Guest Post: Yes, Google, You Have To Delist Rogue Sites

April 02, 2012 · · 11 comments

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.

Introduction

Apparently, Google thinks it should be above the law. It hasn’t explicitly said so, of course, but that’s my takeaway from its protest of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act this past January. Specifically, Google thinks that it should be allowed to list rogue sites in its search results without any court having the power to order it to stop. Google’s position strikes me as self-contradictory. On the one hand it says that Congress is “trying to do the right thing by going after pirates and counterfeiters.” On the other hand it says that search engines shouldn’t “be forced to delete entire websites from their search results.” What Google glosses over is the fact that search engines like itself are part of the problem—search engines drive traffic to rogue sites by listing them in their search results. This is why courts already order search engines to delist rogue sites.

The day before the protests, Google provided a written statement to the Huffington Post announcing that it’d be joining the grumblers: “we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet.” Sure enough, the next day Google blacked-out the logo on its home page. When users clicked on the self-censored insignia, they were taken to an information page, “End Piracy, Not Liberty.” From there, a tab led to another page, “More about SOPA and PIPA,” where Google sketched out the reasons behind its opposition. Google’s three main gripes with the bills can be boiled down thusly: (1) it’s censorship, (2) it’ll hurt innovation, and (3) it’s futile. Noticeably absent from this explanation is any acknowledgement that search engines meaningfully contribute to online infringement.

I can’t help but feel cynical. The same Google that unilaterally delisted over 11 million websites from its search results because they were too “spammy and low-quality” thinks it’s wrong that a court should order it to delist even one single site that has been determined to be dedicated to infringement. The same Google that forfeited $500 million to the United States government after it got caught assisting foreign pharmacies in importing illegal drugs thinks it’s OK to assist foreign rogue sites in the commission of online piracy. If Google really thinks that preventing piracy is such a good thing, then why does it want to help rogue sites out by linking to them? As with many things, I think the answer is money—it costs real money to comply with a court order to delist a rogue site. The question is whether any of this should actually be Google’s problem. I think that clearly the answer is, “yes.”

“I Come From Cyberspace”

In his iconic “A Declaration of the Independence of Cyberspace,” Grateful Dead lyricist, EFF cofounder, and cyberlibertarian John Perry Barlow threw down the gauntlet on behalf of cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . Cyberspace does not lie within your borders. . . . Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

Barlow’s quaint and utopian, if not anarchic, vision of cyberspace as existing somewhere untouchable by the “Governments of the Industrial World” never was. Nor would it ever come to be. In fact, in an ironic twist of fate, the “would-be Cyber-Jefferson” Barlow delivered his Declaration on the same day that President Clinton signed the internet-regulating Communications Decency Act into law.1 While cyberspace as a metaphorical place does not lie within any actual borders (and what metaphor ever does?), the same cannot be said for the people that make cyberspace possible—the so-called intermediaries. According to Black’s Law Dictionary (9th ed. 2009), an “intermediary” is “a mediator or go-between; a third-party negotiator.” An intermediary, then, is just a middleman. Cyberspace may be “everywhere and nowhere,” but the intermediaries all dwell in this world of “flesh and steel,” anything but “independent of the tyrannies.”

For netizens, cyberspace’s intermediaries take on familiar forms such as internet service providers, payment processors, content hosts, search engines, and advertising networks. Use of intermediaries in mass communications is nothing new; yesterday’s switchboard is today’s network switch. Without intermediaries, mass communication platforms such as the internet wouldn’t exist. The internet, after all, is just a global network of interconnected intermediaries who host, transport, and organize our data. And given their “essential role in facilitating online communication, intermediaries often are capable of exercising authority over wrongdoers who are otherwise unreachable” for a variety of reasons.2 Instead of circumventing the middlemen, the digital revolution has simply replaced one set of intermediaries with another. The internet’s decentralized structure has, by design, engendered the proliferation of a new set of intermediaries.

There’s no doubt that intermediaries like Google make infringement on the internet possible, for without the intermediaries there’d be no internet to infringe on in the first place. The difficult question then is which intermediaries, if any, should be held responsible for the infringement they help make possible. Should a search engine like Google be liable for infringement that takes place on the rogue sites it links to in its search results?

Common Law Secondary Liability

Copyright infringement is a tort, or a civil wrong. The Copyright Act, in § 106, provides that “the owner of copyright . . . has the exclusive rights to do and to authorize” certain enumerated acts, including making copies, preparing derivative works, and distributing copies. § 501(a) of the Act provides that “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” Thus, only the copyright owner has the right, say, to make copies or to authorize the making of copies, and anyone else who does so is liable for infringement.

Direct copyright infringement occurs when someone, called the primary or direct infringer, is held liable for their own infringing acts. If I unlawfully make copies of your copyrighted work, I’m a primary infringer. Indirect copyright infringement, on the other hand, occurs when someone else, called the secondary or indirect infringer, is held liable as well. If someone else unlawfully authorizes me to make copies of your copyrighted work and I do so, I’m a primary infringer and the party that gave me authorization is a secondary infringer. Even though that other party didn’t personally make the copy (only I did), the law holds them responsible because they played a significant part in my unlawful copying.

The idea of placing liability on someone other than the primary infringer is what’s referred to as secondary liability in copyright law. It’s called other things too, like intermediary liability, indirect liability, third-party liability, or derivative liability. Whatever it’s called, the basic notion is the same: If someone else helps me to infringe, by, say, inciting or facilitating my infringement, then that someone else will be liable for my infringement since they helped to bring it about. The idea of holding responsible those who help others commit unlawful acts is not unique to copyright law. Perhaps more familiar are the similar concepts of accomplice or accessory liabilities in criminal law. If I help you plan a robbery or act as your lookout while you rob a bank, I’m liable because I helped you commit your crime. By making it unlawful to help others commit unlawful acts, we deter people from doing so.

The Copyright Act itself does not expressly provide for secondary liability for infringement. Nonetheless, the Supreme Court has noted that the “absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”3 Indeed, secondary liability concepts in copyright law have been developed over time through judge-made, common law. “Courts have long recognized . . . that one may be held liable for the infringing acts of another.”4 Two distinct branches of secondary liability have been developed: “vicarious liability (grounded in the tort concept of respondeat superior) and contributory infringement (founded on the tort concept of enterprise liability).”5

While it’s true that the Copyright Act doesn’t explicitly refer to secondary liability in so many words, § 106’s grant of the exclusive right “to authorize” in fact indicates Congress’s endorsement of court-developed contributory liability principles. The relevant House Report explains: “Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers.”6 This comes as no surprise, since, as the Supreme Court noted over a century ago, contributory liability is a principle “recognized in every part of the law.”7 The Second Circuit’s formulation of contributory liability is oft-quoted: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”8 Thus, liability for contributory infringement turns on two elements: (1) knowledge, and (2) inducement, causation, or material contribution. So where does Google’s search engine fall within this rubric?

Google’s Secondary Liability

Conveniently enough, the Ninth Circuit addressed this very point at length in Perfect 10 v. Amazon.com.9 There, plaintiff Perfect 10 argued that defendant Google was secondarily liable for infringement occurring on third-party websites because Google provided links to these sites in its search results. The circuit court started its analysis by noting that contributory liability is examined in light of the “rules of fault-based liability derived from the common law,” a principle of which is that intent may be imputed: “Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.”10 Thus, since its intent to encourage direct infringement may be imputed, an actor (like Google) may be liable for contributory infringement if it knowingly takes actions (like linking) that are substantially certain to result in direct infringement by others.

The court of appeals then looked to two cases, Napster11 and Netcom,12 for the application of these principles in cyberspace. In Napster, the Ninth Circuit stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.”13 Similarly, the district court in Netcom held that if an internet service provider knows or has reason to know that material on its system is infringing and fails to remove it, then it is liable for contributory infringement since its failure constitutes substantial participation in the resulting infringement.14 Both cases stand for the proposition that a “service provider’s knowing failure to prevent infringing actions” can be the “basis for imposing contributory liability” since intent to cause the natural result of its conduct may be imputed.15

The Ninth Circuit noted that a central theme of Napster and Netcom is the fact that online services have the ability to drastically amplify the effects of infringing activities. As the Supreme Court noted in Grokster,16 when a service enables individuals to commit infringement on a large scale, the argument for imposing indirect liability on that service is particularly powerful. The court of appeals observed that when a service is used widely to infringe, it is simply not possible for a copyright owner to enforce its rights against all of the direct infringers. Sometimes “the only practical alternative” is “to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.”17 Accordingly, the circuit court held that “a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works yet continues to provide access to infringing works.”18

The Ninth Circuit then turned its sights on Google: “There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials.”19 Thus, the court of appeals held that Google could be liable as a contributory infringer if it: (1) knew that infringing materials were available using its search engine, (2) could take simple measures to remove the links, and (3) failed to do so.

The Ninth Circuit’s opinion comports with the DMCA safe harbor provisions. Under § 512(d) of the Copyright Act, a search engine such as Google is significantly shielded from liability for infringement that occurs via links it provides so long as the links are quickly removed or disabled when the search engine becomes aware that they lead to infringing material or activity. Thus, the DMCA seeks to encourage the delisting of rogue sites from search results by giving search engines safe harbor if they remove links when presented with proper takedown notices (which are deemed as a matter of law to impart knowledge of infringement). This embodies Congress’s judgment that it’s generally a bad thing for search engines to provide links to rogue sites. According to both Congress and the courts, search engines that knowingly link to rogue sites are opening themselves up to secondary liability for the infringement they help bring about. And given that “Google is ranked #1 in the world” according to Alexa’s traffic rankings, its contribution to the problem of online infringement is all the more impossible to deny.

Censorship, Innovation, And Futility

When the argument is properly framed as whether Google should be allowed to substantially assist worldwide infringement via its search engine, its counterarguments about censorship, innovation, and futility fall apart. Google complains that “search engines could be forced to delete entire websites from their search results.” There’s no doubt that under some broad definition of the word, a court ordering Google to delist a rogue site is censorship. But so what? All law enforcement efforts are censorship on some level. The whole point is to censor—that is, to stop—the party that’s unjustifiably causing harm. Google can be forced to “delete entire websites” from its search results because those links are significantly contributing to whatever infringing material or activity they point to. What’s being censored is Google’s excessive role in the problem of online piracy. If Google really thinks that pursuing piracy is a lofty goal, you’d think it’d want to remove its own links to these rogue sites.

Google’s complaint about innovation is equally vapid. It starts with the curious assertion that “internet companies would have to monitor everything users link to or upload or face the risk of time-consuming litigation.” This is simply not so. It is fundamental to secondary liability doctrine that intermediaries “do not take on an affirmative duty to act or to prevent tortious or illegal conduct, but only a duty not to facilitate known wrongdoing.”20 Google has no duty to monitor the links it provides in its search results, and nothing in the Stop Online Piracy Act or the PROTECT IP Act would establish such a duty—in fact both bills explicitly say there’s no affirmative duty to monitor. Google also points to letters from internet companies, venture capitalists, and entrepreneurs making vague arguments about how the bills would stifle innovation generally. But innovators like Google are not exempt from the law, and it’s hard to see how complying with court orders is unduly burdensome for a company like Google that already has such mechanisms in place. Google’s service creates a harm to innocent third parties that is significant enough to warrant holding it responsible for that harm. It’s disingenuous for Google to complain about the cost of eliminating a harm that Google itself is creating.

