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

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

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

The Appointments Clause

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

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

The power to appoint government officials is a significant power, and the Constitutional drafters were aware of its potential for abuse from their experiences with England. The first portion of the Appointments Clause represents a compromise between the drafters of the Constitution who wished to vest appointment power in the legislative branch and those who wished to vest it in the executive. 1See Buckley v. Valeo, 424 US 1, 131 (1976); Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 Journal of Constitutional Law 745, 768(2008). The compromise represented what was thought to be the best way to preserve political accountability of government officials while also ensuring that well-qualified officers are appointed.

The second part of the Appointments Clause, which addresses inferior officers, was almost an afterthought — added with little debate, most likely for pragmatic reasons. 2See Volokh; Andrew Croner, Morrison, Edmond, and the Power of Appointments, 77 George Washington Law Review 1002, 1005 (2009). Even in the 18th century, it was recognized that requiring Presidential nomination and Senate confirmation for every single government officer would be terribly inefficient.

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

What are Principal and Inferior Officers?

An “Officer of the United States” is, according to the Supreme Court, “any appointee exercising significant authority pursuant to the laws of the United States.” 3Buckley v. Valeo, 424 US 1, 126 (1976). Appointees not exercising such authority could be considered mere employees — the Constitution is agnostic on their appointment. 4See United States v. Germaine, 99 US 508, 509 (1879).

The Appointments Clause implies two classes of officers — principal and inferior — though it does not delineate between the two. The Supreme Court has also shied away from enunciating a precise rule to distinguish between the two types of officers. 5See Edmond v. United States, 520 US 651, 661 (1997): “Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes”; Morrison v. Olson, 487 US 654, 671 (1988): “The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. … We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the ‘inferior officer’ side of that line.” Instead, it has identified factors to help delineate between principal and inferior officers. Key among these factors is whether an officer is subordinate to another officer. That is, the question of distinguishing between principal and inferior officers is one of hierarchy — principal officers answer primarily to the President, inferior officers report to principal officers (though, it should be noted, this is only a necessary, not a sufficient, condition). 6See Free Enterprise Fund v. PCAOB, 561 US ___, *V (2010).

What is a “department”?

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

As a threshold matter, the text of the Appointments Clause suggests, and the Supreme Court has confirmed, that Departments refer only to agencies within the Executive branch of the government. 7Buckley v. Valeo, 424 US 1, 127 (1976). But which executive agencies? All of them? Or only some of them?

The Supreme Court has not been entirely clear on its answer to this question. In the 1991 case Freytag v. Commissioner, in an opinion that apparently confused four of the nine Justices, 8Said Scalia in the concurrence, “It is as impossible to respond to this random argumentation as it is to derive a comprehensible theory of the appointments power from it.” the Court limited the scope of the term “Departments” in the Appointments Clause to “executive divisions like the Cabinet-level departments.”

But then in 2010, the Court ignored the majority’s conclusion in Freytag and adopted the concurrence’s broader definition and reasoning without comment. 9Free Enterprise Fund v. PCAOB, 561 US ___ (2010). It would seem then that, for the purposes of the Appointments Clause, a “Department” is any “freestanding component of the Executive Branch, not subordinate to or contained within any other such component.”

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

The Library of Congress

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

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

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

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

The Register of Copyrights

In an 1897 article, the American Library Association reports on some of this discussion. 10I admit that the introduction to the ALA’s article made me chuckle: “The appearance, the week before Congress opened, of seven members of the American Library Association before the joint committee on the Library of Congress in Washington has been the most interesting happening in the library world since the Cleveland conference.” The then Librarian of Congress, Ainsworth Spofford, had recommended to Congress in 1895 “that the copyright registry should be separated from the management of the library, and a register of copyrights appointed as an executive officer, with his assistants, distinct from the library staff [emphasis added].” Despite this, a clause in an appropriations bill the following spring called for the register to be appointed by the Joint Congressional Committee on the Library. This led to an extensive discussion in Congress, which ultimately came to the conclusion that such an appointment would be unconstitutional.

