Copyright law in recent decades has seen a number of shaky claims and arguments grow in popularity. These arguments are often based on faulty logic, historical revisionism, or erroneous facts. Nevertheless, they have a surface appeal that aids in their dissemination. The result is a rather well-developed copyright “mythology” which presents a mistaken view of copyright’s history, its goals, and its effects.
Below is a collection of seven law review articles that critically examine many of these myths, correcting the distortions caused by, in the words of one of the authors, the “scholarly house of mirrors” that increasingly permeates discussions of copyright. I’ve cited to or discussed most of these articles on this site before, but I think they all deserve a special mention on their own. Enjoy!
The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection
Link. Scott M. Martin, 36 Loyola L.A. Law Review 253 (2002).
This article was written before the US Supreme Court upheld Congress’s authority to extend the term of copyright protection in Eldred v. Ashcroft, and many of the arguments have been vindicated by that decision. But Martin debunks other common myths surrounding copyright duration that are still around today, including “Congress ran rampant by granting term extensions, enacting eleven extensions in just forty years, and must be stopped by the courts”, “copyright good, public domain better”, “extensions of the term of copyright protection are an affront to, and an impingement on, First Amendment rights”, and “the Sonny Bono Copyright Term Extension Act of 1998 was the worst kind of special-interest legislation engineered by Disney to satisfy its insatiable corporate greed.” The last one especially skewers the premises of those who refer to the CTEA as the “Mickey Mouse Protection Act.”
The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law
Link. David A. Householder, 14 Loyola L.A. Entertainment Law Review 1 (1993).
Householder embarks here on a “systematic reevaluation of the basic policy and principles of American copyright law by returning to the source of such law, the Copyright Clause of the United States Constitution.” The article shines a light on “a number of concepts that, through ritualistic incantation have attained the unfortunate status of basic tenets of copyright law, even though they have little if any relevance to the basic purposes of American copyright law.” Since i predates even the NII White Paper, the concepts could be considered the “old guard” of copyright critiques; they include: “1. A copyright is a monopoly; 2. Copyright is intended to motivate creativity; 3. Copyright law makes reward to the owner a secondary consideration; 4. The public interest is served primarily by the limited duration of copyright; and 5. The public interest competes with the interests of individual authors.”
Reason or Madness: A Defense of Copyright’s Growing Pains
Link. Marc H. Greenberg, 7 John Marshall Review of Intellectual Property Law 1 (2007)
Greenberg takes on seven of the leading arguments against existing copyright law in this post-Eldred article.
a. Argument One: The expansion of copyright protection has been driven by media conglomerates, who have received from the legislature an allocation of entitlements, to the significant detriment of individuals and the public at large.
b. Argument Two: Copyright’s principal purpose is to provide economic benefits to owners—this property right should not trump the First Amendment rights of users.
c. Argument Three: Changes in the scope and term of copyright law since the 1970 Nimmer article, as well as the nature of digital technology and the greater ease achieved in copying content, render Nimmer’s immunity doctrine out of date and in need of change.
d. Argument Four: Since copyright deals with content, the law should be subject to a strict scrutiny analysis as to its impact on First Amendment rights, and under such scrutiny, it clearly violates the First Amendment rights of users.
e. Argument Five: Some form of compulsory licensing for all copyrighted works should be sufficient to address the concerns of owners, which after all are principally economic in nature.
f. Argument Six: Free speech rights include the right to use the words or other expression of another in expressing your own point of view.
g. Argument Seven: The idea/expression doctrine and the fair use doctrine have become too rife with uncertainty to afford meaningful protection to users
Copyright and Incomplete Historiographies – of Piracy, Propertization, and Thomas Jefferson
Link. Justin Hughes, 79 Southern California Law Review 993 (2006)
Meanwhile, Justin Hughes reaches back to the dawn of US copyright law to see how closely it matches the version of history frequently used by copyright scholars. He concludes that “historical claims frequently made in arguments about the propertization of copyright are incomplete,” and specifically focuses on three common examples: “the newness of the word ‘piracy,’ Thomas Jefferson’s views on intellectual property, and the history of the phrase ‘intellectual property.’” Hughes other work, which goes into more detail surrounding historical and other aspects of copyright law, is worth checking out.
Economists’ Topsy-Turvy View of Piracy
Link. Stan Liebowitz, 2 Review of Economic Research on Copyright Issues 5 (2005)
Recent scholarship on the effects of piracy have retreated from the traditional view that unauthorized copying always harms copyright holders. Liebowitz notes that in some situations, there is no harm — his own earlier work even demonstrated this. But the exceptions today have seemed to swallow the rule, resulting in economic literature on piracy that is “badly out of kilter” and tends to embrace views that are “more traditionally known as a breakdown in civilization.” Liebowitz uses this article to set the record straight and provide “a more balanced and nuanced view of copying.”
Remix Without Romance
Link. Thomas W. Joo, 44 Connecticut Law Review 415 (2011)
Joo devotes his article, featured previously on this site, to only two myths, but these are two myths that serve a central role in what could be called “free culture”, and thus deserving of thorough treatment. The first is that copyright law stifles “recoding and remixing” — Joo focuses specifically on the practice of digital sampling in music. The second is that if this were true, copyright law should adapt, because ”by enabling more people to participate in culture, remixing and recoding supposedly enhance ‘semiotic democracy’ and mitigate the dominance of the media industry.” As Joo explains, if the goal is to facilitate “semiotic democracy,” than weakening copyright law to allow more remixing is the wrong way to reach that goal, since doing so would only tend to reinforce dominant cultural expression.
Constructing Copyright’s Mythology
Link. Thomas Nachbar, The Green Bag, Vol. 6 (2002)
Last, but not least, is the briefest article of the seven, and perhaps the most readable for non-lawyers. Written while Eldred v. Ashcroft was pending in the Supreme Court, Nachbar dismantles the historical claims made by those arguing in favor of striking down the Copyright Term Extension Act on constitutional grounds. He explains that these claims — for example, that copyright was designed solely as an incentive to create works, or that it was originally intended to limit the power of publishers — amount to little more than mythology. Nachbar concludes by noting the dangers of relying on such historical myths to shape copyright policy today.
