Just a quick note today to point readers to Robert Levine‘s wonderful Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back, which is available in the US today. (And if you haven’t already, be sure to check out his blog.)1

I previously wrote a more thorough review of Free Ride on this site, but to sum up: the book offers a well-researched look at copyright issues in the digital age over the past decade and a half. The reality is a far cry from the narrative you often hear from copyright’s critics — one of greedy dinosaurs who failed to adapt their business models and instead relied on ever-stronger enforcement.

The difference between that narrative and reality is not a historical accident, as Levine shows. The businesses and industries that benefited the most from weakened copyright protection and devalued digital content facilitated and funded many of the civil and academic proponents of those same ideas.

I think Free Ride is a must-read for creators, policy makers, and copyright wonks. It’s also entertaining, and should interest anyone who’s gotten into debates over file-sharing, digital media, or the future of the content industries.


  1. I apologize if this seems like a shameless plug. Rob’s a friend, and I helped him with some legal research for the book. But I’m not getting paid to talk it up — I just think it’s a great book. []

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By now, you’ve probably heard of the “Free Bieber” Campaign. Since it was announced, it has been widely reported on many blogs and news sites, including Hillicon Valley.

According to the campaign:

A new bill in Congress makes posting a video containing any copyrighted work a felony– with up to 5 years in prison.

But wait… didn’t Justin Bieber get famous by posting YouTube videos of himself singing copyrighted R&B songs? Yep.
If this bill passes, he could get 5 years in jail.

The rest of the website (store coming soon!) is filled with the usual diatribes against the mean record labels and movie studios.

But what makes this campaign truly absurd is that it is completely wrong about what this new bill will do. Not wrong in a “we’ll agree to disagree” sense, but wrong about the plain meaning of the text of the legislation.

The bill referred to hear is S.978, the Commercial Felony Streaming Act, introduced in the Senate last May. I wrote about the bill, what it does, and why it’s needed several times in the past (see Fears of Felony Streaming Bill Overblown and Commercial Felony Streaming Act FUD).

The individuals behind the “Free Bieber” campaign are either completely ignorant about how copyright law works or being deliberately disingenuous  to stir up opposition against a minor, albeit judicious, piece of legislation. Anyone who uploads video to YouTube faces no increased risk of criminal penalties if this bill passes.

Justin Bieber is not going to jail.

Uploading Video is Not a Public Performance

Copyright is made up of several, discrete rights: the right to reproduce, distribute, prepare derivative works, and publicly perform (or display) a work.1 The Commercial Felony Streaming Act only concerns the public performance right. It aligns the maximum criminal penalties for infringement of public performances to the equivalent, already existing penalties for infringement of reproduction and distribution of copyrighted works.

It should first be pointed out that a “performance” requires two parts: an active and a passive component, the performer and the audience. “Broadcasters perform. Viewers do not perform.”2 Only a performer is liable for an unauthorized public performance; viewers and listeners are not infringers in this situation.3 So someone who merely watches or listens to unauthorized streaming media is not infringing on the copyright owner’s public performance right.4

The key to understanding public performance is pinning down what activity constitutes a performance and who is acting as the performer. (And don’t confuse the legal definition of a “performance” within copyright law with the every day meaning of the word.)

You may recall that earlier this month the Supreme Court denied cert in US v. ASCAP. That lawsuit provides a good starting point for learning how to answer these questions. ASCAP had argued that a download of a music file is not only a reproduction but also a public performance of the work. Both the District and Circuit Courts rejected this argument.

Said the 2nd Circuit:

The ordinary sense of the words “recite,” “render,” and “play” refer to actions that can be perceived contemporaneously. To “recite” is “to repeat from memory or read aloud esp[ecially] before an audience”, to “render” is to “say over: recite, repeat,” and to “play” is to “perform on a musical instrument,” “sound in performance,” “reproduce sound of recorded material” or to “act on a stage or in some other dramatic medium.” All three actions entail contemporaneous perceptibility.

These definitions comport with our common-sense understandings of these words. Itzakh Perlman gives a “recital” of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience. Jimmy Hendrix memorably (or not, depending on one’s sensibility) offered a “rendition” of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma “plays” the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.

The final clause of the § 101 definition of “to perform” further confirms our interpretation. It states that a performance “in the case of a motion picture or other audiovisual work, [is] to show [the work's] images in any sequence or to make the sounds accompanying it audible.” The fact that the statute defines performance in the audio-visual context as “show[ing]” the work or making it “audible” reinforces the conclusion that “to perform” a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by § 101. [Emphasis added].5

Though it was specifically addressing downloading a file, the reasoning applies just as well to uploading a file. And, in fact, the District Court spoke more directly, saying “Although we acknowledge that the term ‘perform’ should be broadly construed, we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition.”6 Other courts seem to agree: “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.”7 “Downloading and uploading copyrighted files from a peer-to-peer network constitutes, respectively, reproducing and distributing copyrighted material in violation of 17 U.S.C. § 106.”8

Uploading a video to YouTube, then, may infringe on someone else’s reproduction or distribution rights, but it doesn’t infringe on someone else’s public performance rights.

We can compare users who upload to YouTube to record labels who provide songs to radio stations. Most commonly, record labels and recording artists control only the rights to the sound recording, while music publishers and songwriters control the rights to the underlying song.9 A recording artist needs permission from a songwriter to reproduce a song onto a sound recording — generally called a “mechanical license.” A radio station needs permission to perform the song on air10 — permission that is granted through blanket licensing by Performance Rights Organizations (in the US: ASCAP, BMI, and SESAC). The record label, however, doesn’t need a public performance license in this scenario because giving the sound recording to a radio station is not a performance.

In the same way, someone who uploads a video to YouTube is not performing the video — YouTube is.

