so often the case in the law, is that the competing interests have to be balanced; the nonspeech interests have to be weighed against the speech interests. But where to do this balancing? The Supreme Court has identified certain types of speech that require a court to do a balancing of interests based on the particular facts of the case before the court. For other types of speech, the Court has found that no such balancing is necessary since the weighing of interests has already been done when the statute making that speech unlawful was promulgated. The former approach is referred to as ad hoc balancing, while the latter approach is referred to as categorical or definitional balancing.

Staying with the context of antitrust law, take the example of FTC v. SCTLA.5 There, a group of lawyers who represented indigent criminal defendants in Washington, D.C., agreed that they would not accept any new cases unless and until their fees were increased. The lawyers got their fee increase, but the FTC filed a complaint against them alleging that their group boycott was in violation of the antitrust laws. The lawyers argued that their concerted action was expression protected by the First Amendment. The Court of Appeals for the District of Columbia Circuit agreed, finding that such boycotts were significantly expressive such that an ad hoc balancing of the competing interests presented in the particular case was necessary. The Supreme Court reversed, ruling instead that such boycotts were categorically unlawful:

In sum, there is thus nothing unique about the “expressive component” of respondents’ boycott. A rule that requires courts to apply the antitrust laws “prudently and with sensitivity” whenever an economic boycott has an “expressive component” would create a gaping hole in the fabric of those laws. Respondents’ boycott thus has no special characteristics meriting an exemption from the per se rules of antitrust law.6

Thus, the Supreme Court found that the antitrust laws at issue were balanced against countervailing First Amendment values at the definitional level, and this in turn meant that there was no need to do an ad hoc balancing of the competing interests, taking into account the particular defendants’ interests, as the Court of Appeals had done.

When analyzing a content-based restriction, which limits speech because of the idea or viewpoint conveyed, the Supreme Court has developed a two-tiered approach, separating low-value speech from high-value speech. A court first has to determine if the speech in question occupies a subordinate position in the spectrum of First Amendment values such that it is classified as low-value speech. If so, then that speech receives little or no First Amendment protection. As the Court famously noted over seventy years ago:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.7

Over the years, the Court has added many other types of speech that are classified as low-value, such as express incitement, false statements of fact, commercial advertising, and child pornography. With low-value speech, the Court’s approach is that of definitional balancing where the weighing of competing interests is done at the rulemaking level. Rather than do an ad hoc balancing of a particular defendant’s free speech interests, the Court instead looks at the class of speech at issue as a whole to determine whether it is protected by the First Amendment or not. Take, for example, obscenity, where the Court has established a three-part test for determining whether speech is obscene.8 So long as a law regulating obscenity tracks the Court’s test, a First Amendment challenge of that law will necessarily fail—the First Amendment values have already been balanced by the Court at the definitional level.

The advantage of this definitional balancing is that courts down the road need only to apply the rule without doing any sort of ad hoc balancing based on the facts peculiar to the particular defendant before the court. It’s much easier to apply a general test than it is to consider the free speech interests of any given defendant. If the speech at issue does not fall into any of the classes of low-value speech, then it is high-value speech that receives significant First Amendment protection via an ad hoc balancing of the competing interests. A content-based restriction of high-value speech is analyzed under the rubric of strict scrutiny: The law at issue will be presumed unconstitutional, and it will only be upheld if it is “necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”9

The Supreme Court has also created a framework for analyzing a content-neutral restriction, which regulates speech without reference to its content. The primary example of a content-neutral regulation is a time, place, or manner restriction. For example, a law that regulates the maximum volume of amplified music permissible at a city-owned band shell is content-neutral since, though it regulates speech, it does so without regard to the ideas or viewpoints being expressed. A content-neutral regulation is analyzed under the rubric of intermediate scrutiny: For the law at issue to be upheld, it “must be narrowly tailored to serve the government’s legitimate, content-neutral interests,” though “it need not be the least restrictive or least intrusive means of doing so.”10 This too is an ad hoc balancing of competing interests.

Thus, the Supreme Court’s approach to analyzing the constitutionality of a law that affects speech begins with classifying the law as being either content-neutral or content-based. If it’s content-neutral, then the ad hoc balancing of intermediate scrutiny is applied to it to determine whether the speech is protected by the First Amendment or not. If the speech interests outweigh the nonspeech interests, then it’s protected, and if the nonspeech interests outweigh the speech interests, then it’s not. If the law in question is content-based, the determination has to first be made as to whether the speech is classified as low-value speech or high-value speech. If it’s low-value speech, then the balancing has already been done definitionally at the rulemaking level, and if it’s high-value speech, then the ad hoc balancing of strict scrutiny is applied. I’m greatly simplifying things here, but these are the broad strokes.