In this series, I’ve been looking at the historical record to attempt to explain why the idea that there is tension between copyright law and the First Amendment took so long to appear — it was nearly two centuries after the Copyright Act of 1790 and the Bill of Rights were passed that the first legal journal articles appeared raising the question, and it wouldn’t be until 2003, in Eldred v. Ashcroft, that the US Supreme Court confronted the issue directly. (Read Part 1, Part 2, Part 3, and Part 4).
The point of this examination is not to advance any arguments about these claims, but rather to add to the debate. As the Court noted in Eldred, “a page of history is worth a volume of logic.” It’s not as if no one was concerned with free speech before the 1960s.
Today, I want to look at copyright law’s distinction between ideas and expression. The doctrine was present in the early days of copyright, and the modern day view that it serves as a First Amendment accommodation seems consistent with historical views on the scope of the freedom of speech and the press.
The Idea Expression Distinction as a First Amendment Accommodation
The idea that copyright’s distinction between idea and expression can serve to resolve any tension with the First Amendment was first articulated by Melville Nimmer in 1970.1 To Nimmer, distinguishing between idea and expression to protect free speech interests in copyright cases served as a “definitional balance” — a methodology developed largely by Nimmer.2
The Supreme Court endorsed Nimmer’s view in Harper & Row Publishers v. Nation Enterprises. In the 1985 case, it said, “The Second Circuit noted, correctly, that copyright’s idea/expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Eldred v. Ashcroft enshrined the doctrine as US law in 2003, calling the idea/expression distinction one of copyright law’s “built-in First Amendment accommodations.”
Nimmer premised the idea of the idea/expression distinction as a First Amendment accommodation on logic, but does it have any historical support? Because there is so little in the historical record of the relationship between copyright law and freedom of speech, it shouldn’t be surprising that there is no express evidence that anyone thought in Nimmer’s terms before his article. However, I think there is implicit evidence that, had the question been put to pre-20th century legal thinkers, they would likely accept Nimmer’s definitional balance.
Freedom of Speech and Freedom of Opinion
You can write books about the development of the freedom of speech, but for this discussion, it’s helpful to describe one of the dominant progressions of the concept during the 18th century.
The right to freedom of speech owes much of its existence to the liberty of the press. The liberty of the press resulted from the expiration of England’s Licensing Act in 1694. In the following decades, it was widely understood that government had no right to license the press; but what else the liberty of the press encompassed would be the subject of debate throughout the 18th century.
William Blackstone describes the conservative view in his Commentaries on the Laws of England:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.
A 2002 paper by Jeremy Ofseyer is particularly illuminating as one way to understand the backdrop of the 18th century experience that eventually led to the First Amendment. Ofseyer says:
England, like many other countries, had long enforced orthodoxy in matters of opinion. It did so in order to save the souls of heretics and out of fear that heterodoxy frays the social fabric and invites anarchy. According to this intolerant view, unorthodox opinions are not only false and offensive, but also inherently dangerous because they undermine established institutions and norms. Blackstone catalogued two main categories of opinion bans: offenses against God and religion and offenses against crown or government.3
Ofseyer notes that American liberal thinkers of the time, particularly Thomas Jefferson and James Madison, sharply disagreed with this view of the law as Blackstone described it:
Diversity of opinion is … the healthy product of freedom of thought and speech: “In every country where man is free to think and to speak, differences of opinion will arise from difference of perception, and the imperfection of reason … .” For these reasons, Jefferson concluded that “the opinions of men are not the object of civil government, nor under its jurisdiction.”
According to Madison, there is a fundamental human property right to one’s “opinions and the free communication of them.” From this distinct, property-based premise, along with other premises akin to Jefferson’s, he reached the same conclusion: “Opinions are not the objects of legislation.”
Jefferson and Madison’s views were obviously not unanimously held at the time — before the 18th century was out, the U.S. Congress would pass the Alien and Sedition Acts, making it a crime to print or utter “any false, scandalous and malicious writing or writings against the government of the United States.” The Acts were very controversial at the time, and much of the debate was between proponents of the Blackstonian conception of the freedom of the press which permitted regulation of opinions and the liberal view that freedom of the press immunized liability for opinions.4
The Idea-Expression Distinction in Copyright’s Early Days
One of the fundamental doctrines of copyright law, the idea-expression distinction limits copyright protection to the specific expression of a creator, leaving the ideas embodied in that expression free for all to use. The 1879 Supreme Court case Baker v. Selden is often cited as the earliest articulation of the idea expression distinction, but that is not exactly true.
The earliest discussions on the nature of copyright included a distinction between ideas — which remain free to the public — and expression — which is susceptible to protection by copyright. Discussions like these began in earnest after the passage of the Statute of Anne in England in 1710, and, though these same discussions continue to this day, toward the end of the 18th century, “all the essential elements of modern Anglo-American copyright law were in place.”5
These essential elements include the idea-express distinction. Wrote English author and churchman William Warburton in 1762:
[H]e who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property.6
Noted English jurist William Blackstone wrote of the doctrine in 1766. Blackstone used the term “sentiment” for “ideas” and “language” for “expression”.
Now the identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given.7
English lawyer Francis Hargrave wrote in his seminal treatise An Argument in Defence of Literary Property (1774), “the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated.”
In Germany, philosopher Johann Gottlieb Fichte published Proof of the Illegality of Reprinting in 1793, which made a distinction between the material aspect of a book and the ideational aspect:
This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.
…[T]he content of the book … can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.
It is clear that by the time the United States became independent of England and formed its own government, a distinction between ideas and expression was established in copyright law.
Freedom of Ideas, Protection of Expression
The distinction between ideas and expression in copyright law was recognized early on. At the same time, freedom of speech and the press was seen as vital to the protection of opinion and the dissemination of ideas and facts. The notion that the idea/expression distinction ensures copyright law’s compatibility with the First Amendment’s prohibition on laws infringing free speech would thus appear wholly consistent with historical conceptions of these freedoms and the law. Copyright does not bar the “free communication of” ideas, nor does it punish anyone for disseminating “bad sentiments.”
We can turn to James Madison for indirect evidence of this consistency. Madison, after all, proposed that the federal Congress should have the power to secure copyrights during the Constitutional Convention. Years before that, he sat on the Continental Congress committee that encouraged the States to pass their own copyright legislation and penned Virginia’s subsequently passed copyright act. Few of the Founding Fathers could claim more responsibility for Congress’s authority to make copyright law.