Someone uploading a video to YouTube still needs permission for any reproduction or distribution of someone else’s copyrighted work that occurred during the creation and uploading of the video — but that’s always been true. The Commercial Felony Streaming Act adjusts the penalty only for unauthorized public performances.

In short, the proposed legislation changes no law that would effect someone uploading a video to YouTube.

It’s Still Copyright Infringement Without S.978

As an aside, I want to address the idea that creating and uploading videos to YouTube that use copyrighted material without permission is (and has always been) copyright infringement. Judging by some of the comments on sites reporting on the “Free Bieber” campaign, this idea is news to many people.

But despite the fact that creating and uploading a video using copyrighted material without permission is, in many cases, infringement, and despite much ink spilled worrying that such “user-generated content” could subject the user to copyright law’s various penalties, these worries have failed to materialize.

I’m not talking about a video being removed pursuant to a DMCA takedown notice — service providers take users’ videos down when they are notified by a content owner to protect themselves. A user may not like seeing his video come down, but a DMCA takedown is not legal action against the user and has no bearing on any liability for infringement the user may be exposed to.

I’m also not talking about lawsuits filed against individual P2P users for uploading and downloading music and movies through P2P networks. Filesharing is a markedly different activity than uploading content to a UGC sharing site like YouTube.

I’m talking specifically about legal action taken against users of YouTube and other sites who upload videos that may infringe on someone else’s copyright.

The EFF, certainly not biased in favor of copyright enforcement, is clear that this has not been a problem:

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

Given that over 48 hours of video are uploaded to YouTube every minute, the percentage of people who face liability for copyright infringement on the site is effectively zero.

In his response to the “Free Bieber” campaign, Thomas Sydnor allays these worries even further. He notes that “Neither existing law nor S. 978 criminalizes the act of being a kid or consumer who does not understand the nuances of performance-right licensing”, “Even if posted years ago, Bieber’s videos were probably licensed,” and “Federal prosecutors have never, nor will they ever, prosecute ordinary consumers for technical infringements unworthy of even a takedown notice.”

We can disagree over legitimate concerns over any proposed legislation — its effectiveness, whether potential harms outweigh potential benefits. But these are not legitimate concerns. The worries expressed are not, in any sense, implicated by S.978.



  1. 17 USC § 106. []
  2. Fortnightly Corp v. United Artists Television, 392 US 390, 398 (1968). []
  3. Twentieth Century Music v. Aiken, 422 US 151, 159-60 (1975); Jerome H. Remick & Co. v. General Electric, 16 F.2d 829 (SDNY 1926): “Certainly those who listen do not perform, and therefore do not infringe.” []
  4. Whether or not such activity infringes on the reproduction right is an entirely different question for another day. []
  5. US v. ASCAP, 627 F.3d 64, 72-73 (2010). []
  6. US v. ASCAP, 485 F.Supp.2d 438, 443-44 (SDNY 2007). []
  7. A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001). []
  8. Maverick Recording Co. v. Goldshteyn, No. CV-05-4523, 2005 WL 2892371, *3, 2006 U.S. Dist. LEXIS 52422, at *8 (E.D.N.Y. July 31, 2006). []
  9. See Brian Day, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011); Licensing Music: Cover songs, samples, public domain, CDBaby, July 23, 2010; Brooke Wentz, Understanding the Roles of Copyright Holders: Publishers and Labels, RightsWorkshop, July 29, 2010. []
  10. Though, at least in the US, it does not need permission to perform the sound recording on air since the Copyright Act only recognizes a limited digital public performance right for sound recordings, see 17 USC § 106(4), (6). []

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October 21, 2011 · · Comments Off

Some fascinating responses to my posts this week on copyright and Thomas Jefferson. In “Jefferson, I think we’re lost…”, Rob Levine wonders why professors and scholars skeptical of copyright law engage in “shoddy scholarship”. At The Cynical Musician, Faza uses the article to jump into a broader discussion of “social” and “natural” law in Jefferson, Copyright and Natural Law.

Interview with Robert Levine on the current free ride culture on the internet — Future of Copyright’s Kim Crijns speaks with Levine about the topics he addresses in his book Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back, out now in the UK and coming out Tuesday in the US. Great interview that continues into the comments section.

Creative America — Be sure to check out the new website for Creative America, which brings together creative and craft professionals, small businesses, and others who work in the creative industries to speak out on behalf of protecting creativity and innovation.

Copyright Czar — Copyfraud wonders what the big deal is over last week’s story that US IP Enforcement Coordinator Victoria Espinel was kept in the loop during industry negotiations for the voluntary Copyright Alert System. “Espinel has a loosely-defined and wide-ranging mandate related to the enforcement of intellectual property rights. There is no reason to imagine that she operates only in public settings.”

Putting MTV Cribs Thinking to Bed — The Future of Music Coalition is seeking input from working musicians of all stripes for a survey on revenue. The goal is, in part, to dispel the damaging myth that music professionals are all millionaire rock stars.

Post-Napster kids overwhelmingly buy physical goods — Digital natives? Digital Music News reports on a new survey that shows that for every dollar kids under 14 spend on entertainment content, $0.79 goes toward physical formats. To be honest, I wouldn’t be surprised if many 14 year olds had never even heard of Napster.

How Warner Music turns social media fans into customers — An interesting look at how digital execs at Warner use Twitter, Facebook, and other online tools to connect their artists with fans.

Retransmission of a language-based practice — Nicholas Carr points to an article that breathlessly describes, like a newly fallen-in-love teenager, one college professor’s class in “uncreative writing,” where students are required to plagiarize and otherwise “remix” existing writing to pass. As Carr remarks, “Penn prof Kenneth Goldsmith has seen the future of culture, and it’s a content farm.”

