Senator Wyden, a vocal opponent of the PROTECT IP Act in the Senate and Stop Online Piracy Act in the House, has criticized the bills by saying that online piracy “is not an issue where we should use a bunker-buster bomb when a laser beam would do.”

But does the OPEN Act, draft language of which was unveiled last week by Wyden and other opponents of the existing bills, resemble the metaphorical laser beam, or is it more like a World War I dreadnought — expensive, unwieldy, and not very suited to today’s world?1

Though I’m encouraged that opponents of the existing bills recognize the harm that online commercial piracy causes creators, I think the OPEN Act resembles too much the latter. The definitions are far too narrow — it’s difficult to conceive of any site, even the most egregiously infringing site — that would fall within their scope. Its shift to the International Trade Commission would require a questionable expansion of federal bureaucracy. The resources required to bring a case in front of the ITC would place the bill’s remedies out of the hands of all but the largest copyright holders. All of this for what would amount to little more than a cease and desist letter to ad and payment service providers.

Some more detailed thoughts and questions about the bill:

Comparison to SOPA and PROTECT IP

SOPA and PROTECT IP provide for both actions by the Attorney General and actions by copyright holders, the OPEN Act provides only for actions by copyright holders. One of the major differences between the bills is venue: while SOPA and PROTECT IP actions would take place in federal courts, the OPEN Act specifically provides for such actions to occur in the International Trade Commission, a quasi-judicial, independent federal agency that specializes in unfair trade practices.

Like the private rights of action in SOPA and PROTECT IP, the right of action in the OPEN Act is limited to remedies against advertising providers and payment service providers.

I find some of the support of this change of venue interesting. For example, the EFF writes:

The International Trade Commission (ITC), an independent agency, would be tasked with investigating complaints from content owners. The ITC’s process, one which is currently used in the patent context, is transparent, quick, and effective. Both parties would have the opportunity to participate and the record would be public. The process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation as well as the ability to challenge any final permanent injunction in a federal court.

This is interesting because there is little difference in theory between this and a federal court. Court proceedings are transparent and effective and provide due process protections. These kinds of statements are overly simplistic, since they gloss over the differences in practice between the ITC and a federal court proceeding.

I have yet to dive into the differences, but it strikes me as premature to declare an action through the ITC as inherently better or more fair than a court action. Federal courts are governed by the Federal Rules of Civil Procedure, administrative agencies have different procedural rules. Both venues have different rules of evidence. Both have different standards for keeping confidential business information accessible by the public.

And is it true that an action through the ITC would be quicker and cheaper than a court action?  According to one article, the average cost of an action through trial at the ITC is $2-3.75 million and takes 15-18 months, while the verge cost of a patent lawsuit through trial in federal court is $3-5 million and takes 2-3 years. It would seem that the ITC is quicker and cheaper, but as the article points out, 95% of patent lawsuits settle or are disposed before reaching trial, bringing the cost and time involved down significantly. Compare that to the ITC, where 40-50% of cases reach trial.


Some critics of SOPA warned that the bill would damage DMCA safe harbors2  — which immunize service providers engaged in certain, specific functions from liability for copyright infringement if they adhere to the provisions of the DMCA.

The OPEN Act looks to address this criticism. It states that a site is not subject to action under the bill if it “engages in an activity that would not make the operator liable for monetary relief for infringing the copyright under section 512 of title 17, United States Code.” This is a roundabout way of saying that if a site qualifies for one of the four DMCA safe harbors cannot be held liable in the ITC.

But what does that mean? The provisions for DMCA safe harbors are complex, and their interpretation has been subject of many court cases since their introduction in 1998. Appeals  dealing primarily with the meaning of 17 USC § 512(c)(1)(A)(ii) — so-called “red flag” knowledge — are currently pending in the Second and Ninth Circuits, for example, and may impact how sites like YouTube must operate in order to remain protected under the safe harbor.

The ITC (as far as I can tell)3  is bound to follow precedent from the Supreme Court — which hasn’t weighed in on the language of § 512 — and the Federal Circuit — which hasn’t either. The ITC would approach the DMCA from a blank slate. Far from being predictable, this means that guessing how the ITC interprets the DMCA is pure speculation.

But this point may be moot, as the OPEN Act also excludes action against sites that have “a practice of expeditiously removing, or disabling access to, material that is claimed to be infringing or to be the subject of infringing activity after notification by the owner of the copyright or trademark alleged to be infringed or its authorized representative.”

This is like a dystopian version of the DMCA safe harbors. A site can be protected under the OPEN Act even if it directly infringes and directly profits off infringement, so long as it “expeditiously” removes material when it is notified. There are also none of the protections of the DMCA — no counter-notification requirement, no provisions for misrepresenting the contents of a notification.