James Madison also was the first to introduce a Bill of Rights to amend the Constitution, although he had originally opposed the idea. What’s interesting is the language he chose regarding the freedom of speech. Madison’s amendment that would eventually become part of the First Amendment said, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments” (emphasis added).
Note that this is the same language used by William Blackstone when he described copyright, saying the “identity of a literary composition consists intirely in the sentiment and the language.”
William Blackstone was one of the most influential legal scholars to the Founding Fathers, Madison included.8 And its possible the same language was a conscious choice. Bilder notes that Madison’s life showed a devotion to “the problem of language.” “He copied cases in which the presence of one word mattered.” His legal notes reveal questions that fascinated Madison, like “What did particular words mean?”
Madison cared about perspicuity. In one sense, he was not unusual in this regard, for perspicuity occupied the minds of late eighteenth-century rhetoricians. The word reappears in letters written during the Philadelphia Convention and his later correspondence. In Federalist 37, Madison famously wrote, “Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them.”
This isn’t definitive evidence, of course. But it does support the idea that, had Madison and other Founding Fathers been confronted with the question of whether copyright law conflicts with the First Amendment, they would have accepted the Supreme Court’s holding that the First Amendment is accomodated by copyright law’s idea/expression distinction.
Footnotes
Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180. [↩]
A year after the Court decided Eldred, another district court, in what would turn out to be the first step in a protracted journey back to the Supreme Court, was asked to apply the “traditional contours” test. In Golan v. Ashcroft,1 plaintiffs (Lessig’s clients) included artisans and businesses that published and performed works that were in the public domain. They sought declaratory and injunctive relief, maintaining that § 514 of the Uruguay Round Agreements Act (URAA)2 was unconstitutional. The statute restored copyright protection to foreign works whose authors had lost their copyrights due to failure to comply with certain formalities that had since been repealed. Plaintiffs argued that § 514 of the URAA altered copyright’s “traditional contours” and violated their First Amendment rights because they could no longer use certain works that had been pulled out of the public domain. The court held that plaintiffs had sufficiently distinguished the holding in Eldred so as to survive defendants’ motion to dismiss.
Plaintiffs’ victory was short-lived, though, and in a lengthy opinion the district court granted defendants’ motion for summary judgment. The court reasoned that “Congress has historically demonstrated little compunction about removing copyrightable materials from the public domain.”3 The record reflected that there were in fact many historical instances where public domain works had been granted copyright. Because of the idea/expression dichotomy, the court noted, only expressions were being restored to their authors—the ideas themselves were still public property. Considering the long string of practice for granting copyright protection to works in the public domain, the court rejected plaintiffs’ contention that copyright’s “traditional contours” had in fact been altered by doing the same thing here. The court, citing “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns,”4 similarly rebuffed plaintiffs’ argument that having to contract for use of restored works posed too onerous a burden on their free speech rights. In the court’s opinion, while plaintiffs surely bore some free speech hardship because of § 514 of the URAA, such difficulties were an inherent feature of copyright law in general and therefore not actionable.
On appeal to the Tenth Circuit,5 plaintiffs’ luck changed. The court of appeals, after observing that the Supreme Court had not defined the “traditional contours” in Eldred, nonetheless definitively stated that “one of these traditional contours is the principle that once a work enters the public domain, no individual—not even the creator—may copyright it.”6 Moreover, the court reasoned that plaintiffs had cognizable and vested First Amendment interests in public domain works. Central to the Tenth Circuit’s analysis was the understanding that copyright’s “traditional contours” must include more than just the built-in free speech accommodations, i.e., the idea/expression dichotomy and the fair use defense. The court concluded “that the traditional contours of copyright protection include the principle that works in the public domain remain there” and that § 514 of the URAA had transgressed that “critical boundary.”7 Furthermore, the circuit court disagreed with the district court’s contention that there was a tradition of removing works from the public domain, and it characterized whatever history of the practice that did exist as the exception and not the rule. The Tenth Circuit remanded the case to the district court with instructions to subject § 514 of the URAA to heightened First Amendment scrutiny, as commanded by the “traditional contours” test.
On cross-motions for summary judgment, the district court began its analysis with the observation that § 514 of the URAA was a content-neutral regulation of speech because it could “be justified without reference to the content of the speech restricted.”8 Under the applicable standard of heightened scrutiny (here, intermediate scrutiny), the statute would be upheld only if it advanced an important governmental interest and did “not burden substantially more speech than necessary to further” that interest.9 After careful analysis, the district court granted plaintiffs’ motion for summary judgment, concluding that while the government’s interests were sufficiently important, Congress nevertheless had burdened substantially more speech than was necessary in advancing those interests. The court limited its holding to only those parties that had already been exploiting the works while they were in the public domain—the so-called reliance parties. In the court’s view, those were the only parties with vested First Amendment rights that had been contravened when copyrights were restored in the works.
The parties cross-appealed to the Tenth Circuit.10 Plaintiffs argued that § 514 of the URAA should be struck down as unconstitutional on its face, meaning that it should be found to be unconstitutional not only for the reliance parties but for everyone else as well. The defendants of course disagreed, arguing that the statute was constitutional not only as-applied to the reliance parties but for everyone in general too. On this appeal, the “traditional contours” test was not in issue—the previous circuit panel had definitively applied the test and found that the statute failed it. Under the law of the case doctrine, this circuit panel was bound to follow the prior panel’s conclusion on that point. Recall that failure to satisfy the “traditional contours” test simply means that heightened First Amendment scrutiny will be applied to the statute, so the battle on this appeal was over whether § 514 of the URAA was violative of the First Amendment under this more-stringent standard of review.
The circuit court started its de novo review by agreeing with the district court that § 514 of the URAA was a content-neutral regulation of speech, thereby calling for intermediate scrutiny. In looking at the first prong, which requires the government to assert an important or substantial interest, the court had “no difficulty in concluding that the government’s interest in securing protections abroad for American copyright holders satisfies this standard.”11 The government had introduced sufficient evidence to show that by granting copyright protection to foreign works in the public domain in the United States, foreign countries would reciprocate by granting copyright protection to American works that were in the public domain abroad. Turning to the second prong, which requires that the regulation not burden substantially more speech than is necessary to further the interest asserted, the circuit court reached the opposite conclusion than the district court. In doing so, the court of appeals found that the burdens inflicted by § 514 of the URAA on the reliance parties were congruent to the benefits afforded to American copyright holders since their works overseas would receive equal protections. The Tenth Circuit sided with defendants and reversed the district court below, holding that § 514 of the URAA was not unconstitutional under heightened scrutiny.