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October 19, 2011 · · Comments Off

David Post responds, in his article Why Should We Care What Jefferson Thought about Copyright, to my earlier post on the subject regarding Jefferson’s letter to Isaac McPherson.

My answer was “Sure”, we should care what he thought about copyright, as long as we understand what he thought about it and place it in the correct context. His letter to McPherson sheds no light on the former; Jefferson was writing about patents, not copyright.

So whether or not you agree that “Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history” or that “he was smarter than you, or I, or anyone else currently commenting on intellectual property matters”, it doesn’t change the fact that this particular letter was addressing a separate (and different) topic.

I also respectfully disagree with the following reason given by Post:

“3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property.”

Accepting for the sake of argument that the nature of ideas is “the foundational theory of intellectual property”, this is just incorrect. Again, Jefferson was talking about patents, not copyright. The two are distinct, and copyright lays no claim to ideas.

I think it could fairly be said that a consensus on (1) the divergence of patent and copyright, (2) the distinction between ideas and expression within copyright, and (3) the basis of copyright protection as statutory rather than through common law had emerged by the mid to late 18th century. In Authors and Owners: The Invention of Copyright, Mark Rose writes that “By 1774, the year in which the Donaldson decision resolved the issue of the perpetuity, all the essential elements of modern Anglo-American copyright law were in place.”

Certainly these and other debates concerning copyright weren’t over and continue today.1 But the “non-exclusive” and “non-rivalrous” nature of ideas was recognized by then, decades before Jefferson wrote to McPherson.

Some examples —

William Warburton, An Enquiry into the Nature and Origin of Literary Property, 1762:

Neither hath it any tendency to confine the powers of genius: for he who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property : for though he may be said to build on my foundation, yet he rears a different superstructure. An inconsiderable addition or improvement however, will not support his claim: the supplying literal or verbal omissions, or the correcting of literal or verbal errors, for instance, will not be sufficient to found a new right in him : and a jury endued with the slightest degree of common understanding may, be the subject what it will, distinguish, or be taught to distinguish, where the difference is essential, and where it is evasive.

Francis Hargrave, An Argument in Defence of Literary Property, 1774:

I Have only one other objection to encounter, so far as the claim of literary property depends on general reasoning. It is an objection, founded on a supposed resemblance between the case of an inventor of a machine, and that of the author of a book. I claim the full benefit of all the ingenious reasons, which others have made use of to distinguish the two cases; but instead of repeating them, I will add one to their number. In my own opinion, the principal distinction is, that in one case the claim really is to an appropriation of the use of ideas; that in the other the claim leaves the use of the ideas common to the whole world. There are not any bounds to the extent of such a claim. It would be impracticable to receive it; because it could never be fairly decided, when an idea was new and original, when it was old and borrowed. The title of the supposed inventor of the machine to the sole making of it, cannot be allowed, without excluding all others, not only from the use of their borrowed ideas; but even from the use of ideas, which may be as original in them, as in the person who first publishes the invention. The same ideas will arise in different minds, and it is impossible to establish precisely, in whom an idea is really original; and perhaps most ideas may in fact be equally original in the greater part of mankind; and priority in the publication of an idea is a most insufficient proof of its originality. This shews, that the perpetual appropriation of the use of an idea to the real or supposed inventor of a machine, would be as inconsistent with the rights of others, as it would be impracticable. But these are not the only arguments against perpetually appropriating the use of knowledge and inventions, It is impossible to sustain the claim consistently with the laws of any country, in which the policy of disallowing monopolies prevails. Every article of trade, every branch of manufacture and commerce, would be affected clogged, if not totally stopped. Such a perpetual appropriation of the use of inventions and ideas would be the most unlimited kind of monopoly ever yet heard of—a monopoly, not of one trade or manufacture, but such, that if it bad ever been endured, it would have ended in a monopoly of almost all trades, and manufactures collectively. I have already shewn, that the appropriation of the right of printing, to an author, is not liable to any of these objections that the claim has its limits and bounds; that the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated; that the author’s title to the sole sight of printing, is quite consistent with the rights of others; and that his appropriation of his copies, is so far from falling within the true idea of a monopoly, that the appropriation of copies, independently of the author’s right, is even essential to the carrying on the trade; cf. printing in a manner beneficial to the public.

Johann Gottlieb Fichte, Proof of the Illegality of Reprinting, 1793:

We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its ideational aspect. This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented. It is apparent that simple transfer of the book to us does not yet confer ownership of the former, for ideas cannot simply be handed over or bought for cash. They do not become ours just by our picking up a book, carrying it home, and putting it in our bookcase. In order to appropriate the ideas a further activity is necessary. We must read the book, think through its content — insofar as it goes beyond common knowledge — look at it from various points of view, and in this way assimilate it into our own pattern of thought. However, since we would not be able to do this without possessing the book, and since we did not purchase it just for the sake of the paper it contains, buying it must accordingly also confer on us the right to appropriate its content as well. By purchasing the book, that is, we acquire the possibility of appropriating the author’s ideas; but to transform this possibility into reality, we must invest our own effort. Before the publication of his notable works, then, and for a considerable time thereafter, the ideas of the originating thinker, whether of this or past centuries, and most probably of all to come, are the exclusive property of the author. No one has ever acquired the ideas of the Critique of Pure Reason in exchange for the money he paid for it. There are some clear-sighted men now who have appropriated these ideas, but most certainly not just by buying the book, but rather through assiduous and rational study. And, be it said in passing, this process of reflection is the only fitting recompense for instruction of the mind, whether oral or written. The human mind has an inborn propensity to produce agreement with its own pattern of thought and every sign of satisfying this propensity is the sweetest of rewards for all effort expended. For who would want to teach to bare walls, or write books that nobody read? It would be absurd to consider the money paid for such instruction as equivalent in value. It is simply compensation for the sums the teacher must pay to those who, while he is thinking for others, hunt, fish, sow, and harvest for him.