Nimmer and the Definitional Balancing of Copyright

So how does copyright law fit into this framework? Professor Melville Nimmer published a seminal journal article in 1970 asking just that question.11 The answer, in Nimmer’s opinion, lay in definitional balancing. Professor Neil Netanel, whose recent law review article I recommended in last week’s Friday’s Endnotes on Copyhype, explains Nimmer’s definitional balancing approach:

Nimmer argued that the tension between copyright and the First Amendment can be satisfactorily resolved, even if it cannot be eliminated. His proffered solution was a method for balancing speech and non-speech interests that he labeled “definitional balancing.” *** As Nimmer described that methodological approach, a court considering whether a given law unconstitutionally abridges speech weighs the non-speech interests that the law aims to serve against the speech interests that the law burdens. Based on that assessment, the court then propounds generally applicable rules governing which types of speech may give rise to liability under the law in question and which must enjoy a First Amendment privilege.12

Nimmer had published a law review article about definitional balancing in 1968,13 focusing on the then-recent Supreme Court opinion in New York Times v. Sullivan where the Court applied definitional balancing to defamation law.14 While we may take the idea of definitional balancing for granted now, at the time Nimmer was writing his articles it was a relatively novel approach to First Amendment jurisprudence. Nimmer’s view that definitional balancing could be applied to copyright law was certainly ahead of its time. Nimmer located the definitional balancing internally to copyright law within the idea/expression dichotomy, the fair use doctrine, and the constitutional fiat that the copyright term be for a limited time. In Nimmer’s view, there was no need to do an ad hoc balancing when analyzing a First Amendment challenge to a copyright law because these internal doctrines already balanced First Amendment values at the definitional level.

Nimmer’s definitional balancing approach to copyright was first adopted by the Supreme Court in its 1985 opinion in Harper & Row.15 The issue there was whether the defendant’s use of a few hundred words from an unpublished manuscript of President Ford’s memoirs was fair use. In the Court’s opinion, the Second Circuit below had correctly noted “that copyright’s idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression. No author may copyright his ideas or the facts he narrates.”16 The Court rejected the defendant’s argument that since the purported fair use involved a matter of great public concern, the traditional fair use test was inappropriate to balance the competing interests:

In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure’s manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use.17

Thus, the Supreme Court declined the invitation to apply an ad hoc balancing to the facts of the case at hand, instead finding that the Copyright Act and the First Amendment were balanced at the definitional level through the idea/expression dichotomy and the fair use doctrine. The Court thus imbued these two doctrines with constitutional significance, and it created a dividing line between speech that is protected by the First Amendment and speech that is not. Speech that is fair use or that appropriates only facts is protected by the First Amendment, while speech that appropriates expression but which is not fair use is not.

But the Court’s adoption of definitional balancing in Harper & Row did not stop many commentators from felling many trees while suggesting that ad hoc balancing was the better approach to weighing free speech interests against those sought to be promoted by copyright. For example, Professors Mark Lemley and Eugene Volokh argued that copyright is “a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a ‘property right’ should not exempt it from conventional First Amendment scrutiny.”18 Since in their view copyright is a content-based restriction, that scrutiny to be applied would therefore be strict. Similarly, Professor Neil Netanel has argued that “under the category approach that has developed since the Nimmer article was published, copyright law constitutes content-neutral speech regulation that should be subject to heightened, but not strict, scrutiny.”19 Netanel would place copyright “within a subcategory of content-neutral speech restriction that courts have subjected to considerably more rigorous scrutiny.”20

The Supreme Court has declined to follow the suggestion made by commentators that ad hoc balancing is the proper way to approach First Amendment challenges to copyright laws, and it has instead continued down the path of definitional balancing first adopted in Harper & Row. The two most recent opinions where the Court has discussed this are Eldred v. Ashcroft in 2003 and Golan v. Holder in 2012.21 I wrote about the First Amendment implications of these two opinions in a prior post.

