On Thursday, the Second Circuit Court of Appeals decided Viacom v. YouTube (PDF of decision).

The decision has spurred a range of reactions, with both sides publicly claiming a sort of victory; others have stated the decision “is a bummer for Google and the UGC community“, is “mostly good (for the internet and innovation)“, is a win for Viacom, or is a mixed victory.

Regardless, the opinion is sure to be an important decision in the DMCA pantheon for years to come. The influential Second Circuit has interpreted many DMCA safe harbor provisions that affect both online service providers and copyright holders.

In 2007, Viacom sued YouTube for copyright infringement because of unauthorized public performance, display, and reproduction of their works on the video site. A couple of months later, a number of other plaintiffs, including various film studios, television networks, music publishers, and sports leagues filed suit against YouTube with similar claims. These plaintiffs also sought class action certification.

The District Court combined the two suits as related, and in 2010 ruled entirely in favor of YouTube on combined motions for summary judgment.1 The Second Circuit’s decision is a result of both groups of plaintiffs appealing that decision.

Under the Digital Millennium Copyright Act of 1998 (the DMCA), online service providers are immune from monetary liability for copyright infringment as a result of certain activities — the most notable, and the one at issue in Viacom, is the safe harbor for “Information Residing on Systems or Networks At Direction of Users.”2

The DMCA lays out requirements for service providers to qualify for this safe harbor, several of which are germane here. I’ll look at each of them in turn and how they were affected by Thursday’s decision.

Knowledge

First, to be protected by the DMCA, a service provider must not have “actual knowledge that the material or an activity using the material on the system or network is infringing” or “is not aware of facts or circumstances from which infringing activity is apparent.” On this point, the parties disputed over whether this means “a general awareness that there are infringements” on a service — likely indisputable in this case — or rather “actual or constructive knowledge of specific and identifiable infringements of individual items.” On this point, the District Court adopted the latter interpretation, in favor of YouTube.

On appeal, the Second Circuit agreed with the District Court’s interpretation of the DMCA’s knowledge provision but vacated the summary judgment since there was evidence that YouTube may have had knowledge of specific infringing clips. It also held that the District Court failed to examine whether YouTube had been willfully blind to specific infringing clips.

This is perhaps the key issue in the case, especially since the second knowledge prong — awareness of facts or circumstances from which infringing activity is apparent (commonly referred to as “red flag” knowledge) — has largely been written out by courts.3 I don’t believe, in fact, that any court has yet to find that a service provider isn’t protected by the DMCA because of “red flag” knowledge.4

The Second Circuit was mindful of this but focused on the language of the statute to render the first knowledge prong as incorporating an “subjective” standard while the red flag prong reflects an “objective” standard. “Both provisions do independent work, and both apply only to specific instances of infringement.”5

Though the “red flag” prong seems all but superflous in practice, on remand, Viacom and the putative class plaintiffs should argue that it triggers a duty to investigate further. That is, when a service provider becomes aware of facts or circumstances that make infringing activity apparent, it must take affirmative steps to determine the legality of the activity. The Second Circuit didn’t address this issue, but the Ninth Circuit has held the opposite:

Perfect 10 alleges that CCBill and CWIE were aware of a number of “red flags” that signaled apparent infringement. Because CWIE and CCBill provided services to “illegal.net” and “stolencelebritypics.com,” Perfect 10 argues that they must have been aware of apparent infringing activity. We disagree. When a website traffics in pictures that are titillating by nature, describing photographs as “illegal” or “stolen” may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the burden of determining whether photographs are actually illegal on a service provider.

This can’t be correct. In many other situations, the law places a burden on a party to inquire into the actual nature of something when the facts and circumstances make it apparent.6 And this burden-shifting doesn’t contradict the DMCA’s “no monitoring” provision, which only states that safe harbor protection doesn’t require “affirmatively seeking facts indicating infringing activity” (emphasis added) — this duty to investigate would only arise after those facts were known by the service provider.

Willful Blindness

The Second Circuit held that knowledge under the storage safe harbor includes “willful blindness.” Under the common law, consciously avoiding the confirmation of a fact that one is aware is highly probable is a type of knowledge.7 As the court notes, this doctrine is well-established in copyright law in general, but this is the first time the Second Circuit has faced the issue of whether willful blindness is applicable to the DMCA.

It is, though the court limits its application because safe harbor protection in the DMCA cannot be conditioned on affirmative monitoring by a service provider. So on remand, the District Court will need to determine whether YouTube “made a deliberate effort to avoid guilty knowledge”, in addition to the factual questions of whether YouTube has actual or apparent knowledge of infringing clips on its site.

Right and Ability to Control

Second, a service provider is only immune from liability when it “does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” The Court rejected Viacom’s argument that YouTube doesn’t meet this requirement, stating that this “control” provision, like the knowledge provision above, requires “item-specific” knowledge of any infringing activity because “the provider must know of the particular case before he can control it.”

The Circuit reversed the District Court on its interpretation that the “control” provision of the DMCA requires item-specific knowledge — suggesting only vaguely that this question must be determined on a case-by-case basis — and remanded for further fact-finding on YouTube’s right and ability to control and financial benefit.8

But here’s where the court makes what could become a very important statement about the DMCA in the future, and one that hasn’t gotten a lot of attention in much of the initial analyses of the case I’ve read so far. While explaining what sorts of things could lead to a finding that a service provider has a right and ability to control that negates safe harbor protection, the Second Circuit said that inducement of copyright liability might rise to the level of control the DMCA speaks of.

Since the Supreme Court articulated the inducement theory of copyright liability in MGM v. Grokster, many have wondered whether the DMCA safe harbor shields service providers who induce users to infringe on copyright. Some cases have held that the DMCA safe harbors and inducement liability are “inherently contradictory”. In UMG, the Ninth Circuit, without any discussion about the interplay between the two, held the defendant protected by the DMCA against all liability, including a claim of inducement. Similarly, the District Court here granted summary judgment in favor of YouTube for inducement without any explanation.

As far as I know, this marks the first time a Circuit Court has incorporated inducement of copyright as a bar to DMCA safe harbor protection. Its placement in the “control” prong seems to make logical sense, too.

The Scope of ‘By Reason of Storage’

Finally, and this is more of a definitional requirement, immunity only extends to “infringement of copyright by reason of the storage at the direction of a user.” Viacom had argued that several of YouTube’s activities concerning uploaded videos do not fall within the scope of this definition, but again, the District Court rejected this argument.

While the Circuit affirmed that YouTube’s replication, playback, and related video functions were protected by the user storage safe harbor, it recognized that YouTube’s syndication of videos to third parties might fall outside the scope of the safe harbor but hesitated to make a definitive ruling on the point since the record didn’t reveal whether any of the clips involved in the lawsuit had actually been syndicated.

About a year ago, I wrote on this point, noting that chances were slim that Viacom would succeed on this argument, so it is somewhat notable that the Second Circuit recognized at least the existence of an outer boundary to what service providers can do with material uploaded by users while remaining protected by the DMCA safe harbor. It’s still concerning that the Circuit so easily found the other YouTube functions remained within the scope of the safe harbor, in large part because their functionality is “fully automated” — you can program just about anything to be “fully automated.” This interpretation seems to give service providers a “heads I win, tails you lose” position over content creators: one can make a fully-fledged content platform that relies on user-uploaded content that places no liability for copyright infringement since the only responsibility a provider has is to respond to individual takedown notices (pulling in enormous ad revenues), and then seek mercy because it’s too difficult to effectively address infringement due to the sheer amount of data being uploaded.

What’s Next?

For the parties involved, the Second Circuit’s decision is a mixed result on the law. YouTube won on some of its arguments, Viacom and the putative class plaintiffs one on some of theirs. But if the case continues back at the lower court, YouTube will likely ultimately be the loser.