How Different are the Definitions?

The OPEN Act defines an “Internet site dedicated to infringing activity” as one that “has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site to willfully engage in infringing activity.”

Compare this to the definition of an “Internet site dedicated to theft of U.S. property” in SOPA, which would include a site that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement; or a site where the operator “is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the . . . site to carry out acts that constitute” copyright infringement, or “operates the . . . site with the object of promoting, or has promoted, its use to carry out acts that constitute” copyright infringement “as shown by clear expression or other affirmative steps taken to foster infringement.”

SOPA’s definitions have been criticized as being too vague and broad.4 But are the two definitions, though worded differently, really that different?

I wrote earlier how SOPA’s definitions don’t create new liability, only new remedies. Websites that are engaged in the actions described in SOPA would largely be liable for copyright infringment under existing law. SOPA’s definitions explicitly incorporate these principles. The Open Act’s definitions don’t make reference to these principles — but that doesn’t mean they no longer exist.

Here’s one example: under the OPEN Act, action can be brought against a site where the operator “uses the site to willfully engage in infringing activity.” Willful infringement includes both direct and indirect infringement — vicarious and contributory infringement.5 Contributory infringement generally requires that someone has knowledge of direct infringement and materially contributes to the infringement.6 “Knowledge” can mean actual knowledge, but it can also mean willful blindness.7

The Supreme Court has defined “willful blindness” as taking “deliberate actions to avoid confirming a high probability of wrongdoing.”8 In other words, a site operator who “uses the site to willfully engage in infringing activity” can include, by definition, a site operator who is “taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the . . . site to carry out acts that constitute” copyright infringement.”

Speculation? Consider this: less than two weeks ago, the ITC reversed an ALJ’s finding that a manufacturer had induced patent infringement based on the Supreme Court’s formulation of willful blindness.9

Another example of where a site operator can willfully engage in infringing activity is by inducing copyright infringement. DMCA safe harbors don’t protect such service providers.10 Inducement, as described by the Supreme Court in MGM v. Grokster, is promoting the use of a product or service to infringe, “as shown by clear expression or other affirmative steps taken to foster infringement.”

Again, this means that the difference in definitions between the two bills is one of wording: SOPA explicitly incorporates existing principles of liability, the OPEN Act incorporates existing principles implicitly.

More US Control over the Internet?

The following portion of the OPEN Act jumped out at me:

(5) LIMITATION ON INVESTIGATIONS OF DOMAIN NAMES; CONSENT TO JURISDICTION. Notwithstanding any other provision of this section, the Commission may not initiate an investigation under paragraph (1) with respect to a domain name if the operator of the Internet site associated with the domain name

(A) provides in a legal notice on the site accurate information consisting of

(i) the name of an individual authorized to receive process on behalf of the site;

(ii) an address at which process may be served;

(iii) a telephone number at which the individual described in clause (i) may be contacted; and

(iv) a statement that the operator of the site

(I) consents to the jurisdiction and venue of the United States district courts with respect to a violation under section 506 of title 17, United States Code, a criminal offense under section 1204 of title 17, United States Code, for a violation of section 1201 of such title, or a violation of section 2320 of title 18 of such Code; and

(II) will accept service of process from the Attorney General with respect to those violations and the offense set forth in subclause (I); and

(B) upon the filing of any civil action in the appropriate United States district court

(i) for infringement of copyright under section 501 of title 17, United States Code,

(ii) under section 1203 of title 17, United States Code, for a violation of section 1201 of such title, or

(iii) under section 32(1) of the Lanham Act, accepts service and waives, in a timely manner, any objections to jurisdiction as set forth in the statement described in subparagraph (A)(iv).

In short, this portion says that an action can’t be brought against a foreign website if the website owner consents to being sued in the US for copyright infringement. Foreign websites who don’t consent can be sued in the ITC, those who do can be sued in a US court. That means, if the bill passes, a US copyright owner would have the ability to bring legal action against every website in the world.

While I agree that the US and its residents should have some recourse against sites tht engage in US commerce and infringe against US rights, this part of the OPEN Act seems to go overboard in that regard.

Is the OPEN Act Constitutional?

Administrative agencies like the ITC exercise a mix of government functions — executive, legislative, and judicial — but (most) nominally reside in the executive branch. Very few people seriously argue that agencies in general are unconstitutional, but whenever an agency is granted new powers, it’s important to make sure that such a grant is constitutional.

“Separation of powers” and “checks and balances” should be familiar concepts to anyone in the US. Article III of the Constitution establishes an independent judiciary, providing that any judge is appointed for life, keeping judges free from undue influence by the executive or legislative branches.

