Happy 2012 everybody!

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

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

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

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

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

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

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

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

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

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

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

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

Freedom of the Press Goals and Purpose

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

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

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

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

A Free Press Promotes Knowledge

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

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

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

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

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

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

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

Copyright Promotes Knowledge

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

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

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

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

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

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

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

Patronage

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

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

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

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

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

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

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

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

Copyright: a Critical Component of a Free Press

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

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

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

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

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

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

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public.4

The Engine of Free Expression

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

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

Footnotes

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

I’ll be taking a holiday break from blogging, so this will be the last post of 2011. A big thank you to all my readers for a great year.

Small Copyright Claims Request for Comment — “The U.S. Copyright Office is undertaking a study at the request of Congress to assess whether and, if so, how the current legal system hinders or prevents copyright owners from pursuing copyright infringement claims that have a relatively small economic value (‘small copyright claims’); and recommend potential changes in administrative, regulatory, and statutory authority to improve the adjudication of these small copyright claims.” Public comments are due January 16, 2012.

My DNS Filtering Research before House SOPA Panel — Engineer George Ou explains why the main assertions against DNS filtering are generally incorrect. In large part, they are non-technical arguments couched as technical arguments.

Myth Versus Fact: Debunking Dishonest and Inaccurate Claims Against Congressional Legislation to Stop Online Piracy — The Center for Individual Freedom’s Timothy H. Lee takes aim at fallacious claims used to oppose rogue sites legislation.

Robert Levine Tells the Rest of the Story — Bill Rosenblatt presents a thorough and compelling review of Free Ride. “Lobbying organizations’ modus operandi is to rally people and organizations around messages that elicit contributions.  Messages like “keep the Internet free and open” and “fight censorship” resonate with the public, especially when they align with getting content for free.  When a company like Google funds these organizations, the effect is to put a positive PR spin behind activities that benefit those companies — a spin that the likes of the RIAA and MPAA don’t enjoy (to put it mildly).”

Land of the “Free” — Ken Sanney asks, “Could the communal view of intellectual property advocated by such corporate giants as Google be pushing America from a heavily individualistic ownership culture to a more communal ‘Europeanized’ culture?”

ASCAP’s 10 Must-Read Career Development Articles from 2011 — Ten informative articles for songwriters, though many would be just as helpful for musicians and recording artists in general.

2011 Year in Review: Best of Art — Design Milk brings their own ‘best of’ list, devoted primarily to graphic design.

Artists that called it a day in 2011 — Paul Lamere has compiled a near-comprensive list of musicians and recording artists who have stopped making music this year, whether by passing away or retiring.

The 20 Unhappiest People You Meet In The Comments Sections Of Year-End Lists — Required reading before looking at any year-end lists. “3. The Person Who Is Exactly Right. ‘It really seems like this list of things you thought were good is just your opinion.'”

Merry Christmas and Happy Holidays!

Yesterday, the Ninth Circuit held that video sharing site Veoh is immune from copyright liability under the DMCA in what will likely become a seminal ruling for copyright and the internet.

Plaintiff Universal Music Group had asked the Circuit Court to reverse the lower court’s holding that Veoh qualified for the DMCA safe harbor on several grounds:

  • “[T]he alleged infringing activities do not fall within the plain meaning of ‘infringement of copyright by reason of the storage [of material] at the direction of a user'”
  • “Veoh had actual knowledge of infringement, or was ‘aware of facts or circumstances from which infringing activity [wa]s apparent'”
  • “Veoh ‘receive[d] a financial benefit directly attributable to . . . infringing activity’ that it had the right and ability to control.”

The Circuit Court rejected all of these arguments. The full opinion is available here. Some preliminary thoughts follow.

Infringement by Reason of Storage

The court’s conclusion that Veoh’s operations fall within the scope of § 512(c) is not a surprise. It interpreted the statute’s “by reason of” language broadly — protecting service providers from any infringing activity that occurs on their site stemming from a user’s upload.