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

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

In the end, Congress was convinced that the Library of Congress “is an executive department and should be under the control of the executive branch.” 1129 Cong. Rec. 318-19 (1896) (Rep. Dockery). Also see William Patry, Copyright Law and Practice, ch. 1 fn. 166 for a comprehensive list of citations to Congressional records on the topic. The final law vested appointment of the Librarian of Congress in the President with the advice and consent of the Senate and appointment of the Register of Copyrights in the Librarian in order to adhere to the Constitution. 12Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.

Courts, including the Supreme Court, have implicitly endorsed the constitutional soundness of this arrangement by ruling on regulations promulgated by the Copyright Office 13See, for example, Goldstein v. California, 412 U.S. 546, 567-69 (1973); DeSylva v. Ballentine, 351 U.S. 570, 577-78 (1956); Mazer v. Stein, 347 U.S. 201, 212 (1954). — a power that only executive agencies can exercise. The Fourth Circuit addressed the issue head on (albeit in dicta) in 1978:

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

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

The Copyright Royalty Judges

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

The existence of the Copyright Royalty Board can be traced back to the 1976 Copyright Act. 14This section relies largely on CARP (Copyright Arbitration Royalty Panel) Structure and Process, Statement of Marybeth Peters The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary (June 13, 2002) and Frederick Greenman & Alvin Deutsch, The Copyright Royalty Tribunal and the Statutory Mechanical Royalty: History and Prospect, 1 Cardozo Arts & Entertainment Journal 1 (1982). During its drafting, Congress knew it wanted to increase the number of compulsory licenses available, but it also wanted more flexibility over the license rates than statutes would offer. An administrative body could provide this flexibility.

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

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

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

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

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

Appointments Clause challenges to the CRB

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

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

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

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

Will IBS Be Successful?

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

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

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

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

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

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

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

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

References   [ + ]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The author, Lysander Spooner, was an American anarchist, abolitionist, and legal theorist who lived from 1808 to 1887. The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas was published in 1855 and considered one of the most extensive defenses of intellectual property as a natural right ever penned — it is also one of the earliest uses of the term “intellectual property.” 1Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009).

The entire volume is too long to post here but well worth a read. 2The work is labelled as “volume 1″ with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume. Instead, I’d like to highlight a few key passages.

Spooner begins with a discussion of the concepts of wealth and property. His assertion that man has a natural right to property in his ideas is similar to Locke’s labor theory of property. 3See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010). This is followed by Spooner’s response to fifteen common objections. Though he focuses on ideas, in the context of inventors and patent law, the discussion is generally just as applicable to copyright law and its protection of original expression of ideas as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References   [ + ]

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

Copyright law is generally justified under three theories. 1Moore, Adam, “Intellectual Property“, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.); see also the Wikipedia entry on Justifications for copyright.

The first is the utilitarian, or consequentialist, basis. Society benefits from the production of creative works. But in the absence of legal protection, creative production tends to be inefficient since costs of creation are high while costs of copying and distribution are low.

The second form of copyright justification is based on moral rights or personality claims. This theory embraces the view that expressive works are the extension of one’s self and thus are deserving of protection because of an individual’s inherent dignity. 2As with the utilitarian justification of copyright, rights-based theories are not static. Recent work by Abraham Drassinower, for example, presents a rights-based justification of copyright that conceives works as communicative acts.

The final theory owes its origins primarily to the work of Enlightenment philosopher John Locke. Here, the justification of copyright stems from the right of an individual to control the fruits of his labor.

Generally speaking, Anglo-American copyright law adheres more closely to a utilitarian system while Continental legal systems start with a moral rights basis — though there is plenty of overlap in the two systems. The Lockean justification, however, has largely fallen out of favor among academics and policy makers.