But the Supreme Court has recognized three exceptions to this rule, where Congress can delegate judicial functions to agencies and courts that don’t provide for life tenure or otherwise aren’t a part of an independent judiciary. Congress can create non-Article III courts to govern U.S. territories, to administer courts-martial, and to adjudicate “public rights.”11

As is often the case, the Court didn’t nail down a precise definition of “public rights.” It merely noted:

The distinction between public rights and private rights has not been definitively explained in our precedents. Nor is it necessary to do so in the present cases, for it suffices to observe that a matter of public rights must at a minimum arise “between the government and others.” In contrast, “the liability of one individual to another under the law as defined,” is a matter of private rights. Our precedents clearly establish that only controversies in the former category may be removed from Art. III courts and delegated to legislative courts or administrative agencies for their determination. Private-rights disputes, on the other hand, lie at the core of the historically recognized judicial power.

A much earlier Court provided some examples of cases involving “public rights”:

Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions and payments to veterans.12

Administrative law judges in the ITC, who would preside over cases arising from this bill, are not Article III judges. The agency doesn’t preside over a U.S. territory or hear cases involving military regulations, so the question is whether cases under OPA involve “public rights.”

The Federal Circuit has heard a constitutional challenge to the ITC involving this question. It upheld the ITC’s authority to adjudicate international patent disputes, saying, “§ 337 and its predecessor provisions represent a valid delegation of this broad Congressional power [the power to regulate commerce with foreign nations] for the public purpose of providing an adequate remedy for domestic industries against unfair practices beginning abroad and culminating in importation.”13

Assuming the Federal Circuit’s reasoning is correct, I still wonder whether it extends to the new powers the ITC would have. For starters, a website engaging in digital piracy is quite different from a manufacturer importing infringing goods into the US. Online infringement involves unauthorized exercise of the exclusive rights of copyright, not commerce — and copyright has historically been adjudicated in Article III courts, not specialized legislative courts.

In addition, there’s less of a case to be made for copyright as involving “public rights” as there is for patent. A patent grant is a quid pro quo with the public: an inventor is given an exclusive monopoly on an invention in exchange for disclosing to the public the methods of the patent. Copyright includes no such quid pro quo — protection is automatically vested upon creation of a work.14

Even if constitutional, at the very least, this expansion of agency powers should raise concerns, especially considering the expense that would be involved. Congress should have a little more to go on than speculation about the effectiveness of an agency approach before devoting considerable time and resources to it.


  1. Wyden’s original metaphor makes little sense to me. On the one hand, “bunker-buster” bombs are used against targets that conventional weapons can’t take out and are designed for high accuracy and minimal collateral damage — precisely the type of remedies creators need online. Laser beams, on the other hand, are currently a long way from being useful as weapons. []
  2. For example, David Sohn of the Center for Democracy & Technology has said, “This is a bill that would eviscerate the predictable legal environment created by the DMCA”; Markham Erickson of NetCoalition has said, “Both bills gut the Digital Millennium Copyright Act (DMCA)”; and Corynne McSherry of the Electronic Frontier Foundation has said SOPA “would also threaten to effectively eliminate the DMCA safe harbors.” []
  3. Generally, courts in common law systems are bound by stare decisis to follow precedent of all courts above them. Since ITC decisions are appealable to the Federal Circuit, I assume the ITC is bound by Federal Circuit decisions, though I haven’t been able to confirm this. []
  4. For example, Ryan Radia of the Competitive Enterprise Institute has said, “The scope of websites encompassed by these provisions appears to be potentially vast”; Parker Higgins of the EFF has said, “the broad definitions and vague language in the bill could place dangerous tools into the hands of IP rightsholders”; Larry Downes of TechFreedom has labelled the definitons as “a new category broadly defined by the bill.” []
  5. See, for example, Sega Enterprises v. Maphia, 948 F.Supp. 923, 936 (ND Cali 1996), finding willful infringement for contributory copyright infringement. []
  6. Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162 (2nd Cir. 1971). []
  7. See In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law… as it is in the law generally.” []
  8. Global-Tech Appliances v. SEB, 131 S.Ct. 2060, 2070 (2011). Coincidentally, Global-Tech was an appeal from a Federal Circuit decision. []
  9. Commission opinion, In the Matter of Certain Ink Jet Cartridges, No. 337-TA-723, pp. 15-16 (ITC, Dec. 1, 2011). []
  10. See Columbia Pictures v. Fung, 2:06-cv-05578-SVW-JC (CD Cali Dec. 21, 2009) “inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business”; Arista v. Usenet, 663 F.Supp.2d 124, 142 (SDNY 2009), “if Defendants … encouraged or fostered such infringement, they would be ineligible for the DMCA’s safe harbor provisions.” []
  11. Northern Pipeline v. Marathon Pipe Line, 458 US 50, 64-67 (1982). []
  12. Crowell v. Benson, 285 US 22, 51 (1932). []
  13. AKZO NV v. US International Trade Commission, 808 F.2d 1471, 1488 (Fed. Cir. 1986). []
  14. See Eldred v. Ashcroft, 537 US 186, 214-17 (2003). []

OPEN Act (OPA) draft language released — The big news in the US this week was the public release of draft legislation for an alternative to SOPA and PROTECT IP. Thoughts? I’ll have a post on the language next week, most likely.