So to summarize: (1) the district court held that § 514 of the URAA didn’t alter copyright’s “traditional contours,” (2) the court of appeals reversed and held that it did, (3) the district court held that § 514 of the URAA didn’t pass heightened scrutiny, and (4) the court of appeals reversed and held that it did. A bit confusing, I know.
The “Traditional Contours” Test Defined
Plaintiffs petitioned for and the Supreme Court granted certiorari. In Golan v. Holder,12 the Court affirmed the Tenth Circuit below, starting with the observation that “some restriction on expression is the inherent and intended effect of every grant of copyright.”13 Despite the intrinsic conflict between the Copyright Clause and the First Amendment, said the Court, in the Framers’ view the two served the same goal of contributing to the marketplace of ideas. The Court then explained that the reference to the “traditional contours” in Eldred referred to only the idea/expression dichotomy and the fair use defense, i.e., the free speech accommodations that are built-in to copyright law. And with that simple explanation, an almost decade-long confusion about what constitutes copyright’s “traditional contours” was laid to rest. The “traditional contours” test, then, may be stated as follows: If Congress did not alter the idea/expression dichotomy or the fair use defense when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny.
That the Tenth Circuit the first time around had completely misunderstood the “traditional contours” test was made explicit in a footnote: “On the initial appeal in this case, the Tenth Circuit gave an unconfined reading to our reference in Eldred to ‘traditional contours of copyright.’ That reading was incorrect, as we here clarify.”14 The Court continued its analysis by stating that here, as in Eldred, there was simply no call for the heightened review that petitioners were seeking. In the Court’s view (and understanding this point is critical to understanding Golan), burdening people’s communication of an author’s protected expression simply didn’t raise the same free speech concerns that are present when the government burdens people’s communication of facts or ideas. The Court reasoned, rather simply, that since the traditional safeguards of the idea/expression dichotomy and the fair use defense had been left in place in drafting § 514 of the URAA, petitioners’ free speech interests were adequately protected. No further mitigation was necessary since the constitutional minimum requirements had been met.
The Court then turned to the argument that petitioners in this case were distinguishable from those in Eldred because they had enjoyed vested First Amendment rights in certain public domain works. Rejecting the argument that “the Constitution renders the public domain largely untouchable by Congress,” the Court accused petitioners of attempting “to achieve under the banner of the First Amendment what they could not win under the Copyright Clause.”15 The Court could find no historical or congressional practice, nor anything in the Court’s own jurisprudence, that showed that heightened scrutiny was warranted for the practice of restoring copyright protection for works that were in the public domain. The Court positively rejected petitioners’ argument that they, as members of the public using public domain works, had vested First Amendment rights in those works: “Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.”16
And with that, the Supreme Court shut down once and for all Lessig’s thirteen-year-long argument that copyright laws must give special solicitude to the First Amendment above and beyond the idea/expression dichotomy and the fair use defense.
Closing Thoughts
Golan presents a great example of where simply labeling the Supreme Court’s holding as an affirmance of the court below misses the point. True, the Court affirmed the Tenth Circuit’s holding that § 514 of the URAA did not violate plaintiffs’ First Amendment rights. But the Court arrived at that destination by taking a completely different route. The better view is that, as far as the First Amendment issues are concerned, the Supreme Court in Golan completely denunciated all of the Tenth Circuit’s reasoning despite affirming its ultimate holding. The fact that the court of appeals got the right answer is entirely undercut by the fact that they were answering the wrong question.
I do want to point out as well that I think people are apt to take the holding in Golan too far. Consider the copyright statutes that we looked at—the CTEA, the CRA, and § 514 of the URAA. The CTEA extended the copyright term by twenty years for certain works. The CRA removed the renewal requirement, thus extending the copyright term for certain works. And § 514 of the URAA extended the copyright term to certain works in the public domain. See the pattern? I think the “traditional contours” test is applicable only when Congress has defined the scope of a substantive copyright right, that is, when it has “secur[ed] for limited Times to Authors . . . the exclusive Right to their . . . Writings” as the Copyright Clause expressly provides Congress may do. This is why I think Lessig goes too far when he laments that the Court has “shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” Unless it’s a copyright law that defines the scope of the substantive right—like, say, the copyright term—I think the Court has left the door wide open for meaningful constitutional challenges. For example, I would argue that the Stop Online Piracy Act (SOPA) falls outside the “traditional contours” test since it concerns enforcement of substantive copyright rights and not the scope of the rights themselves. That means SOPA wouldn’t get a free ride when challenged on First Amendment grounds.
The holding in Golan certainly reinforces the concept that “copyright has traditionally been viewed as an exception to the First Amendment.”17 But it’s clearly not a complete exception. As I mentioned at the outset, Lessig’s notion that copyright must give way to free speech has been proved true with a vengeance—that’s exactly what the “traditional contours” test tells us. Copyright is an exception to the First Amendment, but only because it already incorporates two very important free speech safeguards. Alter either safeguard, and a copyright law’s free speech exception would have to be reexamined. Many people, no doubt, are dubious that these built-in safeguards adequately protect our free speech interests. Indeed, much has been written in the past few decades questioning precisely that. What the Court lays to rest in Golan, I think, is the dispute over whether these doubts are properly framed as constitutional issues or simply policy choices. One can reasonably believe that greater consideration for free speech is needed when it comes to copyright laws (in fact, I share that view), but what the Court has now made clear is that the First Amendment doesn’t demand it.
The last point I’ll make is that the Supreme Court is telling us in Golan that those focusing on the inherent conflict between copyright and free speech in framing their constitutional arguments are missing the forest for the trees. While the “immediate effect of our copyright law is to secure a fair return for an author’s creative labor,” the fundamental purpose of copyright is “to stimulate artistic creativity for the general public good.”18 Thus the view espoused by the Court is that copyright and free speech are not at odds with each other in a zero-sum game where a benefit to one implies a detriment to the other. The philosophy behind the Copyright Clause “is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors . . . .”19 In the Court’s view, in the Framers’ view, and in my view as well, the First Amendment and the Copyright Clause are complementary provisions promoting the same goal—the public good.
Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.
“Constitution time is over.”
For academic and self-proclaimed “copyright activist” Lawrence Lessig, January 18, 2012, represents more than just the day the internet stood up to copyright law. In his view, it’s also the day “the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” For it was on that day that the Supreme Court handed down its decision in Golan v. Holder,1 or as Lessig puts it, it’s the day the Court signaled to the copyright bar: “Constitution time is over.” Lessig’s defeatist attitude is understandable. He had spent the past thirteen years representing four different plaintiffs challenging various copyright laws on constitutional grounds. Two of the cases were even heard by the Supreme Court; all four cases ended in resounding defeat for Lessig’s various constitutional arguments.2 Upset with Congress’s treatment of copyright, it’s not surprising that Lessig would turn to the courts. To get a court to strike down a copyright statute, he had to constitutionalize the issue—courts simply aren’t in the business of second-guessing legislative choices unless those choices violate the Constitution. The problem for Lessig, though, was that the Constitution itself provides few limits on Congress’s power to create copyright laws. But “few limits” does not mean “no limits.”
One of Lessig’s major arguments was that a copyright law must give way to First Amendment concerns, and it’s that particular notion that I’ll focus on in this article. While Lessig may have been defeated on this argument in that he didn’t like where the Court ultimately drew the line between copyright and free speech, as we’ll see, he was certainly vindicated in that the Court definitively recognized that copyright must in fact significantly give way to free speech interests. One culmination of Lessig’s thirteen-year-long legal battle against copyright law in the federal courts is that the Supreme Court has given us a test to use in determining whether a copyright statute has run afoul of free speech—the “traditional contours” test. And contrary to Lessig’s complaint that this test forecloses meaningful First Amendment challenges to copyright, the test instead, I think, reasonably reflects the fact that free speech and copyright promote the same public good. This sentiment is reflected in something the Court said over two decades ago: “it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”3
There is no doubt that copyright, in some sense, burdens free speech. The First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” At the same time, however, the Copyright Clause allows Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” But by creating a law that secures to an author a copyright in his work, Congress has inevitably created a law that abridges free speech. Copyright, just like any other type of personal property, provides its holder with the “right to exclude others from using his property.”4 It follows then that a copyright law burdens free speech since others are not free to speak that which a copyright protects. But, under the Constitution, how much can copyright burden free speech, exactly? Thanks to Lessig’s efforts, we now have the “traditional contours” test that answers just that question.
An Amorphous Test
In Eldred v. Ashcroft,5 the Supreme Court squarely addressed a First Amendment challenge to the Copyright Term Extension Act (CTEA).6 Lessig himself participated in the oral arguments before the Court. The CTEA provided for an additional twenty years of copyright protection for most works, even those that were currently under copyright. Petitioners (Lessig’s clients) included individuals and businesses who depended on works that had fallen into the public domain for their products or services. Petitioners argued that, but for the CTEA, they would have been able to exploit works that otherwise would be in the public domain. Therefore, by extending the copyright term for these works, Congress had impermissibly abridged petitioners’ free speech rights. In light of this perceived conflict, petitioners asked the Supreme Court to find the CTEA unconstitutional under heightened First Amendment judicial scrutiny. Heightened scrutiny simply refers to how important the legislature’s ends must be, and how well those ends must fit with the means chosen to accomplish them. The greater the scrutiny, the more likely it is that a statute will be struck down as unconstitutional. So the party challenging a statute almost always argues for greater scrutiny, while the defending party, naturally, argues the opposite.
The Court declined the invitation to apply heightened scrutiny, instead agreeing with respondents that none was needed. Said the Court: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.”7 In the Court’s view, imposition of heightened judicial scrutiny was not necessary because copyright law already contains two built-in First Amendment accommodations. The first, known as the idea/expression dichotomy,8 “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.”9 The second, known as the fair use defense,10 “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.”11 According to the Court, these built-in accommodations strike a good balance between copyright and free speech since they allow for the free flow of ideas while providing only partial protection for an author’s particular expression.
The Court explained further that the “First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”12 Petitioners’ asserted right to speak other people’s copyrighted works did raise First Amendment concerns, said the Court, but these concerns were adequately addressed by copyright’s built-in free speech protections. And then, in what can be described as an afterthought, the Supreme Court announced the “traditional contours” test: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”13 The “traditional contours” test, then, is a simple conditional statement: If Congress did not alter copyright’s “traditional contours” when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny. In other words, a court will not have to look at how important the ends are, or how closely those ends fit the means chosen to accomplish them, so long as copyright’s “traditional contours” have not been altered in creating the statute. Lower courts sorely needed a test like this to apply when faced with a free speech challenge to a copyright statute. The problem, unfortunately, was that no one knew what these “traditional contours” were because the Court didn’t really say. How could courts apply the test if they didn’t even know when the test applied? And what exactly is (or isn’t) included within these “traditional contours”?
Kahle Tests The Waters
The year after the Supreme Court opinion in Eldred was handed down, a district court in California attempted to apply the newly-minted “traditional contours” test. In Kahle v. Ashcroft,14 plaintiffs (Lessig’s clients), including the Internet Archive, were in the business of taking works that had fallen into the public domain and posting them on the Internet. They brought suit challenging the constitutionality of the Copyright Renewal Act (CRA)15 and the CTEA on First Amendment grounds. The CRA removed the renewal requirement for works created between 1964 and 1977, and it provided that the copyrights for these works would be automatically renewed for a second term. Before the CRA, these works would have only received a second term if their owners had filed for a renewal. Now, they went full-term without the owners doing anything. The CTEA, as we just saw in Eldred, added an additional twenty years of copyright protection to these now automatically-renewing works. Plaintiffs argued that, but for the CRA and the CTEA, the vast majority of the works created between 1964 and 1977 would have fallen into the public domain on January 1, 2004. Rather than a conditional copyright regime that required authors to take affirmative steps to extend the copyright term for their works, the challenged statutes created an unconditional copyright regime where copyright protections were extended automatically. This transition from a conditional to an unconditional system—in effect, from one that was “opt in” to one that was “opt out”—argued plaintiffs, altered copyright’s “traditional contours,” thereby necessitating heightened judicial scrutiny under the “traditional contours” test.