But while this interpretation may be reasonable in light of how the internet has developed, it is no doubt an expansion on the original intent of the language. The court says “if Congress wanted to confine § 512(c) exclusively to web hosts rather than reach a wider range of service providers, we very much doubt it would have done so with the oblique ‘by reason of storage’ language.” But of course, this reasoning begs the question. When Congress passed the DMCA, “user-generated content” had yet to even enter the lexicon — Congress couldn’t have factored a type of service provider that didn’t exist yet into the law.

I’ve talked previously about how sites like Veoh, YouTube, and other Web 2.0/UGC sites are arguably beyond the scope of protection of 512(c). The provision was drafted at a time when storing content at the direction of a user was primarily a collateral or passive function of service providers. For UGC sites, this “storage” is the sine qua non of their business model.

I’m certainly not saying such sites should be strictly liable for infringement by their users, or even required to monitor or prescreen uploads. But I also don’t think the only thing they need do to qualify for the DMCA safe harbor is respond to takedown notices. Unauthorized content unquestionably subsidizes many UGC sites — it’s perfectly reasonable that such sites subsidize copyright enforcement. As unavoidable as the expansion of the scope of this safe harbor might be, it may be the case that the language may need to be revisited at some point down the road.

Actual and Apparent Knowledge

The court’s holding that “general knowledge that [a service provider’s] services could be used to post infringing material” is insufficient to eliminate DMCA safe harbor protection is consistent with what other courts have held.1

The court does, however, engage in a bit of curious reasoning to come to this conclusion. It notes:

Further, Congress’ express intention that the DMCA “facilitate making available quickly and conveniently via the Internet . . . movies, music, software, and literary works” — precisely the service Veoh provides — makes us skeptical that UMG’s narrow interpretation of § 512(c) is plausible. S. Rep. No. 105-190, at 8.

This is curious because the quote used by the 9th Circuit used is not referring to the purpose behind the DMCA safe harbors, it is referring to the purpose behind the anti-circumvention and copyright management information provisions of the DMCA.2

By conflating the purpose of stronger digital protections for copyright owners with the purpose for limiting the liability of service providers, it essentially creates a logical absurdity within the Copyright Act: promoting the progress of the arts and sciences through exclusive rights is accomplished when ignoring those exclusive rights is made easier.

The Ninth Circuit leaves us still with little meaningful distinction between actual knowledge and apparent — so-called “red flag” — knowledge. It says “that the burden” for bringing red flags to service provider’s attention “remains with the copyright holder rather than the service provider.” The summary conclusion is that “Veoh’s general knowledge that it hosted copyrightable material and that its services could be used for infringement is insufficient to constitute a red flag.”

But it does mention one way a service provider can have apparent knowledge, at least in theory. The Ninth Circuit notes that if “notification had come from a third party, such as a Veoh user, rather than from a copyright holder, it might meet the red flag test because it specified particular infringing material.”

Right and Ability to Control

The clear discussion of the interplay between safe harbor and common law vicarious liability is to be commended. As court explains, the two are independent: Congress intended the safe harbor to protect against vicarious liability if the statute’s conditions are met, even though the requirement that a service provider doesn’t have the “right and ability to control” infringing activity seems synonymous with the common law articulation of vicarious liability. Yet some courts still get tripped up by this concept.

However, I am a bit troubled by court’s interpretation of “right and ability to control” as being dependent on scope of service:

Where, as here, it is a practical impossibility for Veoh to ensure that no infringing material is ever uploaded to its site, or to remove unauthorized material that has not yet been identified to Veoh as infringing, we do not believe that Veoh can properly be said to possess the “needed powers . . . or needed resources” to be “competen[t] in” exercising the sort of “restraining domination” that § 512(c)(1)(B) requires for denying safe harbor eligibility.