What is certainly offered for sale through the publication of a book, then, is first of all the printed paper, to anyone, that is, who has the money to buy it, or a friend who will lend it to him; and secondly, the content of the book, namely to anyone who has enough brains and diligence to appropriate it. As soon as the book is sold, the former ceases to be the property of the author (whom we can still consider here as the seller) and passes exclusively to the buyer, since it cannot have more than one lord and master. The latter, however, which on account of its ideational nature can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.

By the time Jefferson wrote this letter on patents, then, few would find any relevance to copyright. It was well-established that copyright protection did not extend to the ideas in a particular work, and I do not know of anyone who seriously argued that it should, let alone that it should as a matter of natural right.

So, in my opinion, even if we look to this letter for principles to apply to copyright law, there is little we can take away. Post mentions concerns over tension between copyright law and free speech, a relatively recent debate.2 But the freedom of ideas from copyright protection is one of the “free speech safeguards” baked into copyright doctrine; “Due to this distinction,” said the Supreme Court in 2003, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.”3 This sounds like something Thomas Jefferson would encourage.


  1. Adrian Johns notes in Piracy: The Intellectual Property Wars from Gutenberg to Gates that opposition to the Donaldson decision emerged “quite soon” but has “never been definitively defeated.” []
  2. As I note in Copyright and Censorship, it wasn’t until 1969 — nearly 200 years after the first colonies passed copyright acts — that this tension began to receive attention from scholars and courts. []
  3. Eldred v. Ashcroft, 537 US 186, 219-221 (2003). []

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A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

This letter has become, in the words of James Boyle, “very famous in the world of the digerati.”1 Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”

It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten.2

Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.

He was talking about something else

For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is.3 Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other4 — the differences between them are more relevant here.

On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain,5 it does foreclose the use of the ideas described in the invention’s claims.6 This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.

Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression.7 Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.

So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.

Jefferson and patent law

Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions.8

The use of Jefferson’s views on patent law, however, has been criticized.

On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record.9

In Who Cares What Thomas Jefferson Thought About Patents? Adam Mossoff also questions the influence of Jefferson on patent law:

In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.

In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”

Jefferson and copyright law

While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.

Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow.10 In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws.11 Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause.12 The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.”13

Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.’”14

While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.

So should we care what Thomas Jefferson thought about copyright law?

Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’”

In this regard, a letter written in 1813 about patents isn’t very helpful.


  1. Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008). []
  2. One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents. []
  3. Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011). []
  4. Eldred v. Ashcroft, 537 US 186, 201 (2003). []
  5. Aronson v. Quick Point Pencil, 440 US 257, 263 (1979). []
  6. Diamond v. Diehr, 450 US 175, 187 (1981). []
  7. Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985). []
  8. See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966). []
  9. Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999). []
  10. Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002). []
  11. 24 Journals of the Continental Congress 326-27 (May 2, 1783). []
  12. Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). []
  13. Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427, 1453 (2010). []
  14. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006). []

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October 14, 2011 · · Comments Off

Protecting Property Rights on the Web: Thoughts on the Protect IP Act — The Institute for Policy Innovation released a paper, written by Tom Giovanetti, dealing with the PROTECT IP Act. Very good read, the piece places the legislation within the context of the fundamental principles the US is based on. “So, if we recognize the threat to our economy, to our health, and to our overall well-being posed by pirated and counterfeit goods, and if we recognize that it is a legitimate role for government to facilitate the protection of property rights, why should the Internet be set aside as a zone safe for the marketing and distribution of pirated and counterfeit goods? Is there something in the essential nature of the Internet that demands that there be no attempt to impose basic legal protections for those who participate in the online world?”

Argument recap: The constitutionality of zombie copyrights — Rebecca Tushnet provides some thoughts on last week’s oral arguments in Golan v. Holder. She concludes that “petitioners have an uphill battle, but not necessarily an unwinnable one.”

Spielberg, Hanks and Winfrey Join Forces with First Lady, Starring in Public Service Announcement Campaign Supporting Military Families — News about the entertainment community contributing their time and talents to produce a series of PSA’s which will be used to draw attention to the White House’s Joining Forces initiative. The initiative seeks to “bring Americans together to recognize, honor and take action to support military families as they serve our country and throughout their lives.”

Opening Remarks at the California Copyright Conference, October 11, 2011 — Chris Castle shares his remarks at a recent panel discussion hosted by the Conference. “I think we must balance our attention between fighting to achieve the legal environment for survival with supporting the people who are doing legitimate business or who aspire to do legitimate business.  And we likewise have to do what we can to nurture a business environment where people with good karma can thrive.”

ICYMI: Support for Rogue Sites Legislation is HUGE — How huge? The list of supporters can barely fit on this full page ad running in Politico.

When is a lock not a lock? — John Degen addresses TPMs and DRM, a hot topic in Canada due to their being addressed in the proposed Copyright Reform Act. “Well, why do we bother with diary, luggage or gate locks? None of them work very well. All of them can be broken with little to no effort. As serious efforts at security, TPMs are… well… lame. But ask any kid whose little brother has broken into her diary why that useless little lock is there, and you begin to understand why we use these things. They’re not really locks at all – they’re declarations of private property.

Copyright Litigation Blog Turns Five — Kudos to Ray Dowd, who literally wrote the book on copyright litigation, for celebrating his fifth year blogging. Dowd shares some insightful thoughts on his experience writing the Copyright Litigation Blog.

The State of Colleen’s Industry from Print to Web: It’s working, and I don’t need a gag strip to make it pay — Colleen Doran shares her experiences of promoting, online, her work as a comic artist over the past decade. Getting to the point of actually making money online is a lot harder and more complex than what the “You Should Just People” make it out to be.