But as legal professor Adam Mossoff explains in his recent article Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory, Locke’s justification has been “relegated to the dustbin” of history not because it is faulty, but because it has been misunderstood. As Mossoff puts it, “Locke’s labor theory of value has suffered much at the hands of contemporary philosophers.”

According to the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

For non-philosophers, like myself, the writing may at times be dense, but it is no less important and well worth a read. As Mossoff points out, the Lockean view of copyright was prevalent in the US during the 18th and 19th centuries. The Continental Congress resolution to the States to pass copyright legislation was inspired in part by lobbying from author Joel Barlow. His 1783 letter to the Congress reads in part:

There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public.

Twelve of the thirteen existing states passed legislation following the resolution, with the majority of them explicitly espousing the principle that authors are entitled to the value of their labor.

Labor and Value

Since that time, legal scholars and philosophers have eroded this prevalent view. Mossoff explains why. John Locke, the Founding Fathers, and early American jurists weren’t laboring (pardon the pun) under a false assumption; it is the legal scholars and philosophers who are mistaken, misconstruing Locke’s notion of labor with only physical labor and his notion of value with only economic value.

According to Mossoff:

[Locke’s] concept of labor refers to production, which has intellectual as well as physical characteristics, and his concept of value serves his moral ideal of human flourishing, which is a conception of the good that is more robust than merely physical status or economic wealth.

The Feist Fallacy

This erosion in Locke’s theory was bolstered by the US Supreme Court’s 1991 decision in Feist Publications v. Rural Telephone Service. There, the Court heard a dispute between two competing publishers of telephone books, with one accused of copying the directory listings of the other. The Court held that the “sweat of the brow” doctrine did not extend copyright protection to factual information — the original publisher of the telephone directory could not claim copyright protection over its collection of telephone numbers merely because it had expended labor compiling them.

Mossoff points out that “intellectual property scholars widely believe that Feist represents an unequivocal rejection of Locke’s labor theory of property in copyright law.” Though not mentioned in the article, noted copyright scholar William Patry, in his 2008 book Moral Panics and the Copyright Wars, goes so far as to say the Court rejected the “labor basis for copyright” as unconstitutional. 3Pg. 65. Yet the Court explicitly approved of Locke’s theory, says Mossoff. The “sweat of the brow” doctrine relies solely on the physical labor expended in creation, so when one realizes that Locke was not talking solely of physical labor, one realizes the mistake scholars have made.

Mossoff stops short of endorsing Locke’s justification of intellectual property. As he notes:

This article describes Locke’s argument for his labor theory of value in order to expose the strawman attack on his property theory by contemporary philosophers, especially within intellectual property theory, but it does not purport to justify his labor theory of value. This justification, which raises difficult questions about the foundations of value theory, such as whether values are objective, subjective, or intrinsic, must be left for another day.

It will be interesting to see if scholars build upon Mossoff’s work, but my hope is that Locke’s labor theory regains its stature among the other justifications for copyright. We live in a global, pluralistic society, and legal doctrines, including copyright law, should enshrine pluralistic justifications. Just because someone — whether an individual or a multi-billion dollar corporation — can exploit the value of someone else’s labor doesn’t make the fact that they shoulda foregone conclusion. In Locke’s words, man is a “proprietor of his own person”, and because of this, as Mossoff interprets Locke, “value-creating, productive labor is a moral activity that creates in the laborer a moral claim to the products of his labor.” These principles have served society well, and no technological innovation can render them obsolete.

References   [ + ]

1. Moore, Adam, “Intellectual Property“, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.); see also the Wikipedia entry on Justifications for copyright.
2. As with the utilitarian justification of copyright, rights-based theories are not static. Recent work by Abraham Drassinower, for example, presents a rights-based justification of copyright that conceives works as communicative acts.
3. Pg. 65.

And we’re back.

Posting has been sparse in the past couple of weeks as I focused on preparing for the bar exam, but with that behind me, I can now turn my attention back to the blog. Today will be a super-sized collection of links as I continue to catch up with many of the recent developments in copyright law. Enjoy!