In Eldred v. Ashcroft, the Court analyzed a First Amendment challenge of the Copyright Term Extension Act (“CTEA”), which extended by 20 years the copyright terms of future and existing works. The petitioners had argued that the CTEA was a content-neutral regulation warranting the ad hoc balancing of intermediate scrutiny. The Supreme Court disagreed: “We reject petitioners’ plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards.”22 The Court reiterated its statement from Harper & Row that the “idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act,” and it again cited the fair use doctrine as providing “considerable latitude for scholarship and comment.”23 In summation, the Court wholeheartedly adopted Nimmer’s definitional balancing:

The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.24

I, and others, have dubbed this the “traditional contours” test. The Court is saying that so long as a copyright statute does not disturb the traditional contours, i.e., the idea/expression dichotomy and the fair use doctrine, then that statute will not be subjected to any sort of ad hoc balancing through the mechanism of heightened First Amendment scrutiny. Instead, the statute is already balanced at the definitional level via the internal safeguards of the traditional contours. Despite being a straightforward statement of the law, the traditional contours test was wildly misconstrued in the commentary, and a flurry of scholarly writing came out wondering what was within the traditional contours and what was without. The view was that if something could be identified as being outside of the traditional contours, then that would trigger heightened scrutiny and its concomitant ad hoc balancing.

Such thinking led to a First Amendment challenge to Section 514 of the Uruguay Round Agreements Act in Golan v. Holder. Section 514 granted copyright protection to foreign works that had previously been in the public domain in the United States. Petitioners argued that pulling works out of the public domain transgressed the traditional contours and thus required the application of heightened scrutiny to Section 514. The Supreme Court rejected the argument:

Given the “speech-protective purposes and safeguards” embraced by copyright law, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case. We reach the same conclusion here. Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense.25

The Court made clear in Golan what it thought it had made clear in Eldred, namely, that the traditional contours only include the idea/expression dichotomy and the fair use doctrine. And since these traditional contours balance the First Amendment with the Copyright Act at the definitional level, no ad hoc balancing through the application of heightened scrutiny is necessary. Thus, the Court’s current approach to a First Amendment challenge to a copyright law is to look at whether the law in question has altered the traditional contours of the idea/expression dichotomy and the fair use doctrine. If not, then the law passes constitutional muster without the need to do any ad hoc balancing, and if so, then ad hoc balancing is to be applied.

Netanel and the DMCA Anticircumvention Provisions

Not surprisingly, since the Court reiterated its statement of the traditional contours test in Golan, commentators have started constructing their arguments to work within that framework. One example is in the recent law review article by Professor Neil Netanel that I mentioned above. In the article, Netanel’s reading of the traditional contours test comports with my own:

Golan strongly suggests that it is by virtue of the idea/expression dichotomy and fair use privilege that copyright law not only is immune from First Amendment scrutiny but also comports with First Amendment requirements. Following Golan, Congress may apparently extend and expand copyright law as it wishes, without giving rise to First Amendment scrutiny, so long as it leaves the idea/expression dichotomy and fair use defense “undisturbed.” But if a Copyright Act amendment were to eliminate, eviscerate, or otherwise disturb the idea/expression dichotomy or fair use defense, the amendment should be stricken down as failing to pass First Amendment muster . . . .26

Netanel qualifies this last statement by noting that such a statute, which alters the traditional contours, wouldn’t necessarily be struck down since “Congress might enact some alternative provision that adequately accommodates constitutional protections of free speech” in the same way the traditional contours do.27 But under the traditional contours test, a statute that alters the idea/expression dichotomy or the fair use doctrine would certainly be subjected to ad hoc balancing under the imposition of heightened First Amendment scrutiny.

Netanel identifies the DMCA anticircumvention provisions as altering the traditional contours since courts have interpreted them to “make no exception for circumventing access controls or hybrid technological-protection measures when needed to engage in fair use.”28 Instead, Netanel notes, courts read the DMCA “to preserve fair use only as a defense to a claim for traditional copyright infringement.”29 As an example of this, Netanel cites the Second Circuit opinion in Universal v. Corley where the court of appeals held that there is no fair use defense to a DMCA violation.30 The Second Circuit there had also stated that fair use is not required by the First Amendment, and Netanel faults the court of appeals for this: “After Golan and Eldred, that statement is no longer good law. As those rulings make clear, the availability of the fair use defense is a necessary condition for copyright law to survive a First Amendment challenge.”31

Netanel is overstating the traditional contours test. The test merely states that the existence of the traditional contours is sufficient to avoid the need for ad hoc balancing. If either of the traditional contours is altered, then a court is to engage in ad hoc balancing via the application of heightened scrutiny. But the traditional contours test does not say, as Netanel suggests, that the existence of both traditional contours is necessary to survive this ad hoc balancing. A statute could alter fair use yet still survive the subsequent application of heightened scrutiny. Thus, Netanel’s suggestion that “the availability of the fair use defense is a necessary condition for copyright law to survive a First Amendment challenge” is mistaken.