The cardinal sin of Judge Stanton’s original decision wasn’t that he interpreted the DMCA so much in favor of YouTube, but that even under such a narrow interpretation, there was evidence that YouTube could be held liable.

It’s premature to say whether this case could be appealed to the Supreme Court, though that’s always a possibility — and the timing of this decision with the Ninth Circuit’s UMG decision on many of the same points can only add to the speculation.

On a broader note, as attorney Jacqueline Charlesworth points out in a relevant article, “A basic tenet of our law is that one should not encourage others to break it.”

In the adolescence of the Internet, we are seeing complex business models that may combine Grokster-like purpose with other, ostensibly benign functionalities. Services seeking to capitalize on the draw of infringing goods may exhibit superficial respect for copyright concerns—by implementing a takedown program, for instance—yet rest secure in the knowledge that their users will continue to supply the content on which they depend in limitless quantities.

… Courts must resist the invitation to oversimplify reality by arbitrarily dividing the Internet world into “true pirates” and everyone else. Not every pirate is holed up in a garage, has a name ending in “-ster” or spells “wares” with a “z.” Some dress in expensive clothing and have MBAs. Courts need to sort through the facts without prejudging them, and beware pirates in disguise.

There is plenty of evidence that the DMCA has faltered in its 14 year tenure at discouraging bad behavior — witness Megaupload and Grooveshark as recent examples. It remains to be seen whether the Second Circuit’s decision will alleviate building business models around infringement that are shielded by the DMCA safe harbors — which benefit only the service providers— or reach the balance originally intended by the DMCA — benefitting innovative tech companies, content creators, and the general public.

 

Footnotes

  1. The motion for class action certification was subsequently dismissed as moot. []
  2. 17 USC § 512(c). []
  3. See Perfect 10 v. CCBill, “Because CWIE and CCBill provided services to ‘illegal.net’ and ‘stolencelebritypics.com,’ Perfect 10 argues that they must have been aware of apparent infringing activity. We disagree.” []
  4. Greg Jansen, Whose Burden is it Anyway? Addressing the Needs of Content Owners in DMCA Safe Harbors, 62 Federal Communications Law Journal 153, 163 (2010), “To date, no OSP has failed the stringent red-flag test”. []
  5. I’ll note that Congress wasn’t thinking in these terms. In fact, the House Commerce Committe Report on the DMCA said, “The ‘red flag’ test has both a subjective and an objective element. In determining whether the service provider was aware of a ‘red flag,’ the subjective awareness of the service provider of the facts or circumstances in question must be determined. However, in deciding whether those facts or circumstances constitute a ‘red flag’—in other words, whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances— an objective standard should be used.” []
  6. For example, in federal securities law: Dodds v. Cigna Securities, “when the circumstances would suggest to an investor of ordinary intelligence the probability that she has been defrauded, a duty of inquiry arises, and knowledge will be imputed to the investor who does not make such an inquiry”; fraud: Higgins v. Crouse, “[W]here the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him”; apparent agency: Whitney v. Citibank, “[A]bsent awareness of facts indicating that a partner is acting beyond his real or apparent authority, a third party is not obligated to investigate the matter further or search for some limitation on that partner’s authority”; statute of limitations: Kronisch v. US, “[E]ven if plaintiff’s awareness of his injury and its cause … could only be characterized as a mere “hunch” or “suspicion,” plaintiff would still have been under a duty to diligently investigate his claim.” []
  7. Global-Tech Appliances v. SEB, 131 S.Ct. 2060, 68-69 (2011). []
  8. This presents one of the places the Second Circuit diverges from the Ninth Circuit’s holding in the highly similar UMG Recordings v. Shelter Capital Partners. There the court held that the right and ability to control does require “control over specific infringing activity the provider knows about.” []

While laws that protect intellectual property remain strong and enforcement efforts continue, technology has tipped the balance away from the interests of most creators and artists. The ease of distribution of copyrighted content has helped create a generation of people who believe that all content should be free. The notion that artists and creators, and even the big companies that finance, produce and deliver their  creations, don’t have the right to own and control their distribution, simply cannot be.

Jill Lesser, newly appointed Executive Director of the Center for Copyright Information.

Second Circuit Reverses YouTube Decision: DMCA Safe Harbor Might Not Apply — The Second Circuit reached a decision in what will likely become one of the seminal DMCA cases from now on. I’ll have some thoughts on the decision next week.

Robert Levine and Brett Danaher at CMW — A great couple of videos from Canadian Music Week. Free Ride author Rob Levine speaks on the issues he addresses in his book, while economics professor Brett Danaher presents in layman’s terms his recent report that showed an increase in iTunes sales in France after HADOPI was introduced.

Center for Copyright Information Announces Three Major Steps Towards Implementation — The organization in charge of administering the voluntary agreement between ISPs and major content companies to address piracy announced this week it has named its executive director and advisory board, as well as retaining the American Arbitration Association to manage and train the program’s neutral reviewers. The advisory board includes members of the CDT and Public Knowledge — but not the EFF, and they are not amused.

Behind the music: Estonia makes its mark on the musical map — Helienne Lindvall reports on last week’s Tallinn Music Week in Estonia. The three day festival combined raucous rock and roll with reminders of the country’s past as part of the Soviet Union and an eye toward a society that respects and remunerates creators. Lindvall quotes Estonian minister of culture Rain Lang as asking, “Why is it telecoms feel human value can be questioned, but technology can’t?”

Frequently Asked Questions Relating to Copyright (FAQ) — The Copyright Alliance has assembled a helpful guide for artists and creators to learn more about copyright and licensing.

Forget Hollywood — U.S. startups are in dire need of copyright protection — An interesting perspective from Wei Lien Dang at Venture Beat, though artists and creators should find the points raised familiar, such as “Consumer choice should be about actually having to decide between two different options, not two of the same exact thing” and “Clones have the luxury of only having to focus on scaling quickly; innovators have to worry about both product development and scaling their business, making it more difficult for them to enter new markets as quickly as clones.”

Disruptions: Top 10 Lists Lead to Less Choice on the Web — We were told the internet would democratize media and lengthen the long tail. Nick Bilton at the NY Times argues that the opposite could be happening. “Not only are we in a popularity contest. We are in a popularity contest in a hall of mirrors.”

Discussions about copyright sometimes set up a dichotomy between technology and creativity. But is the gap between the two really so great?

Historian Maury Klein notes that the introduction of the word “technology” in its modern sense comes as early as 1829, when Jacob Bigelaw published his book Elements of Technology. Bigelaw defined the term as “the application of the sciences to the useful arts.”

In 1855, George Wilson, Regius Professor of Technology at the University of Edinburgh and first Director of the Industrial Museum of Scotland, gave an inaugural lecture at the University of Edinburgh for its new technology chair. Below is an excerpt from his lecture, What is Technology?

What’s interesting is how he sets up the distinction between technology and the creative arts as a matter of definition. The two fields otherwise have very many similarities and share many of the same purposes. The distinction, thus, is more a matter of semantics than anything else.

Thus far, the meaning of the word Technology is not far to seek, but it must be taken with two important qualifications, to which I now request our attention. The one of these is, that Technology includes only Utilitarian Arts: the other, that it includes only certain of these.

It is by a quite conventional limitation, that the word art, τέχνης, (technes), denoted by the first dissyllable of Technology, is held to signify Useful, Utilitarian, Economic, or Industrial Art, for the Useless Arts, such as Legerdemain, or the Art of Conjuring, are eminently technical, and still more so are the worse than Useless Arts, such as cheating at cards, and other sorts of dishonest gambling.