You hear this often from DMCA maximalists: it’s just too hard to control infringement on the internet. But this seems similar to a “too big to fail” argument — eventually, a service provider becomes “too big to be liable for infringement.”

Viewed this way, the interpretation doesn’t seem to comport with real world views on liability. Imagine a factory owner who says he dumps a lot of stuff into the river, and it’s not possible as a practical matter to ensure that none of that stuff is toxic. Or imagine a government that says it arrests a lot of people, and it doesn’t have the needed resources to exercise the type of restraining domination to ensure that none of them were wrongfully arrested.

Yes, there are differences between offline services and online services. But I don’t know if that should mean a complete departure from liability principles — especially since sites like Veoh and YouTube did not sprout online, organically and fully-formed. The fact remains that sites like these were purposely designed to provide content acquired through user uploads, just as services like Hulu and Netflix were purposely designed to provide content acquired through licensing.

As I said earlier, I’m not suggesting in the least that sites like Veoh should be responsible for every upload. Just that “the right and ability to control” shouldn’t necessarily hinge on popularity.

Finally, it is good to see the Ninth Circuit reaffirm the fact that “willful blindness” can constitute knowledge under this section:

Accordingly, we hold that the ‘right and ability to control’ under § 512(c) requires control over specific infringing activity the provider knows about. A service provider’s general right and ability to remove materials from its services is, alone, insufficient. Of course, a service provider cannot willfully bury its head in the sand to avoid obtaining such specific knowledge.

What’s Next?

The Ninth Circuit affirmed summary judgment on the DMCA safe harbor and dismissal of the claims against the Investor defendants, who had been sued along with Veoh. It remanded to the lower court only for determination of whether Veoh can collect certain costs, excluding attorney’s fees, under FRCP 68.

That means the lawsuit is essentially over, barring an appeal by UMG to the Supreme Court.

The Second Circuit, of course, is currently considering similar issues in Viacom’s lawsuit against YouTube. It isn’t bound to follow the ruling here, but it will most likely have a look at the opinion. That opinion, of course, is still months away.

Footnotes

  1. See, for example, A & M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001); Viacom v. YouTube, 718 F.Supp.2d 514, 523 (SDNY 2010); Corbis Corp. v. Amazon, 351 F.Supp.2d 1090, 1109 (WD Wash 2004). []
  2. The HRCC has a copy of S. Rep. No. 105-190 available on its site. The relevant portion in full reads:

    Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy. Legislation implementing the treaties provides this protection and creates the legal platform for launching the global digital on-line marketplace for copyrighted works. It will facilitate making available quickly and conveniently via the Internet the movies, music, software, and literary works that are the fruit of American creative genius. It will also encourage the continued growth of the existing off-line global marketplace for copyrighted works in digital format by setting strong international copyright standards.

    At the same time, without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet. In the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability. For example, service providers must make innumerable electronic copies by simply transmitting information over the Internet. Certain electronic copies are made to speed up the delivery of information to users. Other electronic copies are made in order to host World Wide Web sites. Many service providers engage in directing users to sites in response to inquiries by users or they volunteer sites that users may find attractive. Some of these sites might contain infringing material. In short, by limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand. []

The question I’ve been asking in a series of recent posts is whether history can provide any insight into current claims that copyright law and the First Amendment conflict. As I noted, the Congress’s constitutional authority to secure exclusive rights to creators and the First Amendment’s prohibition on Congress making any laws abridging the freedom of speech and the press coexisted for nearly two centuries before any conflict between the two was suggested by scholars or considered by courts.

Surely there must be something to explain that two hundred years of near silence. And if we can explain it, we should be able to better understand how to approach current debates concerning the two areas of law.

I previously noted that copyright was primarily conceived as a property right in the 18th and 19th centuries, and invasions of property rights were not part of the freedom of the press. I also noted that before the First Amendment was ratified, a majority of the 13 original US states had passed copyright laws after providing for the freedom of the press, lending strength to the argument that the Framers conceived the two as wholly consistent.