Netanel also takes issue with the Second Circuit’s statement in Corley that fair use “has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.”32 “This argument raises a fascinating question,” Netanel posits, that even if “fair use secures a given speaker’s right to copy copyrighted material for a particular use, does that necessarily mean that the speaker is entitled to make a direct digital copy?”33 After stating that the case law offers no satisfactory answer, Netanel claims that “in light of Golan and other cases, the more plausible argument is that there must be a fair use defense to the DMCA anticircumvention prohibition, lest the DMCA run afoul of the First Amendment.”34

In support of this conclusion, Netanel cites a report from the Register of Copyrights which argues that effective fair use may not be possible without perfect digital copies. Moreover, Netanel cites a line of cases where it was held that foreclosing a particular medium of expression burdens free expression and gives rise to heightened First Amendment scrutiny. To this, Netanel argues that anything restrictive of a person’s use of a given technology for the communication of protected speech can give rise to heightened scrutiny as well. Netanel concludes that “the DMCA’s prohibition of the use of circumvention technology needed to engage in effective, constitutionally protected fair use would seem to run afoul of the First Amendment. . . . Under Golan’s definitional balancing approach, fair use copying should enjoy an absolute privilege against liability under the DMCA.”35

I think Netanel’s arguments miss the mark. First of all, the fair use defense codified in Section 107 by its terms applies only to prima facie violations of the rights granted to copyright owners in Section 106: “Notwithstanding the provisions of sections 106 . . . the fair use of a copyrighted work . . . is not an infringement of copyright.”36 The reason courts don’t apply fair use to infringements of other rights, such as the anticircumvention rights granted by the DMCA, is because the violation of those rights is not copyright infringement. Despite fair use not being a defense to a DMCA violation, Netanel is trying to make it one by cleverly sneaking it in the back door. He does this by playing the First Amendment trump card and claiming that the DMCA anticircumvention provisions have altered the traditional contours such that ad hoc balancing is necessary under the test articulated in Eldred and Golan.

The problem with this line of reasoning, I think, is that the DMCA has done no such thing. The traditional contours have not been affected, and fair use is still a perfect defense to a claim of copyright infringement. Part of the problem with Netanel’s approach is that he’s treating fair use as right, as demonstrated by his framing the question he’s trying to answer by presupposing that “fair use secures a given speaker’s right to copy copyrighted material for a particular use.” It does no such thing. As I mentioned at the outset of this post, just because fair use has a constitutional dimension, that doesn’t mean that it’s magically transformed from a privilege into a right in the Hohfeldian sense. It’s still a privilege that negates the duty one would otherwise have not to copy, and it creates in the copyright owner the correlative no-right, that is, the lack of a legally enforceable claim against another should he so copy.

Just because our exercise of the fair use privilege is protected by the First Amendment, that doesn’t mean we can violate the rights of others while making fair use of a given work. For example, think of my manuscript sitting in my locked safe. That the First Amendment protects another’s privilege to make fair use of it doesn’t negate his duty not to break into my safe. Fair use might relieve him of liability for my copyright claim should I sue him for copyright infringement, but it’s certainly not going to excuse him from liability for the tort and crime of breaking into my safe in the first place. The same can be said of the DMCA anticircumvention provisions. Fair use might absolve a person of liability for copyright infringement if he violates my anticircumvention rights and makes fair use of my work, but it’s not going to make his violation of the DMCA anticircumvention provisions disappear. The ends don’t erase the means.

Netanel is absolutely correct to argue that fair use is (or at least can be) speech protected by the First Amendment. The Supreme Court has made that clear in Harper & Row, Eldred, and Golan. I say “can be” because not all fair use is constitutionally protected speech. For example, the Supreme Court’s decision in Sony finding that certain time-shifting was fair use did not turn on application of the First Amendment.37 But just because fair use is speech protected by the First Amendment, it nonetheless remains only a privilege. And as a mere privilege, there is no duty of noninterference in others. A fair user has no legally enforceable claim against those that stand in his way as he attempts to make fair use of a given work. The First Amendment provides the fair user with only a shield, not a sword, and a fair user has but a privilege, not a right.

