Golan I & II

A year after the Court decided Eldred, another district court, in what would turn out to be the first step in a protracted journey back to the Supreme Court, was asked to apply the “traditional contours” test. In Golan v. Ashcroft, 1Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004). plaintiffs (Lessig’s clients) included artisans and businesses that published and performed works that were in the public domain. They sought declaratory and injunctive relief, maintaining that § 514 of the Uruguay Round Agreements Act (URAA) 2Uruguay Round Agreements Act, Pub.L. 103-465. was unconstitutional. The statute restored copyright protection to foreign works whose authors had lost their copyrights due to failure to comply with certain formalities that had since been repealed. Plaintiffs argued that § 514 of the URAA altered copyright’s “traditional contours” and violated their First Amendment rights because they could no longer use certain works that had been pulled out of the public domain. The court held that plaintiffs had sufficiently distinguished the holding in Eldred so as to survive defendants’ motion to dismiss.

Plaintiffs’ victory was short-lived, though, and in a lengthy opinion the district court granted defendants’ motion for summary judgment. The court reasoned that “Congress has historically demonstrated little compunction about removing copyrightable materials from the public domain.” 3Golan v. Gonzales, 2005 WL 914754 (D. Colo. Apr. 20, 2005). The record reflected that there were in fact many historical instances where public domain works had been granted copyright. Because of the idea/expression dichotomy, the court noted, only expressions were being restored to their authors—the ideas themselves were still public property. Considering the long string of practice for granting copyright protection to works in the public domain, the court rejected plaintiffs’ contention that copyright’s “traditional contours” had in fact been altered by doing the same thing here. The court, citing “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns,” 4Id., at *17. similarly rebuffed plaintiffs’ argument that having to contract for use of restored works posed too onerous a burden on their free speech rights. In the court’s opinion, while plaintiffs surely bore some free speech hardship because of § 514 of the URAA, such difficulties were an inherent feature of copyright law in general and therefore not actionable.

On appeal to the Tenth Circuit, 5Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). plaintiffs’ luck changed. The court of appeals, after observing that the Supreme Court had not defined the “traditional contours” in Eldred, nonetheless definitively stated that “one of these traditional contours is the principle that once a work enters the public domain, no individual—not even the creator—may copyright it.” 6Id., at 1184. Moreover, the court reasoned that plaintiffs had cognizable and vested First Amendment interests in public domain works. Central to the Tenth Circuit’s analysis was the understanding that copyright’s “traditional contours” must include more than just the built-in free speech accommodations, i.e., the idea/expression dichotomy and the fair use defense. The court concluded “that the traditional contours of copyright protection include the principle that works in the public domain remain there” and that § 514 of the URAA had transgressed that “critical boundary.” 7Id., at 1189. Furthermore, the circuit court disagreed with the district court’s contention that there was a tradition of removing works from the public domain, and it characterized whatever history of the practice that did exist as the exception and not the rule. The Tenth Circuit remanded the case to the district court with instructions to subject § 514 of the URAA to heightened First Amendment scrutiny, as commanded by the “traditional contours” test.

On cross-motions for summary judgment, the district court began its analysis with the observation that § 514 of the URAA was a content-neutral regulation of speech because it could “be justified without reference to the content of the speech restricted.” 8Golan v. Holder, 611 F.Supp.2d 1165, 1170 (D. Colo. 2009). Under the applicable standard of heightened scrutiny (here, intermediate scrutiny), the statute would be upheld only if it advanced an important governmental interest and did “not burden substantially more speech than necessary to further” that interest. 9Id., at 1172. After careful analysis, the district court granted plaintiffs’ motion for summary judgment, concluding that while the government’s interests were sufficiently important, Congress nevertheless had burdened substantially more speech than was necessary in advancing those interests. The court limited its holding to only those parties that had already been exploiting the works while they were in the public domain—the so-called reliance parties. In the court’s view, those were the only parties with vested First Amendment rights that had been contravened when copyrights were restored in the works.

The parties cross-appealed to the Tenth Circuit. 10Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010). Plaintiffs argued that § 514 of the URAA should be struck down as unconstitutional on its face, meaning that it should be found to be unconstitutional not only for the reliance parties but for everyone else as well. The defendants of course disagreed, arguing that the statute was constitutional not only as-applied to the reliance parties but for everyone in general too. On this appeal, the “traditional contours” test was not in issue—the previous circuit panel had definitively applied the test and found that the statute failed it. Under the law of the case doctrine, this circuit panel was bound to follow the prior panel’s conclusion on that point. Recall that failure to satisfy the “traditional contours” test simply means that heightened First Amendment scrutiny will be applied to the statute, so the battle on this appeal was over whether § 514 of the URAA was violative of the First Amendment under this more-stringent standard of review.

The circuit court started its de novo review by agreeing with the district court that § 514 of the URAA was a content-neutral regulation of speech, thereby calling for intermediate scrutiny. In looking at the first prong, which requires the government to assert an important or substantial interest, the court had “no difficulty in concluding that the government’s interest in securing protections abroad for American copyright holders satisfies this standard.” 11Id., at 1084. The government had introduced sufficient evidence to show that by granting copyright protection to foreign works in the public domain in the United States, foreign countries would reciprocate by granting copyright protection to American works that were in the public domain abroad. Turning to the second prong, which requires that the regulation not burden substantially more speech than is necessary to further the interest asserted, the circuit court reached the opposite conclusion than the district court. In doing so, the court of appeals found that the burdens inflicted by § 514 of the URAA on the reliance parties were congruent to the benefits afforded to American copyright holders since their works overseas would receive equal protections. The Tenth Circuit sided with defendants and reversed the district court below, holding that § 514 of the URAA was not unconstitutional under heightened scrutiny.

So to summarize: (1) the district court held that § 514 of the URAA didn’t alter copyright’s “traditional contours,” (2) the court of appeals reversed and held that it did, (3) the district court held that § 514 of the URAA didn’t pass heightened scrutiny, and (4) the court of appeals reversed and held that it did. A bit confusing, I know.

The “Traditional Contours” Test Defined

Plaintiffs petitioned for and the Supreme Court granted certiorari. In Golan v. Holder, 12Golan v. Holder, 2012 WL 125436 (U.S. Jan. 18, 2012). the Court affirmed the Tenth Circuit below, starting with the observation that “some restriction on expression is the inherent and intended effect of every grant of copyright.” 13Id., at *13. Despite the intrinsic conflict between the Copyright Clause and the First Amendment, said the Court, in the Framers’ view the two served the same goal of contributing to the marketplace of ideas. The Court then explained that the reference to the “traditional contours” in Eldred referred to only the idea/expression dichotomy and the fair use defense, i.e., the free speech accommodations that are built-in to copyright law. And with that simple explanation, an almost decade-long confusion about what constitutes copyright’s “traditional contours” was laid to rest. The “traditional contours” test, then, may be stated as follows: If Congress did not alter the idea/expression dichotomy or the fair use defense when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny.