Nor is the limitation less conventional which excludes the Fine Arts from the domain of Technology; for no Arts call for more skilful workmen than Painting, Sculpture, and Music, and none are more technical in their modes of procedure. Far less are the Fine Arts excluded, because they are regarded as useless or hurtful. The Technologist avoids them for exactly the opposite reason. Poetry, Painting, Sculpture, Music, and the Sister Arts, are in the highest degree useful, inasmuch as they minister to the wants of the noblest parts of our nature; but in so ministering they excite such emotions of pleasure, or its inseparable correlative, pain, that the sense of their usefulness is lost in the delight, or awe, or anguish, which they occasion. So much is this the case, that while men thank each other for the gift of bread when they are hungry, or of water when they are thirsty, or of a light to guide them in the dark, they return no thanks for a sweet song, or a great picture, or a noble statue; not that they are unthankful for these, but that the duty of thanksgiving is forgotten in the pleasure of enjoying, or the strangely fascinating pain of trembling before a work of creative genius.

And the artist himself, singularly enough, in a multitude of cases, makes no complaint at this thanklessness, and counts it no compliment to his work to call it useful. The end of Æsthetic or Fine Art, he will tell you, is the realisation of beauty, not utility; as if the latter were rather an accidental or unavoidable and unfortunate accompaniment of the former, than the welcome inseparable shadow which attends it, as the morning and evening twilight, tempering his brightness, go before and after the sun. But such a description of the aim of his labours, though natural to the Artist, is unjust to his Art. The true object of Æsthetic or Fine Art is not Beauty, but Utility, through or by means of Beauty.

It may be that the Poet, the Painter, the Sculptor, the Musician, often think only of the emotional delight which their works will awaken in the hearts of their brethren. But these works, in the very act of delighting, serve those whom they delight. It is surely as useful a thing, on occasion, to fill the eager ear with music, or the longing eye with the glories of form and colour, or the aching heart with thoughts of joy, as it is to fill the hungry stomach with food, or to clothe the naked body.

Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.

Introduction

Apparently, Google thinks it should be above the law. It hasn’t explicitly said so, of course, but that’s my takeaway from its protest of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act this past January. Specifically, Google thinks that it should be allowed to list rogue sites in its search results without any court having the power to order it to stop. Google’s position strikes me as self-contradictory. On the one hand it says that Congress is “trying to do the right thing by going after pirates and counterfeiters.” On the other hand it says that search engines shouldn’t “be forced to delete entire websites from their search results.” What Google glosses over is the fact that search engines like itself are part of the problem—search engines drive traffic to rogue sites by listing them in their search results. This is why courts already order search engines to delist rogue sites.

The day before the protests, Google provided a written statement to the Huffington Post announcing that it’d be joining the grumblers: “we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet.” Sure enough, the next day Google blacked-out the logo on its home page. When users clicked on the self-censored insignia, they were taken to an information page, “End Piracy, Not Liberty.” From there, a tab led to another page, “More about SOPA and PIPA,” where Google sketched out the reasons behind its opposition. Google’s three main gripes with the bills can be boiled down thusly: (1) it’s censorship, (2) it’ll hurt innovation, and (3) it’s futile. Noticeably absent from this explanation is any acknowledgement that search engines meaningfully contribute to online infringement.

I can’t help but feel cynical. The same Google that unilaterally delisted over 11 million websites from its search results because they were too “spammy and low-quality” thinks it’s wrong that a court should order it to delist even one single site that has been determined to be dedicated to infringement. The same Google that forfeited $500 million to the United States government after it got caught assisting foreign pharmacies in importing illegal drugs thinks it’s OK to assist foreign rogue sites in the commission of online piracy. If Google really thinks that preventing piracy is such a good thing, then why does it want to help rogue sites out by linking to them? As with many things, I think the answer is money—it costs real money to comply with a court order to delist a rogue site. The question is whether any of this should actually be Google’s problem. I think that clearly the answer is, “yes.”

“I Come From Cyberspace”

In his iconic “A Declaration of the Independence of Cyberspace,” Grateful Dead lyricist, EFF cofounder, and cyberlibertarian John Perry Barlow threw down the gauntlet on behalf of cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . Cyberspace does not lie within your borders. . . . Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

Barlow’s quaint and utopian, if not anarchic, vision of cyberspace as existing somewhere untouchable by the “Governments of the Industrial World” never was. Nor would it ever come to be. In fact, in an ironic twist of fate, the “would-be Cyber-Jefferson” Barlow delivered his Declaration on the same day that President Clinton signed the internet-regulating Communications Decency Act into law.1 While cyberspace as a metaphorical place does not lie within any actual borders (and what metaphor ever does?), the same cannot be said for the people that make cyberspace possible—the so-called intermediaries. According to Black’s Law Dictionary (9th ed. 2009), an “intermediary” is “a mediator or go-between; a third-party negotiator.” An intermediary, then, is just a middleman. Cyberspace may be “everywhere and nowhere,” but the intermediaries all dwell in this world of “flesh and steel,” anything but “independent of the tyrannies.”

For netizens, cyberspace’s intermediaries take on familiar forms such as internet service providers, payment processors, content hosts, search engines, and advertising networks. Use of intermediaries in mass communications is nothing new; yesterday’s switchboard is today’s network switch. Without intermediaries, mass communication platforms such as the internet wouldn’t exist. The internet, after all, is just a global network of interconnected intermediaries who host, transport, and organize our data. And given their “essential role in facilitating online communication, intermediaries often are capable of exercising authority over wrongdoers who are otherwise unreachable” for a variety of reasons.2 Instead of circumventing the middlemen, the digital revolution has simply replaced one set of intermediaries with another. The internet’s decentralized structure has, by design, engendered the proliferation of a new set of intermediaries.

There’s no doubt that intermediaries like Google make infringement on the internet possible, for without the intermediaries there’d be no internet to infringe on in the first place. The difficult question then is which intermediaries, if any, should be held responsible for the infringement they help make possible. Should a search engine like Google be liable for infringement that takes place on the rogue sites it links to in its search results?

Common Law Secondary Liability

Copyright infringement is a tort, or a civil wrong. The Copyright Act, in § 106, provides that “the owner of copyright . . . has the exclusive rights to do and to authorize” certain enumerated acts, including making copies, preparing derivative works, and distributing copies. § 501(a) of the Act provides that “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” Thus, only the copyright owner has the right, say, to make copies or to authorize the making of copies, and anyone else who does so is liable for infringement.

Direct copyright infringement occurs when someone, called the primary or direct infringer, is held liable for their own infringing acts. If I unlawfully make copies of your copyrighted work, I’m a primary infringer. Indirect copyright infringement, on the other hand, occurs when someone else, called the secondary or indirect infringer, is held liable as well. If someone else unlawfully authorizes me to make copies of your copyrighted work and I do so, I’m a primary infringer and the party that gave me authorization is a secondary infringer. Even though that other party didn’t personally make the copy (only I did), the law holds them responsible because they played a significant part in my unlawful copying.

The idea of placing liability on someone other than the primary infringer is what’s referred to as secondary liability in copyright law. It’s called other things too, like intermediary liability, indirect liability, third-party liability, or derivative liability. Whatever it’s called, the basic notion is the same: If someone else helps me to infringe, by, say, inciting or facilitating my infringement, then that someone else will be liable for my infringement since they helped to bring it about. The idea of holding responsible those who help others commit unlawful acts is not unique to copyright law. Perhaps more familiar are the similar concepts of accomplice or accessory liabilities in criminal law. If I help you plan a robbery or act as your lookout while you rob a bank, I’m liable because I helped you commit your crime. By making it unlawful to help others commit unlawful acts, we deter people from doing so.

The Copyright Act itself does not expressly provide for secondary liability for infringement. Nonetheless, the Supreme Court has noted that the “absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”3 Indeed, secondary liability concepts in copyright law have been developed over time through judge-made, common law. “Courts have long recognized . . . that one may be held liable for the infringing acts of another.”4 Two distinct branches of secondary liability have been developed: “vicarious liability (grounded in the tort concept of respondeat superior) and contributory infringement (founded on the tort concept of enterprise liability).”5

While it’s true that the Copyright Act doesn’t explicitly refer to secondary liability in so many words, § 106’s grant of the exclusive right “to authorize” in fact indicates Congress’s endorsement of court-developed contributory liability principles. The relevant House Report explains: “Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers.”6 This comes as no surprise, since, as the Supreme Court noted over a century ago, contributory liability is a principle “recognized in every part of the law.”7 The Second Circuit’s formulation of contributory liability is oft-quoted: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”8 Thus, liability for contributory infringement turns on two elements: (1) knowledge, and (2) inducement, causation, or material contribution. So where does Google’s search engine fall within this rubric?