But this does not mean that a copyright law cannot be or should not be subjected to heightened First Amendment scrutiny, and the funny thing is, I actually agree with Netanel that ad hoc balancing should be applied to the DMCA anticircumvention provisions. I arrive at that conclusion by a different pathway. As I mentioned in my prior post about Eldred and Golan, I think that the Supreme Court has only applied the traditional contours test to statutes, such as the CTEA or Section 514 mentioned above, that define the scope of substantive copyright rights granted by Section 106. This makes sense because the traditional contours, i.e., the idea/expression dichotomy and the fair use doctrine, definitionally balance substantive copyright rights (such as the reproduction right) with countervailing First Amendment values. But when a statute doesn’t define the scope of the substantive copyrights rights—as the DMCA anticircumvention provisions do not—then it makes no sense to say that the statute is definitionally balanced by using reasoning that has been applied only to substantive copyright rights.

Thus, I think Netanel’s intuition that the DMCA anticircumvention provisions need to be subjected to ad hoc balancing is correct. This is so because the definitional balancing applied to substantive copyright rights, such as the reproduction right or the distribution right, tells us nothing about whether other rights, such as the anticircumvention rights, are balanced. Perhaps they are, or perhaps they are not. I also agree with Netanel that some flavor of intermediate scrutiny is appropriate since the DMCA anticircumvention provisions create only content-neutral restrictions. But there’s no need to frame the argument by saying that the DMCA anticircumvention provisions alter the traditional contours for the simple reason that the traditional contours test doesn’t apply to the rights created by the DMCA anticircumvention provisions since those rights are not substantive copyright rights. Like Netanel, I’ll pass for now on doing the actual analysis of whether the DMCA anticircumvention provisions pass the ad hoc balancing of heightened scrutiny, choosing instead to reflect on what the proper test should be for its own sake.

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Footnotes

  1. Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright 110-11 (2010). []
  2. See, e.g., Jay S. Bybee, Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539, 1552 (1995) (“[W]e should observe that the Bill of Rights is not a bill of rights in any Hohfeldian sense, in any sense that people have claims enforceable against the government. Amendments Two through Eight are written as privileges and immunities, while the First Amendment is a disability.”); Scott R. Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation, 18 Geo. Mason L. Rev. 301, 316 (2011) (“Nearly all of the rules we cling to as ‘rights’ against legislation under the U.S. Constitution are really immunities, and many of the ‘negative duties’ we recognize are actually disabilities, because the legal relationships set up in the U.S. Constitution are overwhelmingly secondary rules.”). []
  3. See, e.g., Bybee, 48 Vand. L. Rev. at 1556 (“The First Amendment is a subject-matter disability . . . . [I]t puts a category of laws beyond the competence of Congress. The disability is so complete that Congress is expressly forbidden to enact . . . laws abridging . . . freedom of speech and press . . . . The First Amendment is a rule about rules.”); Restatement (First) of Property § 4 (1936) (“An immunity, as the word is used in this Restatement, is a freedom on the part of one person against having a given legal relation altered by a given act or omission to act on the part of another person.”). []
  4. See 15 U.S.C.S. § 1 (Lexis 2013) (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.”). []
  5. FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990). []
  6. Id. at 431-32. []
  7. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). []
  8. See Miller v. California, 413 U.S. 15, 24 (1973). []
  9. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); see also United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. . . . If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”). []
  10. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). []
  11. See Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1970). []
  12. Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder, 60 UCLA L. Rev. 1082 ( 2013) [hereinafter “Netanel”]. []
  13. Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Cal. L. Rev. 935 (1968). []
  14. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). []
  15. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (1985). []
  16. Id. at 556 (internal quotations and brackets omitted). []
  17. Id at 560. []
  18. Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 206 (1998). []
  19. Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 54 (2001). []
  20. Id. at 55. []
  21. See Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 132 S.Ct. 873 (2012). []
  22. Id. at 218-19. []
  23. Id. at 219-20 (internal quotations omitted). []
  24. Id. at 221 (internal citations omitted). []
  25. Golan, 132 S.Ct. at 890-91 (internal citations omitted). []
  26. Netanel, 60 UCLA L. Rev. at 1102. []
  27. Id. []
  28. Id. at 1114. []
  29. Id. at 1115. []
  30. See Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). []
  31. Netanel, 60 UCLA L. Rev. at 1115. []
  32. Corley, 273 F.3d at 459. []
  33. Netanel, 60 UCLA L. Rev. at 1116. []
  34. Id. []
  35. Id. at 1118. []
  36. 17 U.S.C.S. § 107 (Lexis 2013); I leave aside the application of Section 107 to Section 106A. []
  37. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). []
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