That the Tenth Circuit the first time around had completely misunderstood the “traditional contours” test was made explicit in a footnote: “On the initial appeal in this case, the Tenth Circuit gave an unconfined reading to our reference in Eldred to ‘traditional contours of copyright.’ That reading was incorrect, as we here clarify.” 14Id., at fn. 29. The Court continued its analysis by stating that here, as in Eldred, there was simply no call for the heightened review that petitioners were seeking. In the Court’s view (and understanding this point is critical to understanding Golan), burdening people’s communication of an author’s protected expression simply didn’t raise the same free speech concerns that are present when the government burdens people’s communication of facts or ideas. The Court reasoned, rather simply, that since the traditional safeguards of the idea/expression dichotomy and the fair use defense had been left in place in drafting § 514 of the URAA, petitioners’ free speech interests were adequately protected. No further mitigation was necessary since the constitutional minimum requirements had been met.

The Court then turned to the argument that petitioners in this case were distinguishable from those in Eldred because they had enjoyed vested First Amendment rights in certain public domain works. Rejecting the argument that “the Constitution renders the public domain largely untouchable by Congress,” the Court accused petitioners of attempting “to achieve under the banner of the First Amendment what they could not win under the Copyright Clause.” 15Id., at *15. The Court could find no historical or congressional practice, nor anything in the Court’s own jurisprudence, that showed that heightened scrutiny was warranted for the practice of restoring copyright protection for works that were in the public domain. The Court positively rejected petitioners’ argument that they, as members of the public using public domain works, had vested First Amendment rights in those works: “Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” 16Id., at *16.

And with that, the Supreme Court shut down once and for all Lessig’s thirteen-year-long argument that copyright laws must give special solicitude to the First Amendment above and beyond the idea/expression dichotomy and the fair use defense.

Closing Thoughts

Golan presents a great example of where simply labeling the Supreme Court’s holding as an affirmance of the court below misses the point. True, the Court affirmed the Tenth Circuit’s holding that § 514 of the URAA did not violate plaintiffs’ First Amendment rights. But the Court arrived at that destination by taking a completely different route. The better view is that, as far as the First Amendment issues are concerned, the Supreme Court in Golan completely denunciated all of the Tenth Circuit’s reasoning despite affirming its ultimate holding. The fact that the court of appeals got the right answer is entirely undercut by the fact that they were answering the wrong question.

I do want to point out as well that I think people are apt to take the holding in Golan too far. Consider the copyright statutes that we looked at—the CTEA, the CRA, and § 514 of the URAA. The CTEA extended the copyright term by twenty years for certain works. The CRA removed the renewal requirement, thus extending the copyright term for certain works. And § 514 of the URAA extended the copyright term to certain works in the public domain. See the pattern? I think the “traditional contours” test is applicable only when Congress has defined the scope of a substantive copyright right, that is, when it has “secur[ed] for limited Times to Authors . . . the exclusive Right to their . . . Writings” as the Copyright Clause expressly provides Congress may do. This is why I think Lessig goes too far when he laments that the Court has “shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” Unless it’s a copyright law that defines the scope of the substantive right—like, say, the copyright term—I think the Court has left the door wide open for meaningful constitutional challenges. For example, I would argue that the Stop Online Piracy Act (SOPA) falls outside the “traditional contours” test since it concerns enforcement of substantive copyright rights and not the scope of the rights themselves. That means SOPA wouldn’t get a free ride when challenged on First Amendment grounds.

The holding in Golan certainly reinforces the concept that “copyright has traditionally been viewed as an exception to the First Amendment.” 17Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463, 479 (2010). But it’s clearly not a complete exception. As I mentioned at the outset, Lessig’s notion that copyright must give way to free speech has been proved true with a vengeance—that’s exactly what the “traditional contours” test tells us. Copyright is an exception to the First Amendment, but only because it already incorporates two very important free speech safeguards. Alter either safeguard, and a copyright law’s free speech exception would have to be reexamined. Many people, no doubt, are dubious that these built-in safeguards adequately protect our free speech interests. Indeed, much has been written in the past few decades questioning precisely that. What the Court lays to rest in Golan, I think, is the dispute over whether these doubts are properly framed as constitutional issues or simply policy choices. One can reasonably believe that greater consideration for free speech is needed when it comes to copyright laws (in fact, I share that view), but what the Court has now made clear is that the First Amendment doesn’t demand it.

The last point I’ll make is that the Supreme Court is telling us in Golan that those focusing on the inherent conflict between copyright and free speech in framing their constitutional arguments are missing the forest for the trees. While the “immediate effect of our copyright law is to secure a fair return for an author’s creative labor,” the fundamental purpose of copyright is “to stimulate artistic creativity for the general public good.” 18Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). Thus the view espoused by the Court is that copyright and free speech are not at odds with each other in a zero-sum game where a benefit to one implies a detriment to the other. The philosophy behind the Copyright Clause “is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors . . . .” 19Mazer v. Stein, 347 U.S. 201, 219 (1954). In the Court’s view, in the Framers’ view, and in my view as well, the First Amendment and the Copyright Clause are complementary provisions promoting the same goal—the public good.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004).
2. Uruguay Round Agreements Act, Pub.L. 103-465.
3. Golan v. Gonzales, 2005 WL 914754 (D. Colo. Apr. 20, 2005).
4. Id., at *17.
5. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007).
6. Id., at 1184.
7. Id., at 1189.
8. Golan v. Holder, 611 F.Supp.2d 1165, 1170 (D. Colo. 2009).
9. Id., at 1172.
10. Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010).
11. Id., at 1084.
12. Golan v. Holder, 2012 WL 125436 (U.S. Jan. 18, 2012).
13. Id., at *13.
14. Id., at fn. 29.
15. Id., at *15.
16. Id., at *16.
17. Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463, 479 (2010).
18. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
19. Mazer v. Stein, 347 U.S. 201, 219 (1954).

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

“Constitution time is over.”