Google’s Secondary Liability

Conveniently enough, the Ninth Circuit addressed this very point at length in Perfect 10 v. Amazon.com.9 There, plaintiff Perfect 10 argued that defendant Google was secondarily liable for infringement occurring on third-party websites because Google provided links to these sites in its search results. The circuit court started its analysis by noting that contributory liability is examined in light of the “rules of fault-based liability derived from the common law,” a principle of which is that intent may be imputed: “Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.”10 Thus, since its intent to encourage direct infringement may be imputed, an actor (like Google) may be liable for contributory infringement if it knowingly takes actions (like linking) that are substantially certain to result in direct infringement by others.

The court of appeals then looked to two cases, Napster11 and Netcom,12 for the application of these principles in cyberspace. In Napster, the Ninth Circuit stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.”13 Similarly, the district court in Netcom held that if an internet service provider knows or has reason to know that material on its system is infringing and fails to remove it, then it is liable for contributory infringement since its failure constitutes substantial participation in the resulting infringement.14 Both cases stand for the proposition that a “service provider’s knowing failure to prevent infringing actions” can be the “basis for imposing contributory liability” since intent to cause the natural result of its conduct may be imputed.15

The Ninth Circuit noted that a central theme of Napster and Netcom is the fact that online services have the ability to drastically amplify the effects of infringing activities. As the Supreme Court noted in Grokster,16 when a service enables individuals to commit infringement on a large scale, the argument for imposing indirect liability on that service is particularly powerful. The court of appeals observed that when a service is used widely to infringe, it is simply not possible for a copyright owner to enforce its rights against all of the direct infringers. Sometimes “the only practical alternative” is “to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.”17 Accordingly, the circuit court held that “a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works yet continues to provide access to infringing works.”18

The Ninth Circuit then turned its sights on Google: “There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials.”19 Thus, the court of appeals held that Google could be liable as a contributory infringer if it: (1) knew that infringing materials were available using its search engine, (2) could take simple measures to remove the links, and (3) failed to do so.

The Ninth Circuit’s opinion comports with the DMCA safe harbor provisions. Under § 512(d) of the Copyright Act, a search engine such as Google is significantly shielded from liability for infringement that occurs via links it provides so long as the links are quickly removed or disabled when the search engine becomes aware that they lead to infringing material or activity. Thus, the DMCA seeks to encourage the delisting of rogue sites from search results by giving search engines safe harbor if they remove links when presented with proper takedown notices (which are deemed as a matter of law to impart knowledge of infringement). This embodies Congress’s judgment that it’s generally a bad thing for search engines to provide links to rogue sites. According to both Congress and the courts, search engines that knowingly link to rogue sites are opening themselves up to secondary liability for the infringement they help bring about. And given that “Google is ranked #1 in the world” according to Alexa’s traffic rankings, its contribution to the problem of online infringement is all the more impossible to deny.

Censorship, Innovation, And Futility

When the argument is properly framed as whether Google should be allowed to substantially assist worldwide infringement via its search engine, its counterarguments about censorship, innovation, and futility fall apart. Google complains that “search engines could be forced to delete entire websites from their search results.” There’s no doubt that under some broad definition of the word, a court ordering Google to delist a rogue site is censorship. But so what? All law enforcement efforts are censorship on some level. The whole point is to censor—that is, to stop—the party that’s unjustifiably causing harm. Google can be forced to “delete entire websites” from its search results because those links are significantly contributing to whatever infringing material or activity they point to. What’s being censored is Google’s excessive role in the problem of online piracy. If Google really thinks that pursuing piracy is a lofty goal, you’d think it’d want to remove its own links to these rogue sites.

Google’s complaint about innovation is equally vapid. It starts with the curious assertion that “internet companies would have to monitor everything users link to or upload or face the risk of time-consuming litigation.” This is simply not so. It is fundamental to secondary liability doctrine that intermediaries “do not take on an affirmative duty to act or to prevent tortious or illegal conduct, but only a duty not to facilitate known wrongdoing.”20 Google has no duty to monitor the links it provides in its search results, and nothing in the Stop Online Piracy Act or the PROTECT IP Act would establish such a duty—in fact both bills explicitly say there’s no affirmative duty to monitor. Google also points to letters from internet companies, venture capitalists, and entrepreneurs making vague arguments about how the bills would stifle innovation generally. But innovators like Google are not exempt from the law, and it’s hard to see how complying with court orders is unduly burdensome for a company like Google that already has such mechanisms in place. Google’s service creates a harm to innocent third parties that is significant enough to warrant holding it responsible for that harm. It’s disingenuous for Google to complain about the cost of eliminating a harm that Google itself is creating.

Google’s final argument is that “SOPA and PIPA won’t even work” since rogue sites will just relocate. Instead, it argues that “Congress should consider alternatives like the OPEN Act” that take a follow-the-money approach. This argument is clearly self-serving. All of the bills (SOPA, PROTECT IP Act, and OPEN Act) target the money supplies of rogue sites. If targeting the money supply is by itself effective, then why does adding the requirement that search engines also delist rogue sites suddenly make the whole thing not work? That makes no sense. Google’s support of the OPEN Act is better explained by the fact that the Act contains no provisions dictating that search engines must delist rogue sites. In other words, the OPEN Act doesn’t make Google responsible for the harm that it chooses to create (and, I assume, to profit from). How very convenient. Google’s complaint here is not about the futility of the bills—it’s about Google’s bottom line. And that’s what all of this hoopla has been about all along, if you ask me.

Follow me on Twitter: @devlinhartline

Footnotes

  1. Alex Kozinski & Josh Goldfoot, A Declaration of the Dependence of Cyberspace, 32 Colum. J.L. & Arts 365 (2009). []
  2. David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 378-79 (2010). []
  3. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). []
  4. Demetriades v. Kaufmann, 690 F.Supp. 289, 292 (S.D.N.Y. 1988). []
  5. Id. (internal quotation marks omitted). []
  6. H.R. Rep. No. 94-1478 at 61; the House Report also endorses common law vicarious infringement, id. at 159-60 (“a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. . . . The committee has decided that no justification exists for changing the existing law . . . .”). []
  7. Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911). []
  8. Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). []
  9. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). []
  10. Id. at 1171 (internal quotations and citations omitted). []
  11. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). []
  12. Religious Tech. Ctr. v. Netcom On-Line Commc’n Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). []
  13. Perfect 10, 508 F.3d at 1171 (internal quotations omitted). []
  14. Id. at 1171-72. []
  15. Id. at 1172. []
  16. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). []
  17. Perfect 10, 508 F.3d at 1172. []
  18. Id. (internal quotations and citations omitted). []
  19. Id. []
  20. David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 505 (2010). []

OnCopyright2012: Advancing the Creative Economy — I’ll be in NYC today at the Kernochan Center for Law, Media, and the Arts for its bi-annual event, OnCopyright2012. According to the site, “the event will explore the various ways copyright issues are impacting publishing, creative services, legal and technology”, and it features an impressive list of participants. Check out the site for live streaming of the event, and, if you’re on Twitter, follow the event with #oncopyright.

Lets play a word game — Dominic Young looks at the parallels between copyright and privacy. “Those who create and share should be able to expect a reward just as those who seek to protect their privacy expect to be able to prevent it being invaded.”

Persons of Pinterest — Last week’s episode of This Week in Law has a good discussion on the copyright and other legal issues surrounding social media darling Pinterest. Guests include Carolyn Wright and Connie Mableson.