Sampling – a cautionary tale — Finally, music attorney Ian Clifford talks about his work clearing samples and the lessons he’s learned. Good information and advice for new bands and musicians who incorporate sampling into their work.

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It has been established at common law and recognized by our courts that “rules attending property must keep pace with its increase and improvements and must be adapted to every case”, and copyright protection must correspondingly extend.

Though these words were spoken over a century ago, they remain just as relevant today, especially as the US House is expected to introduce a version of the PROTECT IP Act within the next couple of weeks. The bill, which adds narrow, reasonable remedies designed to reduce the financial incentive of websites whose sole purpose is to infringe on the intellectual property of creators and businesses, seeks to keep pace with the increase and improvements of technology.

Opponents of the legislation will no doubt continue to ramp up their criticism of the bill — as a “threat to innovation” or “censorship” — as it makes it way through Congress. Some will suggest that creators are better off if copyright law remains the same, that they are better off figuring out on their own how to capture some of the tremendous value their work creates for others.

Yet, somewhat ironically, for all the talk of “innovation”, these arguments remain strikingly familiar to ones raised time and again for at least a hundred years.

Copyright and New Technologies

In 1909, Congress passed a major revision of the Copyright Act. Among its provisions was the extension of copyright control to mechanical reproductions. Prior to then, the reproduction of a musical composition onto a mechanical device that could automatically play the song back — a piano roll or a phonograph, for example — was not considered a reproduction under copyright law.1

Debate over whether copyright law should encompass mechanical reproduction was contentious. On one side were manufacturers of automatic musical devices, who pushed Congress not to extend copyright law in this area. On the other were musicians and publishers. In December of 1906, the Congressional Committees on Patents heard from both sides.

Nathan Burkan, who was quoted at the beginning of this post, represented the Music Publishers’ Association. At one point, he was responding to the argument that the owners of mechanical music players had “vested rights” to use their technology to reproduce existing songs. This argument is a forerunner of the argument heard today that copyright holders are opposed to innovation and new technology.

You hear multiple variations on this argument, which basically goes like this: Since the law extends to a new technology, or a new use of existing technology, then it is a wholesale attack on the technology itself.2

But as Burkan points out, there is a difference between technology and the use of technology. Concern about the latter is not an attack on the former. And as Burkan progresses, he notes what is as true then as it is now: copyright and technology are not two competing forces but rather depend on each other. Weakening copyright law to accommodate the interest of tech manufacturers benefits nobody in the long run.

The letters-patent granted to the inventors of these perforated rolls and phonograph records, and improvements thereon, secure to them the right to manufacture contrivances adapted to reproduce sound. That is the extent of the right. It does not carry with it the further right to appropriate the copyrighted musical composition of any composer. There is nothing in the letters patent or in the patent laws or in the Constitution from which these rights emanate that can be construed as granting to the owner of a patent the right to deprive any man of his property or to exploit the intellectual productions of that man without fair compensation. Nor is there anything in the section which permits the composer of a musical composition, copyrighted after the act shall have gone into effect, to appropriate without compensation any device protected by patent. The composer would have no right to combine his composition with any patented invention and put the same on the market without the consent of the owner of the patent. Then, why should the owner of a patent have the right to use a copyrighted composition, without the owner’s consent, in connection with his invention?

… The contention that these patent owners have vested rights in the offspring of the brain of American composers is in violation of every principle of ethics, equity, and natural justice. They would not attempt to urge the contention that if in order to make their patents profitable it was necessary to combine therewith ordinary personal property, they would thereby acquire any rights in any such personal property. The great principle on which the author’s right rests is that it is the fruit or product of his own labor, and that the labor of the faculties of the mind establishes a right of property as sacred as that created by the faculties of the body. A literary man is as much entitled to the product of his labor as any other member of society, and the right to literary property is just as sacred as any other property and is entitled to the same protection that the law throws around the possession and enjoyment of other kinds of property.

This industry devoted to the manufacture of perforated rolls and phonograph records is essentially parasitic. It thrives by exploiting the productions of American composers, their names, and reputations. It exercises no productive effort in the art which it exploits. It does not stimulate original work. It waits until the composer and publisher have created and met a popular demand for a piece of music, through the expenditure of money, time, and labor; then it swoops down upon and appropriates that composition for use upon its machines, to its own unjust enrichment. It acquired great wealth, influence, and power by sponging upon the toil, the work, the talent, and genius of American composers.

And carried away by the success of this iniquity, these manufacturers have become imbued with its righteousness to such a degree that they regard the exploitation of American genius and the appropriation of its creations to their own enrichment as their vested right, and this bill which is to secure to the American composer no more than his just due—the full fruits of his labor—as an assault upon an inviolable right.

… But their selfishness is suicidal. It is a fact shown by a comparison of the industries that with the increase of the sale of their mechanical devices the sale of sheet music decreases. The hope of reward, this great incentive to original work, is thus taken away from the composers by the policy of these manufacturers, and the production of original compositions is discouraged. The inevitable result will be that the composers will refuse to give original compositions to the public for the sake of a copyright protection which will no longer protect. Then will the parasite that kills itself be killed.3

Piracy is Promotion?

Earlier in the debates, opponents of the mechanical reproduction provisions raised another argument: copyright owners should be thanking them because piano rolls and phonographs are great advertising for sheet music sales. Sound familiar?4

Below is an excerpt from this portion of the hearings. Speaking first is George W. Pound, representing the De Kleist Musical Instrument Manufacturing Company and Rudolph Wurlitzer Company. He had just finished recounting letters he had received from musicians thanking him for recording their songs. Also speaking is Albert H. Walker, who appeared on behalf of “many inventors and of a few manufacturers,” especially the Auto-Music Perforating Company. Finally, John Philip Sousa, when he finally gets the chance to speak, rebuts Pound and Walker’s arguments.