The Mystery Man Behind Megaupload Piracy Fight — As I understand it, Megaupload would not be covered by OPA’s provisions. Kim Schmitz’s marble bathtubs and yachts are safe.

PIPA/SOPA: Responding to Critics and Finding a Path Forward — Daniel Castro of the Information Technology & Innovation Foundation addresses criticisms of rogue sites legislation, paying special attention to technological criticisms of the site blocking provisions of those bills. Highly recommended.

What I Know… Explaining Piracy’s Profit Pyramid — Independent filmmaker Ellen Seidler provides this illustrated guide to how cyberlockers and linking sites profit off misappropriating the work of others. “The only way today’s crop of cyberlockers can be forced to institute similar content ID systems is if their current business model becomes unsustainable.  For that to happen, like Youtube,  they too will need to face the threat of litigation and/or the long arm of the law.   At this point, that puts the ball squarely back in the lap of Congress.”

Internet Piracy: Will SOPA Change the Web as We Know it? — Excellent podcast from KCRW focused on SOPA, with guests from both sides of the debate.

Get To Know a New York City Street Musician: Union Square Edition — Interesting interviews with several street musicians about what it’s like to perform in public spaces.

Workspace: Christine Boylan — I love reading about individuals describing their creative process. Here, screenwriter John August interviews Christine Boylan, a writer and television producer who has worked on Leverage and currently co-produces Castle.

How An All-Christmas-Music Format Doubles Radio Ratings — I did not know this, but apparently the all-Christmas-music-all-the-time format that many radio stations have already switched to is ratings gold.

Last week I began writing about the unexplored history surrounding copyright law and the First Amendment. To sum up: in the past four decades, there has been a lot of scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment. Since then, courts have also dealt with the interplay of the two — most notably the Supreme Court in Eldred v. Ashcroft.

But before than — nothing. Nearly two whole centuries passed from when the Copyright Clause and First Amendment became the law of the land until Melville Nimmer wrote Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press? in 1970.

History gives us very little reason why this is. Discussion and debates surrounding First Amendment’s adoption are “void of any reference to its relationship with provisions of the original Constitution such as the Copyright Clause.”1

As a result, most of the academic attention on the subject has relied on things other than history to examine the perceived conflict. Courts too — Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

I think history can shed some light on this “unbroken practice” of copyright and free speech coexisting.2 Last time, I noted that one of the reasons that may explain why little was said on the subject for nearly two centuries was that a copyright was generally conceived of as a property right, and the liberty of the press did not extend to invasions of property rights.

Is Copyright Law Unconstitutional?

Today, I want to point out a specific claim that is not supported by history.

In a recent post, Stephan Kinsella puts out a version of the claim:

Clearly copyright is form of censorship. Clearly the First Amendment prohibits federal censorship laws. So: the First Amendment later, and thus implicitly repealed the copyright clause. Or at least the copyright act–the way it’s implemented to permit books to be banned and movies burned.

The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tension” between antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional.

Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.”3

Other free speech critics of copyright law, while not adopting the view that the First Amendment rendered the Copyright Clause unconstitutional, use the timing of the two provisions to raise uncertainty in the arena.4 In general, however, speculation concerning the constitutional firmity of Congress’s copyright power is a minority view.5

Respected constitutional scholar William W. Van Alstyne points out that “certainly nothing on [the First Amendment's] face suggests that it in any respect ‘amends’ (that is, displaces) [the Copyright Clause].”6 Later amendments don’t repeal Constitutional provisions unless the repeal is explicit (as with the Twenty-First Amendment) or self-evident (as with the Seventeenth Amendment).7

Freedom of the Press and Copyright Before the Constitution

But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time.

Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation.

Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia,8 Pennsylvania,9 Georgia,10 South Carolina,11 and Massachusetts.12

Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts13 while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution.14

So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.