Tinseltown, Ghost Town — A sobering op-ed from the NY Times on how the economic downturn has hit the film industry. “Her eviction follows that of our mutual neighbors, actors on a well-known soap opera forced out of their house in a foreclosure in a driving rainstorm four days before Christmas. Their dark, vacant houses, emblazoned with the public notices taped in the windows like shameful scarlet A’s, are holes in the hidden, fraying social fabric of Hollywood, where a vast majority belong not to the 1 percent but to the 99.”

Patience and piracy: Why helping yourself hurts good TV — Todd VanDerWerff, writing at the Onion AV Club, delves into the recent Oatmeal comic on piracy. Highly recommended. Says VanDerWerff, “I came into this piece with the idea that there was an easy answer here: Be more patient. The Internet has created a largely immature desire to have everything you’ve ever wanted now, and if it’s not available now, well, who cares about the companies who funded that entertainment in the first place? For the most part, I find this sort of behavior—and the self-righteous chest-thumping that too often goes along with it—distasteful.”

Comments, Questions, Concerns:  RIAA CEO Reflects On Responses To His New York Times Op-Ed — The RIAA’s Cary Sherman provides a thoughtful response to those who volunteered their thoughts on his article in the NY Times earlier this month. “Skepticism is a healthy and useful thing.  It is good to question.  But that posture should apply universally to all sources of information.  The technology companies that turned their platforms into engines of advocacy did so because it was in their business interests.  I don’t have a problem with them looking out for their economic interests, but technology companies have an obligation to make sure that readers and users get straight facts and understand that this is about business, not idealistic values.”

Piracy is not competition — When brick-and-mortar bookstores complain about the threat they face from Amazon.com, they are complaining that customers will leave them for a superior alternative; when Hollywood complains about piracy, they are complaining that customers have left them for an illegal alternative. They have stopped paying for Hollywood products yet are still consuming them. These are not even remotely similar situations — morally, legally, or economically.”

Hadopi Becomes un Ballon de Football Politique — Bill Rosenblatt takes a look at some of the recent statistics concerning France’s graduated response program and offers some comments on the politics of copyright debates. “Like it or not,” he notes, “the Hadopi system seems to be working so far.” “Let Hadopi-haters do their own serious quantitative studies, and let’s compare the results.  Let’s make the judgments on facts, and for God’s sake let’s not let political posturing pollute the atmosphere.”

Keeping the Pirate Bays at Bay — Barry Sookman offers his usual stellar insights into a current UK High Court case where record labels are seeking ISP blocking orders against the notorious Pirate Bay. “Based on previous jurisprudence in the UK and elsewhere in the EU,” says Sookman, “it seems very likely that the UK High Court will make an order blocking or impeding access to The Pirate Bay.”

Copyright, piracy and when fans need to stop circulating the tapes — The Whine Seller’s Hillary DePiano ponders the challenges created by the ease of piracy and difficulty of creating legitimate online outlets. Obviously, content creators want to make it as easy and convenient for consumers to access their works, yet pirates have a clear advantage when they don’t have to worry about pesky details like licensing or the costs of producing content.

The end of two free culture myths — John Degen highlights recent comments by Canadian attorney James Gannon in front of the Bill C-11 Committee of Parliament. The myths? Number 1: “Only old, incumbent players advocate for strong copyright protection. The new generation doesn’t bother with copyright.” And number 2: “Those advocating strong copyright protection just don’t understand new technology.”

The Relationship Between the ISP Safe Harbors and the Ordinary Rules of Copyright Liability[PDF] — An informative academic introduction to how ordinary principles of direct and secondary copyright liability have interacted with the DMCA safe harbors since their introduction, by IP lawyer and professor R. Anthony Reese. “The safe harbors may be more valuable than they initially appear for OSPs facing secondary liability claims, and less valuable than they initially appear for OSPs facing direct infringement claims.”