Copyright Alert System Revisited — Though the voluntary agreement between ISPs and major content companies to address online infringement was announced last July, it was only in the past couple of weeks that plans to implement the system were announced — sparking a fresh round of “SOPA” cries. But even the Future of Music Coalition reiterates: ” this is not a dangerous or draconian policy.”

Amazon Recommends $17 Book Of Wikipedia Articles To ‘Hunger Games’ Fans — “The largest library in disorder is not so useful as a smaller but orderly one.”1

Mythbusters: ACTA — The Anti-Counterfeiting Trade Agreement, signed by the US last October, has been in the news lately. The Copyright Alliance’s Sandra Aistars dispels some of the misinformation that has been floating around stories about ACTA.

Osborne+ and Schmidt+ say ‘the internet’ = 8.3 per cent of UK GDP — Dubious statistics. Close alignment between companies and politicians. Just another day for Google.

Canard du Jour: Reselling the remix — “On the one hand The Man 2.0 wants to say that the “sharing economy” is a noncommercial use of any copyrights that happen to find their way into the ‘sharing economy’ …  On the other hand, The Man 2.0 wants to extract commercial rents from those user created works … The user gets nothing, an underlying copyright creator gets nothing, and the ‘commercial entity’ gets all the commercial value it can extract.”

Program Your 808 — Just for fun: “A series of informative posters detailing how some of the most notable drum sequences were programmed using the Roland TR-808 Drum Machine.” Geeky and gorgeous. (via Create Digital Music)

Footnotes

  1. Arthur Schopenhauer, Thinking for Oneself. []

Canard du jour:  Do residuals make you lazy? If the age of privacy is over, is the age of royalties over, too? — From time to time, you see a statement made that creators get paid repeatedly for work done once. Chris Castle takes on this silly canard. “Royalties, and especially residuals, are one of the breakthrough egalitarian concepts.  I will create a song for your movie and you can pay me a bit now, but I will retain my right to receive income in the future on exploitations of my works.”

Online publishers need an edge — Concurrent Media takes note of a “key nugget” from this week’s 2012 State of the News Media report from the Pew Center. The Big 5 tech companies — Google, Yahoo, Facebook, Microsoft, and AOL — capture 68% of online ad revenues. As Concurrent Media points out, this highlights the big shift away from a market where the incentive is on producing content to one where the incentive is on tracking and monetizing user behavior.

“Copyright Math” is a Joke — Ken Sanney looks at the recent TED talk by Rob Reid making the rounds about two statistics and the maximum amount of statutory damages available to copyright holders under US law. As Sanney puts it, ” It in no way lives up to the TED Talk’s mantra of presenting ‘ideas worth spreading.'”

A Reply to William Patry — At Barry Sookman’s blog, Dan Glover continues an online discussion with Patry concerning fair use that sprung from an earlier blog post. Interesting and enlightening.

This is why Google is losing the future — Says Bobbie Johnson at GigaOM, “First, the search giant offers a little traffic boost to sites that organize data in certain useful ways. Then it turns the game on its head and — without any notice — starts using that structured data to inform its own services. Finally, with a disturbing inevitability, it launches its own competing product that steps in and replace yours.”

The Case for Ultraviolet— “[E]very industry recognizes its own inherent need to evolve or perish. Leaders and innovators in the content industry firmly and publicly acknowledge the imperative to evolve the current content model to meet the needs and desires of today and tomorrow’s, increasingly sophisticated consumers. What we are witnessing is an established industry with a lucrative, legacy business model adapting to disruption via process evolution. Not every step on the way will be perfectly placed, but this is about creating a long-term, successful partnership.”

OnCopyright 2012 — Next Friday, March 30, the Copyright Clearance Center is holding its OnCopyright conference at Columbia Law School in NYC. Check the link for registration details or to watch a live stream of the event. Full list of participants here.

Last month, the DC Circuit Court of Appeals heard oral arguments that raised constitutional questions concerning the Copyright Royalty Board. Intercollegiate Broadcasting Services (IBS) appealed a Board decision last year, and in its appeal it also argues that the appointment of Copyright Royalty Judges violates the Appointments Clause of the constitution.

The US Copyright Act provides for a number of statutory licenses for certain uses of copyrighted works — sound recording licenses for webcasting or internet radio among them. The rates of these licenses are determined by the Copyright Royalty board, an agency in the Library of Congress comprised of three full-time Copyright Royalty Judges who set rates through quasi-judicial proceedings.

IBS makes the same arguments as previous Appointments Clause challenges to the CRB (I touched on a previous Appointments Clause challenge to the CRB before here): either the Copyright Royalty Judges are “principal officers” and must be appointed by the President with the advice and consent of the Senate, or they are “inferior officers”, but the Librarian of Congress is not a head of a department and thus cannot be given the authority to appoint them. It’s an interesting issue, and if IBS succeeds, there’s a potential for huge ramifications in the online music ecosystem, so I thought I’d provide a closer look.

The Appointments Clause

The Appointments Clause, in Article II of the US Constitution, says:

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The power to appoint government officials is a significant power, and the Constitutional drafters were aware of its potential for abuse from their experiences with England. The first portion of the Appointments Clause represents a compromise between the drafters of the Constitution who wished to vest appointment power in the legislative branch and those who wished to vest it in the executive.1 The compromise represented what was thought to be the best way to preserve political accountability of government officials while also ensuring that well-qualified officers are appointed.

The second part of the Appointments Clause, which addresses inferior officers, was almost an afterthought — added with little debate, most likely for pragmatic reasons.2 Even in the 18th century, it was recognized that requiring Presidential nomination and Senate confirmation for every single government officer would be terribly inefficient.

On its face, the Appointments Clause seems fairly straight-forward. But when you get into its details, it can get tricky. What are “officers of the United States”, “inferior Officers”, or “Heads of Departments”? The Constitution doesn’t contain definitions for these terms. There is plenty of detailed scholarship on these questions, but for the purposes of this article, I’ll stick to how the Supreme Court has defined them.

What are Principal and Inferior Officers?

An “Officer of the United States” is, according to the Supreme Court, “any appointee exercising significant authority pursuant to the laws of the United States.”3 Appointees not exercising such authority could be considered mere employees — the Constitution is agnostic on their appointment.4

The Appointments Clause implies two classes of officers — principal and inferior — though it does not delineate between the two. The Supreme Court has also shied away from enunciating a precise rule to distinguish between the two types of officers.5 Instead, it has identified factors to help delineate between principal and inferior officers. Key among these factors is whether an officer is subordinate to another officer. That is, the question of distinguishing between principal and inferior officers is one of hierarchy — principal officers answer primarily to the President, inferior officers report to principal officers (though, it should be noted, this is only a necessary, not a sufficient, condition).6

What is a “department”?

As with principle and inferior officers, the Constitution doesn’t define “Departments”, nor do contemporary texts, like the Federalist Papers. So how should it be defined?

As a threshold matter, the text of the Appointments Clause suggests, and the Supreme Court has confirmed, that Departments refer only to agencies within the Executive branch of the government.7 But which executive agencies? All of them? Or only some of them?

The Supreme Court has not been entirely clear on its answer to this question. In the 1991 case Freytag v. Commissioner, in an opinion that apparently confused four of the nine Justices,8 the Court limited the scope of the term “Departments” in the Appointments Clause to “executive divisions like the Cabinet-level departments.”

But then in 2010, the Court ignored the majority’s conclusion in Freytag and adopted the concurrence’s broader definition and reasoning without comment.9 It would seem then that, for the purposes of the Appointments Clause, a “Department” is any “freestanding component of the Executive Branch, not subordinate to or contained within any other such component.”

In short, the Appointments Clause gives the President the exclusive power to appoint all those who exercise significant authority under US law. For subordinate officers, the Constitution allows Congress to vest appointment in the President, courts of law, or the heads of freestanding, top-level Executive departments.