Google’s final argument is that “SOPA and PIPA won’t even work” since rogue sites will just relocate. Instead, it argues that “Congress should consider alternatives like the OPEN Act” that take a follow-the-money approach. This argument is clearly self-serving. All of the bills (SOPA, PROTECT IP Act, and OPEN Act) target the money supplies of rogue sites. If targeting the money supply is by itself effective, then why does adding the requirement that search engines also delist rogue sites suddenly make the whole thing not work? That makes no sense. Google’s support of the OPEN Act is better explained by the fact that the Act contains no provisions dictating that search engines must delist rogue sites. In other words, the OPEN Act doesn’t make Google responsible for the harm that it chooses to create (and, I assume, to profit from). How very convenient. Google’s complaint here is not about the futility of the bills—it’s about Google’s bottom line. And that’s what all of this hoopla has been about all along, if you ask me.

Follow me on Twitter: @devlinhartline

Footnotes

  1. Alex Kozinski & Josh Goldfoot, A Declaration of the Dependence of Cyberspace, 32 Colum. J.L. & Arts 365 (2009). [↩]
  2. David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 378-79 (2010). [↩]
  3. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). [↩]
  4. Demetriades v. Kaufmann, 690 F.Supp. 289, 292 (S.D.N.Y. 1988). [↩]
  5. Id. (internal quotation marks omitted). [↩]
  6. H.R. Rep. No. 94-1478 at 61; the House Report also endorses common law vicarious infringement, id. at 159-60 (“a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. . . . The committee has decided that no justification exists for changing the existing law . . . .”). [↩]
  7. Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911). [↩]
  8. Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). [↩]
  9. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). [↩]
  10. Id. at 1171 (internal quotations and citations omitted). [↩]
  11. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). [↩]
  12. Religious Tech. Ctr. v. Netcom On-Line Commc’n Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). [↩]
  13. Perfect 10, 508 F.3d at 1171 (internal quotations omitted). [↩]
  14. Id. at 1171-72. [↩]
  15. Id. at 1172. [↩]
  16. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). [↩]
  17. Perfect 10, 508 F.3d at 1172. [↩]
  18. Id. (internal quotations and citations omitted). [↩]
  19. Id. [↩]
  20. David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 505 (2010). [↩]
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More Evidence for Copyright Protection

February 01, 2012 · · 34 comments

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

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

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

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

Piracy Causes Harm

As for pointing to studies that demonstrate the harm of unauthorized downloading, I would point to the same link Coulton provided. The Swiss government report1 — not, technically, a study — cites an academic literature review that points to not only one such study but fourteen.

The review, The Economics of Music File Sharing – A Literature Overview, by Peter Tschmuck (Microsoft Word version here), examines 22 studies which look at the effects of filesharing on the music industry. Because some are skeptical of industry generated studies, it should be pointed out that all the studies here are independent, academic studies — working papers, academic journal articles, and dissertations. Of these 22 studies, 14 — roughly two-thirds — conclude that unauthorized downloads have a “negative or even highly negative impact” on recorded music sales.2

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

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

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

But there they are.

Enforcement Boosts Legal Alternatives to Piracy

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

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

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

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

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

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

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

A Multipronged Approach

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

So where does that lead us?

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

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

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

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

Footnotes

  1. The report is in German. I haven’t tracked down an English version yet, but you can read a Google-translated version here. [↩]
  2. Three of the studies found no significant impact while the remaining five found a positive impact. The literature review looked at a 23rd study but did not classify it here since the author presented a mixed conclusion: the overall effect of unauthorized downloads is insignificant, but for unknown artists, there is a “strongly negative” effect on recorded music sales. [↩]
Posted in: Copyright reform · 34 comments

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Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 3

December 19, 2011 · · 3 comments

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

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

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

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

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

Freedom of the Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Permissible Prior Restraint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example, the following is taken from the Columbia Law Review in 1917:

In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property … Similarly, the infringement of a copyright has been enjoined.17

And this is from the Supreme Court in 1971:

The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.18

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

Footnotes

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

September 06, 2011 · · 40 comments

Spend any amount of time reading or talking about copyright and you’re bound to have come across a debate over infringement and theft. Like many internet debates, it is very much a dead horse that has been beaten — I personally have written not one but two posts on the topic — yet the subject never dies.

Case in point: a couple weeks ago, Ben Jones at TorrentFreak resurrected the debate in an article called Copyright Infringement and Theft – The Difference. In it, Jones says, “A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is ‘stealing’. While such sentiments are often expressed by the industry lobby groups, it’s completely at odds with the law. It could also be the very LAST thing those bodies want.”

In the article, Jones makes the argument that since copyright infringement is enforced in courts through infringement claims rather than theft claims, it is wrong to ever use theft-type language to describe the harm caused by infringement. While this is not the only argument used by the “infringement is not theft” crowd, it is one of the more common ones.

It is also semantic nonsense.

At the risk of belaboring this point, here are five reasons why this argument fails.

#1. It’s based on an imaginary rule

According to the argument advanced in the TorrentFreak article, it’s wrong to call copyright infringement theft because it isn’t prosecuted under theft statutes.

This argument implies a rule: you’re only allowed to use words in their formal, legal manner. Throw away your Merriam-Webster’s, because the Blacks Law Dictionary is the only proper source for learning the meaning of a word.

Even the strictest language prescriptivist would cringe at the thought of such a rule. Many words have different meanings in different contexts — a certain definition in one context doesn’t preclude other definitions in other contexts.

#2. It assumes there’s only one legal definition for theft

If we accept this arbitrary, made-up rule, we still run into problems. Which legal definition of “theft” do we use? Every jurisdiction has its own specific definition; in the US, that means there is a different definition in each state.

Some states don’t call it “theft” at all. In West Virginia, for example, the criminal deprivation of personal property is prosecuted as either grand or petit larceny, depending on the value of the property.1 Cries of “Larceny isn’t theft!” would be the nonsensical result of this argument. Stealing is stealing no matter what a lawyer is required to call it for pleading purposes.

#3. The same argument doesn’t make sense with other words

Suppose, for the sake of argument, that we can get around the previous two objections: it’s a settled rule that we should only use words in their formal, legal sense, and we can agree on a legal definition for “theft.” We still run into absurd results under this argument.

“Theft” is commonly used to describe the criminal offense of depriving someone of personal property. But in most jurisdictions, someone can sue for a wrongful deprivation in civil court rather than pressing charges. Such a claim would be for conversion — the “unauthorized dominion over personal property in interference with a plaintiff’s legal title or superior right of possession”2. It’s entirely accurate, then, to say that “conversion isn’t theft”, but so what? The nature of the act itself doesn’t change depending on which court the claim is brought in.

#4. Stealing or theft?

The crux of the argument advanced in the TorrentFreak article is that infringement isn’t theft, but it kicks off with an example of a comment that “P2P file-sharing is ‘stealing’”. So which is it? Even if this particular argument was valid, does that mean it extends to the characterization of infringement as stealing? Stealing isn’t a legal term, after all — though it should be noted that, in the US, criminal copyright infringement is codified under the heading “Stolen Property“.

This little switch-a-roo just highlights the semantic shenanigans involved in the “infringement isn’t theft” argument.

#5. Some pretty smart people disagree

The argument that calling copyright infringement “theft” is “completely at odds with the law” takes on a patronizing air — i.e., “you’re only calling it theft because you don’t understand the law as well as we do.” This is no more than hubris, however; many people whose job it is to know the law know better.

In Metro-Goldwyn-Mayer v. Grokster, Justice Breyer, joined by Justices Stevens and O’Connor, said, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”3 The Supreme Court has been comfortable referring to copyright infringement as theft on other occasions.4 Lower courts and Congress have also used “theft” to describe copyright infringement on various occassions.5

Perhaps TorrentFreak and the rest of the “infringement isn’t theft” crowd knows more about the law than Supreme Court Justices, federal court judges, and Congress, but I’m willing to bet that that’s not the case.

Copyright infringement is theft

Language is incredibly malleable; we use words in a variety of ways. Many people over the centuries have described the deprivation of the exclusive rights in the fruits of their creative endeavors as “theft”, there’s no question about that.

But I think it is fair to ask why some bristle at any mention of theft in connection with infringement and piracy. I highly doubt their motives are solely to increase legal literacy by ensuring that words are used in their exact legal sense — mistakenly, in this case, as shown above. After all, one doesn’t have to look very far to see losing civil defendants being described as having been found “guilty”, or statutory damages for infringement being described as “fines” by these same critics — both terms that aren’t accurate in their strictly legal sense.

It’s my sense that this linguistic peeving is explained by the fact that “theft” has definite moral overtones to it, while “infringement” is still capable of euphemistically avoiding any moral concerns. Perhaps proponents of this argument hope that by straining semantics, they don’t have to confront the very real harm that infringement causes to creators and the public.

In other words, the “infringement isn’t theft” argument is often just cover for some other point.

Footnotes

  1. W.Va.Code § 61-3-13. [↩]
  2. LoPresti v. Terwilliger, 126 F.3d 34, 41 (2nd Cir. 1997). [↩]
  3. 545 US 913, 961 (2005) (concurrence). [↩]
  4. For example, Harper & Row Publishers v. Nation Enterprises, 471 US 539, 558 (1985) (citing Iowa State University Research Foundation v. American Broadcasting Cos., 621 F.2d 57, 61 (2nd Cir. 1980): “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance” ; Teleprompter Corp. v. Columbia Broadcasting System, 415 US 394, 417 (1974) (J. Blackmun, dissent in part): “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft”; Dun v. Lumberman’s Credit Assn, 209 US 20,22 (1908): ”[a] number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants’ copyright material in making their book … such indicia is held to indicate a substantial theft of copyright property.” [↩]
  5. See, for example, In re Verizon Internet Services, 240 F.Supp.2d 24, 35 (D. DC 2003): “There is little doubt that the largest opportunity for copyright theft is through peer-to-peer (“P2P”) software”; A&M Records v. Napster, 114 F.Supp.2d 896, 900 (ND Cali 2000): “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings”; Protecting Intellectual Rights Against Theft and Expropriation Act, S.2863 (2004); Artists’ Rights and Theft Prevention Act, S.1932 (2003); Digital Theft Deterrence and Copyright Damages Improvement Act, PL 106-160 (1999); No Electronic Theft Act, PL 105-147 (1997). [↩]
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Online Piracy: Nothing New

December 08, 2010 · · 5 comments

There’s this idea that online piracy is somehow “different” from real-world or traditional piracy. It’s like nothing the world has ever seen before — a paradigm shift that fundamentally changes how content is created and consumed and calls into question the very notion of copyright law.

Online piracy is defended by many and even celebrated by some. Terms like “innovation” are applied frequently to those who discover faster and easier ways to ensure everyone benefits from content except those who spend the time and money creating it. In November, for example, music blog Hypebot asked, “Does litigation drive innovation in music piracy?”