  1. Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 n.28 (2010). []
  2. To be clear: right now I’m only seeking to describe the historical relationship between copyright and free speech, not make any arguments about how courts and policy makers should treat the relationship today. I think history can inform the approach to that relationship, but I don’t want to give the impression that I’m arguing that “this is how it was, so this is how it should always be.” []
  3. David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986). []
  4. See, for example, Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies? 67 Washington and Lee Law Review 831, 839 (2010). []
  5. “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002). []
  6. Reconciling What the First Amendment Forbids With What the Copyright Clause Permits: A Summary Explanation and Review, 66 Law and Contemporary Problems 225, 226 (2003). []
  7. See Joseph Blocher, Amending the Exceptions Clause, 92 Minnesota Law Review 971, 980-82 (2008). []
  8. “XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” Virginia Declaration of Rights, June 12, 1776 (Virginia Copyright Act, October 1, 1785). []
  9. “XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Pennsylvania Constitution of 1776, Declaration of Rights, September 28, 1776 (Pennsylvania Copyright Act, March 15, 1784). []
  10. “Article LXI. Freedom of the press and trial by jury to remain inviolate forever.” Georgia ConstitutionFebruary 1777 (Georgia Copyright Act, February 3, 1786). []
  11. “XLIII. That the liberty of the press be inviolably preserved.” Constitution of South Carolina, March 19, 1778 (South Carolina Copyright Act, March 26, 1784). []
  12. “Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth.” Constitution of the Commonwealth of Massachusetts, October 25, 1780 (Massachusetts Copyright Act, March 17, 1783). []
  13. New Hampshire — “Article 22. The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved.” New Hampshire Constitution, June 2, 1784 (New Hampshire Copyright Act, November 7, 1783); and North Carolina —  “16. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.” North Carolina Ratifying Convention, Declaration of Rights and Other Amendments, August 1, 1788 (North Carolina Copyright Act, November 19, 1785). []
  14. Connecticut, which passed the first colonial copyright act, operated under the 1662 Charter of the Colony of Connecticut until 1818. Rhode Island similarly operated under its 1663 Royal Charter until it adopted a constitution in 1842. Maryland, New Jersey, and New York did not expressly mention freedom of the press in their original constitutions. []

Last week I ran a post collecting a number of pieces that quoted John Philips Sousa and Jack Valenti.

The argument in many of the sources (though not all) goes something like this: The content industry, the entertainment industry, the copyright industries — and by extension the artists, authors, and creators who make their living producing expressive works — fail to see the opportunities presented by new technologies. The history supposedly shows a consistent line of opposition, and the implication is that any current attempts to ensure that the exclusive rights of copyright are accounted for as technology progresses are merely attempts to use law to prop up outdated business models instead of adapting.

And, it seems, a 100 year old quote from a march composer and a 30 year old quote from the president of a film trade association are sufficient proof for this argument.

I’m always skeptical of such broad claims. If you look at history, you’ll find that this story is little more than an apologue, used to add historical weight to influence present day debates. History is useful to the present — but if it is to play a role in debates over copyright law, a more objective history is needed.

Piano rolls and Gramophones

Toward the end of the 19th century, two innovations brought music to the masses: self-playing instruments (primarily player pianos and organs) and recorded music. Prior to this, you could only hear someone else’s song when it was performed by you or someone else.

Most songwriters and composers recognized the opportunities these innovations provided: the audience for their music now included everyone, not just those who had learned to play an instrument. However, at the time, copyright law did not address whether a reproduction of a work onto a mechanical device like a player piano or phonograph was within a composer’s exclusive rights.

In England, in 1899, a committee of the House of Lords held hearings on updating the copyright law of that country. Edwin Ashdown, of the Music Publishers Association, summed up what the issue that would prove to be at the heart of every dispute involving new technology over the next century:

We do not wish to prohibit this thing utterly; altogether we wish the sellers to pay a royalty on every copy they sell. … It is only fair to the owner of the copyright… and I believe these people are sufficiently honourable to pay a royalty if it is imposed, but they want the question settled. If they can do without paying a royalty they prefer it.1

Indeed, there was no question that the manufacturers of these devices wanted songs that could be played on them: the value of the “hardware” was dependent on the availability of the “software.” But like any business, or anyone for that matter, given a choice between paying for something and not paying for something, they much prefer the latter. The opposition from publishers and composers was not based on fear of innovation.

As Ashdown said earlier in the hearings, “It is not the instrument, it is the things you buy after you have got the instrument that we wish to provide against.”

The question of whether by law composers had exclusive rights over mechanical reproduction was unsettled in the US as well. But not every manufacturer took that as an opportunity to keep from compensating the composers that made their devices so valuable to the public. By the turn of the century, the Æolian Company, which manufactured player organs, was regularly signing licensing deals with music publishers who were happy to embrace the new technologies.2

A 1908 Supreme Court decision placed mechanical reproductions outside copyright law.3 Congress responded in 1909 by amending the Copyright Act to include mechanical reproductions. Did this kill recorded music? Just the opposite: jazz, blues, rock, country, hip-hop — the 20th century has been a phenomenal one for music, all easily accessible by any member of the public.