Mr. Pound. We contend, sir, that that position is not well taken, that as a matter of fact every composer in the land and every music publishing house in the land is glad to get the advertisement following from the mechanical reproduction of their music. It is regarded in the trade as the best assistant to the sales of their music of any form of advertising.

… Mr. Sousa. Can I say a word here?

Mr. Pound. It will have to be very brief, and this will be the last interruption that I shall permit.

Mr. Sousa. Mr. Chairman, I can not understand why the passage of this law will interfere with these gentlemen who want to go to the talking machines. If 99 per cent of the composers are willing to give them their product, all right. I can not understand why I should be robbed in that way. It will not hurt you, and if 99 per cent of them give the music to these people, all they will have to do is to pay me. I can not understand how this law will interfere with them, and I am not standing for any publisher. I am standing for John Philip Sousa, and America.

Mr. Walker. The interest the 99 per cent have in the defeat of the bill resides in the fact that they will sell more music if we continue to advertise their business than they will if the Aeolian Company drives us out of business.

Mr. Sousa. I prefer to be the judge of that myself. I want to select the means of advertising my music.5


  1. White-Smith Music Publishing Co. v. Apollo Co., 209 US 1 (1908). Note for later that the attorney for the plaintiffs was Nathan Burkan, the attorneys for the defendants were Albert H. Walker and George W. Pound. []
  2. “The entertainment industry hates new technologies,” Andrew Kantor, It’s the same old song from a short-sighted industry, USA Today, May 26, 2006; “In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation,” Fred von Lohmann, Betamax was a steppingstone, EFF, 2004; “It’s almost a truism in the tech world that copyright owners reflexively oppose new inventions that do (or might) disrupt existing business models,” Nate Anderson, 100 years of Big Content fearing technology — in its own words, Ars Technica, Oct. 11, 2009; “Any time a new service comes along that helps drag the content industries into the present, the industry’s [sic] hit back by trying to kill off or cripple the golden goose,” Mike Masnick, Why does the entertainment industry seek to kill any innovation that’s helping it adapt? TechDirt, April 15, 2011. []
  3. Pp. 222-23. []
  4. “An artist’s enemy is obscurity, not piracy,” Cory Doctorow, Scourge of the Corporate Pirates, Brian Bethune, Macleans, April 23, 2008; “The sad fact is that The Lost Country has become a pretty obscure work … Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before,” Keven Smith, An Open Letter to J.R. Salamanca, Scholarly Communications @ Duke, Sept. 16, 2011; “Companies that are cracking down on “piracy” without realizing they may be hurting free promotional activity are doing damage to their own business,” Mike Masnick, Is There a Difference Between Piracy and Promotion? TechDirt, Aug. 10, 2004; “For example, due to file-sharing, people discover a broader range of films than before but cinemas have done nothing to work with this insight,” Magnus Eriksson, Is Online Piracy a Good Thing? CNN, April 17, 2009. []
  5. Pp. 310-312. []

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Anti-Counterfeit Friday — The Afro-IP blog, which covers IP news and issues in Africa, continues its ongoing series to raise awareness of the problem of counterfeiting on the continent. This week, counterfeit printing supplies in Ghana, and counterfeit drugs in east Africa. “For tuberculosis and malaria alone, up to 700,000 people die every year due to fake products.”

Copyright Reform 101 for the Cultural Sector — With Canada once again trying to pass a copyright reform bill, John Degen offers some “do’s and don’ts” in anticipation of the ramp up in rhetorical nastiness sure to follow. Example: “Do share.” “Don’t confuse actual sharing with forced sharing.”

More on Canada’s Copyright Modernization Act — Barry Sookman offers some comprehensive observations on Bill C-11. James Gannon looks at the bill’s TPM provisions and statutory damages provisions.

“In order to fight copyright infringements, ISPs may be asked to render specific websites inaccessible to their subscribers” — The Kluwer Copyright Blog examines last week’s decision by a Belgian court ordering two ISPs to block the Pirate Bay.

Good news to get good faster: Stageit brings it live — Chris Castle reviews StageIt, a music service started by Evan Lowenstein that lets musicians stream live performances and experiences directly from a laptop to their fans. Castle calls StageIt “a beautiful, beautiful thing.”

The World’s First “Plagiarism” Case — Jonathan Bailey offers this interesting historical story. It was a Roman poet named Martial in the first century A.D. who first used the Latin “plagiarus” to describe a literary thief.

Authors Groups From U.K., Canada, Norway and Sweden Join Authors Guild, Australian Society of Authors, and Quebec Writers Union in Suit Against HathiTrust — The Authors Guild has amended its complaint against the digital book depository, adding a number of plaintiffs. Included is author J.R. Salamanca, who had a book included on the HathiTrust’s list of orphan works until a month ago.

Parents and Kids Say They Appreciated Autism-Friendly ‘Lion King’ Matinee (via John August) — The NY Times reports on the performance, “the first time a Broadway show has sponsored an event specifically for autistic children and their families.”

The company of “The Lion King” and a panel of autism experts collaborated on ways to slightly modify the show to make sure autistic children did not have negative reactions to loud or sudden sound or light cues.  The volume in the opening number and other scenes, including the sound of a roar, was turned down. All strobe lights and  lighting that panned into the house were cut.  The sound and light reductions were done electronically so that neither the actors nor the orchestra had to tone down their performances.

Finally, be sure to check out This Week in Law. I’m appearing as a guest today — the live stream begins at 2pm EST, the show is archived afterward for later viewing.

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This afternoon, the Supreme Court will hear oral arguments in Golan v. Holder. I previously wrote about the case here, which has bounced around between the District Court and the 10th Circuit several times over the past 10 years before landing here. Check out SCOTUSblog for links to each side’s briefs as well as the numerous amici briefs for both sides.