For academic and self-proclaimed “copyright activist” Lawrence Lessig, January 18, 2012, represents more than just the day the internet stood up to copyright law. In his view, it’s also the day “the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” For it was on that day that the Supreme Court handed down its decision in Golan v. Holder, 1Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). or as Lessig puts it, it’s the day the Court signaled to the copyright bar: “Constitution time is over.” Lessig’s defeatist attitude is understandable. He had spent the past thirteen years representing four different plaintiffs challenging various copyright laws on constitutional grounds. Two of the cases were even heard by the Supreme Court; all four cases ended in resounding defeat for Lessig’s various constitutional arguments. 2See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). Upset with Congress’s treatment of copyright, it’s not surprising that Lessig would turn to the courts. To get a court to strike down a copyright statute, he had to constitutionalize the issue—courts simply aren’t in the business of second-guessing legislative choices unless those choices violate the Constitution. The problem for Lessig, though, was that the Constitution itself provides few limits on Congress’s power to create copyright laws. But “few limits” does not mean “no limits.”

One of Lessig’s major arguments was that a copyright law must give way to First Amendment concerns, and it’s that particular notion that I’ll focus on in this article. While Lessig may have been defeated on this argument in that he didn’t like where the Court ultimately drew the line between copyright and free speech, as we’ll see, he was certainly vindicated in that the Court definitively recognized that copyright must in fact significantly give way to free speech interests. One culmination of Lessig’s thirteen-year-long legal battle against copyright law in the federal courts is that the Supreme Court has given us a test to use in determining whether a copyright statute has run afoul of free speech—the “traditional contours” test. And contrary to Lessig’s complaint that this test forecloses meaningful First Amendment challenges to copyright, the test instead, I think, reasonably reflects the fact that free speech and copyright promote the same public good. This sentiment is reflected in something the Court said over two decades ago: “it should not be forgotten that the 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.” 3Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

There is no doubt that copyright, in some sense, burdens free speech. The First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” At the same time, however, the Copyright Clause allows Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” But by creating a law that secures to an author a copyright in his work, Congress has inevitably created a law that abridges free speech. Copyright, just like any other type of personal property, provides its holder with the “right to exclude others from using his property.” 4Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”). It follows then that a copyright law burdens free speech since others are not free to speak that which a copyright protects. But, under the Constitution, how much can copyright burden free speech, exactly? Thanks to Lessig’s efforts, we now have the “traditional contours” test that answers just that question.

An Amorphous Test

In Eldred v. Ashcroft, 5Eldred v. Ashcroft, 537 U.S. 186 (2003). the Supreme Court squarely addressed a First Amendment challenge to the Copyright Term Extension Act (CTEA). 6Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304). Lessig himself participated in the oral arguments before the Court. The CTEA provided for an additional twenty years of copyright protection for most works, even those that were currently under copyright. Petitioners (Lessig’s clients) included individuals and businesses who depended on works that had fallen into the public domain for their products or services. Petitioners argued that, but for the CTEA, they would have been able to exploit works that otherwise would be in the public domain. Therefore, by extending the copyright term for these works, Congress had impermissibly abridged petitioners’ free speech rights. In light of this perceived conflict, petitioners asked the Supreme Court to find the CTEA unconstitutional under heightened First Amendment judicial scrutiny. Heightened scrutiny simply refers to how important the legislature’s ends must be, and how well those ends must fit with the means chosen to accomplish them. The greater the scrutiny, the more likely it is that a statute will be struck down as unconstitutional. So the party challenging a statute almost always argues for greater scrutiny, while the defending party, naturally, argues the opposite.

The Court declined the invitation to apply heightened scrutiny, instead agreeing with respondents that none was needed. Said the Court: “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. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” 7Eldred, 537 U.S. at 219. In the Court’s view, imposition of heightened judicial scrutiny was not necessary because copyright law already contains two built-in First Amendment accommodations. The first, known as the idea/expression dichotomy, 8The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” 9Eldred, 537 U.S. at 219. The second, known as the fair use defense, 10The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”). “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” 11Eldred, 537 U.S. at 219. According to the Court, these built-in accommodations strike a good balance between copyright and free speech since they allow for the free flow of ideas while providing only partial protection for an author’s particular expression.

The Court explained further that the “First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” 12Id., at 221. Petitioners’ asserted right to speak other people’s copyrighted works did raise First Amendment concerns, said the Court, but these concerns were adequately addressed by copyright’s built-in free speech protections. And then, in what can be described as an afterthought, the Supreme Court announced the “traditional contours” test: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” 13Id. The “traditional contours” test, then, is a simple conditional statement: If Congress did not alter copyright’s “traditional contours” when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny. In other words, a court will not have to look at how important the ends are, or how closely those ends fit the means chosen to accomplish them, so long as copyright’s “traditional contours” have not been altered in creating the statute. Lower courts sorely needed a test like this to apply when faced with a free speech challenge to a copyright statute. The problem, unfortunately, was that no one knew what these “traditional contours” were because the Court didn’t really say. How could courts apply the test if they didn’t even know when the test applied? And what exactly is (or isn’t) included within these “traditional contours”?

Kahle Tests The Waters

The year after the Supreme Court opinion in Eldred was handed down, a district court in California attempted to apply the newly-minted “traditional contours” test. In Kahle v. Ashcroft, 14Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004). plaintiffs (Lessig’s clients), including the Internet Archive, were in the business of taking works that had fallen into the public domain and posting them on the Internet. They brought suit challenging the constitutionality of the Copyright Renewal Act (CRA) 15Copyright Renewal Act of 1992, Pub.L. 102-307. and the CTEA on First Amendment grounds. The CRA removed the renewal requirement for works created between 1964 and 1977, and it provided that the copyrights for these works would be automatically renewed for a second term. Before the CRA, these works would have only received a second term if their owners had filed for a renewal. Now, they went full-term without the owners doing anything. The CTEA, as we just saw in Eldred, added an additional twenty years of copyright protection to these now automatically-renewing works. Plaintiffs argued that, but for the CRA and the CTEA, the vast majority of the works created between 1964 and 1977 would have fallen into the public domain on January 1, 2004. Rather than a conditional copyright regime that required authors to take affirmative steps to extend the copyright term for their works, the challenged statutes created an unconditional copyright regime where copyright protections were extended automatically. This transition from a conditional to an unconditional system—in effect, from one that was “opt in” to one that was “opt out”—argued plaintiffs, altered copyright’s “traditional contours,” thereby necessitating heightened judicial scrutiny under the “traditional contours” test.

The intuitiveness of this argument is undeniable: Whereas a copyright owner once had to renew his registration to get a second term, now he had to do nothing to obtain the same result (plus an additional 20 years of protection). For parties, like plaintiffs, waiting for these works to fall into the public domain so they could use them, this change was understandably seen as an alteration of copyright’s “traditional contours.” The district court didn’t agree, and it started its analysis with the observation that the Supreme Court hadn’t actually identified the protections it considered to be within copyright’s “traditional contours.” In fact, the court noted, the phrase “traditional contours” did not appear in any other reported decision prior to its use in Eldred. The court deduced that the two concepts recognized by the Court, namely the idea/expression dichotomy and the fair use defense, related only to the scope of copyright protection. Contrasting that with the procedural steps now being challenged, the court reasoned that removing the renewal requirement did not alter the scope of the copyright protection or the copyright holder’s substantive rights. As such, the court held that the challenged statutes did not alter copyright’s “traditional contours.” For the district court, the “traditional contours” simply were not affected by changes in copyright procedures, like removing the renewal requirement.