The invention of radio developed through the late 19th century and early 20th century, and by 1920, the first radio stations were regularlly broadcasting in the US.4

Music was a big part of radio from the start. E.C. Mills, chairman of the Music Publishers Protective Association and later member of ASCAP, noted music’s role in the industry:

You can broadcast but one thing—sound. Would it be possible to broadcast the sound of the steam hammers working on an iron building, or the traffic in the streets, and make it entertaining to the people? The two sounds that are interesting in the popular sense— and all the sound that comes over the radio is not interesting; the static holloas in my ears every now and then—the two sounds that can be broadcast are the spoken word in the interesting lecture, information, news, crop reports, market reports, etc., and the melody and harmony of music. Without music broadcasting in its popular phases could not exist.5

The introduction of radio broadcasting coincided with a drop in recorded music sales.6 And, as when phonographs were first introduced, copyright law was unsettled as to whether a copyright owner had control over the broadcast of his music.

But that’s not to say musicians and songwriters opposed radio. Mills, testifying in front of Congress, said flat out:

I am a radio fan; I don’t know but what it is going to bring a divorce into my family. We think that radio is the greatest contribution that science has ever made to man, that it will bring about a universal language, that it will make wars impossible, that it will make the fanner happy, and that in general it will render the greatest service to human kind of anything that has ever been conceived. That is what we think about the radio.

In a 1922 article for Popular Radio magazine, Mills repeated these sentiments:

Radio has developed in such an amazing and spectacular manner that it promises to become the greatest factor the world has ever known for the dissemination of information and education of the whole people. The position of musical copyright proprietors, including authors, composers and publishers, is now and will be in the future to lend their support to any cause or purpose which promises so much for mankind’s benefit, and they therefore do not oppose radio, nor would they handicap or hamper its logical development.7

Others who represented musicians were even more embracing of the new medium. M.E. Tompkins, of the Music Publishers Association, said:

Our Committee has been carefully investigating the broadcasting of copyrighted music since last November. In our report, just adopted by the Association, we point out that music publishers are vitally interested in radio broadcasting as a great future user of music and that our rights in the use of our copyrighted music in public performances must be protected. However, we appreciate the fact that radio broadcasting is stillin a chaotic and experimental state and that, while ultimately it will have to be placed on a commercial basis if it is to develop its potentialities, nevertheless the commercial side of the broadcasting problem has not yet been solved.

In view of these facts and also because we desire to co-operate in developing the music possibilities of radio, we believe that we should allow the use of our copyrighted musical compositions for broadcasting without charge for the present, and without prejudice in our rights.8

Recording labels, still new to the world, were also generally welcoming of the opportunities radio provided their artists. While some were reluctant to let their performers broadcast, primarily because of concerns over the quality of the sound, others were eager.

An article in The Wireless Age from 1923 quotes H. A. Yerkes, assistant general manager of Columbia Graphophone Company, as saying:

We have no set policy directed against radio. In fact, we have urged that our exclusive artists sing for the radio whenever possible. We have even made arrangements for them to do so in certain cases. You can take the Columbia catalogue and go through it and you will find that nearly all the big names in it have been heard by radio.

The article notes, “H. B. Schaad, Secretary of the Aeolian Company made it plain that no unfavorable influence upon the Aeolian business has been noted and that in consequence, cooperation with broadcasters has been determined upon as the present policy of the company. Many prominent artists who have made Vocalion records or Duo-Art reproducing piano rolls have been heard on the air not only through their records and rolls, but personally.”

Otto Heinemann, president of the General Phonograph Corporation, which ran Okeh Records, said:

Radio has a very beneficial effect on the sale of phonograph records.

People who hear the latest hits by radio of course want to hear them again, and they do not want to have to wait until they are sent out again by a broadcasting station. They want to be able to play them at will. And so they go out and buy the records of those hits, and especially the records made by the artists who have played those hits by radio.

That is why we have been making all possible arrangements to have our artists broadcast the latest song and dance hits by radio. We know that it helps the sale of records. There is no doubt about it at all.

The broadcasting stations have been most generous in cooperating with us, welcoming our artists, and even in many cases announcing that they are Okeh artists. This is very beneficial indeed. I think radio is now a very important factor in the sale of new records.

Finally, A.H. Curry, general manager of Thomas A. Edison, Inc., said:

While no definite campaign has been undertaken, the company has in a few instances aided its artists to get on the air through radio. It appreciates the enormous publicity value to be obtained in this way, and it has called the attention of its performers to the advantages of radio broadcasting.