Golan involves the constitutionality of the restoration provisions that were passed as part of the Uruguay Round Agreements Act of 1994 (URAA).1 Those provisions restored copyright protection to foreign works which were still protected in their source country but that had fallen into the public domain in the US prior to 1996 because of failure to comply with formalities (like lack of proper notice), because of lack of national eligibility, or because the work was a sound recording made before 1972. The Act excluded liability for any use of restored works prior to restoration, limited the remedies available for existing derivative works based on restored works. “Reliance parties” — parties which exploited the work before copyright restoration — could continue to exploit the work without liability unless the owner of the work serves a notice to enforce his rights.

Whether the restoration provisions here stand or fall will have little effect beyond reliance parties like Golan and the other plaintiffs because of the limited scope of the law, but many who support Golan’s position are hoping to use a Supreme Court victory as a broader vehicle for affirming the values of the public domain in general and finally getting independent First Amendment review applied to copyright law to serve as a limitation on Congressional policy in that area — policy they often disagree with.

The Supreme Court is presented with two questions. Do the restoration provisions of the URAA exceed Congress’s authority under the Copyright Clause? Or, does this law run afoul of the First Amendment?

The Copyright Clause

On the first question, Golan essentially is asking the Supreme Court to draw a line in the sand: once a work falls in the public domain, it stays there. It paints a picture of the history of copyright law as one showing an “unbroken respect for the integrity of the public domain”. Under this view, the URAA restoration provisions represent a departure from this history. Golan worries that if the Court doesn’t draw a line here, it would put everything in the public domain into question, as Congress would have no barrier to removing works from the public domain whenever it wishes anytime in the future.

The US argues that much of Golan’s arguments are merely a restatement of Eldred’s failed assertion that the Copyright Clause embodies a quid pro quo between the public and authors. This assertion reads the preamble of the Copyright Clause — the “to promote the progress of science” language — as an independent limitation on Congressional authority. But, as the US points out, the Eldred Court rejected that interpretation and gave deference to Congress for crafting copyright legislation that best advances the goals of the preamble.

The US also argues that restoration doesn’t violate the “limited times” limitation because it doesn’t extend the length of the term restored works are protected for, it only protects them for as long as they would have been protected but for their lack of adherence to pre-Berne Convention US copyright law.

Finally, the US disputes Golan’s characterization of an unbroken history of leaving public domain works untouched. The very first Copyright Act (1790), in fact, conferred “federal copyright protection upon many works that were previously subject to unrestricted exploitation by the public.”

First Amendment

When the Supreme Court decided Eldred, it said that heightened First Amendment review of a copyright statute is unnecessary when “Congress has not altered the traditional contours of copyright protection.” The 10th Circuit ruled that Congress had altered these contours when it passed the URAA in its first decision.2 When Golan reached the appeals court the second time, the court held that copyright restoration was a permissible content-neutral regulation.3

Golan agrees with the 10th Circuit’s review of copyright restoration as a content-neutral regulation but argues that it fails this review. It claims the free speech rights at stake are too important and the government’s interest — which Golan describes as conferring “windfalls directly on foreign authors in the hope that this may create later windfalls for U.S. authors” — is not even a “legitimate” interest, let alone an important one. What’s more, Golan alleges that Congress lacked substantial evidence that the URAA would actually advance this interest. Golan lastly argues that even if this was an important interest, Congress could have drafted the restoration provisions more narrowly to decrease their burden on free speech interests.

The US argues the polar opposite: copyright restoration shouldn’t be subjected to further First Amendment review at all. It says the 10th Circuit misread Eldred’s statement about the First Amendment and the “traditional contours” of copyright protection as though the Court had created a new test for deciding when to apply independent First Amendment review to a copyright statute. Even if Eldred had created a “freestanding inquiry”, the URAA hadn’t altered the traditional contours of copyright protection. Uses of restored works would still be protected by copyright’s built-in free speech safeguards, the idea/expression dichotomy and fair use.

The US concludes its argument by saying that even if further First Amendment scrutiny is required, copyright restoration is constitutional. It supports this conclusion with testimony and congressional hearings that shows it had a significant interest in passing this legislation, and the restoration provisions were only as broad as necessary to advance that interest.

What to expect?

In many ways, Golan is a sequel to Eldred v. Ashcroft. Both cases were part of a series of challenges to copyright law changes in the mid-90s brought in part by Lawrence Lessig. Golan initially included a claim identical to Eldred — that the CTEA was unconstitutional. This claim was stayed when the Supreme Court granted cert and dismissed after its decision.4 Now at the Supreme Court, Golan presents the same dual questions regarding the extent of Congress’s authority under the Copyright Clause and the First Amendment limitations on the exercise of that authority. In addition, the First Amendment issue in Golan relies heavily on the Court’s holding in Eldred.

Finally, in Eldred, the plaintiffs had attempted to draw a parallel between the CTEA and the laws struck down in US v. Lopez and US v. Morrison. In those cases, the same Justices that would rule on Eldred had ruled that two recently-passed laws were outside Congress’s authority to regulate interstate commerce, an authority that before than had been steadily expanding to the point where it seemed unlimited. Eldred hoped to convince the Court that the CTEA was like those laws — an expansion of Congress’s authority under its copyright power that would continue indefinitely unless the Court places a constitutional limit on it.

This argument, of course, failed, and Lessig — who had argued the case in front of the Court — publicly shouldered the blame for that failure. It will be interesting to see how Golan’s legal team approaches such a similar case with the lessons of Eldred, presumably, in mind.