On a sidenote, it’s important to distinguish between real innovation and “false innovation.” An airline might be able to cut costs by foregoing maintenance, but we wouldn’t call that move “innovation.”

It’s not hard to find examples of this sort of revelry in “piracy 2.0.”

Last month, a group released a “Pirate Edition” of the file-sharing program Limewire after a court injunction shut down the original version of the software. Those responsible celebrated both the difficulty the content industries have in enforcing their copyrights and the ease in which pirates can recover from any setbacks.

“A horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons and released it FREE to the community to help keep the Gnutella network alive,” say the coders.

“Speaking for myself, the motivation is to make RIAA lawyers cry into their breakfast cereal. I hope the other monkeys have nobler intentions,” says the project leader.

The idea that piracy is a noble cause now that it has moved online, or that this new generation of pirates are more clever than the bootleggers of the past for figuring out ways to evade the law and take all the benefits of the copyright incentive for themselves is silly.

As long as there has been copyright, there has been copyright infringement. And though dissemination of creative works has moved from print to digital, pirates use the same techniques to stay one step ahead of the law.

Nothing illustrates this better than the following selection from Edward Cutler’s 1905 book, A Manual of Musical Copyright Law. (I previously posted a different section in Enemies of Monopoly of Brain-product). Cutler describes a particular method of piracy seen in England over a century ago:

The piracy in recent years of copyright musical compositions and the musical anarchy which, unfortunately, still reigns in this respect, form a disgraceful epoch in the history of English jurisprudence.

Abuses have arisen which would be impossible in any other civilised state, and which hold Great Britain up to derision throughout the civilised world.

In the closing years of the last century some unscrupulous person invented a scheme for robbing the proprietors of copyright (whether composer or publisher) of their just gains.

Wretchedly-got-up versions of songs, carefully chosen from among those which have gained popular favour, are secretly printed and secretly stored in cellars. A few copies are handed out to irresponsible hawkers and are offered for sale by them at a penny or twopence a copy in populous thoroughfares. If interfered with, the dozen or so copies which each hawker has with him are given up. The loss to the thief is inconsiderable. Another hawker in the next street renews the stock and the same game is played out daily.

Another form of the fraud is the house-to-house distribution of lists of pieces of music, from which the householder can choose, and the supply of the pieces chosen at low prices. No printers name or address is found on any of the pieces sold. The people who are responsible for the transaction remain in the background, and in this way many thousands of copies of any popularised pieces of music are got rid of and the legitimate sale of the publication almost, if not entirely, ceases. There appears to be an idea in many people’s minds that these pirates deserve some sort of questionable credit for their ingenious evasion of the law, thereby defeating a vicious monopoly. It is time to undeceive them in this respect. Audacious lying; concealment of addresses, and scuttling away are the laudable means by which these street buccaneers carry out their ends. Ingenious evasion or device there is none, and their boldness would not have succeeded but for the supineness of the Government, the unreasoning sympathy which appears to exist in the minds of a few short-sighted politicians, and the dishonesty of purchasers who knowingly buy the spurious articles. The effect of this wholesale robbery is disastrous.

The publishers (leaving out of the question the most wealthy and old established houses, whose capital enables them to stand the brunt of the competition on unequal terms) are many of them hardworking tradesmen who have invested their small capital in getting together a business, and in purchasing the copyright of one or two songs which offer a probability of success, and they are ruined wholesale. They pay singers to bring their songs before the public, and advertise very largely, only to find that they have been spending their money for the benefit of a pack of thieves, who filch the whole of their profits and entirely stop their sales. Unfortunately the votes of these deserving, but politically insignificant, sufferers can be treated as a “quantité negligeable.”

The parallels between what Cutler is describing and the recent targeting of the domain names of infringing websites are particular acute. Under the DMCA, a website dedicated to infringing activities can continue to operate while each individual copyright owner who finds her work on the site is limited to requesting removal file by file or link by link. The loss to the site is indeed “inconsiderable.”

Executive efforts like Operation in Our Sites and legislative efforts like COICA are more effective at disrupting these types of sites. Obviously, they won’t put an end to piracy: just as people were infringing during Cutler’s time, they will find ways to infringe 100 years from now. And absolutely the content industries must continue to adapt to technological changes and rely primarily on the quality of their work and the attractiveness and convenience of the services they offer.

But, as with every industry, the law plays a necessary role. It’s silly to think the law shouldn’t evolve along with technological changes in order to remain effective against widespread, consumptive infringement.

Special bonus: the next section of Cutler’s book is eerily reminiscent of the events surrounding COICA:

The copyright bill discussed before Lord Monkswell’s Committee contained a clause inserted by the writer conferring upon the owner of copyright power to seize pirated copies of his works. It also gave him power, without applying to any Court, to authorise a police constable to seize the pirated copies which might be taken before a Court of summary jurisdiction and destroyed.

The writer’s clause also contained words enabling the Court to act ex parte; (that is, on the evidence of the complainant alone, without the necessity of summoning the alleged infringer); to make an order for destruction in the absence of the latter. The clause also contained a Provision inflicting a penalty for every piratical sale. Had these two last provisions been allowed to remain, the whole mischief caused by the street pirates would have been remedied; but the words inflicting penalties and giving power to make ex parte orders were struck out, and the Bill eventually became law in a form which is useless. The Statute in question is printed verbatim in the appendix. In consequence of the utter failure of this admirable effort of the Legislature, a Bill was prepared and put into the hands of a private member containing clauses necessary to remedy the abuses. The measure was stifled by the efforts of a member for a Scotch district, who utilised the technicalities of Parliamentary procedure to throw the matter over another session. After endless efforts on the part of those who wished to see justice done, a Parliamentary Committee sat upon the matter, the Scotch member being nominated as one of the members; and again the real merits of the case were stifled, both in the proceedings before the Committee and before the House of Commons. In the latter place the procedure which stops short of the application of closure to a Private Members’ Bill enabled the matter in question to be thrown over to yet another session.

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COICA: First Amendment

November 29, 2010 · · Comments Off

Last week, I’ve been taking a close look at the proposed Combating Online Infringement and Counterfeiting Act (COICA), which was unanimously approved by the Senate Judiciary Committee on November 18th. On Monday, I examined what the bill does, and on Wednesday I addressed due process criticisms.

Today I want to take a look at the most serious criticism: that COICA amounts to “censorship.” It’s a little tough, actually, to find discussion of COICA online that doesn’t mention censorship. Much of the criticism centers around the characterization of the COICA proceedings as a “prior restraint.” Others have expressed concerns that the bill would be “overbroad.”

Prior Restraint

The First Amendment says “Congress shall make no law … abridging the freedom of speech.” The Supreme Court has held that:

[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.1

The general rule regarding prior restraints, as restated by Mark Lemley and Eugene Volokh, is that “Speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment.”2 In practice, this means that courts are reluctant to grant preliminary injunctions in cases involving speech (permanent injunctions, however, are fine, since they come after a final judicial determination that the speech at issue is unprotected). But when it comes to copyright infringement cases, as Lemley and Volokh point out,

[P]reliminary injunctions are granted pretty much as a matter of course, even when the defendant has engaged in creative adaptation, not just literal copying. How can this be? True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn’t protect copyright-infringing speech against such a restraint.

COICA provides that a domain name may only be blocked after an in rem proceeding is commenced and a court issues an injunction — preliminary or otherwise. As such, under current law, COICA’s provisions are no more a prior restraint than the preliminary injunctions routinely ordered in infringement cases. Now, one may argue that preliminary injunctions shouldn’t be available in copyright infringement cases as a whole, that despite case law to the contrary, they amount to constitutionally prohibited prior restraints. This is the argument made by Lemley and Volokh. However, even accepting such an argument, there is one exception: “piracy and other ‘easy’ cases.”3 Lemley and Volokh explain that “most obvious cases of copyright infringement won’t implicate the prior restraint rule at all”:

The danger of preliminary injunctions is that they may temporarily suppress speech that ultimately proves to be protected. If a judge can, at the time of the preliminary injunction hearing, make a reliable finding that the speech is constitutionally unprotected, rather than just that it might be unprotected, then there should be no problem with issuing the preliminary injunction.

This could happen whenever the defendant has made identical or nearly identical copies of the plaintiff’s works, and there is no claim of fair use, but only some other copyright defense (such as that defendant has a supposedly valid license, or that plaintiff’s copyright wasn’t properly renewed, or something along those lines). Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category.

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement. Harper & Row, as we read it, divides uses of another’s work into two areas: on the one hand, use of another’s idea or facts, or fair use of another’s expression, which is constitutionally protected; on the other hand, use of another’s expression that’s not a fair use, which falls within the “copyright exception” to the First Amendment. So long as Congress and the courts restrict speech that’s within this copyright exception, there’s no First Amendment problem. And while the First Amendment imposes certain limits on copyright law — the requirement of copying, the idea-expression dichotomy, and some aspects of the fair use doctrine — it does not constitutionalize every nuance of the Copyright Act.

COICA’s provisions are targeted at these obvious cases of copyright infringement. The language of the bill reflects this: blocking only applies to sites “dedicated to infringing activities,” which include sites “primarily designed” to offer infringing works “in complete or substantially complete form” and only when “such activities are the central activities” of the site (emphasis added).

In Center for Democracy & Technology v. Pappert (CDT v. Pappert), a District Court case cited by several law professors in their letter in opposition to COICA, a Pennsylvania state law allowing websites to be blocked for containing child pornography was struck down as unconstitutional because it amounted to a prior restraint.4 The case has been used because of the similarities between the PA law and COICA in blocking internet sites based on content. However, the similarities end there. The Pennsylvania law provided substantially different procedures than COICA does, and it was specifically those procedures that led to the court’s conclusion.

As the court in CDT v. Pappert explains:

The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission’s practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1963) and a procedure that allowed courts to order pre-trial seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).

Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. [Citations removed]5

Unlike the Pennsylvania law, COICA requires the government to prove by a preponderance of the evidence that a particular site is dedicated to infringing activities, an in rem proceeding is not an ex parte proceeding, and the registrant of the domain name does receive notice and an opportunity to be heard.6 Thus, any comparisons between COICA and the law in CDT v. Pappert are inapposite and superficial at best.

Overbreadth

Besides the claim that COICA would act as a prior restraint, critics contend that the bill also violates the First Amendment because it would “suppress vast amounts of protected speech containing no infringing content whatsoever.”7 In other words, even though copyright infringement isn’t protected under the First Amendment, other speech that is protected will be affected when the domain name for the entire site is blocked.