On appeal to the Ninth Circuit, 16Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007). plaintiffs fared no better. The circuit court accepted plaintiffs’ argument that abolishing the renewal requirement would increase the copyright term for the works in question while correspondingly decreasing the number of works entering the public domain. Nonetheless, the court of appeals found that automatically renewing a copyright’s registration was qualitatively no different than extending a copyright’s term, and the Supreme Court’s holding in Eldred had in effect already answered plaintiffs’ challenge: If extending copyrights for existing works was constitutional there, then automatically renewing and thus extending copyrights for existing works was also constitutional here. So long as “traditional First Amendment safeguards such as fair use and the idea/expression dichotomy” vindicate the plaintiffs’ affected free speech interests, said the court, “extending existing copyrights . . . does not alter the traditional contours of copyright protection.” 17Id., at 700 (internal quotation marks omitted). So for the Ninth Circuit, automatically renewing a copyright was no different than extending a copyright’s term, and plaintiffs’ clever framing of the issue fell flat. While the Supreme Court in Eldred did not define what it meant by copyright’s “traditional contours,” the Court’s decision did make clear that extending a copyright’s term leaves the “traditional contours” intact—that was the exact issue in Eldred. And once the circuit court framed the issue as one of simply extending a copyright’s term, plaintiffs’ game was over under the Court’s prior holding. Plaintiffs appealed to the Supreme Court, but the petition for certiorari was denied. 18Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

Coming up in Part II: Golan I & II, The “Traditional Contours” Test Defined, and Closing Thoughts.

References   [ + ]

1. Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
2. See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
3. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
4. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”).
5. Eldred v. Ashcroft, 537 U.S. 186 (2003).
6. Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304).
7. Eldred, 537 U.S. at 219.
8. The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”).
9. Eldred, 537 U.S. at 219.
10. The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”).
11. Eldred, 537 U.S. at 219.
12. Id., at 221.
13. Id.
14. Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004).
15. Copyright Renewal Act of 1992, Pub.L. 102-307.
16. Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007).
17. Id., at 700 (internal quotation marks omitted).
18. Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

What do Record Labels Actually Do? You’d be Surprised — “For all the cynicism about money-grabbing majors, labels still offer artists the security they need to produce their best work,” says Helienne Lindvall of the Guardian. “It’s true the internet has been brilliant for artists in many ways, giving them an alternative route to make contact with and sell directly to fans, but record labels do much more than distribute to retailers.”

5 Ways Piracy is Changing — Jonathan Bailey offers some thoughts on how the Megaupload indictment has affected the landscape of online infringement. “Piracy has been a part of being a content creator since day one and it isn’t going to go away. However, with time and effort, it may become more of a nuisance than a major concern and that, in the long run, should be the end goal. Not the elimination of piracy, but the mitigation of it.”

Bill C-11, “Digital Locks”, and Copyright Reform: What Kind of Business Models Do We Want to Encourage? — James Gannon poses this question in light of Canada’s efforts to update its copyright law. “While laws that would legalize modchip manufacturers and file-sharing websites might be popular with certain segments of the population, they are still bad economic policy. These are not business models that lead to sustainable, job-heavy enterprises; these are not business models that provide any rewards to artists and creative workers,” says Gannon. “When copyright opponents claim that we shouldn’t amend our laws in order to support outdated business models, I couldn’t agree more.”

Judge Declares Batmobile is Subject to Copyright — Why so serious? A federal judge denied a motion to dismiss a claim of copyright infringement against a defendant for creating replicas of the Batmobile. That doesn’t necessarily mean infringement, just that, at this stage, such a claim is plausible — which is not a terribly novel decision, since courts have long held that artistic elements of functional objects can be protected. But it does make for good water-cooler discussion.

Lobbyists 1, Internet 0: An Alternative Take on SOPA — It’s interesting to read accounts of the SOPA blackout that seem to take the view that opposition arouse wholly spontaneously. David Rodnitzky doesn’t buy it, and offers a look behind the scenes that is comprehensive yet still only the tip of the iceberg. “The notion that this was a battle of David vs. Goliath – the unwashed masses versus powerful Hollywood lobbyists – is a fiction. The outrage against SOPA simply would not have occurred without well-funded, well-organized efforts led by lobbyists and lawyers at major Internet sites.”

2Cellos – the artists behind ‘Glee’s’ ‘Smooth Criminal’ cover — There was something incredible about the two cellists providing the music for one of the songs on Glee this week, so I looked them up and discovered 2Cellos, a very talented duo. Good stuff.

Following the shutdown of Megaupload, Internet folk hero Jonathan Coulton asked:

[W]here is the proof that piracy causes economic harm to anyone? Looking at the music business, yes profits have gone down ever since Napster, but has anyone effectively demonstrated the causal link between that and piracy? There are many alternate theories (people buying songs and not whole albums, music sucking more, niches and indie acts becoming more viable, etc.). The Swiss government did a study and determined that unauthorized downloading (which 1/3 of their citizens do) does not create any loss in revenue for the entertainment industry. I remember but am now too lazy to find links to other studies that say the same thing. I can’t think of any study I’ve seen that demonstrates the opposite. If there is one, please point me to it.

Now, before addressing Coulton’s remarks, I want to be clear — since The Internet can be touchy about such things — that I’m not picking on Coulton; I like some of his music.

Having said that, his remarks about the evidence concerning piracy are quite common. Facts and evidence are important to discussions of copyright policy, and it’s important that we understand exactly what those facts are.

Piracy Causes Harm

As for pointing to studies that demonstrate the harm of unauthorized downloading, I would point to the same link Coulton provided. The Swiss government report 1The report is in German. I haven’t tracked down an English version yet, but you can read a Google-translated version here. — not, technically, a study — cites an academic literature review that points to not only one such study but fourteen.

The review, The Economics of Music File Sharing – A Literature Overview, by Peter Tschmuck (Microsoft Word version here), examines 22 studies which look at the effects of filesharing on the music industry. Because some are skeptical of industry generated studies, it should be pointed out that all the studies here are independent, academic studies — working papers, academic journal articles, and dissertations. Of these 22 studies, 14 — roughly two-thirds — conclude that unauthorized downloads have a “negative or even highly negative impact” on recorded music sales. 2Three of the studies found no significant impact while the remaining five found a positive impact. The literature review looked at a 23rd study but did not classify it here since the author presented a mixed conclusion: the overall effect of unauthorized downloads is insignificant, but for unknown artists, there is a “strongly negative” effect on recorded music sales.