Hopefully we get to see the Court push both parties on the relevant history of copyright law, since it plays a starring role in the question of whether and how Congress’s copyright power is limited, and both parties present such different versions of that history. Interestingly, the DC Circuit of Appeals rejected strikingly similar arguments against the URAA’s restoration provisions in Luck’s Music Library v. Gonzales.5 It notably took the same view of the relevant copyright law history as the US argues here: the Copyright Act of 1790 and the wartime restoration acts placed public domain works under copyright protection, lending support to the constitutionality of such action.

It will also be interesting to see if the Court asks about the then Solicitor General’s remark during oral arguments at Eldred about a “bright line” separating the constitutionality of extending existing copyright terms from granting protection after the term expired. Golan characterizes this remark in its brief as an acknowledgment by the US that it is prevented from restoring copyright to public domain works; the US responds that Golan misreads the remark — it was anything but a concession of a constitutional limitation.


  1. Those provisions made up § 514 of URAA and are codified at 17 USC § 104A. []
  2. Golan v. Gonzales, 501 F.3d 1179 (2007). []
  3. Such regulations don’t violate the First Amendment if they advance “important governmental interests unrelated to the suppression of free speech” and don’t “burden substantially more speech than necessary to further those interests.” []
  4. Golan v. Ashcroft, 310 F.Supp. 2d 1215 (D. Colo. 2004). []
  5. 407 F.3d 1262 (2005). []

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The US Supreme Court began its October 2011 term on Monday, a term that many foresee will be exciting and important. That no doubt holds true for copyright law buffs in particular — the Court will be hearing oral arguments in Golan v. Holder on Wednesday.

But the Court has already addressed one case dealing with copyright law. Yesterday, it denied ASCAP’s petition to overturn a Second Circuit decision holding that downloads of a song do not constitute a public performance of the underlying musical composition.

This was not a big surprise.

In the lower courts

ASCAP administers public performance right licenses in the US — it, along with BMI and SESAC, grants licenses to radio and TV stations, physical venues, and internet services that wish to publicly perform musical compositions on behalf of songwriters and composers.

Since 1941, ASCAP has operated according to a consent decree with the United States after the Department of Justice alleged that its blanket licenses violated anti-trust laws. That decree has been amended several times over the past 60 years and currently provides that the Southern District Court of New York acts as a “rate court” to determine license fees when ASCAP and a licensee cannot agree on a reasonable rate.1

This dispute began when AOL, Yahoo, and RealNetworks couldn’t reach such an agreement with ASCAP. During the rate proceeding, the issue of whether a download is a public performance — which would mean any service providing downloads would require a license from ASCAP — arose.

The District Court held that it was not.2 Drawing on the language of the relevant statutes, case law, and interpretations from agencies like the US Copyright Office, it said that downloads only constitute a reproduction of a musical composition, not a public performance.

ASCAP appealed the decision (and two subsequent decisions determining the method for calculating the fees in question). The Second Circuit affirmed the District Court’s holding regarding downloads.3 It said that “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.”

ASCAP, pointing to the definition of “publicly” in § 101, argues that a download constitutes a public performance. Section 101 defines “[t]o perform or display a work ‘publicly’” as follows:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

ASCAP argues that downloads fall under clause (2) of this definition because downloads “transmit or otherwise communicate a performance,” namely the initial or underlying performance of the copyrighted work, to the public. We find this argument unavailing. The definition of “publicly” simply defines the circumstances under which a performance will be considered public; it does not define the meaning of “performance.” Moreover, ASCAP’s proposed interpretation misreads the definition of “publicly.” As we concluded in Cartoon Network LP v. CSC Holdings, Inc., “when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission,” not simply to transmitting a recording of a performance. ASCAP’s alternative interpretation is flawed because, in disaggregating the “transmission” from the simultaneous “performance” and treating the transmission itself as a performance, ASCAP renders superfluous the subsequent “a performance… of the work” as the object of the transmittal.

ASCAP again appealed, this time to the Supreme Court.

At the Supreme Court

In its petition for a writ of certiorari, ASCAP argued that the Second Circuit’s decision improperly narrowed the public performance right, contradicts US obligations under intellectual property treaties, and creates profound implications for the American music industry.

ASCAP’s petition was joined by amici, including music publishers,4 BMI, and former US Register of Copyrights Ralph Oman.

The United States argued in its brief that Supreme Court review was unnecessary. It reiterated why it believed the Second Circuit’s holding was correct and noted that no other case contradicted this holding. ASCAP’s claim that the holding violates international agreements, said the US, was also without merit.

As for ASCAP’s argument about the impact of the court’s decision on the music industry, the US said this worry is unfounded:

[D]ownloading music files clearly implicates the authors’ rights to re­produce and distribute copies of those musical works. [ASCAP]‘s members are therefore paid each time a copyrighted work is lawfully downloaded. To be sure, a different agent licenses those mechanical rights, but the composer or author ultimately benefits regardless of which agent grants the license.

The Supreme Court was ultimately unconvinced by ASCAP’s petition and declined to take up the case, meaning the Second Circuit’s decision stands.

While ASCAP plays a vital role in standing up for its member songwriters, its legal arguments here were a longshot. The Second Circuit’s decision was a sound one, and the Supreme Court had little reason to revisit it.


  1. ASCAP Second Amended Final Judgment, Sec. IX, June 11, 2001. []
  2. United States v. ASCAP, 485 F.Supp 2d 438 (2007). []
  3. United States v. ASCAP, Nos. 09-0539-cv (L), 09-0542-cv (con), 09-0666-cv (xap), 09-0692-cv (xap), 09-1572-cv (xap) (Sept. 28, 2010). []
  4. These publishers and publisher associations included the Association of Independent Music Publishers, Church Music Publishers Association, Music Publishers’ Association of the United States, National Music Publishers’ Association, Production Music Association, the Songwriters Guild of America, the Society of Composers and Lyricists, the Recording Academy, the Game Audio Network Guild, and the Nashville Songwriters Association International. []

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