Any law aimed at nonprotected speech, no matter how well written, can potentially reach protected speech. To reflect this reality without leaving lawmakers powerless to address harms of nonprotected speech or conduct, the Supreme Court has developed the “substantial overbreadth” doctrine: “particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep” — if it is, the law is void on its face.8

A law that is not substantially overbroad on its face may nevertheless be found unconstitutionally overbroad if a substantial amount of protected speech is affected by the law as it is applied. Laws affecting speech must be narrowly tailored so that even if they are not substantially overbroad on their face, a defendant engaged in protected speech does not find himself within the laws scope.9

A court may find a law not narrowly tailored if less restrictive means exist to accomplish the legitimate sweep of the law.10 In CDT v. Pappert the District Court took the less restrictive means test to mean that “if a statute regulating speech provides distributors of speech with alternatives for compliance and the majority of distributors reasonably choose an alternative that has the effect of burdening protected speech, the statute is subject to scrutiny as a burden on speech.”11

Courts are reluctant to declare laws substantially overbroad on their face. “[The overbreadth doctrine] has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.”12 The court in CDT v. Pappert, for example, held that the law allowing a website to be blocked for providing access to child pornography was not overbroad on its face; it did not prohibit nor chill protected speech.13

COICA is not substantially overbroad on its face as well. It targets only websites dedicated to infringing activities — conduct that is not protected by the First Amendment. Like the statute in CDT v. Pappert, it does not prohibit nor chill protected speech.

It is doubtful that COICA would also be overbroad as applied. The language of the bill — specifically the requirement that a website’s infringing activities must amount to the “central activities” of the site — limits the breadth of COICA to unprotected speech by definition. No doubt some protected speech would end up being blocked, but the First Amendment is not a shield for copyright infringement, and courts have little sympathy for defendants in situations like this who create an “all-or-nothing” predicament like this.14

That’s not to say that COICA would result in no cases where a substantial amount of protected speech may be blocked. No bill operates outside the constraints of the Constitution; the First Amendment is available to everyone no matter what law is at issue. It’s possible that a specific case could arise where a specific defendant’s freedom of speech is infringed by COICA. That doesn’t mean, however, that COICA itself is unconstitutional, and it certainly doesn’t mean COICA is a vehicle of censorship.15

Footnotes

  1. Nebraska Press Assn. v. Stuart, 427 US 539, 559 (1976). [↩]
  2. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). [↩]
  3. This is one example of why I think it’s important to draw distinctions between “creative” and “consumptive” uses of copyrighted works. [↩]
  4. F. Supp. 2d 606 (ED Pa, 2004). [↩]
  5. CDT at 656-57. [↩]
  6. See my previous post, COICA: Due Process. [↩]
  7. Law Professors’ Letter in Opposition to S. 3804 (Combating Online Infringements and Counterfeits Act). [↩]
  8. Broadrick v. Oklahoma, 413 US 601, 615 (1973). [↩]
  9. For simplicity’s sake I’m purposely avoiding discussion of the different levels of scrutiny that are involved in First Amendment analysis by courts. [↩]
  10. See, for example, United States v. Playboy Entertainment Group, Inc., 529 US 803, 813 (2000). [↩]
  11. CDT at 652. [↩]
  12. Broadrick v. Oklahoma, 413 US 601, 613 (1973). [↩]
  13. CDT at 648-49. [↩]
  14. See, for example, Dr. Seuss Enterprises, LP v. Penguin Books, 109 F. 3d 1394, 1406 (9th Cir, 1997). [↩]
  15. See, for example, Virginia v. Hicks, 539 US 113, 123-24 (2003). [↩]
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Misunderstanding DMCA

October 25, 2010 · · 9 comments

Within the past 15 or so years, we’ve seen a large number of cases and laws addressing the issue of indirect liability — also referred to as secondary liability or third-party liability — for copyright infringement online.

In 1998, Congress passed the Digital Millennium Copyright Act, providing conditional safe harbors for online service providers. There’s also been a number of high-profile lawsuits against Napster, Aimster, Grokster, Limewire, and YouTube addressing indirect infringement.

Even so, there remains a misunderstanding among the public, especially online, about indirect liability. Why should X be liable when someone else is engaged in copyright infringement if X is only hosting/transmitting/providing a link to the unauthorized work?

This misunderstanding is embraced by TechDirt, who last week highlighted a story about an open letter from Russian ISPs to the entertainment industry in response to pressure on the ISPs for the copyright infringement of their users. TechDirt characterized the letter as explaining “basic liability concepts” to the entertainment industry. “The basic idea is that a third party service provider or tool should not be held liable for what users do with those tools,” explained Mike Masnick at TechDirt.

But that idea is not a “basic liability concept”; to the contrary, the idea ignores reality and the bulk of the history of law in most countries. Indeed, Masnick’s characterization of “basic liability concepts” isn’t even recognized in Russia1 — hence the reason the letter was written in the first place.

I previously wrote about secondary liability in Viacom Appeals Lawsuit Against YouTube, but I think the topic merits further discussion. There’s a gap in the common, public understanding of liability and how the law treats liability. The gap stems from a misunderstanding of tort law in general and is compounded when we start talking about indirect tort liability and how it is applied in the copyright context. You can see the gap in this understanding of tort law not only in debates concerning indirect copyright infringement, but also displayed in the perennial debates about tort reform, or in public reactions to what are sometimes referred to as “frivolous lawsuits.”2

To bridge the gap in understanding, I want to take a walk through tort law and why we have it. Next, I want to take a look at secondary liability in general and then specifically in terms of copyright. Finally, I want to look at how these concepts transferred to the online world and the legislative responses to dealing with the particular challenges of applying them to internet service providers. We’ll see that zero liability for service providers for the actions of their users is not a “basic liability concept” — far from being a logical or foregone conclusion, it is one of several possibilities of liability for service providers based on ancient concepts of tort liability, and it is an option that has, in part, been discarded in most of the world.

First, let’s talk about what “torts” are and why I brought them up.

These Torts are Delicious

Torts, in their broadest sense, are legal “wrongs”. They are private, rather than public, wrongs — distinguishing them from crimes — and they stem from universally applicable duties, rather than voluntarily agreed-upon duties — distinguishing them from contract claims.

The reason I’ll be talking about torts is that copyright infringement is a tort. In 1869, the Massachusetts Circuit Court wrote:

Rights secured by copyright are property within the meaning of the law of copyright, and whoever invades that property beyond the privilege conceded to subsequent authors commits a tort.3

This characterization of copyright infringement as tort has survived since then.4

The Goals of Tort Law

I think a big reason for the gap in understanding comes from a lack of understanding the goals of tort law. Most people understand the basic goals of criminal law. Some things are just bad — murder, robbery, rape. Society as a whole wants to either prevent them from happening or punish those who do them. Criminal law serves these goals; prison and fines act as punishment, the threat of prison and fines acts as a deterrent.5 The problem comes when people assume that the law of torts — private wrongs — has the same goals as the law of crimes — public wrongs. Deterrence and punishment are indeed part of the goals of tort law, but there are more goals to consider. One way of looking at it is laid out by Sir John William Salmond, who wrote in 1891:

A law is a rule of conduct set by the state and enforced by a sanction; a sanction is an evil inflicted upon those who disregard the rule; the administration of justice is that function of the state which consists in the infliction of such sanctions, that is to say, in punishment . Now, as a matter of fact, punishment is not an invariable or essential end of the administration of justice, but is merely one of several ends. These are at least three in number; namely, (i) prevention, (2) punishment, and (3) compensation.6

The addition of “compensation” to the ends of justice plays a large role in the administration of tort law. Indeed, nowadays economics plays just as much a role in shaping the law of torts as morality and ethics. Tort law professor F. Patrick Hubbard restates these goals from a modern perspective as such:

The tort system’s redistribution of the loss from the plaintiff to the defendant has been justified in terms of three policy goals. First, the liability for payment of compensatory damages prevents wrongdoing and thus protects rights in several ways, particularly: (1) the payment for injuries caused by wrongful conduct provides an incentive to avoid wrongful conduct; and (2) even where no wrongdoing is involved, imposing liability for accident costs provides an incentive to reduce injuries not currently preventable by due care by lowering the level of activity, or by seeking innovations that result in new, more cost-effective safety measures. Second, our sense of fairness requires that, as a matter of “corrective justice,” victims who suffer injury because their rights have been wrongly denied should have recourse to a system that requires injurers to pay compensation. These injurers “deserve” to bear the costs of their wrongs, not innocent victims. This concept of “just desert” also serves to limit liability from becoming disproportionately large in comparison to a defendant’s wrongdoing. Third, compensation of victims is frequently said to be, by itself, a goal of tort law.7

A thorough discussion of the goals and justifications of tort law is well beyond the scope of this article; for more, check out Stanford Encylopedia of Philosophy’s entry on Theories of Tort Law. For purposes of our discussion, it’s enough to say that modern tort law goes beyond merely “placing blame.” It asks also, among other things, what are the most efficient ways to allocate the losses attached to wrongs among the parties involved and what rules provide the best incentives to reduce the likelihood of wrongs. While differing theories about tort law compete, it is safe to say that the goals of “fairness” and “efficiency” are at the heart of modern tort jurisprudence.

Secondary Liability in Tort Law

The gap in the public’s understanding of tort law grows wider when it comes to secondary liability — those doctrines that place liability on someone other than the person who actually committed the wrong. How can this be? In 1883, political economist William Edward Hearn wrote:

§ 4. The general principle of justice which governs men’s responsibility for their conduct has two branches. One is that, subject to certain specified grounds of defence, every man is answerable for his own acts and his own forbearances, or for those which he has ordered. The other is that no man is answerable for the conduct of any other person. To the latter proposition, however, there are certain exceptions. These are cases of vicarious liability.8

Vicarious liability grew out of the long-established doctrine of respondeat superior in common law. Respondeat superior states that an employer, or principal, is liable for the acts of his employee, or agent.9

Contributory liability is the name most often used in the intellectual property context to describe the doctrine of holding someone liable for their contribution to the commission of a tort.10 The theory behind it is sometimes referred to as “concert of action” and it finds its genesis in the criminal law idea of “aiding and abetting.”11

“The most ancient authorities of the law” considered those who assisted in the commission of a crime to be guilty of the crime itself.12 So, for example, a getaway driver for a bank robber could be found guilty of the robbery even if his role was limited to sitting in the car while others did the actual robbing.

This principle remains the same when the wrong in question is a tort rather than a crime. In 1831, the Supreme Court of Ohio wrote in Bell v. Miller:

All concerned in the commission of a trespass are considered principals. An assault and battery may be committed by a party not present, if he be a principal actor in or adviser and promoter of making the attack. If one person employ another to commit an assault and battery or any other trespass, and the act is perpetrated, both are guilty, and both responsible in damages. It was not supposed that this was now a debatable question.13

The justifications for secondary liability build off of the fairness and efficiency goals of tort law. Associate professor of law Mark Bartholomew restates it as such: “While vicarious liability exists to redistribute risk in the absence of fault, contributory liability seeks to apportion liability on the basis of moral dessert.”14

Secondary Liability in Copyright Law

As mentioned above, copyright infringement is a tort. One would expect, then, that doctrines of secondary liability have made their way into cases dealing with copyright infringement. And indeed, they have.

Courts have generally recognized three theories for holding a third party indirectly liable for direct infringement caused by another:

  • Vicarious infringement — where one profits from direct infringement that one has the right and ability to control15
  • Contributory infringement — where one has knowledge of the infringement and causes or materially contributes to the infringement16
  • Inducement — where one engages in purposeful conduct that encourages infringement with the intent to encourage infringement17

These well-established principles of secondary liability have been applied in infringement cases for decades, if not longer.18 But it wasn’t until the widespread adoption of the internet over the last 20 or so years that these doctrines have played an increasingly important role in copyright infringement cases.