Studies since Tschmuck’s only confirm these findings. One notable contribution is economist Stan Liebowitz’s study The Metric is the Message: How Much of the Decline in Sound Recording Sales is Due to File-Sharing? released in November 2011. In it, Liebowitz translates the conclusions of existing studies on the effects of unauthorized downloads on recorded music sales into a common metric to answer the question posed in his title.

His conclusion is stunning: “file-sharing has caused the entire decline in sound recording sales that has occurred since the ascendance of Napster.”

Looking at the available evidence, one thing is clear. It is a fact that there are multiple academic studies that show a significant negative effect on music sales caused by unauthorized downloading, and this conclusion has been reached by a significant majority of researchers. Coulton is not alone in being unaware of these findings — you don’t have to look far to find those who don’t know about the existence of these studies.

But there they are.

Enforcement Boosts Legal Alternatives to Piracy

The fact that evidence backs up one of the central premises of copyright law is, however, only a precursor to the real question: what, if anything, should be done to address the harm from online copyright infringement? The role of law in answering this question attracts perhaps the most heated debate. That leads to the next question: does copyright enforcement work?

Some point to the 400+ page Media Piracy in Emerging Economies report, released in 2011 by the Social Science Research Council and funded by the Ford Foundation, as providing evidence that enforcement “doesn’t work.” But that’s not what the report concludes, as the editor of the report itself, Joe Karaganis, pointed out in a Torrentfreak article last week:

We talk about the efficacy of enforcement at some length in our Media Piracy report. Many readers have concluded that enforcement doesn’t work.  But that isn’t what we say.  We say, rather, that we’ve found no evidence that it has worked.

It’s also important to note what the report researchers looked at to come to that conclusion: the research was primarily qualitative rather than quantitative, relying on interviews, focus groups, and analysis of media reporting.

That said, this is but one study. Other researchers have found evidence that enforcement has led to increases in legal purchases of music.

In a paper released last week, Dr. George Barker of Australian National University analyzed the data from a 2006 Industry Canada survey to conclude that “P2P downloads have strong negative effects on legitimate music purchases” and “stronger copyright laws would substantially increase music purchases and music industry sales revenues.”

These findings are confirmed by another recent study by four economists from Wellesley College and Carnegie Mellon University, which determined that France’s graduated response program (Hadopi) caused “iTunes song and album sales to increase by 22.5% and 25% respectively relative to” countries in a control group that hadn’t enacted graduated response programs.

A Multipronged Approach

The idea that there is no evidence showing a harm from online piracy is erroneous, as is the idea that there is no evidence that people will turn to legal alternatives with more effective enforcement.

So where does that lead us?

I think it’s incorrect to draw the conclusion that better enforcement of copyright equals more enforcement. That’s not true in any area of law, including copyright.

But at the same time, I think it’s incorrect to ignore the evidence. There are those who say piracy is only a business model problem, or a marketing problem, and enforcement should play zero role.

This puts copyright at odds with most other issues. Take driving, for example: we prefer to minimize the harm that comes from accidents. To that end, we build safer cars, we have driver education, but we also have traffic laws and cops to enforce those laws.

There’s nothing inherent to copyright law that warrants an exception to this general practice. The challenges faced by creators and businesses that invest in creativity in the online environment are myriad and require continuing innovation to craft sustainable business models and take advantage of emerging technologies. But they also require attention to legal protection of private rights to ensure that the public continues to benefit from the talents and creativity of authors and artists.

References   [ + ]

1. The report is in German. I haven’t tracked down an English version yet, but you can read a Google-translated version here.
2. Three of the studies found no significant impact while the remaining five found a positive impact. The literature review looked at a 23rd study but did not classify it here since the author presented a mixed conclusion: the overall effect of unauthorized downloads is insignificant, but for unknown artists, there is a “strongly negative” effect on recorded music sales.

The Truth Behind Google’s Copyright-Bills Hysteria — Great piece on the hyperbole that became the norm over recent legislation. “The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.”

The MTP Interview: Indie Film Maker David Newhoff — Chris Castle sits down with the creator of Gone Elvis and talks about indie filmmaking and the challenges and opportunities provided by the internet.

Wright & Diveley on Expert Agencies & Generalist Judges — When Senator Wyden announced the OPEN Act, he announced that one of its advantages was putting the adjudication of sites dedicated to piracy “in the hands of the International Trade Commission – versus a diversity of magistrate judges not versed in Internet and trade policy.” But is this an advantage? This new paper examines the general claim that administrative judges produce better decisions than generalist judges. The conclusion: “there is little empirical basis” for these claims.

Academic publishing is full of problems; lets get them right — The Copyright Librarian (Nancy Sims of the Univ of Minnesota) gives a comprehensive overview of how academic database JSTOR works, along with a look at some of the challenges facing academic publishing. Great read.

Creative Commons for Music: What’s the Point? — “Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States … The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so.”

The Summers’ Tale — Nicholas Carr rebuts recent statements by former Harvard president Lawrence Summers concerning 21st century learning. “This idea that knowledge can be separated from facts – that we can know without knowing – really needs to be challenged before it gains any further currency.”

Who is the A$%#hole? — Music information researcher Paul Lamere, who has long done exciting work in the field, remarks on yet another “enlightened” blog post in the wake of SOPA called Can we kill the music business too? Says Lamere, “James is certainly right – you can’t have a great music startup without great music, but he goes off the rails if he thinks that companies protecting themselves from theft infringement are assholes. A music startup, or any business should not be able to build a business on top of  someone else’s IP without compensating them for the use. It is easy to build a company that makes money by giving away someone else’s property. But it is not legal.”

Last week’s indictment and arrest of Megaupload and seven of its execs added a strong dose of drama to an already dramatic couple of days in the copyright arena.

The US Department of Justice calls this “among the largest criminal copyright cases ever brought by the United States,” though I wouldn’t be surprised if it is actually the largest such case — I’m not aware of any larger criminal actions. 1The closest seems to be Operation Safehaven in 2003. No doubt the proceedings will be followed closely by many over the next few months.

Already, the arrest has had a sharp effect online, with other cyberlockers scaling back or shutting down altogether.

While the federal government’s action against Megaupload — which had been in the works since March 2010 (months before ICE even began its Operation In Our Sites) — will obviously have many ramifications for the future of copyright law online, I wanted to focus specifically on one of the legal issues that may be implicated in the case.