Like the phonograph, what conflict arose due to the introduction of radio wasn’t from fear or failure to recognize its opportunities. It was due to the simple fact that copyright owners have exclusive rights, and those rights should continue to be recognized no matter what technological advances come along, especially if the new industry is benefitting and profitting off the work of others.

E.C. Mill’s colleague Gene Buck, then president of ASCAP, summed up the position of composers this way:

I want to put into this meeting the sense that every member of this organization and myself have a deep respect and a great regard for radio. We have because we always want to go on record and say it is one of the greatest blessings put into the homes of this country. But, gentlemen, the men who take our material and broadcast it and derive a profit from broadcasting must pay the composer, because if they do not you are going to destroy the initiative.9

The radio industry resisted any efforts to provide for compensating composers, however. In 1924, the US Senate held hearings on a proposed amendment to exempt radio from having to license public performance rights for the music they played. The hearings were replete with dire predictions that having to pay composers would put an end to the radio industry.

One contemporary magazine article noted, “Radio broadcast flashed conspicuously in the national limelight this week. Not less than 15,000,000 persons are taking an active interest in connection with rapid developments taking place regarding broadcasting in relation to ‘freedom of the air.'” The same magazine included a petition that promised “Every effort is being made through the National Association of Broadcasters to keep the air free and untrammeled by trust control and commercialism.”10

Songwriter and ASCAP founder Victor Herbert saw through these claims. During the Senate hearings, he remarked:

A few years ago the phonograph companies came here with practically the same claim, that we were going to ruin them, just as the radio people have come to-day. We must have protection. Instead of taking away from what we have now and what the Constitution of the United States gives us, you should give us more, because that stimulates creation. You protect everything else. You protect trade; you protect the farmers; you try to protect everybody.

The bill failed to pass. A series of court cases in the mid 1920s established that a radio broadcast of music was a public performance, thus within the composer or publisher’s exclusive rights.11

Did the broadcasters’ claims that compensating songwriters would ruin them come true? Not at all. In 1926, it’s estimated that only 1 in 5 households had radio; in less than 10 years, radio had reached 2 out of every 3 households.12 Even today, with many competing media, 93% of the US population (12 years old and up) listens to terrestrial radio at least once a week, with an average listening time of over 15 hours a week.13


I’m including television here even though its introduction wasn’t accompanied by the same types of copyright disputes as the phonograph or radio. Yet it certainly was a disruptive technology — television took audiences away from movie theaters.14 It should be a perfect place to find evidence of the content/entertainment/copyright industry’s opposition to new technology.

In 1928, Popular Mechanics ran an article called What Television Offers You, where it interviewed a number of those involved in the nascent industry, including Dr. Lee De Forest, inventor of the radio tube. The author of the article also spoke to several in the entertainment industry about their thoughts on the new technlogy. Harry M. Warner, president of Warner Brothers Pictures, had this to say:

Dr. De Forest is absolutely correct in his statement that theater owners have nothing to fear from television. Television will no doubt be an advancement in transmitting photography, but to affect an industry which supplies entertainment is out of the question. On the contrary, should this invention be successful, it will be the greatest help to places of entertainment by stimulating interest directly in the home.

Carl Laemmle, founder of Universal Pictures, shared Warner’s opinions:

In the twenty-two years I have devoted to motion pictures I have never seen the time when science and invention damaged the industry. On the other hand, I have seen the business elevated to an art largely through the help of inventive genius. Therefore, whether television and radio movies are years away or just around the corner, I predict that, when they do come, they will prove a blessing and not a curse, and I sincerely urge those who may be panicky to remember that progress cannot possibly harm them. The very thought that these new wonders may at some time be perfected gives me a thrill of pride and greater confidence in the moving-picture industry.

Companies like Warner Bros. and Universal Pictures, which are still in the business of making movies, wouldn’t have survived nearly a century that was witness to some of the most rapid technological advancement if they failed to appreciate the opportunities of innovation.

Part 2 will look at Cable TV, the VCR, and beyond.