One quick note: some copyright critics cling to the belief that secondary liability doesn’t exist in the realm of copyright infringement because it is not mentioned in the Copyright Act. The belief is bolstered, perhaps, by Justice Stevens’s remark in Sony v. Universal City Studios that “The Copyright Act does not expressly render anyone liable for infringement committed by another.”19 But the idea that third-party liability in copyright infringement is invalid is wrong on two counts.

First, the US operates under a common law system. The law is developed in the courts unless and until it is modified by statute. As shown above, courts have long recognized doctrines of secondary liability in infringement cases. And if you read just a couple sentences more, you see Stevens explain the same:

The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.

Second, even recognizing that secondary liability exists in copyright law under the common law, some have suggested that Stevens was, in fact, wrong that the Copyright Act didn’t expressly recognize it. Peter Menell and David Nimmer explain:

The extensive legislative history underlying the 1976 Act refers specifically to the law of torts in clarifying that “where the work was infringed by two or more joint tort feasors, the bill would make them jointly and severally liable …” More references to tort law undergird the 1976 Act’s remedial provisions. These references cement the proposition that tort doctrine furnishes the background law for determining what circumstances render someone liable for infringement and, if liable, the scope of remedies.

The legislative history makes two direct references to indirect liability standards, both of which support the continuation of then-existing doctrines and their further refinement through judicial decisions. In explaining the general scope of copyright, the House Report recognizes contributory liability:

The exclusive rights accorded to a copyright owner under section 106 are ‘to do and to authorize’ any of the activities specified in the five numbered clauses. Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.

In discussing infringement, the House Report explains:

Vicarious Liability for Infringing Performances

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra laeder [sic]. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

That excerpt shows legislative intent to preserve the principles of vicarious liability that had developed through the courts under prior law under the 1976 Act.20

Copyright Liability Online

With the advent of digital technology — allowing text, music, and visual works to be reproduced easily and perfectly — and the internet — allowing digital files to be distributed cheaply across the globe — liability for copyright infringement quickly entered new territory.

Copyright infringement has traditionally been characterized as a strict liability tort, meaning one can be liable without intending to infringe any of the exclusive rights protected by copyright.21 This strict liability, in theory, implicates many parties that make up the backbone of the internet since transmission of digital data necessarily involves “copying” and distribution, as well as public display or performance, at many different stages.

In the US, the Digital Millennium Copyright Act (DMCA) — specifically, the safe harbors the bill amended to §512 of Title 17 of the US Code —  was a watershed bill for dealing with copyright liability online. One can divide how the law treats copyright liability for online service providers into two eras: pre-DMCA and post-DMCA.

Prior to the DMCA, it was up to courts to determine whether service providers were directly infringing on copyright for their role in copying and transmitting infringing works originally uploaded by users of the service. In at least one case, Playboy Enterprises v. Frena, the court found that the service provider was liable for direct infringement.22 Despite Playboy Enterprises, however, the case law suggests that courts were largely unwilling to hold service providers liable for direct infringement.23

When we turn to the question of indirect infringement — whether a service provider is liable for vicarious or contributory infringement — the pre-DMCA case law shows a far more muddied application of the doctrines. Contrasting approaches to these doctrines as applied to service providers emerged in the courts, with the result being a great deal of uncertainty for service providers.24

Governments around the world faced the same issues. The internet represented a great source of innovation and advancement. How best to craft liability rules that would ensure continued innovation and advancement while protecting long-established, real world rights online? The US Congress ultimately crafted the DMCA to address these concerns and provide certainty.

Addressing Online Liability Through Legislation

The choice for what level of liability online service providers should be subjected to, by law, generally comes down to one of three options: no liability, strict liability, or some type of limited or conditional liability. The DMCA takes a mixed approach, depending on what role an online service provider has taken on. Service providers have zero copyright liability if they are only engaged in transmitting and routing data, or if copies are made for system caching purposes.25 Conditional liability is placed on service providers for infringing works residing on the provider’s system at the direction of a user — for example, an unauthorized video uploaded to YouTube, an unauthorized photo posted on a message board, or an unauthorized song hosted on a user’s web site.

The general consensus is that conditional liability for service providers in the copyright context is the best of the three options.26 This approach balances the multitude of competing factors involved: it creates incentives on parties to reduce the harms of copyright infringement while avoiding overzealous monitoring that may suppress noninfringing speech. Most major countries around the world have adopted some form of conditional liability for online service providers in the copyright realm.27

What would liability for service providers look like today had there not been a DMCA? The answer is unclear. Certainly, there would have been a period of great uncertainty at the early stages of the growth of the internet as courts addressed the question. Perhaps the common law would have developed toward standards which fairly and efficiently allocated the risks of user infringement among the various parties; it is not unlikely, however, that courts could have adopted rules placing more of a burden on service providers for user infringement. Either way, if the question was left to the courts, it would likely have stifled innovation when such a result would have been most detrimental. A large company at the time like Yahoo or AOL could easily fend off legal challenges, where a cash-strapped startup might have folded, unable to fight in court no matter how likely its eventual success would be.

Conclusion

Zero liability for online service providers is far from a “basic liability concept.” Tort law has long recognized several doctrines where indirect liability may be imposed, and copyright law has long adopted those doctrines. Absent legislation like the DMCA, it is uncertain how courts would have applied those doctrines to service providers in the online context. The period of greatest uncertainty in the law would have coincided with the early stages of the widespread adoption of the internet: a time when uncertainty would have provided the most detriment.

It’s true that the laws regarding online liability for service providers are far from perfect. Stakeholders on all sides have expressed areas where they could be improved. But claims that zero liability for service providers are a foregone conclusion from a “common sense” point of view or that they reflect “basic liability concepts” are entirely off-base.

See Also

Footnotes

  1. Christopher Osakwe, Russian Civil Code. Parts 1-3: Text and Analysis (Wolters Kluver 2008). [↩]
  2. Most notably the “hot coffee” lawsuit against McDonalds. [↩]
  3. Lawrence v. Dana, 15 F. Cas. 26, 61 (C.C. Mass. 1869). [↩]
  4. Peter S. Menell & David Nimmer, Unwinding Sony, 95 California Law Review 941, 996 (2007). [↩]
  5. This is obviously an over-simplification for the purpose of discussion. For a more detailed look at theories of criminal law, start at Stanford Encyclopedia of Philosophy – Theories of Criminal Law. [↩]
  6. Essays in Jurisprudence and Legal History, pg. 123. [↩]
  7. Hubbard, The Nature and Impact of the ‘Tort Reform’ Movement, 35 Hofstra Law Review 437, 445-46 (2006). [↩]
  8. The Theory of Legal Duties and Rights, pg 125. [↩]
  9. See, for example: Broom, Manisty, and Cagney, A Selection of Legal Maxims, Classified and Illustrated, pg. 798 (1884) for a discussion of the doctrine and its long-standing place in history. [↩]
  10. For example, in trademark cases like Inwood Labs v. Ives Labs, 456 US 844 (1982) and especially in patent cases: Thomson-Houston Electric v. Kelsey Electric, 72 F1d 1016 (1896). [↩]
  11. See In re Aimster Copyright Litigation, 334 F.3d 643, 651 (7th Cir. 2003); Boedecker, Kasulis, Morgan, and Stoltman, The History of Enterprise Liability, Ninth C.H.A.R.M. Conference on Historical Analysis and Research in Marketing, 205, 210 (1999). [↩]
  12. The American and English Encyclopedia of Law, pp. 29-30 (Edward Thompson Company, 1896). [↩]
  13. Bell v. Miller, 5 Ohio 250 (Supreme Court of Ohio, 1831). [↩]
  14. Mark Bartholomew, Copyright, Trademark and Secondary Liability after Grokster, 32 Columbia Journal of Law & the Arts 445, 465 (2009). [↩]
  15. Shapiro, Bernstein & Co. v. HL Green Company, 316 F.2d 304, 308-309 (2nd Cir. 1963). [↩]
  16. Gershwin Publishing Corp. v. Columbia Artists Man., 443 F.2d 1159, 1162 (2nd Cir. 1971). [↩]
  17. Arista Records v. Lime Group (SDNY 2010). While there has been some doubt as to whether inducement is a new theory of secondary liability or just a restatement of contributory infringement, the court in Arista Records concluded that the Supreme Court in MGM v. Grokster confirmed inducement as a “distinct cause of action.” [↩]
  18. See Unwinding Sony, pp 996-1005 for a thorough discussion of the history here. [↩]
  19. 464 US 435. [↩]
  20. Unwinding Sony, pp. 995-96. [↩]
  21. Patry on Copyright, §9:5. [↩]
  22. 839 F. Supp. 1552 (M.D. Fla. 1993). [↩]
  23. Alfred Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 Georgetown Law Journal 1833, 1842 (2000). [↩]
  24. Yen, 1877. [↩]
  25. 17 USC § 512 (a) and (b). [↩]
  26. See, for example, Alan Woodfield, When Should the Bell Toll? The Economics of New Zealand’s Debate on Indirect Liability for Online Copyright Infringement, 1 Review of Economic Research on Copyright Issues 119, 147 (2004), discussing why New Zealand’s adoption of conditional liability was the best of the three options. [↩]
  27. See Woodfield; Aditya Gupta, The Scope of Online Service Providers’ for Copyright Infringing Third Party Content Under the Indian Laws – the Road Ahead, 15 Journal of Intellectual Property Rights 35 (2010) (discussing UK, Canada, Australia, and India); VK Unni, Internet Service Provider’s Liability for Copyright Infringement – How to Clear the Misty Indian Perspective, 8 Richmond Journal of Law & Technology 13 (2001) (also discussing Canada, Australia, and India, as well as Singapore); the procedure the Russian ISPs propose in their letter highlighted in the TechDirt article mirrors these approaches. [↩]
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Is Copyright Infringement Theft? Part 2

October 11, 2010 · · 11 comments

“They make me madder than a yak in heat.” – Marge Simpson

A little over a month ago, I wrote a post titled Is Copyright Infringement Theft? The post sparked several other thoughtful articles and many comments – most notably a response by Mike Masnick at the popular TechDirt blog, Why It’s Important Not to Call Copyright Infringement Theft.

This is one of those ongoing debates, along the lines of “Mac vs. PC” and “Kirk vs. Picard.”1 Not surprisingly, many comments responded as if I had actually said “copyright infringement is theft.”  But the title of the post was merely a question, and in the body I explicitly said “I’m not going to answer that question today.”

I want to continue the discussion today. I think the debate serves as a launching point for many different discussions involving copyright law and the law in general. I obviously can’t cover all of those different discussions in one post, but hopefully I can highlight a few that I find interesting.