Cord Cutting Can Wait: Subscription TV Added 343,000 Subs in Q4 — Reports PaidContent, “The nation’s top cable, satellite and telco TV service providers grew their customer base sharply in the last quarter of 2011, reversing several years of steep decline. … So what’s happening here? Did the cord-cutting movement stall out? Hardly—it was the bad economy all along.”

Celebrating Independent Film at the DC IFF Hill Summit — The Copyright Alliance reports on a recent panel discussion at the DC Independent Film Festival Summit on the Hill. Congressman Brad Sherman gave a keynote on the importance of copyright protection for independent filmmakers, followed by the panel discussion on online video sharing and piracy.

Business Matters: When is it Safe to Say Google Music Has Failed? — Glenn Peoples at Billboard says: “Google’s giant footprint was to give Google Music unparalleled access to music lovers. But according to a report by CNET’s Greg Sandoval, Google Music has disappointed industry executives in its 3 short months of existence.”

Author discovers that Amazon can reprice his indie Kindle books however they want and cut his royalties, at will — Meet the new boss. “Hines points out that when his traditional publisher and its bookseller partners decide to offer his work at sale prices, he still gets paid royalties based on the cover price, and discusses the difficulties he faces in lacking the clout of an agent or a major publisher in negotiating with Amazon over this practice.”

The Fallacy Of Music Like Water — A thoughtful guest post from Portland songwriter and producer Gavin Castleton. Castleton points out that “proponents of the Music Like Water concept have put far more thought into making everything free to the consumer than they have into making sure people can find what they want, and in order for artists and consumers to have a better experience with music, distribution and filtering have to be lockstep.”

Scroogle: Dear Google, we’re not bots, we’re HUMAN — Why is Google so intent on creating artificial scarcity for its search results?

Upcoming Supreme Court Case May Be Key To Holding Spy Tech Companies Responsible For Human Rights Violations — The EFF argues that the US should hold technology companies liable for what their users do with their products.

Spinning the Online Piracy Debate — Christopher Shea at the Wall Street Journal reports on how a study that examined the effects of P2P downloading on US box office receipts has been spun by some, including Boing Boing’s Cory Doctorow and TorrentFreak, to show no harm from piracy. (I would add Public Knowledge to this list.) This has prompted one of the study’s authors, Joel Waldfogel, to write a blog post in response. “We think our marquee result is the opposite,” said Waldfogel. “We do find evidence that piracy depresses international sales.”

African IP Summit short a development dimension? — The Afro-IP blog presents a comment from law professor Mark Schultz taking NGOs to task for criticism about the first-ever continent wide intellectual property conference in Africa. Well worth a read:

Inventions, creative works, and other fruits of the mind are not solely the product of the Global North. The human mind is the one resource we share in common, and everybody, everywhere has the capacity to create and innovate. Thus, the people of developing countries should not be treated as mere consumers of the products, innovation, and creativity of wealthy countries. IP is not an obstacle to poor people getting what they need from rich people; it can instead be the means by which the poor gain the things they need to flourish by protecting the products of their intellectual labor.

I wish that these assertions represented an attack on strawmen, but they do not. All throughout the Development Agenda discussions, the helplessness of developing countries was the implicit and sometimes explicit premise articulated by IP skeptics. It angered me then while I was sitting in the WIPO assembly hall in Geneva, and still angers me. IP isn’t something that helps only wealthy people. It’s something that could offer empowerment and security to the filmmakers of Nollywood and their aspiring cousins in Sollywood (RSA) and Hillywood (Rwanda); it could keep talented researchers at home and support the development of domestic industries.

Blackout?  What Blackout? “The SOPA blackout was about as organic as the masses of North Koreans crying in the streets upon hearing of Kim Jong Il’s death” — As more time passes since the online protests against SOPA, more and more people are digging into the driving forces behind it. As a character in one editorial comic puts it: “Ok, something’s up — that was way too easy.” Chris Castle reviews David Rodnitzky’s article (featured in a previous Endnotes) that examines some of these groups and lobbyists and adds additional info and context.

Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPA Conversation — The Paley Center for Media hosted this interesting panel discussion between NBCUniversal General Counsel Rick Cotton and Union Square Venture’s Fred Wilson, where the two discussed the future of copyright on the internet.

Poll: Americans not with internet lobby on SOPA/PIPA — “There is a big political disconnect between the fact that ~80% of Americans believe online piracy and counterfeit drugs is a problem worthy of stronger laws, while the Internet lobby convinced millions of Americans to oppose a bipartisan proposed solution to this piracy problem – by characterizing the proposed legislation as “censorship” and “breaking the Internet.””

5 Misconceptions Sites/Hosts Have About the DMCA — Jonathan Bailey looks at some of the most common mistakes website hosts make dealing with the DMCA’s safe harbors.

Hit record — Salon.com Editor-in-chief Kerry Lauerman reports on lessons his company has learned. Aggregation, staff cuts, and emphasis on churning out content — doesn’t work. Focusing on originality, quality over quantity, and publishing less while spending more time on writing — does work. The site has grown its readership for the second year in a row under the latter approach.

How SOPA and PIPA did and didn’t change how Washington lobbying works — A surprising take on the internet blackout from the Sunlight Foundation. 1I say surprising because the funders and board members of the Sunlight Foundation include many who were active in the opposition to SOPA and PROTECT IP. The post notes how tech lobbying has quickly eclipsed entertainment lobbying. It also notes the role the internet played in calling attention to the bills, asking in the end, “if the Googles, Facebooks, Twitters, and Wikipedias are becoming new guardians of political accountability, how accountable are they?”

In the music biz — Digital Music News has a couple of charts. The first shows a breakdown of Warner Music Group’s revenue sources from the last quarter of 2011. Physical formats still account for 51% of revenues. The second shows the distribution of digital revenues from online independent music store CDBaby. Over three quarters of these revenues comes from iTunes, while all streaming services bring in less than 10%.

The Sheepdogs Prove The Power Of Major Labels — Says the New Rockstar Philosophy, “As a close friend watching The Sheepdogs play for years, it’s interesting to see how the world has latched on to them. They’ve been doing the same music for a while, but only since the involvement of the Major Labels are The Sheepdogs starting to get larger recognition for their sound. To me this is a clear sign of the power of Major Labels. For all the talk of the end of an era, the Major Labels still have a lot of cash, expertise, and relationships that get doors open. Major Labels can get you seen and heard.”

Introducing Fountain — This one is for geeks/screenwriters. John August and Stu Maschwitz announce the Fountain markup language that enables script writing in any text editor using straightforward syntax. The result is a platform independent, future-proof file format ideal for collaboration and working anywhere.

Reining in the Rhetoric on Copyright Reform — Barry Sookman expands on his recent Financial Post article dealing with recent comparisons between Canada’s Bill C-11 and SOPA. “While recent attempts by the usual suspects making hysterical predictions about copyright reform in Canada have been ratcheted up yet again, this time the claims are so outrageous that they can perhaps best be described as having “jumped the shark”.”

The Future for Television or Google Wants to Burn Your Remote: More Google Union-Busting — Then they came for the trade unionists… Chris Castle sheds light on Google and company’s efforts against entertainment industry unions like IATSE, AFTRA, DGA, and SAG.

What Wikipedia Won’t Tell You — Cary Sherman’s op-ed in the New York Times provided fodder for many online discussions this week (including this odd piece from the EFF that refers to the record industry as “Hollywood”). One of the most important points he raises: Google, Wikipedia, and other services used their platforms to argue against the bill. Television networks and other media outlets that supported the bill didn’t. Understanding why they didn’t is crucial to understanding the concerns over the tactics used by the internet platform giants.

References   [ + ]

1. I say surprising because the funders and board members of the Sunlight Foundation include many who were active in the opposition to SOPA and PROTECT IP.

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.).