Does the DMCA apply to criminal infringement?

Perhaps the most novel legal issue that may arise during the Megaupload proceedings is whether the DMCA safe harbors provide the defendants with any defense.

As an initial matter, it seems to be an open question whether the DMCA safe harbors are available to any criminal defendant. The U.S. appears to adopt the view that they aren’t. 2The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].”

The indictment notes without further explanation that “Internet providers gain a safe harbor under the DMCA from civil copyright infringement suits in the United States if they meet certain criteria [emphasis added],” although it subsequently offers reasons why the Megaupload defendants wouldn’t qualify for the defense anyway.

The language of the statute plausibly supports this view. Though it references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Deduplication and the DMCA

Regardless, the indictment alleges that even if the DMCA safe harbors are available to criminal defendants, the Megaupload defendants failed to satisfy the conditions for eligibility.

Among other things, Megaupload used deduplication, a common technical process used by online services to reduce the amount of storage needed for data. In Capitol Records v. MP3Tunes, Capitol argued that a similar process made the defendant liable for public performances of sound recordings, but the Southern District Court of New York disagreed, calling it a “standard data compression algorithm that eliminates redundant digital data” that didn’t give rise to liability.

It was a small win for MP3Tunes, however, since the court held that its failure to remove the actual files stored on its service when it received a DMCA takedown notice, rather than just links to the files, disqualified it from safe harbor protection.

The indictment alleges that Megaupload operated much the same way. When a user uploads a file already present on the system, “the system provides a new and unique URL link to the new user that is pointed to the original file already present on the server. If there is more than one URL link to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail because the additional access links will continue to be available.”

If the Eastern District of Virginia follows the same reasoning as the MP3Tunes court, this doesn’t necessarily mean Megaupload is ultimately liable, but it would mean that it wouldn’t be protected by the DMCA.

I don’t know for certain how big a role the DMCA safe harbor will play in the case; only time will tell. But I’ll definitely be keeping a close eye on the legal developments of what promises to be a watershed moment in copyright history.

References   [ + ]

1. The closest seems to be Operation Safehaven in 2003.
2. The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].”

Slow news week, right?

Other than a Supreme Court decision, one of the largest criminal copyright infringement indictments in history, and an internet protest against SOPA that resulted in nearly 1.5% of the US population contacting their representatives.

Inevitably a lot of links today will deal with issues surrounding SOPA and the PROTECT IP Act. One of the more interesting developments I’ve noted is the reaction to the overreach and hyperbole of the “internet blackout.” Many who didn’t necessarily support the specific language of the bills raised concerns over the tactics involved and even expressed some sympathy for supporters of the bills — probably not an intended consequence of those behind the protest.

For example: Evan Brown, a whip-smart lawyer who blogs at Internet Cases, writes If you critique SOPA, read the text. If you read the text, read it right, noting the “misguided” arguments made by the Khan Academy in a video against SOPA. U of Chicago philosopher Brian Leiter says of the blackout that the “knee-jerk opposition of cyber-libertarians, who readily turn a blind eye to all the ugliness of cyber-space, is itself suspect in my view.” Bloggers at the well-respected IPKat blog offered sobering analysis here and here. Finally, NY Times technology columnist David Pogue cautions that “the scare language used by some of the Web sites was just as flawed as the Congressional language that they opposed.”

If The Tech Industry Had Its Way, Hollywood Would Be Zynga — TechCrunch’s Alexia Tsotsis casts a critical eye at venture capitalist Paul Graham’s latest statement: Kill Hollywood. Graham had previously called SOPA supporters like Hollywood “un-American” and promised to not work with anyone on the list of supporters.

An Elegy for the Piracy Wars (On the Occasion of the SOPA/PIPA Blackouts) — An epic rant by author Chris Ruen. At 4000+ words, few perhaps will agree with all his sentiments, but there’s certainly much food for thought.

The False Ideals of the Web — Jaron Lanier’s book You Are Not a Gadget is recommended reading for anyone interested in digital issues. In this NY Times editorial, Lanier reitirates his skepticism of a worldview where “the Internet is a never-ending battle of good guys who love freedom against bad guys like old-fashioned Hollywood media moguls.”

Starving the Artist is FREE Forever. Download the Free E-Book — Author William Aicher has made his book Starving the Artist: How the Internet Culture of “Free” Threatens to Exterminate the Creative Class and What Can Be Done to Save It’ available as a free download. I just started reading it this weekend, good stuff so far.

Explainer: How can the US seize a “Hong Kong site” like Megaupload? — Nate Anderson at Ars Technica has a good overview of the jurisdictional issues implicated in Thursday’s arrest of Megaupload executives.

165 French File-Sharers Now On 3rd Strike, “iTunes Up 22.5%” — Less than 2 years after France began its graduated response approach to piracy, reports show encouraging statistics. Those receiving second warnings represent less than 10% of those receiving first warnings.

With sites like Wikipedia and Google holding a protest today, many people are likely hearing about proposed copyright legislation — the Stop Online Piracy Act in the House and the Protect IP Act in the Senate — for the first time today. So I figured I’d dispense with my usual writing — footnotes and all — to provide a brief introduction and explanation to the bills.

To call some of what is being said about these bills “hyperbole” would be an understatement. Then again, hyperbole is what the internet does best, second only to cat videos. If you’re looking for a somewhat more rational look at these bills before coming to an informed conclusion, read on.

What is the Problem?

Nearly everyone, even those who oppose the bills, agree that piracy is a problem. “Copyright industries” — everything from newspapers and periodicals, to motion pictures, recorded music, radio and television broadcasting, and computer software — are vital not only to our economy but our society as a whole. Online piracy has led to lost jobs and revenues in these industries.

Online piracy hurts creators. Many outside the creative industries are ambivalent to this. In large part, this is because the issue of online piracy has been framed as one affecting only record labels and movie studios — and rock stars and movie stars don’t evoke much sympathy. While everyone deserves protection of the laws, the ambivalence is understandable.

But the fact is that, while piracy certainly affects larger entities, it is the smaller and independent producers that bear the brunt of piracy’s harm. The James Camerons and Lady Gagas of the world will survive the transition to a digital age. Independent producers and the next generation of creators, however, are hurting.

And this should be a concern, because these creators so often make the most valuable contributions to our culture. They express views that are not always expressed by mainstream producers. They take creative and financial risks. They also, unfortunately, do not have the resources to respond to commercial pirates online.

For example, in a recent Huffington Post piece, Kathy Wolfe, who runs a company that distributes gay and lesbian films, notes how difficult it is to “compete with free.”