At the end of the day, I still think arguing over “theft” or “not theft” is a semantic sticking-point, but unlike Masnick, I think the foreclosure happens on both ends. He thinks “if you are seeking to understand what is happening and how to respond to it, calling it ‘theft’ immediately shuts the door on a variety of important points.” I think the same is true from the perspective of the creators and businesses in the creative industries: if you’re seeking to understand what is happening to them as we continue to move to a digital environment and how to respond to it, decrying anything but complete acceptance to widespread piracy – down to the very language they choose to use to describe it – shuts the door on a variety of important points.

Metaphor

Copyright infringement as theft is a metaphor. According to Masnick, calling copyright infringement “theft is wrong.” Why? “Because it’s wrong at an absolute level.”

When is a metaphor wrong? It’s a curious question. Over at the Legal Profession Blog, Jeff Lipshaw succinctly describes the role of metaphor in meaning using the example of subatomic particles. He says, “What thinking about electrons as billiard balls does is to give them a meaning by analogy to other things, and we base our view of the coherence of the explanation (not its rightness or wrongness) on how it compares to other explanations we already view as coherent.”

I included the Simpsons quote above to illustrate the difficulties in answering the question of the correctness of a metaphor. A yak in heat may very well exhibit aggressive behavior, making the comparison apt. But the comparison is at the very least a clumsy one; many of us are presumably unfamiliar with yak behavior, so the metaphor is more a non sequitur than a useful explanation.

“Love is like an onion, and you peel away layer after layer until you’re just … weeping over the sink.” – Pete Hornberger

The use of metaphor in language is very flexible. Its success in contributing to understanding is context-dependent. Saying you are “madder than X” aids the listener only if they have some knowledge of X. The metaphor itself does not depend on a literal comparison – computing the relative anger-level of you and X. Indeed, we tend to laugh at anyone who rebuffs a metaphor on literal grounds – imagine correcting Hamlet because troubles clearly don’t exist in liquid form.2

And yet that is one of the arguments used by those against the idea of copyright infringement as theft: the comparison is wrong in a descriptive sense. I addressed the fallacy in this argument in my first post. Based on the response to that post, I wanted to explore it further today. The idea that the comparison is wrong in any sort of descriptive sense has no basis in logic, language, or history.

The other argument against equating infringement with theft has to do with metaphor in framing – comparing the two in a prescriptive, or normative sense. The idea is that the language one uses reflects the result one wants to achieve. This argument, by far, is the more salient of the two. I touched on this argument briefly in my first post. Some of the responses to that post have explored this argument, so I’d like to flesh it out a little bit more today.

Comparing Apples to Oranges

Masnick concludes his article by calling to mind the idea that comparing copyright infringement to theft is like comparing “apples to oranges”. Even here you can see the challenges with talking about the rightness and wrongness of metaphors – even our metaphor for describing incomparable concepts is flawed!3 One is a round, tasty fruit that grows on trees, while the other is – wait…

The argument against a descriptive comparison between infringement and theft fails logically, historically, and legally.

Logical

Perhaps the best illustration of the logical argument against equating copyright infringement to theft can be found in the following YouTube video:

Cute. But it misses the point on several levels. If you steal a bike and your friend has to ride the bus, you’re certainly a thief. But if your friend sneaks on the bus without anyone noticing and gets a free ride, what do we call that?4

Our concept of “property” is not based on inherent characteristics of physical objects – you can’t look at a bicycle under a microscope and deduce who owns it. It’s better to think of “property” as a set of relationships between people and tangible or intangible things. Property in this sense requires a recognition by law and/or society of the rights, duties, privileges, etc. that connect any given individual with any given thing.5

The reasoning displayed in the video above is that (1) theft requires deprivation of possession, (2) reproducing a copyrighted work does not result in deprivation of possession, (3) thus, infringement is not theft. This argument begs the question, however, that the definition of theft is limited to deprivation of possession. The argument only works if you insist on restricting the definition of “theft” to that of common law larceny. This is an overly prescriptive restriction on the term. The idea is that the comparison is wrong not just on a literal level, but an arbitrarily narrow application of the literal meaning of “theft.”

It’s easy to reconcile infringement with theft using the broader view of property rights as a set of legal relationships between individuals and things. “Possession” is only one of the relationships recognized by law and society. “Theft” in its colloquial sense – the definition commonly used over time – involves some deprivation of a recognized right. “Theft” of a physical object typically means the deprivation of the exclusive right of possession. Copyright, by statute, secures the exclusive right to copy, among other rights. Copying without permission thus deprives the author of that exclusive right.

Historical

The above video is an example of “linguistic peeving.” In one sense, it is a latching onto a specific usage one believes is right, while proclaiming all other usages to be wrong. But when it comes to the use of language, we can compare claims of “peevery” against actual usage throughout history. “Lingustics is descriptive, not prescriptive.”

The debate over the words used in discussing copyright is nothing new. William St. Clair notes that “the language of stealing” became the main metaphor for copyright infringement at the end of the seventeenth century.6 Infringement was, at that time, “frequently equated with theft,” “shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital. And piracy.”7

New terms continue to be termed to describe the relationship between infringement and theft. Among hip-hop artists, the term “beat-jacking” – a derivation of carjacking – is used to describe the deliberate use without permission, or a false claim of authorship, of another writer’s instrumental.8

This language usage is not hard to find among people within the creative fields. One of the responses to my initial post comes from friend and PlagiarismToday blogger Jonathan Bailey, who notes that while he limits the use of the term “theft” in connection with copyright infringement, he has no issue with its casual use in this context for three reasons: (1) It’s a common term, (2) It’s not meant to be literal, and (3) It’s not the only misnomer. Bailey’s site is aimed at content creators of all stripes, both large and small, and the terminology reflects to some extent the feelings these creators express when they see others copy their work.

Legal

In my first post, I specifically pointed out the fallacy in relying on the Supreme Court’s opinion in Dowling for “not theft” proponents, and included a quote from the Court in MGM v. Grokster equating unlawful copying to “garden-variety theft.” The first example illustrated the problems with misapplying judicial language to prove a point; the second, to show the comfort that the highest court in the land has in using the language at issue in a colloquial sense. This colloquial use of “theft” in the copyright context was not, however, an isolated incidence.

  • In the 1974 Supreme Court case Teleprompter Corp. v. Columbia Broadcasting System, Justice Douglas and Chief Justice Burger wrote in their dissent, “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft.”9
  • Judge Patel began his opinion in the District Court ruling in A & M Recordings v. Napster, “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings.”10
  • In 1980, the Second Circuit wrote in Iowa State University v. American Broadcasting, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”11

One could find examples of this language from branches of government outside the judiciary. Among other usages of describing copyright infringement as theft, I can point to:

Perhaps most strikingly, the case can be made that copyright preemption shows a similarity between infringement and theft. In the comments of his response, Masnick says the point of refraining from using “theft” language in the copyright context is that the two are not “analogous.”

The Copyright Act explicitly preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” (emphasis added). In other words, you can’t bring a cause of action in a state or local court if the rights at issue fall within the scope of copyright law. Among the causes of action which have been found by courts to be preempted by copyright law: conversion – the “wrongful exercise of dominion and control over tangible, physical objects”;12 theft of services;13 and theft of satellite signals.14

According to Wiktionary, “analogous” means “Having analogy; corresponding to something else; bearing some resemblance or proportion.” “Equivalent” means “similar or identical in value, meaning or effect; virtually equal.” If causes of action like conversion and theft of services – species of theft – are “equivalent” under the doctrine of preemption, than the argument that they are not analogous – that they don’t bear some resemblance or proportion – fails.

It’s simply disingenuous to say that a metaphor which has been commonly used for centuries by individuals of all stripes, courts, legislators, and governments is “wrong.” Legally and logically, the metaphor holds up. To say that copyright infringement is not theft on a descriptive level only demonstrates ignorance.

Ought Copyright Infringement be Considered Theft

I mentioned earlier that the more salient argument in the “theft” debate has to do with “framing.” The self-ascribed camps of ‘pro-life’ and ‘pro-choice’ in the abortion debates illustrate precisely the power of framing in shaping the character of the debate. Within highly contentious debates, the question matters as much as the answer.

The heart of the issue about equating copyright infringement to theft is not whether it is theft, but whether it ought to be considered theft. That is, it is not important whether we can look to the past and see the metaphor as an accepted linguistic usage, but it is important to consider the effects that using the metaphor has on lawmakers, judges, and policy makers as they craft responses to future problems.15

One quick note about plagiarism. Nandita Saikia springboarded off my post to consider whether plagiarism should be equated to theft. The issue of plagiarism is distinct from, but overlaps with, copyright infringement. Nevertheless, it warrants mentioning here. Jonathan Bailey points to recent research involving children and plagiarism. And generally, there has been an increase in the prevalence of plagiarism in the past several years.16 I think the issue of plagiarism is unequivocally a moral issue, but one that can be addressed outside the confines of copyright law. At the same time, discussions of plagiarism do inform some discussions of copyright law.

Back to copyright infringement in general, and also from India, Amlan Mohanty briefly discusses my piece in the larger context of Indian copyright law. Mohanty gets at the heart of the issue about framing, saying “The term ‘theft’ carries with it significant ethical connotations, is regarded as moral turpitude, and involves considerable value-judgement.”

In this sense, the question over whether infringement should be equated to theft comes down to whether infringement should carry the same moral considerations as theft is said to carry. The debate is over whether this metaphor – this use of language – accurately describes society’s and the law’s response to copyright infringement.

Fortuitously, John Locke, the philosophical godfather of American legal theory, actually used the term “stealing” as an example of how language aids in our understanding of the ideas behind laws:17

16. The denominations of actions often mislead us. But because very frequently the positive idea of the action, and its moral relation, are comprehended together under one name, and the game word made use of to express both the mode or action, and its moral rectitude or obliquity: therefore the relation itself is less taken notice of; and there is often no distinction made between the positive idea of the action, and the reference it has to a rule. By which confusion of these two distinct considerations under one term, those who yield too easily to the impressions of sounds, and are forward to take names for things, are often misled in their judgment of actions. Thus, the taking from another what is his, without his knowledge or allowance, is properly called stealing: but that name, being commonly understood to signify also the moral pravity of the action, and to denote its contrariety to the law, men are apt to condemn whatever they hear called stealing, as an ill action, disagreeing with the rule of right. And yet the private taking away his sword from a madman, to prevent his doing mischief, though it be properly denominated stealing, as the name of such a mixed mode; yet when compared to the law of God, and considered in its relation to that supreme rule, it is no sin or transgression, though the name stealing ordinarily carries such an intimation with it.

One may note that both theft and copyright infringement are against the law. If the problem with equating the two is that theft is immoral because it is contrary to the law, than the discussion is moot. Either one will subject you to civil liability; either one may subject you to criminal penalties. We “know” at an early age that garden-variety theft is illegal, and anyone who has seen an FBI warning on a movie or paid attention to the recent record label’s litigation campaign “knows” that copyright infringement is illegal.

In fairness, the pushback against equating the two is based on relative morality – copyright infringement is not as bad as theft – sussing out dichotomous forms of copyright infringement,18 and the importance of countervailing goals in copyright law beyond securing exclusive rights to authors.

These are not tiny bases. One could devote entire books to them – something William Patry has done as I noted in my first post.