As I’ve researched this question, I’ve realized more and more that one of the keys to understanding the history is understanding how people in the 18th and 19th centuries conceived “freedom of speech” and “freedom of the press.”

There’s a certain attraction to an absolutist First Amendment: “No law” means no law.1 But that position is not very helpful, since the Amendment doesn’t define “freedom of speech” or freedom of the press. If, on the one hand, “freedom of speech” means one can say anything at anytime without facing liability, then the FDA is acting unconstitutionally when it requires pharmaceutical companies to list side effects of the medication they sell. On the other hand, if “freedom of speech” means only the freedom to agree with the government, then Congress could enact all sorts of constitutional speech regulations.2 In this sense, you could argue that everyone is a First Amendment absolutist, the disagreement is only over the meaning of “freedom of speech.”3

Freedom of the Press

“What is the liberty of the press?” asked Alexander Hamilton in the Federalist Papers, a question that best illustrates how the concept was perceived at the time.

Nowadays, it is perhaps most common to refer to the right of “free expression” as a combination of the rights of free speech and a free press.4 But when the First Amendment was adopted, freedom of press and speech were distinct enough to be mentioned separately. In a very broad sense, “freedom of the press” was the right to publish that which you had the right to speak — the liberty of the press was the expansion of the freedom of speech “by mechanical means,” as one 19th century author put it.5 Far more debate at the time centered around the meaning of the freedom or liberty of the press than the freedom of speech.

The invention of the printing press allowed the dissemination of speech on a grand scale. As a result, it was soon strictly controlled by political and religious authorities. The idea of a press free from this control in England was influenced heavily by the writings of John Milton and became a reality after the Licensing Act of 1662, which prohibited any printing without a government license, finally expired in 1695.

A full discussion on what the liberty of the press meant after this time is beyond one blog post, so I’ll focus on the key points.

First, liberty of the press, at a minimum, meant that a government could not require prior approval for someone to publish a work. William Blackstone wrote that this liberty “consists in laying no previous restraints upon publications” though it does not forbid subsequent punishment for criminal matter. The reasoning for this was that the ability to subject the press to the power of a government censor or licensor “is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”6

Thomas Paine wrote about the liberty of the press from an American perspective, explaining how the concept was a result of history:

Nothing is more common with printers, especially of newspapers, than the continual cry of the Liberty of the Press, as if because they are printers, they are to have more privileges than other people. As the term “Liberty of the Press” is adopted in this country without being understood, I will state the origin of it, and show what it means. The term comes from England, and the case was as follows:

Prior to what is in England called the revolution, which was in 1689, no work could be published in that country, without first obtaining the permission of an officer appointed by the government for inspecting works intended for publication. The same was the case in France, except that in France there were forty who were called censors, and in England there was but one, called Imprimateur.

At the revolution, the office of Imprimateur was abolished, and as works could then be published without first obtaining the permission of the government officer, the press was, in consequence of that abolition, said to be free, and it was from this circumstance that the term Liberty of the Press arose. The press, which is a tongue to the eye, was then put exactly in the case of the human tongue. A man does not ask liberty before hand to say something he has a mind to say, but he becomes answerable afterwards for the atrocities he may utter. In like manner, if a man makes the press utter atrocious things, he becomes as answerable for them as if he had uttered them by word of mouth. Mr. Jefferson has said in his inaugural speech, that “error of opinion might be tolerated, when reason was left free to combat it.” This is sound philosophy in cases of error. But there is a difference between error and licentiousness.