The artists I work with and the films I have been privileged to be associated with have changed countless lives. Without a secure, fair and functioning online market, these stories of diversity will cease to be told and this “Freedom of Speech” will be compromised. American companies that are in the business of creating and distributing content shouldn’t be sacrificed to protect large-scale pirate profiteers who knowingly and blatantly flout the law and common sense.

Attorney Dorrissa D. Griffin expressed similar sentiments in an article last October. Said Griffin, “Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”

In an article last spring, Jason Reitman (Up in the Air, Juno) worries about what the future holds for art and entertainment in general if piracy continues unchecked:

Reitman has a term for the type of motion picture facing extinction because of piracy. He calls them “tweeners”—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the “tweener” as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which “push cinema forward,” producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.

Why is New Legislation Needed?

To understand SOPA and PROTECT IP, you have to first understand the law now. Under current law, anyone who copies, distributes, or publicly performs a work has infringed. A copyright owner can sue an infringer in federal court — which typically requires an attorney and thousands of dollars, with no guarantee of success. This makes sense if the infringer has deep pockets or is profiting off piracy. It makes less sense if the infringement is decentralized and dispersed, as often happens online.

Recognizing this, Congress passed the Digital Millennium Copyright Act in 1998. The DMCA protects sites that accept material uploaded by users — like YouTube and Facebook — from infringement liability if they comply with the law’s requirements. One of those requirements is taking down infringing material like a video or picture if the copyright owner sends a takedown notice to the service provider. Though users who upload material to such sites are still liable for copyright infringement, the notice-and-takedown regime has effectively shielded ordinary users from this liability as well. As the EFF has said:

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.

There’s certainly plenty of room for improvement in the DMCA. But most will agree that the balance it struck has generally worked in the past decade, allowing new venues of expression to flourish — sites like YouTube, Facebook, and Wikipedia, for example — while creating some semblance of a functioning market that provides consumers with legal and innovative ways to access movies, music, and other creative works online — whether through Netflix, iTunes, Hulu, or Spotify.

So why is SOPA/PROTECT IP needed? It’s still trivially easy to set up a site that offers illegal content and profit from it from advertising and subscriptions or sales. And when such sites are operated overseas, they are effectively impossible for copyright holders to reach through DMCA takedowns or an ordinary copyright infringement lawsuit, yet such services are available to anyone in the US with an internet connection.

These sites profit off the talents of creative Americans, stall the development of legal services for consumers, and give nothing back.

What Would the Bills Do?

SOPA and PROTECT IP would give the Attorney General and copyright holders more effective remedies designed to cut off the money flowing to these types of sites.

The internet is filled with misinformation about both bills, much of it inadvertant, some of it deliberate (as with any legislation). A lot of this misinformation could be remedied simply by reading the bills (H.R. 3261 and S.968). Not all of it, of course. Legislation can be difficult for even lawyers and Congressmen to understand — and copyright law is an especially difficult subject to grasp.

So a brief word first about what these bills don’t do.

Much of the early criticism over these bills centered around provisions that would allow courts to order service providers to block access to websites. These provisions have since been removed and are not likely to come back. All that talk about “censorship” or “blacklists” or “breaking the internet” (all characterizations I absolutely disagree with) is moot.

These bills do not change what is or isn’t copyright infringement; instead, they limit the availability of these remedies to only a narrow subset of illegal behavior. Under SOPA, for example, the remedies are only available to a copyright holder if a site is “primarily designed” for offering goods or services that infringe copyrighted works, “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” (Emphasis added). A stray infringing clip on a blog or social networking site won’t cut it under this definition.

If a copyright owner wishes to take action against such a site, it must file a lawsuit in court, where the site owner is protected by the same due process safeguards as any civil defendant. The copyright owner may then move for court orders against any advertising or payment provider whose services are being used by the site to profit off piracy. If the court approves these orders, the providers must discontinue their services to that site.

It should be noted that both bills expressly limit the remedies available to copyright owners to these court orders — copyright owners can’t collect any monetary damages from sites under these bills.

In addition, advertising and payment providers are only required to take “technically feasible and reasonable measures” if served with a court order. Even then, they are only liable for court assessed penalties if they “knowingly and willingly” refuse to comply.

Finally, these remedies are not permanent. At any time after an order has been entered, a site owner can move to modify or vacate the owner if it disputes the original finding that it was primarily designed for infringement, if it has since changed its site so it no longer infringes, or even if “the interests of justice require” modification.

This “follow the money” approach would give copyright owners tools they don’t currently have to help reduce the harmful effects of online commercial piracy. It does so in a way that is fully compatible with our constitutional and civil rights and preserves the openness that has made the internet such a vital part of our everyday lives.

“It has been a generally accepted theory, but a false one, that infringement of copyright only takes place when copies are made for public sale or performance, and not when they are intended merely for personal use.” Musical News, vol. 8, pg. 314 (April 6, 1895).

SOPA  and Censorship Spillovers — Law professor Randal C. Picker takes on two of the arguments against rogue sites legislation: that the Internet should remain free from the rule of law and the claim that “the United States will  forfeit its moral authority to oppose the censorship of free speech around the world if the United States uses a similar capability in the name of preventing IP infringement.” Picker finds both claims unfounded. “Consider prisons. The United States puts people in prison who commit serious crimes such as armed robbery, burglary, and murder. China may put political dissidents in prison. No one would contend, I assume, that the United States should stop putting serious criminals in prison even though the Chinese are jailing political dissidents.”

How Much Does File Sharing Resemble Stealing—and Does it Matter? — Great article from the Atlantic’s Megan McArdle. Critics of intellectual property often throw around words like “scarcity” and “non-rivalrous” to argue against protecting these forms of property, but as McArdle points out, “I’m not sure how we settled on ‘it’s non-rivalrous’ as the reason that file sharing is a) not stealing and b) okay.”

Should Wikipedia protest SOPA on January 18th? — The online encyclopedia ditches its core policy of presenting a neutral point of view to enlist its users in supporting its lobbying efforts.

The Haves and the Want to Haves – For Free — “To achieve a rateless, perpetual, and irrevocable license for content owned by others Google must attack the very laws that stand in their way through lobbyist in Washington D.C. So now we are debating the historical “contract” between the U.S. government and intellectual rights holders that have been around since the founding of our Constitution. What will be the outcome? Who will win? In the future will innovators have to bow to the mere whims of website owners and corporate titans who feel they have the right to monetize copyrighted, trademarked and patented materials? Will innovators be forced to allow website owners and Silicon Valley corporations to monetize their innovation with no recourse?”

Piracy and Malware: Two Parts of a Single Problem — The ITIF’s Richard Bennett shows that malware and piracy often coincide online and wonders why there’s such strong opposition to using the same techniques used to combat malware against piracy. Bennett notes that this compartmentalization “is a policy judgment, not a technical one.”