The intuitiveness of this argument is undeniable: Whereas a copyright owner once had to renew his registration to get a second term, now he had to do nothing to obtain the same result (plus an additional 20 years of protection). For parties, like plaintiffs, waiting for these works to fall into the public domain so they could use them, this change was understandably seen as an alteration of copyright’s “traditional contours.” The district court didn’t agree, and it started its analysis with the observation that the Supreme Court hadn’t actually identified the protections it considered to be within copyright’s “traditional contours.” In fact, the court noted, the phrase “traditional contours” did not appear in any other reported decision prior to its use in Eldred. The court deduced that the two concepts recognized by the Court, namely the idea/expression dichotomy and the fair use defense, related only to the scope of copyright protection. Contrasting that with the procedural steps now being challenged, the court reasoned that removing the renewal requirement did not alter the scope of the copyright protection or the copyright holder’s substantive rights. As such, the court held that the challenged statutes did not alter copyright’s “traditional contours.” For the district court, the “traditional contours” simply were not affected by changes in copyright procedures, like removing the renewal requirement.
On appeal to the Ninth Circuit,16 plaintiffs fared no better. The circuit court accepted plaintiffs’ argument that abolishing the renewal requirement would increase the copyright term for the works in question while correspondingly decreasing the number of works entering the public domain. Nonetheless, the court of appeals found that automatically renewing a copyright’s registration was qualitatively no different than extending a copyright’s term, and the Supreme Court’s holding in Eldred had in effect already answered plaintiffs’ challenge: If extending copyrights for existing works was constitutional there, then automatically renewing and thus extending copyrights for existing works was also constitutional here. So long as “traditional First Amendment safeguards such as fair use and the idea/expression dichotomy” vindicate the plaintiffs’ affected free speech interests, said the court, “extending existing copyrights . . . does not alter the traditional contours of copyright protection.”17 So for the Ninth Circuit, automatically renewing a copyright was no different than extending a copyright’s term, and plaintiffs’ clever framing of the issue fell flat. While the Supreme Court in Eldred did not define what it meant by copyright’s “traditional contours,” the Court’s decision did make clear that extending a copyright’s term leaves the “traditional contours” intact—that was the exact issue in Eldred. And once the circuit court framed the issue as one of simply extending a copyright’s term, plaintiffs’ game was over under the Court’s prior holding. Plaintiffs appealed to the Supreme Court, but the petition for certiorari was denied.18
Coming up in Part II: Golan I & II, The “Traditional Contours” Test Defined, and Closing Thoughts.
The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). [↩]
The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”). [↩]
“If you would understand anything,” said Aristotle, “observe its beginning and its development.”
Understanding the historical relationship between copyright and the First Amendment is especially relevant today, with free speech concerns raised over pending rogue sites legislation — the PROTECT IP Act in the Senate and the Stop Online Piracy Act in the House — and domain name seizures — the Second Circuit will be hearing arguments about whether the seizure of the Rojadirecta domain names constitute a prior restraint in December.
Copyright law has long provided for preliminary injunctive relief (I believe the provisions of PROTECT IP and SOPA can be seen as a species of preliminary injunctive relief), and to a lesser extent, seizure and forfeiture. Over much of the 20th century, courts have turned to the First Amendment to strengthen procedural requirements in cases involving obscenity, libel, or news reporting. Yet preliminary relief for copyright infringement — whether injunctive, through actual seizures, or otherwise — has remained immune from any successful procedural First Amendment challenge.
Why is this?
The question is difficult to answer because most of the attention on the relationship between copyright and free speech has come only recently. Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent. Since then, however, and especially after the passage of the Digital Millennium Copyright Act and Copyright Term Extension Act in the late 1990s, many have turned their attention to finding contradictions between free speech and copyright.1
While the focus on contradictions is recent, earlier scholars had noted that copyright infringement at the very least plays by different rules when it comes to the First Amendment:
It is quite evident that no new principles of liberty were intended to be set forth by the First Amendment, and that, however enticing a philosophical theory of freedom of the press and of speech may be, the guaranty must be construed with reference to the common law which gave it birth. When Blackstone declared in 1769 that the liberty of the press consisted in placing no previous restraints upon publications, he was not laying down a new principle of constitutional theory, but merely stating what he believed to be the existing law. Apparently his generalization was too broad. Injunctions against the infringement of a copyright were not infrequent in his day.2
This quote suggests that the reason why equitable remedies for copyright infringement — injunctions and seizures especially — have withstood First Amendment scrutiny where those same remedies would fail in other cases remains somewhat of a mystery.
The beginnings and development of copyright and the First Amendment are still under-observed: Eldred v. Ashcroft devoted a scant two sentences to that history to show that, since the Copyright Act of 1790 and the First Amendment were adopted close in time, they are compatible.
I believe a closer look at the historical record can shed more light on this mystery (though I don’t mean to suggest in any way that I am the first to do so).3 I think this historical record shows a number of reasons why copyright law, though not “categorically immune from challenges under the First Amendment”,4 has nevertheless existed comfortably alongside the First Amendment.
The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.
Literary Property
Of course, any mention of “copyright” and “property” in the same sentence nowadays can cause some to go in a tizzy. Partly this is due to an impoverished concept of property; that property only refers to tangible objects (forgetting about intangibles like stocks, bonds, promissory notes, and other financial instruments), or that copyright can’t be property because infringement doesn’t deprive the holder of possession or ownership (except if I smash your car window, we’d say I violated your property rights even though you still possess the same amount of glass). Setting aside these naive arguments, the modern critique of copyright as property goes something like this: Although it is entirely correct to characterize copyright as property in a descriptive sense, we shouldn’t characterize copyright as property in a normative sense, because that would be bad, from a policy standpoint.5 These arguments are beyond the scope of this article — I’m concerned with whether copyright was thought of as property when the First Amendment was first enacted.