Some lawyers in defending their clients, for the generality of lawyers, like Swiss soldiers, will fight on either side, have often given their opinion of what they defined the liberty of the press to be. One said it was this, another said it was that, and so on, according to the case they were pleading. Now these men ought to have known that the term, liberty of the press, arose from a FACT, the abolition of the office of Imprimateur, and that opinion has nothing to do in the case. The term refers to the fact of printing free from prior restraint, and not at all to the matter printed, whether good or bad. The public at large, or in case of prosecution, a jury of the conntry, will be judges of the matter.7

This prohibition on prior restraints is at the core of the liberty of the press and the one aspect that everyone agrees on.8 What the liberty of the press means beyond that, however, was subject to great debate.

Second, this debate over the nature of the freedom of the press beyond the prohibition on prior restraints revolved largely around libel: whether defamatory, seditious, blasphemous, or obscene.9 Could government punish political criticism? Was truth a defense to published statements that injured an individual’s reputation?10 A great deal of these debates was spurred by the passage of the Alien and Sedition Acts in 1798, which would be the most significant event in free speech history until the espionage and sedition acts passed during World War I (acts which served as the genesis for modern First Amendment jurisprudence).11

Copyright rarely entered in any of these debates, and when it did, it only did so peripherally. When Pennsylvania was discussing the ratification of the US Constitution in 1787, for example, one delegate raised the concern that, without a federal bill of rights protecting the liberty of the press, Congress might use its power to secure exclusive rights to authors not to pass a copyright law but to return to a general system of press licensing.12

But there is enough evidence to suggest that copyright law was generally — and noncontroversially — conceived of as completely outside the scope of the liberty of the press. Enjoining or restraining the publication of infringing material was a permissible prior restraint.

A Permissible Prior Restraint

The shared history of the liberty of the press and copyright law reinforces this idea.

As mentioned above, William Blackstone described the liberty of the press as “laying no previous restraints upon publications.” But elsewhere, he recognized that English courts frequently enjoined publications that infringed on copyright.

In the United States following the Revolutionary War, liberties were jealously guarded by the states. Yet six of the twelve pre-Constitution state copyright acts — Connecticut, Georgia, Maryland, New York, North Carolina, and South Carolina — explicitly gave the author of a work “the sole liberty of printing, reprinting, and vending” that work, suggesting that protection of copyright was compatible with the goals of a free press.

James Iredell, one of the first Supreme Court Justices of the United States, wrote in 1788 while the Constitution was undergoing ratification:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one. [Emphasis added.]13

As noted earlier, the Alien and Sedition Acts of 1798 triggered sharp debate over the liberty of the press. At times, copyright law was used to illustrate how that liberty was a delimited one:

When religion is concerned, Congress shall make no law respecting the subject: when the freedom of the press is concerned, Congress shall make no law abridging its freedom; but they may make any laws on the subject which do not abridge its freedom. And in fact, the eighth section of the first article of the Constitution authorizes them in express terms “to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” Now if Congress could not make any laws respecting the freedom of the press, they could not secure for limited times to authors their respective writings, by prohibiting those writings from being published and vended, except by those whom the authors should expressly permit.14

Louisiana, which became a state in 1812, enacted a comprehensive code of laws in 1825. The Code was largely the result of efforts by appointed Edward Livingston, a former member of the US House of Representatives and opponent of the Alien and Sedition Acts, to devise a comprehensive criminal code for the state. Though never enacted, the importance of the Code shouldn’t be underestimated.15

The Code is notable for including a section on “Offenses against the liberty of the press.” As Livingston explained in a preliminary report for the code:

It has generally been thought a sufficient protection to declare, that no punishment should be inflicted on those who legally exercise the right of publishing; but hitherto no penalties have been denounced against those who illegally abridge this liberty. Constitutional provisions are, in our republics, universally introduced to assert the right, but no sanction is given to the law. Yet do not the soundest principles require it? If the liberty of publishing be a right, is it sufficient to say that no one shall be punished for exercising it? I have a right to possess my property, yet the law does not confine itself to a declaration that I shall not be punished for using it; something more is done; and it is fenced round with penalties, imposed on those who deprive me of its enjoyment.