William St. Clair describes the use of “theft” language in the copyright context as “literary knockabout.”19 The historical effects have largely remained within the rhetorical arena. This metaphor is neither recent, nor solely attributed to the largest stakeholders – individual, amateur, and small-time creators typically make use of it. We can talk about whether or not the language has influenced the copyright debates in the wrong direction, but foreclosing the term “theft” in the copyright arena hinders the debate as much as using it puts up “a wall to understanding.”

Footnotes

  1. The truly geek would answer “Linux” and “Jack O’Neill.” [↩]
  2. From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.” [↩]
  3. Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche. [↩]
  4. A millennia old problem is what we call it. [↩]
  5. The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913). [↩]
  6. William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers). [↩]
  7. Privilege and Property, pg 388. [↩]
  8. See, e.g., M.O.P. Denies Beat Jacking, Beatjacking or Fair Game? [↩]
  9. 415 US 394, 417. [↩]
  10. 114 F. Supp. 2d 896, 900. [↩]
  11. 621 F. 2d 57, 61. [↩]
  12. Patry on Copyright 18:34 [↩]
  13. See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672. [↩]
  14. Patry on Copyright 18:52 [↩]
  15. I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area. [↩]
  16. See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases. [↩]
  17. John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link [↩]
  18. See my post on Creative vs Consumptive Infringement for an introduction on this subject. [↩]
  19. Privilege and Property, pg 391. [↩]
Posted in: Copyright Criticism · 11 comments

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Righthaven, Wronghaven

September 13, 2010 · · 1 comment

H/T to Eric E. Johnson at Blog Law Blog for providing in-depth coverage of the Righthaven lawsuits and Jonathan Bailey at PlagiarismToday for his thoughts on this subject.

Righthaven continues to file new lawsuits, seemingly unabated, adding seven new complaints to the dockets last week. That brings the total number of lawsuits up to 124 as of the writing of this article, according to site Righthavenlawsuits.com.

For those not familiar with Righthaven, it’s a private company engaged by the Las Vegas Review-Journal to protect its news content online. Righthaven’s strategy involves searching online for sites where Review-Journal articles have been republished, buying the copyright to those articles, and then filing an infringement suit against the site. This campaign against infringement began earlier this year, coinciding with an editorial by Review-Journal publisher Sherman Frederick, who announced point-blank (about copyright infringement): “We’re not taking it anymore.”

Those sued so far include everyone from a “cat blogger” and a real estate agent, to both right-wing and left-wing forums, the Nevada Democratic Party, NORML, and most recently, and perhaps most bizarrely, Nevada Senate candidate Sharron Angle – a candidate the newspaper is expected to endorse.1

Competitor Las Vegas Sun has committed to reporting developments in the Righthaven lawsuit story; their site provides numerous articles on the unfolding events. In addition, you can find a large amount of court filings from the various Righthaven suits at Scribd.

Opposition to the lawsuits is growing, not only from interest groups and the general public, but also from the defendants themselves. Some are responding to the complaints with allegations that Righthaven is misusing the legal system. In fact, I don’t even think it’s particularly noteworthy to register your opposition to Righthaven’s campaign, as public opinion appears almost universally critical. What is noteworthy is pointing out the conflation between criticism of Righthaven’s methods and criticism of copyright law in general.

My take on these lawsuits echoes what many others have noted. The complaints themselves have merit. While there are some issues which can be addressed, particularly fair use, the case for copyright infringement is pretty cut and dry.

The problem is the Review-Journal’s approach it has taken. It is using litigation as a way to make money,2 and the lawsuits border on vexatious. The way it skips over resolving cases of infringement privately and heads straight to filing a lawsuit undermines the strong public policy for using the legal system as a last resort.

I cannot stress enough that criticism of Righthaven is about its litigation methods, not about the validity of copyright laws and enforcing those laws. If you replace “copyright infringement” with some other cause of action, the criticisms mentioned above would remain the same. Unfortunately, opponents of effective copyright enforcement are more than happy to use the Righthaven lawsuits as yet another example of content industries run amok. This only adds to the challenges of all other content owners who are trying to address dealing with infringement in a digital world.

Safe havens and Fair Use

Let’s take a quick look at the copyright issues raised by these lawsuits. As I said, in many cases they are cut and dry. The Review Journal, as the copyright owner, has the exclusive right to reproduce and distribute its content (and the right to assign its copyright to parties like Righthaven, though the way it is exercising this right raises other questions that I’ll address later). Anyone who reproduces its content without authorization is infringing. As a strict liability tort, it doesn’t matter what the infringer’s intent was in reproducing the content, nor whether the infringer profited from the infringement. Of course, the alleged infringer must have taken more than an insubstantial portion of the original work to be liable. This seems to be the case in most of the Righthaven lawsuits. Sharron Angle, for example, reproduced two individual articles in their entirety on her site.

One defense often mentioned in connection with these lawsuits is the safe harbor provided by the Digital Millennium Copyright Act (DMCA). The law protects online service providers from liability for infringement, providing the famed notice-and-takedown procedure where a content owner can request infringing material removed without resorting to the courts as Righthaven has done. I think the applicability of the DMCA is limited in these cases, however. The DMCA safe harbors only protect service providers from secondary liability – liability for users posting content to forums or BBS’s. It doesn’t apply to direct infringement, and a number of the lawsuits were filed against owners of personal sites and blogs who posted the content themselves. Qualifying for the safe harbors also requires following certain procedures – registering a DMCA agent with the US Copyright Office and posting contact information with the site’s DMCA policies on the site3  - and it appears that Righthaven has been pretty careful about targeting only those sites that don’t follow these provisions.

The defense that is more likely to come into play with these lawsuits is fair use. The doctrine of fair use allows for certain uses of copyrighted material without the permission of the copyright owner. Courts typically4  use the four factors from 17 USC § 107 to determine whether a particular use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa-tional purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in rela-tion to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Fair use is highly fact-specific, and it’s up to each individual defendant to raise the defense, so it’s difficult to make any generalizations about what role it will play in these lawsuits. You can see, though, that the noncommercial nature of many of the uses in these cases may favor a finding of fair use, though this may be negated where an entire article was reproduced and where no additional commentary or criticism was added to the republication.

Despite some of the limitations on a fair use defense under the traditional four factor test, Eric Johnson makes a strong argument that fair use should protect the right to republish news articles that a person is the subject of. He writes:

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material.

I would add that the practice of reprinting articles about oneself or one’s organization is a fairly well-established practice. Many routinely reprint news articles in press packets and internal newsletters. Many of the fair use opinions dealing with reproducing news content involve commercial press clipping services, where the purely commercial nature of these enterprises typically defeats a finding of fair use. When you consider that the reprinting here is done by the subjects of the articles themselves rather than commercial enterprises, and combine it with the fact that the Review-Journal already provides a multitude of options for sharing content5 it is conceivable that some defendants may succeed with a fair use defense.

It’s Not Copyright at Issue

But however interesting the copyright issues raised in these lawsuits are, they do not explain the almost instinctual aversion most have to Righthaven’s behavior. In theory, it seems odd to criticize Righthaven; if, for the sake of argument, the claims are meritorious, why would anyone speak out against their right to pursue those claims in court?

In a broad sense, the reaction to Righthaven can be compared to the reaction when an overzealous municipality shuts down a kid’s lemonade stand because the tiny tots failed to get the proper vending licenses, as an Oregon city did last month, or a California city did last year. It sparks our conscience whenever anyone, no matter how right, goes nuclear against a relatively minor infraction.

But the problems with Righthaven’s approach go deeper than just shocking sensibilities. They approach the territory of upending ancient notions of how a legal system should work. One hint at how old these notions are comes from some of the answers to Righthaven complaints. We see concepts like “barratry” and “champerty” coming back in style.

In addition to these defenses, the method of Righthaven’s pursuit of lawsuits has been attacked, with some calling them “ambush” style lawsuits. Most lawsuits begin with the aggrieved party contacting a would-be defendant, typically through a cease and desist letter. It is only after the parties fail to come to a satisfactory conclusion that the dispute is taken to the courts. Righthaven skips over this step entirely, going straight to filing suit. One group reported that its first notice that it was in trouble came from “a Google alert indicating a court document had been filed, followed by an e-mail of inquiry from a reporter for the Las Vegas Sun.”

Whether these criticisms of Righthaven’s legal strategy rise to legally recognized defenses remains to be seen.6 But regardless of whether Righthaven can do what it’s doing, most disagree with Righthaven that it should do what it’s doing.

Going to court is a last resort. This isn’t just good advice, it’s a cornerstone of western law – an assertion that finds support not only in secular thought, but also Judaism and Christianity.7 Litigation is costly and time-consuming, and most of the time, that’s ok. The costs encourage individuals to settle disputes themselves without getting the government involved. Righthaven flips the default on this view by pursuing litigation as a business and skipping the whole “let’s work this out” step.

We certainly don’t want to close the courts off to those with meritorious claims. But most of us believe that there should be some, well, justice in the justice system. Rules against using the legal system as a sword to vexate others or profit from lawsuits have been in place for a long, long time to prevent extortion and ensure that the legal system operates fairly for all of us.8

The Danger to Content Owners

The gravest danger to content owners and creators not caught in Righthaven’s cross-hairs is that these lawsuits will make their efforts to protect content more difficult. Those opposed to all attempts to maintain the incentive copyright provides are quick to lump Righthaven’s litigation-as-a-business-model in with all efforts by those who recognize that unabated piracy damages the incentive to disseminate new works. It’s doubtful anyone can say anything to change their minds, but it bears repeating that criticism of these lawsuits doesn’t implicate copyright law as much as Righthaven’s strategy.

Is there any lesson content owners can learn from Righthaven? The RIAA litigation demonstrated that lawsuits are cumbersome and costly as a shield against piracy. The Righthaven litigation demonstrates the dangers of using lawsuits as a sword against piracy. In my opinion, this is enough evidence to shift the focus away from the courts as a tool for managing piracy. Content owners and consumers alike would benefit from an alternative approach, whether it involves placing more responsibility on ISPs and service providers for policing infringement, or whether it involves revisiting some of the numerous proposals for addressing online piracy that have been advanced in the past.

Footnotes

  1. A former managing editor of the Review-Journal imagines the endorsement would say something like, “We think she’s a thief, but we like her a lot.” [↩]
  2. There have been some reports of the amount Righthaven has already collected from settlements, but it’s difficult to see how suing one’s sources – and advertising agencies – is a good business model. [↩]
  3. Check out this site for pointing out this important information for UGC site operators. [↩]
  4. Close to 60% of the time, as noted by Baron Beebe in his extraordinary article, An Empirical Study of US Copyright Fair Use Opinions, 1978-2005, 156 Univ of Penn Law Review 549 (2008). [↩]
  5. The site provides numerous RSS feeds, as well as providing options to email, print, or share on 19 different social networking sites each article. [↩]
  6. The doctrine of champerty is often described as ‘vestigial’, see Paul Bond, Making Champerty Work: An Invitation to State Action, 150 Univ of Penn Law Review 1297 (2002). [↩]
  7. See Max Radin, Maintenance by Champerty, 24 Cali Law Review 48 (1935). [↩]
  8. For more information on the history of champerty and maintenance, as well as discussion on the various public policies the doctrines protect, check out Ari Dobner, Litigation for Sale, 144 Univ of Penn 1529 (1996), and Radin. [↩]
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Is Copyright Infringement Theft?