  1. Report from the Select Committee of the House of Lords on the Copyright Bill, pg. 50 (1899). []
  2. Hearings before the Committees on patents of the Senate and House of representatives on pending bills to amend and consolidate the acts respecting copyright, pg. 221 (1908). []
  3. White-Smith Music Publishing v. Apollo, 209 US 1. []
  4. Wikipedia, History of Radio. []
  5. US Senate Patents Committee. Hearings to amend the Copyright Act, pg 73 (1923). []
  6. Stan J. Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry, 1 Review of Economic Research on Copyright Issues 93 (2004). []
  7. E.C. Mills, A Public Performance for Profit? Popular Radio, pg 208 (May 1922). []
  8. “Standard” Works are Free, Wireless Age, pg. 29 (June 1923). []
  9. Id. Hearings pg. 60. []
  10. Id. Hearings pg. 94. []
  11. See The Story of John and Jack. []
  12. Id. Liebowitz at 107. []
  13. Arbitron, Radio Today 2010. []
  14. Id. Liebowitz pp. 99-103. []

2011 ABA Journal Blawg 100 — I am deeply honored to learn that this site has been selected as one of the top 100 law blogs of the year by the ABA Journal. From the description:

“Terrence Hart’s Copyhype has rapidly established itself as one of the best copyright blogs on the Web,” writes Ben Sheffner, author of the Copyrights & Campaigns blog, which is on hiatus. The site’s clean and spare design echoes the fine print of a contract, and this is fine print you’d actually enjoy reading. Its column Friday’s Endnotes links and summarizes the week’s most relevant copyright news.

You can also vote for your favorite blogs out of the top 100 until December 30th. If you enjoy this site, I hope you cast your vote — Copyhype is in the “IP Law” category.

Copyright Digitization and Public Access Project Blog — The US Copyright Office this week started a blog for its digitization project, “a long term effort to convert non-digital records of copyright ownership and transfers and assignment of rights and to make them widely available online via the web.” The first post lays out some of the challenges of bringing over a century’s worth (nearly 70 million) of copyright documents online.

Court OKs Private Seizure of Domain Names Which Allegedly Sold Counterfeit Goods–Chanel, Inc. v. Does — Eric Goldman reports on a federal court’s recent grant of a preliminary injunction against 200 domain names alleged to be engaged in the sale of counterfeit Chanel goods. The twist: the court order mimics the type of relief that parts of the proposed Stop Online Piracy Act would have provided for. Notably, the court ordered third parties to redirect the domain names and de-index or remove the sites from search results.

ACI Survey Finds Consumers Support More Protection against Pirated Goods and Content — Counterfeit Goods Cited as Reducing Jobs; Harming the Economy — According to the recent survey, “82% of consumers agreed (including 58% that strongly agreed) that protecting copyrights, trademarks and patents of artists, authors, manufacturers and inventors encourages innovation and creativity, while only 10% disagreed (either somewhat or strongly) with that statement.

British Library newspaper archive puts 300 years of history online — Four million pages from 200 local and regional newspapers in the London area, spanning back to 1700 are now digitized and accessible online. The massive project is expected to be completed in 2020, with over 650 million articles eventually available. Search is free, though there are fees for accessing the actual images.

Defending SOPA — Rep. Lamar Smith, sponsor of the Stop Online Piracy Act, rebuts criticisms of the bill. “The bill defines rogue sites as websites that are dedicated to the facilitation of the illegal sale and distribution of counterfeit or pirated goods. Websites like Facebook and YouTube that host user content are not ‘dedicated to’ illegal activity and they certainly do not make a business out of ‘facilitating’ the illegal sale and distribution of counterfeit or pirated goods. But if a user posts illegal content on a website like Facebook or YouTube, current law allows rights holders to notify the website to remove the illegal content.”

The End of Free: Web 2.0 Will Squeeze Punters Rotton — Andrew Orlowski notes several good reasons why the Internet free-for-all won’t last forever. “When half a billion people spend more time on Facebook than they do watching TV, Facebook’s current revenue strategy looks miserly and foolish – it makes no sense to leave so much consumer surplus on the table. Businesses are not charities, remember, and nor are their investors.”

Alternative online piracy bill floated — Opponents of SOPA have recently released a draft proposal for alternate rogue sites legislation. The draft suggests remedies similar to SOPA — sans site blocking — but with cases initiated in the International Trade Commission, a US independent agency. More on this when draft legislative language is released.

Accessories after the fact — Though it believes it could use some tweaking, the Economist thinks SOPA is worth fixing. “No matter what the ‘content-should-be-free crowd says, copyright theft robs artists and businesses of their livelihoods.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-John Philip Sousa on the Player Piano (1906)

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

-MPAA on the VCR (1982)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Everyone wins when copyright law adapts to new technologies

Did you catch it?

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

The Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

Why is this?

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

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

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

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

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

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

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

Literary Property

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

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

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

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

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

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

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

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

Liberty of the Press does not Limit Copyright Injunctions

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Only two years later, Supreme Court Justice Thompson said in his dissent to the seminal opinion in Wheaton v. Peters, “In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.”2

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

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

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

Copyright Online

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

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

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

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

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

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

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

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

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

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

Copyright Law and Freedom of Expression

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

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

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

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

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

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

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

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

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

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

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

Due Process

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

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

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

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


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

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


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