The Lousiana Code of 1825 made it a misdemeanor for anyone to use violence, threats, or other means to prevent a person from exercising their freedom of speech or the press. The only exception for this was the filing of a lawsuit for libel or copyright infringement.

The law also made it against the law for a judge to enjoin, restrain, or prevent the publication of any writing, punishable by a fine ranging from $500-1000 (in 1825 dollars) and a two year suspension. There was only one exception to this:

It is no infringement of the last article to grant an injunction against the publication of any literary work, on the application of a person who shall satisfy the court or judge granting the injunction, that he is the author or proprietor of the work intended to be published, and that the publication will be injurious to his rights.

Similar provisions were nearly adopted by the US Congress itself, though not for the country as a whole.

The District of Columbia was established as the capitol of the United States shortly after the Constitution was adopted and placed under the exclusive control of the federal government. For decades, efforts were made to codify the civil and criminal laws that governed the District.16

One such effort led to a proposed system of laws that was reported in a joint committee of Congress in February of 1832. This code was heavily influenced by Livingston’s Louisiana code; the provisions for offenses against the liberty of the press were imported word for word. The District of Columbia, however, declined to adopt the proposed code.

The idea of copyright as a restraint congruous with the liberty of the press continued throughout the 20th century.

For example, the following is taken from the Columbia Law Review in 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 … Similarly, the infringement of a copyright has been enjoined.17

And this is from the Supreme Court in 1971:

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.18

So it would seem that throughout the history of copyright, protection of an author’s exclusive rights was not seen as offensive to the freedom of the press.

Footnotes

  1. First Amendment absolutism was embraced by Supreme Court Justice Black in the mid-20th century but never accepted by courts. Today it is very much a minority view. []
  2. This example isn’t hyperbole. As debates over the constitutionality of the Alien and Sedition Acts of 1798 raged, newspaper editor Benjamin Russell wrote, in support of the law, that “it is patriotism to write in favor of our government — it is sedition to write against it.” []
  3. See Eugene Volokh, What Part of “Make No Law” Don’t I Understand? for more about this. []
  4. See, for example, Connick v. Myers, 461 US 138, 154 (1983); United States v. O’Brien, 391 US 367, 377 (1968); New York Times v. Sullivan, 376 US 254, 285 (1964). []
  5. James Paterson, The Liberty of the Press, Speech, and Public Worship, pg. 14, (London, 1880); See generally Eugene Volokh, “The Freedom … of the Press”, From 1791 to 1868 to Now — Freedom of the Press as an Industry, or the Press as a Technology? 160 University of Pennsylvania Law Review (2011). []
  6. Commentaries on the Laws of England, Book 4, Ch. 11. []
  7. The Political Writings of Thomas Paine Volume 2, pp. 464-65 (J.P. Mendum, ed. 1859). []
  8. See James Wilson, Pennsylvania Ratifying Convention, December 1, 1787: “What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”; Respublica v. Oswald, 1 US 319 (1788); Henry Lee, Report of the Minority on the Virginia Resolutions, J. House of Delegates (Va.), 6:93-9522 January 22, 1799, “In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.”; Commonwealth v. Blanding, 3 Pick. 304 (Mass. 1825); “Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”; Joseph Story, Commentaries on the Constitution of the United States, 1833: “That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”; Patterson v. Colorado, 205 US 454, 462 (1907). []
  9. See Henry Schofield, 2 Essays on Constitutional Law and Equity 514-29 (1921). []
  10. See Eugene Volokh, The Original Meaning of the Free Speech/Press Clause, Sept. 15, 2008. []
  11. See Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 Journal of Constitutional Law 971, 975 (2010). []
  12. “Tho’ it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press no doubt; and under licensing the press, they may suppress it.” Robert Whitehill, remarks of December 1, 1787, in Pennsylvania and the Federal Constitution 1787-1788, pg 771. []
  13. Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361. []
  14. Remarks of George Taylor, December 21, 1798, The Virginia Report of 1799-1900, Touching the Alien and Sedition Laws; Together with the Virginia Resolutions of December 21, 1798, pg. 136. []
  15. Stuart P. Green, The Louisiana Criminal Code: Ten Proposals for Reform, 2002. []
  16. Justice Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, 1898. []
  17. Constitutional Protection of the Right of Freedom of Speech and of the Press 17 Columbia Law Review 622-24 (Nov. 1917). []
  18. New York Times v. United States, 403 US 713, 731 n.1 (1971)(J. White dissent). []