Real cultural damage, and the phantom kind — Another excellent post from John Degen: “the folks most concerned about copyright terms and getting as many works outside of copyright as soon as possible are not the everyday consumers and culturally-minded Canadians Geist purports to speak for. No, those most looking forward to E.J. Pratt et al losing their copyright protection are the giant, multinational content aggregators like Google who want to suck up as much digitized content as possible without the hassle and bother of dealing with copyright licensing or permissions, so that they can continue to make gazillions of dollars selling advertising on top of other people’s ‘free’ content.”

What Will Anti-SOPA Blackout And Hearing Accomplish? — TPM doesn’t have a good answer to that question. And that was before provisions relating to DNS were stripped from both the House and Senate bills.

Whither Freedom of the Press? — Though not related to copyright, this recent law review article from Randall Bezanson should interest readers who have enjoyed my recent posts on the freedom of the press. It is also one of the most entertainingly snarky academic works I’ve read in recent history.

Amazon’s Plagiarism Problem — “Self-publishing has become the latest vehicle for spammers and content farms, with the sheer volume of self-published books making it difficult, if not impossible, for e-stores like Amazon to vet works before they go on sale … Writing a book is hard. All those torturous hours an author has to spend creating, crafting, culling until nonsensical words are transformed into engaging prose. It’s a whole lot easier to copy and paste someone else’s work, slap your name on top, and wait for the money to roll in. This creates a strong economic incentive, with fake authors–Sharazade thinks it’s possible they are organized gangs based in Asia–earning 70% royalty rates on every sale, earning far more than a spammer could with click fraud.”

Hulu CEO Jason Kilar: We Now Have 1.5M Paid Subscribers — The streaming service showed impressive growth in 2011, tripling its number of paid subscribers and increasing revenues by 60%. Kilar says the company is looking to continue growing in 2012, with plans to invest “half a billion” in licensing new TV shows and films.

Cyberlockers, social media sites and copyright liability — While 2011 was a big year for legal developments involving cyberlockers and social media sites, 2012 is likely to be even bigger. Barry Sookman takes a look at several cases dealing with these issues already in the new year.

How Google profits from illegal advertising — and keeps the money even after getting caught — Ben Sheffner highlights recent reports that Google making money from illegal activities is fairly common. “This is all just a reminder that many of the opponents of SOPA and PROTECT IP, while they like to portray themselves as brave Internet freedom-fighters, are in reality doing little more than protecting their own business interests. They profit from illegal activities, and they will vigorously resist legislation that seeks to put this practice to an end.”

Google caught pilfering Kenyan business directory in sting operation — It hasn’t been a good week for the tech giant, as Ars reports on news of allegedly fraudulent activity by Google employees in Africa.

Heritage Foundation Misses the Market on Rogue Sites — Chris Castle provides a point-by-point rebuttal to the conservative think tank’s opposition to SOPA. “No one in the creative community expects a market with zero piracy.  We have always had piracy and we always will have piracy.  What is new about piracy on the Internet is the scale and the participation of publicly held companies that use their vast resources raised in the public financial markets to fight compliance with the law in order to free ride on the work of others that they seek to commoditize.”

The following is an excerpt from Brandew Matthews‘ article, The Evolution of Copyright, which originally appeared in Political Science Quarterly in December, 1890. It traces the “prehistory” of copyright — from ancient Greek and Roman times to the development of the printing press — and gives one explanation for its development.

Perhaps a consideration of the evolution of copyright in the past will conduce to a closer understanding of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold’s phrase, have afforded to the individual author the sanction of the law in possessing what he has produced; and it is no less instructive to note the successive enlargements of jurisprudence by which property in books—which is, as Lowell says, the creature of local municipal law—has slowly developed until it demands and receives international recognition.

The maxim that “there is no wrong without a remedy,” indicates the line of legal development. The instinct of possession is strong; and in the early communities, where most things were in common, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance—much as a dog defends his bone, growling when it is taken from him, or even biting. If public opinion supported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recognition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin; but this action steadily widened in scope until it became an action for recovery; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self-assertion and the resulting pressure of public opinion, which, as Lowell once tersely put it, is like that of the atmosphere: “You can’t see it, but it is fifteen pounds to the square inch all the same.”

The individual sense of wrong stimulates the moral growth of society at large; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more modern periods of development, the recognition of new forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other individuals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed—this being an effort to command the conscience of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the fullness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legislative declaration of rights is still going on all about us and in all departments of law, as modern life develops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering’s definition of a legal right as “a legally protected interest.”

As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was (probably first recognized in the tools which early man made for himself, and in the animais or men whom he subdued; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things—to actual physical possession—to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature; it was not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works.

The Greek dramatists, like the dramatists of today, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents—more than twelve thousand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author’s rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the invention of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong; he had thought mainly of the honor of a wide circulation of his writings; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit; and as soon as the author saw this profit diminished by an unauthorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims.

It is after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 1451. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474.

In the beginning these printers were publishers also; most of their first books were Bibles, prayer-books, and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero’s Offices—” the first tribute of the new art to polite literature,” Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuna, the revision of the text, called for scholarship of a high order; this scholarship was sometimes possessed by the printer-publisher himself but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer’s task; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author’s writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presentation of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin of the fruit of his labors; and the earliest legal recognition of his rights was granted less than a score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledgment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.

This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen; it gave but a limited protection; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent—a precedent which has broadened down the centuries until now,’ four hundred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a territory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully’s Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the publicist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phoenix —the first recorded instance of a copyright awarded directly to an author. Other Italian states “encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics,” and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book; and if the work went to press again, the publisher had to seek a second patent.

In England, in 1518, Richard Pynson, the King’s Printer, issued the first book cum privilegio; the title-page declaring that no one else should print or import in England any other copies for two years; and in 1530 a privilege for seven years was granted to John Palsgrave ” in the consideration of the value of his work and the time spent on it; this being the first recognition of the nature of copyright as furnishing a reward to the author for his labor.” In 1533 Wynkyn de Worde obtained the king’s privilege for his second edition of Witinton’s Grammar. The first edition of this book had been issued ten years before, and during the decade it had been reprinted by Peter Trevers without leave—a despoilment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured protection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhering bases the struggle for law on the instinct of ownership as something personal, and the feeling that the person is attacked whenever a man is deprived of his property; and, as Walter Savage Landor wrote: “No property is so entirely and purely and religiously a man’s own as what comes to him immediately from God, without intervention or participation.” The development of copyright, and especially its rapid growth within the past century, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.