The Library of Congress

On Wednesday, December 23, 1801, a motion was made to have the newly created Librarian of Congress appointed by the President instead of the Secretary of the Senate and Clerk of the House, but that motion failed. On the 29th, the bill was reported to the Committee of the whole House with appointment vested in the Secretary and Clerk. However, the final bill, passed on January 26, 1802, provided for appointment “by the President of the United States solely.” I’ve been unable to find any record of when or why this change was made — though it has been suggested that the final bill was merely the result of Congress being unable to agree on a candidate for the position.

The mode of appointing the Librarian of Congress did not completely escape attention over the next few decades. On January 26, 1816, Senator Eligius Fromentin reported that “it is difficult to conceive why an officer of both Houses of Congress, as much so as the Clerk of the House of Representatives and the Secretary of the Senate are officers of their respective Houses, should not be appointed by the authority to which he is amenable,” and proposed that that provision of the original Act be repealed and appointment of the Librarian be vested in the Joint Library Committee. The proposal never passed.

Nevertheless, little else was said about the method of appointing the Librarian of Congress for most of the 19th century — most likely because, while the the Library greatly expanded in size and collections, it still remained, well, a library. That began to change in 1870, when the Library took on copyright functions. Toward the end of the century, Congress began to look at creating a distinct copyright office within the Library.

At this point, it would be easy to assume that Congress simply failed to apprehend any constitutional appointment issue. Yet, as it turns out, the appointment of what would become the Register of Copyrights did provoke substantive discussion — which proves relevant because both the Register and the Copyright Royalty Judges are appointed in the same manner.

The Register of Copyrights

In an 1897 article, the American Library Association reports on some of this discussion.10 The then Librarian of Congress, Ainsworth Spofford, had recommended to Congress in 1895 “that the copyright registry should be separated from the management of the library, and a register of copyrights appointed as an executive officer, with his assistants, distinct from the library staff [emphasis added].” Despite this, a clause in an appropriations bill the following spring called for the register to be appointed by the Joint Congressional Committee on the Library. This led to an extensive discussion in Congress, which ultimately came to the conclusion that such an appointment would be unconstitutional.

The Joint Committee held hearings on the topic during the next Congressional recess. Representatives of the ALA recommended a plan that would have a registrar of copyrights and chief librarian appointed by the joint congressional committee to both serve under a director, “to be appointed in the usual manner for heads of departments, namely, by ‘The President, by and with the advice and consent of the Senate’ [emphasis added].” The appropriations committee disagreed with this proposal and countered with one where the Librarian of Congress would be appointed by the President solely and would then have the authority to appoint the register of copyrights.

The ALA concluded with two observations. First, that the Library of Congress had by then grown into an executive agency: “Congress is therefore either in the unconstitutional position of having to manage an executive branch of the government, or it must relinquish what, for a century past, has been part of its organization.” And second, maintenance of a copyright registry was clearly an executive function, which would make it “unconstitutional for Congress to appoint a register of copyrights.”

In the end, Congress was convinced that the Library of Congress “is an executive department and should be under the control of the executive branch.”11 The final law vested appointment of the Librarian of Congress in the President with the advice and consent of the Senate and appointment of the Register of Copyrights in the Librarian in order to adhere to the Constitution.12

Courts, including the Supreme Court, have implicitly endorsed the constitutional soundness of this arrangement by ruling on regulations promulgated by the Copyright Office13 — a power that only executive agencies can exercise. The Fourth Circuit addressed the issue head on (albeit in dicta) in 1978:

[T]he Office of the Register of Copyrights is not open to any charge that it is violative of the Appointments Clause. The Register is appointed by the Librarian of Congress, who in turn is appointed by the President with the advice and consent of the Senate. By the nature of his appointment the Librarian is an “Officer of the United States, with the usual power of such officer to appoint `such inferior Officers [i. e., the Register], as [he] think[s] proper.” …

The Supreme Court has properly assumed over the decades since 1909 that the Copyright Office is an executive office, operating under the direction of an Officer of the United States and as such is operating in conformity with the Appointments Clause.

The Copyright Royalty Judges

Like the appointment of the Register of Copyrights, Congress had considered constitutional implications of appointing the Copyright Royalty Judges.

The existence of the Copyright Royalty Board can be traced back to the 1976 Copyright Act.14 During its drafting, Congress knew it wanted to increase the number of compulsory licenses available, but it also wanted more flexibility over the license rates than statutes would offer. An administrative body could provide this flexibility.

An early version of the legislation creating this adminstrative body gave the Register of Copyrights the authority to appoint its members. However, at that time, the Supreme Court handed down its decision in Buckley v. Valeo, which held the appointment of members of the Federal Election Commission by Congress was unconstitutional. Some members of Congress expressed concerns that vesting appointment of a copyright royalty agency in the Register of Congress would pose the same constitutional concerns. The final version of the Act created the Copyright Royalty Tribunal placed the appointment of its members in the hands of the President.

For reasons unrelated to appointment, the Copyright Royalty Tribunal was dismantled in the early nineties. Congress sought to replace the full-time tribunal with ad hoc arbitration panels to administer statutory copyright licenses. Again, Congress took care to ensure the new body operated constitutionally:

Congressman William Hughes, the chairman of the House Subcommittee, asked the Congressional Research Service (“CRS”) for its advice. CRS stated that the panels would be constitutional if the person ultimately responsible for the panels’ decision was a presidential appointee or someone who owed his or her appointment to a presidential appointee. Therefore, the panels could be established under supervision of the Librarian of Congress, a presidential appointee, or the Register of Copyrights, a person owing his or her appointment to a presidential appointee.

Although the House Subcommittee received CRS’ opinion that either the Register or the Librarian could be the supervising official, the House Subcommittee chose to make the Librarian the supervising official. There is no record as to why this choice was made. There is also nothing in the record to suggest that Congress saw any added value in an additional layer of review. The only concern voiced was that a presidential appointee, or someone who answers to a presidential appointee, needed to be placed at the head of the CARP system to satisfy the Supreme Court’s ruling in Buckley v. Valeo.15

CARP lasted little more than half as long as its predecessor tribunal. In 2004, the Copyright Royalty and Distribution Reform Act replaced CARP with a full-time Copyright Royalty Board, with appointment by the Librarian of Congress.

Appointments Clause challenges to the CRB

The issue of the appointment of Copyright Royalty Judges made an appearance in two DC Circuit Court cases released within days of each other in July 2009, though in neither case was the issue in front of the court. In SoundExchange v. Librarian of Congress, an appeal from a CRJ determination on satellite radio royalties, Circuit Judge Kavanaugh volunteered his opinion that the appointment of the Board “raises a serious constitutional issue” in his concurrence — though SoundExchange had not raised any constitutional arguments. Judge Kavanaugh seemed inclined to agree with the view that Copyright Royalty Judges “appear to be principal officers — not inferior officers — because they are not removable at will and their decisions regarding royalty rates apparently are not reversible by the Librarian of Congress or any other Executive Branch official.”

The following Monday, the DC Circuit decided Intercollegiate Broadcast System v. Copyright Royalty Board, where an Appointments Clause argument was raised. However, the argument was raised too late, said the court, and was thus forfeited.

It was not until the following February that a court would need to look at the appointment of Copyright Royalty Judges. In Live365 v. Copyright Royalty Board, Live365 asked the DC District Court to enjoin the Copyright Royalty Board from ratemaking proceedings because the Judges were unconstitutionally appointed. The digital radio aggregator argued either that the Copyright Royalty Judges are “principal officers” under the Appointment Clause and must be appointed by the President, or that they are “inferior officers” but the Librarian of Congress is not one of the “heads of departments” who could be authorized to appoint them.