Tomorrow is Beethoven’s birthday.1 The famous composer lived when copyright doctrine was still young. It had yet to become useful as legal protection for many composers, yet — little known fact — Beethoven was still concerned about piracy.

Economist Frederic Scherer relates a couple stories about this concern in his paper The Emergence of Musical Copyright in Europe from 1709 to 1850. He notes that taking credit for the work of another composer was certainly a problem of the time, but

Much more common was the uncompensated performance of a work composed by others. Until performance rights became an accepted feature of copyright, there was little composers could do about this. Beethoven is said to have combatted such imitation by his “deadly enemies” in Vienna by making his piano sonatas so difficult that few if any could play them as well as the master.

Copying musical scores was also a problem, since composers of the time were increasingly coming to rely on these as a source of income. Composers employed a number of tactics to mitigate illicit recopying, sometimes turning to

more drastic remedies, as when Beethoven complained to the Artaria house of Vienna that a pirated version of his op. 29 Sextet contained many errors, asked the owner to turn over the 50 pirated copies for correction, and then slashed giant “X’s” across the pirated copy pages.

Happy birthday Beethoven!

SOPA Markup — The House Judiciary Committee continues the process of considering amendments to the Stop Online Piracy Act today. Yesterday’s session lasted throughout the day; twelve amendments, mostly from SOPA opponents Issa, Lofgren, and Polis, failed, and four amendments passed — including one that would require a rightsholder to pay attorney’s fees and costs to a defendant if the rightsholder “knowingly misrepresented” that a site was an Internet site dedicated to the theft of US property.

SOPA Fixes Isolate Opponents, Especially Google — “Implicit in the opponents’ opposition approach is an elitist conceit that only their companies innovate in a way that matters or benefits users, not any other American inventors or creators throughout the economy hurt by piracy, and also that no one else but them, really cares about the Internet, innovation, freedom of speech, or due process.”

Orphan Works and Fair Use in a Digital Age — Video of a panel discussion held this past week featuring Washington Post reporter Cecilia Kang, Register of Copyrights Maria Pallante, and American Society of Media Photographers General Counsel Victor Perlman.

Googlenocchio? What a Tangled Web They Weave — Indie filmmaker Ellen Seidler has been a stalwart reporter on the mechanics of commercial online piracy. Here she looks at the difference between what Google says it’s doing about online piracy, and what it’s actually doing: working hard, or hardly working?

Internet Should be Free, But Not Lawless — Op-ed by Colin Hanna. There’s a fundamental distinction between freedom and lawlessness. The former is rule by law, the latter is rule by the strongest over the weak.

How “Digital Parasites” Have Hurt Songwriters and What Songwriters Can Do To Fight Back — ASCAP’s Erik Philbrook speaks with author Rob Levine about his recent book Free Ride. They briefly discuss Creative Commons licenses, leading to the best quote of the interview: “A Creative Commons deal is like one of those old record deals. Like when you sign away your rights in exchange for a Cadillac. But with this deal, you don’t get a car.”

OPEN Act Falls Short for Artists and Creators — Sandra Aistars summarizes the key points on why Rep. Issa’s alternative rogue sites bill would do little for creators and the public.

Footnotes

  1. What are you going to buy me? []

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.

OPEN Act and DMCA

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.

Footnotes

  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.

Footnotes

  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.

Radio

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

Television

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.

Footnotes

  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. []
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