September 07, 2010 · · 15 comments

Is copyright infringement theft?

This question pops up often in online discussions, and nearly always sparks heated debate. You can see a recent example in the comments section of Obama administration: ‘Piracy is flat, unadulterated theft’ on Ars Technica. Many, many other examples abound online.

But I’m not going to answer that question today.

The biggest problem with this question is that – and this is going to sound very much like lawyerspeak – the answer depends on what the meaning of the word “theft” is.1 Don’t dismiss such an answer right away. When I was in law school, I took a course taught by a judge in the nearby county court. He had been sitting for decades – well-qualified to teach about how the law worked in the real world. On more than one case, this judge would be in the middle of pointing out some minor point on correct use of terminology when he would pause and say, “I know this sounds like semantics. But the law is semantics – that’s what lawyers do: argue over words.”

The classic example of the relationship between the law and language is a hypothetical problem: “No Vehicles in the Park.” The hypo begins with a seemingly simple sign that reads “No vehicles in the park” and then asks what situations are prohibited by the rule and why. Bicycles? Park maintenance trucks? Ambulances on the way to the hospital? Wheelchairs? A war memorial consisting of a parked tank? It’s not enough to figure out what you think the result of each situation should be. In a democratic society, lawmakers and judges must ensure that laws are consistently applied, understandable, and fair.2

The argument over applying terms like “theft” to copyright infringement is not, however, about whether the comparison is legally appropriate, but about the similarities between the two in the colloquial sense of the word. This is where the opponents of the word begin to falter – attempting to prove their point by using the legal definition of the word to trump the colloquial definition. In other words, the argument goes, since the legal meaning of theft differs from the legal meaning of copyright infringement, any comparison between the two is invalid. By itself, this argument is barely worth refuting, but it has unfortunately been bolstered by the misuse of language from an otherwise inconsequential Supreme Court decision. This type of quote-mining from case law is prevalent in many debates – sort of a cross between an appeal to authority and contextomy – a practice that merits further discussion. If we want to learn what the law means, it sometimes help to understand common errors in understanding the law.

You’re in a Helicopter

I suspect a large part of the intensity over the use of “theft” to describe copyright infringement is based simply on linguistic peevery. The use of the word rubs some people the wrong way, and they have developed a strong objection to its use. Like language police, they immediately jump on anyone who dares to draw a comparison between the two concepts. Once the word is spoken, it won’t be long until you hear the legal argument. “Theft has a specific legal meaning, copyright infringement has a different legal meaning, thus copyright infringement is not theft.” This argument reminds of this old joke:

A helicopter was flying around above Seattle when an electrical malfunction disabled all of the aircraft’s electronic navigation and communications equipment. Due to the clouds and haze, the pilot could not determine the helicopter’s position and course to fly to the airport. The pilot saw a tall building, flew toward it, circled, drew a handwritten sign, and held it in the helicopter’s window. The pilot’s sign said “WHERE AM I?” in large letters. People in the tall building quickly responded to the aircraft, drew a large sign and held it in a building window. Their sign read: “YOU ARE IN A HELICOPTER.” The pilot smiled, waved, looked at her map, determined the course to steer to SEATAC airport, and landed safely. After they were on the ground, the co-pilot asked the pilot how the “YOU ARE IN A HELICOPTER” sign helped determine their position. The pilot responded “I knew that had to be the Microsoft building because, like their technical support, online help and product documentation, the response they gave me was technically correct, but completely useless.”

It’s technically correct that “copyright infringement” and “theft” have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. “Theft” in the legal sense has always meant something far narrower than “theft” in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another’s property by force or by stealth. It didn’t include the taking of property by deception or trick, and it also didn’t include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in “theft” if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion.3

Dowling v. United States: Misusing Case Law

Despite the obvious shortcomings of this line of reasoning, it was given extra legs after the 1985 Supreme Court case Dowling v. United States. Paul Dowling ran a lucrative, interstate business selling bootleg recordings of Elvis Presley. Once caught, the federal government prosecuted him under the National Stolen Property Act, which made it a federal crime to transport stolen merchandise across state lines. The Supreme Court reversed his conviction on the grounds that the Act did not extend to items which infringed copyright.

This holding was like manna from heaven to the “copyright infringement is not theft” crowd. In particular, they point to the following language from the syllabus of the opinion:4

The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of [section] 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

If you make it into the actual opinion, however, you’ll find that the Court is careful to note the distinction between the legal and colloquial meanings of words:

While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose — “stolen, converted or taken by fraud” — to describe the sorts of goods whose interstate shipment § 2314 makes criminal.5

I mentioned earlier that mischaracterizing language from case law to bolster an argument is common. Our common law system is partially to blame for this pitfall, since cases create binding precedent that shape the law. However, it’s important to remember that the only thing binding from a court opinion is the holding. The reasoning a court uses is helpful in seeing how it arrived at the holding, and much of the dicta may be persuasive and useful to shaping one’s argument.  The danger is taking this language – anything besides the specific, narrow holding – as a binding conclusion to any argument. ((Other cases have similarly been distorted to “prove” certain arguments: Flora v. United States, 362 US 145 (Income tax is voluntary); Church of the Holy Trinity v. United States, 143 US 457 (US is a Christian nation); Interstate Commerce Commission v. Brimson, 154 US 447 (Census is unconstitutional).)) It’s not like the Dowling court made a broad pronouncement that “Henceforth, no one may describe copyright infringement as ‘theft.’” Or as one forum commenter said, “The comments are to long and it’s becoming a chore. I’ll just quote Dowling v. United States, a 1985 case regarding copyright infringement.”

The holding of Dowling was indeed narrow:

By virtue of the explicit constitutional grant, Congress has the unquestioned authority to penalize directly the distribution of goods that infringe copyright, whether or not those goods affect interstate commerce. Given that power, it is implausible to suppose that Congress intended to combat the problem of copyright infringement by the circuitous route hypothesized by the Government.6

In other words, the federal government cannot prosecute an alleged copyright infringer under the National Stolen Property Act.7  Curiously, those who point to the language of Dowling as incontrovertible proof that copyright infringement shouldn’t be called theft manage to miss a later Supreme Court case that says the opposite. Justice Breyer states in his concurrence to MGM v. Grokster:

No one disputes that “reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.8

The lesson, if any, is to pay attention when someone quotes case law. It’s easy to find language that appears to support just about any proposition; the challenge is recognizing the common fallacies that arise from the use of such language.

Does it even matter? Yes, it does. Or does it?

Hopefully, this reliance on Dowling in the debate over copyright infringement and theft can be put to a rest. That still leaves the question of whether or not the comparison is appropriate in the colloquial sense. I doubt that debate will ever be resolved.

Quibbling over the use of words like “theft” stems from the larger debate about whether “intellectual property” should be considered “property.” People have been arguing over that point since – at the least – the first copyright law was written down in 1709. To some, the issue has great consequences. In Moral Panics and the Copyright Wars, noted copyright scholar William Patry writes:

No side in the Copyright Wars can claim semantic purity or sole virtue … One way we got where we are is through the misuse of language, specifically metaphors that characterize the nature of copyright as property and that characterize those who use copyright works without permission as thieves or parasites. When a court or legislature is faced with a copyright dispute, there is more than one way to frame that dispute. There is, after all, no Platonic copyright against which we can match the ideal form of copyright. Instead, the outcome is determined by reference to the contesting legal, economic, and social forces. Those forces in turn are defined and understood in terms of the conceptual frameworks employed.9

Patry sees the use of metaphors like “theft” as an effort by content industries to push for self-serving copyright laws to “preserve their old business model of controlling consumers.”10

But there are others who see this argument as largely academic. Law professor Stuart P. Green notes:

Whether something will be regarded as “property” is nothing more, and nothing less, than a conclusion of law. As Stephen Carter has put it, “the term does not refer to any object or to any necessary set of legal rights that always inheres in a property relationship. Instead, the term refers to a bundle of rights that define, singly or collectively, the relationship of an individual to a resource.” Hence, simply because some resource is considered “property” for purposes of, say, mail fraud, copyright, or constitutional law, does not necessarily mean that it will be regarded as property for purposes of theft law, and vice versa.11

Finally, there are those who think even the academic debate over terminology is pointless. In an online debate with Patry, noted copyright attorney Ben Sheffner had this to say:

I just have a hard time getting too worked up about what label we attach to copyright. And I suspect most non-philosophers agree. Consider this thought experiment: Go to a studio head and say, “I’ve got a deal for you. I’ll give you your copyright wish list: repeal first sale, make Justice Ginsburg’s concurrence in Grokster the controlling opinion, delete Cablevision, Perfect 10 v. Amazon (and a few other Perfect 10 cases while we’re at it) from the law books, and codify a “making available” right. But here’s the catch: From now on, you are forever forbidden from referring to copyright as ‘property,’ and must instead call it a ‘set of social relationships.’” Or go to a copyright skeptic, and say, “I’ve got a deal for you. I’ll give you your copyright wish list: reduce the term of copyright back to 14 years, expand fair use, eliminate the derivative works right, and repeal the anti-circumvention provisions of the DMCA. But there’s the catch: From now on, you must refer to copyright as property; no more of this ‘set of social relationships’ mumbo-jumbo.” I’m confident both the studio head and the copyright skeptic would take those deals in a heartbeat. Ultimately, it’s the substance, not the label, that matters.

I tend to agree with Sheffner. The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like “theft” to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.

Footnotes

  1. Cue obligatory Clinton jokes. [↩]
  2. For a more in-depth look at law and language, check out Stanford Encyclopedia of Philosophy: Law and Language. [↩]
  3. See A History of the Criminal Law of England, Sir James Fitzjames Stephen, Volume 3 [Google incorrectly titles the book "Volume 2"](1883). [↩]
  4. It’s worth pointing out that the syllabus of a legal opinion is not legal authority. For an interesting behind-the-scene’s look at the Supreme Court reporter of decisions who prepare the syllabuses, check out The Supreme Court’s Man of Many Words. [↩]
  5. 473 US 217-218 [↩]
  6. 473 US 220-221. [↩]
  7. The dissent in the case argues that the federal government can. It points out that the majority cites differences between the rights of copyright owners and other property owners as well as the differences between interference in those rights but fails to explain why those differences are relevant to the statute. It notes that other courts have interepreted “stolen, converted or taken by fraud” broadly enough to encompass intangible property. Finally, and most persuasively, it notes that Congress explicitly provided that penalties under the statue “shall be in addition to any other provisions” of the Copyright Act. [↩]
  8. 545 US 913, 961 (2005) (Breyer concurring). [↩]
  9. Pp. 14-15, Oxford University Press (2009). [↩]
  10. Pg. 22. [↩]
  11. Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings Law Journal 168, 208-209 (2002). [↩]
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