The court rejected both arguments. It determined that Copyright Royalty Judges were inferior officers rather than principal officers because of the “degree and level of supervision exercised over them by the Librarian of Congress and Register of Copyrights.” In additon, it observed that there are “several critical factors that indicate that the Library is an executive department for purposes of the Appointments Clause”, including the fact that “the Librarian is appointed by the President with the advice and consent of the Senate” and “the President, not Congress, has the power to remove the Librarian at will.”

Will IBS Be Successful?

The odds are stacked against IBS ultimately succeeding in its argument. As noted above, no court has yet to be convinced that Copyright Royalty Judges are appointed unconstitutionally.

On whether the Judges are principal or inferior officers, the government lays out a strong case for their status as inferior officers — one that, in my opinion, hews more closely to Supreme Court precedent on the subject. As the government notes in its brief:

The Judges are limited to six-year terms, during which they are subordinate to the Librarian of Congress, a principal officer of the United States appointed by the President with the advice and consent of the Senate. The Judges’ authority is limited to matters relating to the establishment of royalty rates for a small number of compulsory licenses enumerated in the Copyright Act. The Judges are expressly required to “act in accordance with regulations issued by . . . the Librarian of Congress.” Any procedural regulations issued by the Judges themselves, including rules governing royalty ratemaking proceedings, must be approved by the Librarian. The Librarian is authorized to promulgate binding ethical rules and to enforce those rules against the Judges. The Librarian also causes the Judges’ decisions to be published. The Judges lack space or administrative resources, and are wholly reliant on the Librarian for support. And if the Judges find themselves idle between ratemaking proceedings, they may be assigned other duties at the discretion of the Register of Copyrights, who likewise acts under the direction of the Librarian.

As to whether the Librarian of Congress is a head of a department under the Appointments Clause, I believe it is.

The Library of Congress is an executive, not a legislative, agency. The Librarian is appointed by the President, not Congress. The Library’s subdepartments, the Copyright Office and the Copyright Royalty Board, perform executive functions. The executive branch oversees these functions — Congress retains no oversight in the form of a legislative veto or otherwise.

It is called the Library of Congress… but so what? Setting aside the fact that this name is largely vestigial — though the Library was originally intended for use by Congress, it was also open to the President and Vice-President since it was founded, followed by other executive agencies and the Judiciary within a few decades, and eventually open to the public; for over a century there have been those who have argued that it would more appropriately be called the National Library — labels shouldn’t determine constitutional analysis.

In the same vein, the various references to the Library of Congress as a “Congressional agency” in other contexts — IBS cites Keefe v. Library of Congress as an example — carry no legal weight here. “Agency” requires some level of control, and Congress deliberately vested control of the Copyright Royalty Board in the executive branch through the Library of Congress.

I’m not convinced the argument that the Library of Congress is not a “department” within the meaning of the Appointments Clause has any traction either. As noted above, the Supreme Court appears to have backed away from its holding in Freytag that there’s some distinction between the “departments” referred to in the Appointments Clause and other self-contained, non-subordinate executive agencies. And for good reason. It’s difficult to see what constitutional purpose such a distinction would advance. Certainly not separation of power concerns — if we accept that any “department” must still at a minimum be an executive agency, and Congress vests appointment in the Head of an agency that isn’t a “department” under Freytag, it hasn’t encroached on executive power. Other reasons for structuring the Appointments Clause as it is structured, some of which Alexander Hamilton explains in the Federalist 76, also don’t suggest a need to construe “departments” so narrowly.

Footnotes

  1. See Buckley v. Valeo, 424 US 1, 131 (1976); Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 Journal of Constitutional Law 745, 768(2008). []
  2. See Volokh; Andrew Croner, Morrison, Edmond, and the Power of Appointments, 77 George Washington Law Review 1002, 1005 (2009). []
  3. Buckley v. Valeo, 424 US 1, 126 (1976). []
  4. See United States v. Germaine, 99 US 508, 509 (1879). []
  5. See Edmond v. United States, 520 US 651, 661 (1997): “Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes”; Morrison v. Olson, 487 US 654, 671 (1988): “The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. … We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the ‘inferior officer’ side of that line.” []
  6. See Free Enterprise Fund v. PCAOB, 561 US ___, *V (2010). []
  7. Buckley v. Valeo, 424 US 1, 127 (1976). []
  8. Said Scalia in the concurrence, “It is as impossible to respond to this random argumentation as it is to derive a comprehensible theory of the appointments power from it.” []
  9. Free Enterprise Fund v. PCAOB, 561 US ___ (2010). []
  10. I admit that the introduction to the ALA’s article made me chuckle: “The appearance, the week before Congress opened, of seven members of the American Library Association before the joint committee on the Library of Congress in Washington has been the most interesting happening in the library world since the Cleveland conference.” []
  11. 29 Cong. Rec. 318-19 (1896) (Rep. Dockery). Also see William Patry, Copyright Law and Practice, ch. 1 fn. 166 for a comprehensive list of citations to Congressional records on the topic. []
  12. Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545. []
  13. See, for example, Goldstein v. California, 412 U.S. 546, 567-69 (1973); DeSylva v. Ballentine, 351 U.S. 570, 577-78 (1956); Mazer v. Stein, 347 U.S. 201, 212 (1954). []
  14. This section relies largely on CARP (Copyright Arbitration Royalty Panel) Structure and Process, Statement of Marybeth Peters The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary (June 13, 2002) and Frederick Greenman & Alvin Deutsch, The Copyright Royalty Tribunal and the Statutory Mechanical Royalty: History and Prospect, 1 Cardozo Arts & Entertainment Journal 1 (1982). []
  15. Marybeth Peters, CARP. []

A Question of Values — Barry Sookman compares traditional values enshrined in Canadian copyright law with the values pushed by Michael Geist, one of the leading opponents of copyright in the country. Sookman notes, “Geist’s ideological antagonism towards copyright is an extreme departure from traditional values about it… Mainstream thinking about copyright now recognizes that the law of copyright is concerned with finding an appropriate balance between promoting the public interest in the encouragement and dissemination of the works of the arts and intellect and obtaining a just reward for the creator or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated. Accordingly, owner rights and exceptions (sometimes called “user rights”) are given fair and balanced reading that befits remedial legislation.”

Internet con men ravage publishing — Harper’s Magazine publisher John R. MacArthur pens this must-read article:

as much as I object to free content, I am even more offended by the online sensibility and its anti-democratic, anti-emotional,  even anti-intellectual effect. Devotees of the Internet like to say that the Web is a bottom-up phenomenon that wondrously bypasses the traditional gatekeepers in publishing and politics who allegedly snuff out true debate.  But much of what I see is unedited, incoherent babble indicative of a herd mentality, not a true desire for self-government or fairness.

Can it be seriously argued that popular government in America – with our two-party oligarchy, 90 percent-plus re-election rates, and money-laundered politics – has progressed in the age of the Internet?  Have WikiLeak’s disclosures on Afghanistan moved us any closer to withdrawal from that country?  Would American be any less democratic without e-mail?

The Ruthless Overlords Of Silicon Valley — Another must read article; the Daily Beast’s Rob Cox notes how for all its “moralistic hubris”,  Silicon Valley more resembles the Robber Barons of the Gilded Age. He calls attention to some of the practices making this an apt comparison: exploitative manufacturing, indifference to copyright, disregard for privacy, and crony capitalism.

Hollywood’s Role In Innovation… And SOPA — Vivek Wadhwa looks at the sometimes strained but symbiotic relationship between Hollywood and Silicon Valley. Says Wadhwa, “Silicon Valley has yet to inspire great art, and Hollywood has yet to produce great technology. The two communities together, however, have powered the most important cultural movements of the past century.”

Rep. Adam Schiff Discusses the Importance of SOPA — Burbank N Beyond’s John Savageau talks with the Congressman from California on what comes after SOPA. Good discussion on what Schiff sees as “the three forms of opposition to the intellectual property legislation.”