Indeed it was. In 1792, James Madison wrote that “property” has a “larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage“; this meaning includes more than just “a man’s land, or merchandize, or money.”6 Legal scholar Adam Mossoff describes this concept of property as the “dominant” understanding of property in 18th and 19th century America.7
And copyright certainly fit within this understanding of property at the time — it was referred to as “literary property” more often than not. Copyright was expressly described as property in several of the State copyright acts that predated the US Constitution.8 The Supreme Court has classified and referred to copyright as property throughout its history — in 1823, for example, the Court stated, “The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source. It extends to literary property, the fruit of mental labour.”9
In 1839, the New York Chancery Court decided Brandreth v. Lance, a libel case and “the first American court decision setting aside a government action on constitutional free speech or free press grounds.”10 But in refusing to enjoin the libelous publication, the court implicitly notes that an injunction for copyright infringement would not infringe upon the liberty of the press:
It is very evident that this court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. …
The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. …
But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence.11
The court also notes in a footnote, “There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright” (Emphasis added).
Liberty of the Press does not Limit Copyright Injunctions
The idea that copyright is a property right and injunctions to protect property rights do not infringe free speech remained throughout the 19th century and into the 20th. The Columbia Law Review wrote in 1913:
This immunity from an injunction, while applicable to libels, is not similarly applicable to other forms of injurious publications where the historical requirement of a jury trial is not so pressing. Accordingly, where the act of publication results in intimidation and coercion it is treated as an ordinary crime, and the liberty of the press does not then limit the jurisdiction of equity to protect property. Furthermore, according to the prevailing view, it seems that a publication, no matter how innocent in itself, may be enjoined if it is made in pursuance of a scheme which has an enjoinable element. Thus, although the courts are at variance as to whether an injunction may issue against a boycott, they are agreed that wherever such is the case, publications in aid thereof, even if libels, cannot claim the protection of the guaranty. In establishing this doctrine they assert that the right to engage in a lawful occupation is not less essential than that of free speech. In order, therefore, to obtain the greatest possible freedom of action and speech equally for all, these conflicting constitutional rights must be exercised in accordance with the maxim, Sic utere tuo ut alienum non laedas. Certainly, the press should not be employed unjustifiably to ruin another’s occupation, and where such ruin is imminent the injunction, though a dangerous weapon, becomes a proper one [Emphasis added].12
And in 1971, Justice White of the Supreme Court itself weighed in, noting that “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.”13
Today, preliminary injunctions are common in copyright cases, and seizures of infringing goods are common, both through courts and administrative agencies. At the same time, while defendants have increasingly raised First Amendment defenses in the past 40 years, those defenses have almost without exception been unsuccessful.14
Call it what you will — a permissible prior restraint, a First Amendment exception, or a recognition of competing liberty interests — there is an unbroken historical practice of providing remedies for copyright infringement that would constitutionally fail in other areas of the law. This practice is premised in part on the view that copyright is a property right, and freedom of expression does not shield a defendant from invasions of property rights. As seen above, this premise appears to be established by the time of Blackstone’s Commentaries and has been alluded to several times since then.
Unbroken historical practice is obviously not ipse dixit proof of the constitutional firmity of a practice. But the development of the historical practice does increase our understanding of these issues today. Also, as mentioned earlier, the historical record reveals other reasons why the conflict that critics see between free speech and copyright has not been embraced by courts, reasons that I hope to write about in future posts.
Footnotes
More detail on the history of copyright and First Amendment scholarship at my post, Copyright and Censorship. [↩]
See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, ”What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”; Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. ”We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.” [↩]
“Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783), New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).
“An act for securing to the authors of literary works an exclusive property therein for a limited time.” Virginia Copyright Statute (1785) (title).
“An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785). [↩]
Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”;Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright;Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”;Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”. [↩]
Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 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 [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.” [↩]
A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
This letter has become, in the words of James Boyle, “very famous in the world of the digerati.”1 Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”
It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten.2
Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.
He was talking about something else
For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is.3 Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other4 — the differences between them are more relevant here.
On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain,5 it does foreclose the use of the ideas described in the invention’s claims.6 This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.
Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression.7 Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.
So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.
Jefferson and patent law
Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions.8
The use of Jefferson’s views on patent law, however, has been criticized.
On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record.9
In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.
In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”
Jefferson and copyright law
While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.
Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow.10 In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws.11 Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause.12 The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.”13
Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.’”14
While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.
So should we care what Thomas Jefferson thought about copyright law?
Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.
Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’”
In this regard, a letter written in 1813 about patents isn’t very helpful.
This afternoon, the Supreme Court will hear oral arguments in Golan v. Holder. I previously wrote about the case here, which has bounced around between the District Court and the 10th Circuit several times over the past 10 years before landing here. Check out SCOTUSblog for links to each side’s briefs as well as the numerous amici briefs for both sides.
Golan involves the constitutionality of the restoration provisions that were passed as part of the Uruguay Round Agreements Act of 1994 (URAA).1 Those provisions restored copyright protection to foreign works which were still protected in their source country but that had fallen into the public domain in the US prior to 1996 because of failure to comply with formalities (like lack of proper notice), because of lack of national eligibility, or because the work was a sound recording made before 1972. The Act excluded liability for any use of restored works prior to restoration, limited the remedies available for existing derivative works based on restored works. “Reliance parties” — parties which exploited the work before copyright restoration — could continue to exploit the work without liability unless the owner of the work serves a notice to enforce his rights.
Whether the restoration provisions here stand or fall will have little effect beyond reliance parties like Golan and the other plaintiffs because of the limited scope of the law, but many who support Golan’s position are hoping to use a Supreme Court victory as a broader vehicle for affirming the values of the public domain in general and finally getting independent First Amendment review applied to copyright law to serve as a limitation on Congressional policy in that area — policy they often disagree with.
The Supreme Court is presented with two questions. Do the restoration provisions of the URAA exceed Congress’s authority under the Copyright Clause? Or, does this law run afoul of the First Amendment?
The Copyright Clause
On the first question, Golan essentially is asking the Supreme Court to draw a line in the sand: once a work falls in the public domain, it stays there. It paints a picture of the history of copyright law as one showing an “unbroken respect for the integrity of the public domain”. Under this view, the URAA restoration provisions represent a departure from this history. Golan worries that if the Court doesn’t draw a line here, it would put everything in the public domain into question, as Congress would have no barrier to removing works from the public domain whenever it wishes anytime in the future.
The US argues that much of Golan’s arguments are merely a restatement of Eldred’s failed assertion that the Copyright Clause embodies a quid pro quo between the public and authors. This assertion reads the preamble of the Copyright Clause — the “to promote the progress of science” language — as an independent limitation on Congressional authority. But, as the US points out, the Eldred Court rejected that interpretation and gave deference to Congress for crafting copyright legislation that best advances the goals of the preamble.