Breaking the Internet, one absurd claim at a time — Dominic Young challenges the use of the phrase that has been “heard with increasing frequency. It is used as a dire threat, a prediction of doom, the ultimate and unimaginably awful unintended consequence of a terrible and naïve mistake.”

What kind of Internet freedom do we want?— Overreach? Helga Trüpel is MEP for the Greens in Europe and a staunch opponent of ACTA and legislation like SOPA, but even she has concerns over the rhetoric and goals of its opponents. She notes, “some elements within the Internet community seem to have a very one-sided concept of freedom. Theirs is the freedom of users who do not want to pay, who are unwilling to pay Web-based companies and Internet service providers a (fair) price for content they need. The campaign to dilute copyright law is not merely a politically motivated appeal for freedom:  it is also being driven by the strong commercial interests of major new Internet companies like Google and Facebook.”

Giving Credit (and Hat Tips) Where Credit is Due — The Copyright Alliance’s Sandra Aistars reports on several new initiatives for ensuring proper attribution of content online. Definitely worth checking out for creators.

Behind the music: Why artists mustn’t be drawn into an MP3 site’s legal fight — “Is it in the best interests of musicians to help the founder of an online music locker in his copyright battle with EMI?” asks songwriter and Guardian columnist Helienne Lindvall. Her answer is an unequivocal “no.”

How The Swedes Fight Piracy — Highly recommended article from Justin Colletti over at Trust Me I’m a Scientist. “Recent developments in Sweden, Holland, and across the globe seem to fly in the face of one of the loudest arguments we’ve heard from big technology companies regarding the protection of artists’ rights. … It turns out that, while challenging, it may not be impossible to enforce artists’ rights on the web after all.”

Copyright bill creates a legal rift — The National Post reports on a scandal involving Canadian copyleftist Michael Geist. More from John Degen in his post The CBA’s Unweeded Garden and Chris Castle in Dissembling on Factiness Six Times Before Breakfast: Is the Geist Scandal Widening?

In Plain English: A Quick Guide to DMCA Takedown Notices — Artists and creators may appreciate this helpful guide from the Copyright Alliance on dealing with online infringement.

Why the Web Hasn’t Hurt TV — Doesn’t really explain why, but this brief article does provide some charts showing that while broadcast audiences have declined over the past two decades, television advertising dollars have not.

People are Actually Buying Music Again — The Consumerist reports on the latest annual report from the NPD Group, giving good news to musicians. Recent increases in music purchasing come as illegal downloading continues to decrease.

Future of Copyright Contest — Check out this contest currently seeking submissions on the topic of the future of copyright (cash prize!). Submissions will be judged by Michael Geist and Piotr Czerski of the We, the Web Kids manifesto, and I assume most of the submissions will have an anti-copyright bent to them. But that doesn’t necessarily have to be so, right? Deadline is April 15th.

Everything is a remix. Information is non-rivalrous. Intellectual works are non-excludable. Copying doesn’t deprive a creator of anything.

Spend enough time reading about or discussing copyright online and you’re bound to have become familiar with statements like these. The increasing popularity of copyright with the general public has brought more attention to these arguments — but don’t make the mistake that these are new arguments.

Case in point: The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, a book that devotes considerable time repudiating fifteen objections that are strikingly similar to ones made today. The book, however, was written over 150 years ago.

The author, Lysander Spooner, was an American anarchist, abolitionist, and legal theorist who lived from 1808 to 1887. The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas was published in 1855 and considered one of the most extensive defenses of intellectual property as a natural right ever penned — it is also one of the earliest uses of the term “intellectual property.”1

The entire volume is too long to post here but well worth a read.2 Instead, I’d like to highlight a few key passages.

Spooner begins with a discussion of the concepts of wealth and property. His assertion that man has a natural right to property in his ideas is similar to Locke’s labor theory of property.3 This is followed by Spooner’s response to fifteen common objections. Though he focuses on ideas, in the context of inventors and patent law, the discussion is generally just as applicable to copyright law and its protection of original expression of ideas as well.

First up is the charge that there can be no property right in ideas because they are incorporeal, or intangible. Spooner concludes:

The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.

The fifth objection Spooner addresses would today be described as the “everything is a remix” objection:

… That the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth. …

The sum of this argument, therefore, is, that authors and inventors have the benefit of all the knowledge that has come down to us, to aid them in producing their own writings and discoveries; and therefore they should have no right of property in their writings and discoveries.

If this objection be sound, against the rights of authors and inventors to their intellectual productions, then it will follow that other men have no right of property in any of those corporeal things, which the knowledge, that has come down to us, has enabled them to produce, or acquire. The argument is clearly as applicable to this case as the other.

It is no doubt true, that the course of events, and the general progress of knowledge, science, and art, do suggest, point to, contribute to, and aid the productions of, many, possibly all, inventions. But it is equally true that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production and acquisition of, all kinds of corporeal property. But that is no reason why corporeal things should not be the property of those, who have produced or acquired them. Yet the argument is equally strong against the right of property in corporeal things, as in intellectual productions. If, because authors and inventors, in producing their writings and discoveries, had the advantage of the course of events, and the general progress of knowledge, in their favor, they are to be denied the right of property in the fruits of their labors, then every other man, who has the course of events, and the progress of knowledge, science, and art in his favor, (and what man has not?) should, on the same principle, be denied all ownership of the fruits of his labor—whether those fruits be the agricultural wealth he has produced, by the aid of the ploughs, and hoes, and chains, and harrows, and shovels, which had been invented, and the agricultural knowledge which had been acquired, before his time; or whether they be the houses or ships he has built, through the aid of the axes, and saws, and planes, and hammers, which had been devised, and the mechanical knowledge and skill that had been acquired, before he was born.

Under the ninth objection, Spooner addresses the equivocating argument against copyright — sure, creators should be compensated for their work, just not through legal protection of intellectual property:

This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that such compensation should be determined, in some measure at least, by the compensation which other men than inventors obtain for their time and labor. And this is the view on which patent laws generally are founded.

The objection to this theory is, that it strikes at all rights of property whatsoever, by denying a man’s right to the products of his labor. It asserts that government has the right, at its own discretion, to take from any man the fruits of his labor, giving him in return such compensation only, for his labor, as the government deems reasonable. …

Those, who talk about the justice of the government’s allowing an inventor reasonable compensation for his labor, talk as if the government had employed the inventor to labor for it for wages—the government taking the risk whether he invented any thing of value, or not. In such a case, the government would be entitled to the invention, on paying the inventor his stipulated, or reasonable, wages. But the government does not employ an inventor to invent a steamboat, or a telegraph. He invents it while laboring on his own account. If he succeed, therefore, the whole fruits of his labor are rightfully his; if he fail, he bears the loss. He never calls upon the government to pay him for his labor that was unsuccessful; and the government never yet undertook to pay for the labor of the hundreds and thousands of unfortunate men, who attempted inventions, and failed. With what force, then, can it claim to seize the fruits of their successful labor, leaving them only what it pleases to call a reasonable compensation, or reasonable wages, for their labor? If the government were to do thus towards other men generally than inventors, there would be a revolution instantly. Such a government would be universally regarded as the most audacious and monstrous of tyrannics.

On the “non-rivalrous” nature of intellectual property:

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. …

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

The rest of the objections are just as familiar to modern audiences. Spooner rebuts the Jeffersonian-inspired argument against intellectual property (“that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas”), the argument that intellectual property belongs to society instead of creators, and the argument that intellectual property is invalid because it is nonexcludable.

A modern update to The Law of Intellectual Property would perhaps only need to add one additional objection: the idea that copyright only “made sense” in a world without digital technology and global communication networks, but those technologies have somehow rendered the law’s foundations absurd. As the book illustrates, however, for as much as technology has advanced, arguments against securing the exclusive rights of creators have stayed remarkably the same.

Footnotes

  1. Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009). []
  2. The work is labelled as “volume 1″ with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume. []
  3. See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010). []
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