The US also argues that restoration doesn’t violate the “limited times” limitation because it doesn’t extend the length of the term restored works are protected for, it only protects them for as long as they would have been protected but for their lack of adherence to pre-Berne Convention US copyright law.
Finally, the US disputes Golan’s characterization of an unbroken history of leaving public domain works untouched. The very first Copyright Act (1790), in fact, conferred “federal copyright protection upon many works that were previously subject to unrestricted exploitation by the public.”
First Amendment
When the Supreme Court decided Eldred, it said that heightened First Amendment review of a copyright statute is unnecessary when “Congress has not altered the traditional contours of copyright protection.” The 10th Circuit ruled that Congress had altered these contours when it passed the URAA in its first decision.2 When Golan reached the appeals court the second time, the court held that copyright restoration was a permissible content-neutral regulation.3
Golan agrees with the 10th Circuit’s review of copyright restoration as a content-neutral regulation but argues that it fails this review. It claims the free speech rights at stake are too important and the government’s interest — which Golan describes as conferring “windfalls directly on foreign authors in the hope that this may create later windfalls for U.S. authors” — is not even a ”legitimate” interest, let alone an important one. What’s more, Golan alleges that Congress lacked substantial evidence that the URAA would actually advance this interest. Golan lastly argues that even if this was an important interest, Congress could have drafted the restoration provisions more narrowly to decrease their burden on free speech interests.
The US argues the polar opposite: copyright restoration shouldn’t be subjected to further First Amendment review at all. It says the 10th Circuit misread Eldred’s statement about the First Amendment and the “traditional contours” of copyright protection as though the Court had created a new test for deciding when to apply independent First Amendment review to a copyright statute. Even if Eldred had created a “freestanding inquiry”, the URAA hadn’t altered the traditional contours of copyright protection. Uses of restored works would still be protected by copyright’s built-in free speech safeguards, the idea/expression dichotomy and fair use.
The US concludes its argument by saying that even if further First Amendment scrutiny is required, copyright restoration is constitutional. It supports this conclusion with testimony and congressional hearings that shows it had a significant interest in passing this legislation, and the restoration provisions were only as broad as necessary to advance that interest.
What to expect?
In many ways, Golan is a sequel to Eldred v. Ashcroft. Both cases were part of a series of challenges to copyright law changes in the mid-90s brought in part by Lawrence Lessig. Golan initially included a claim identical to Eldred — that the CTEA was unconstitutional. This claim was stayed when the Supreme Court granted cert and dismissed after its decision.4 Now at the Supreme Court, Golan presents the same dual questions regarding the extent of Congress’s authority under the Copyright Clause and the First Amendment limitations on the exercise of that authority. In addition, the First Amendment issue in Golan relies heavily on the Court’s holding in Eldred.
Finally, in Eldred, the plaintiffs had attempted to draw a parallel between the CTEA and the laws struck down in US v. Lopez and US v. Morrison. In those cases, the same Justices that would rule on Eldred had ruled that two recently-passed laws were outside Congress’s authority to regulate interstate commerce, an authority that before than had been steadily expanding to the point where it seemed unlimited. Eldred hoped to convince the Court that the CTEA was like those laws — an expansion of Congress’s authority under its copyright power that would continue indefinitely unless the Court places a constitutional limit on it.
This argument, of course, failed, and Lessig — who had argued the case in front of the Court — publicly shouldered the blame for that failure. It will be interesting to see how Golan’s legal team approaches such a similar case with the lessons of Eldred, presumably, in mind.
Hopefully we get to see the Court push both parties on the relevant history of copyright law, since it plays a starring role in the question of whether and how Congress’s copyright power is limited, and both parties present such different versions of that history. Interestingly, the DC Circuit of Appeals rejected strikingly similar arguments against the URAA’s restoration provisions in Luck’s Music Library v. Gonzales.5 It notably took the same view of the relevant copyright law history as the US argues here: the Copyright Act of 1790 and the wartime restoration acts placed public domain works under copyright protection, lending support to the constitutionality of such action.
It will also be interesting to see if the Court asks about the then Solicitor General’s remark during oral arguments at Eldred about a “bright line” separating the constitutionality of extending existing copyright terms from granting protection after the term expired. Golan characterizes this remark in its brief as an acknowledgment by the US that it is prevented from restoring copyright to public domain works; the US responds that Golan misreads the remark — it was anything but a concession of a constitutional limitation.
Footnotes
Those provisions made up § 514 of URAA and are codified at 17 USC § 104A. [↩]
Such regulations don’t violate the First Amendment if they advance “important governmental interests unrelated to the suppression of free speech” and don’t “burden substantially more speech than necessary to further those interests.” [↩]
A lawsuit filed a decade ago has made its way to the Supreme Court.
Plaintiffs for Golan v. Holder filed a petition for writ of cert to the Court back in October. Briefing for the cert stage was completed earlier this month, and the Center for Internet and Society has links to the petition, response, and amici briefs.
Despite its lengthy trip to the Supreme Court, including several trips back and forth between the District Court of Colorado and the 10th Circuit, Golan has flown somewhat under the radar.
I recently took the time to read through the opinions generated during Golan’s trek. There’s a lot of different things at play here: the Copyright Clause, the First Amendment, international treaties, the public domain. For my nonlegal readers, I also think this litigation is a good way to see the appellate process in action and how courts approach a constitutional analysis.
What follows is sort of a Cliffs Note version of the litigation.
The Beginning
To understand the how and why of the issues involved in Golan, a bit of background is necessary. The Berne Convention for the Protection of Literary and Artistic Works first came into force in 1887 between Belgium, France, Germany, Italy, Spain, Switzerland, Tunisia, and the UK. The international agreement set minimum levels of copyright protection that member parties must provide for, and, more importantly, requires that member parties treat copyrighted works of authors from other Berne members the same as copyrighted works of their own domestic authors.
In part to ensure that countries don’t benefit from waiting to sign up, Berne provides for retroactive application to existing works. Article 18(1) requires protection for other Berne member works in the new country which “have not fallen into the public domain in the country of origin through the expiry of the term of protection.”
The US did not join Berne until 1988. At the time, a number of foreign works that were still protected in their own country had fallen into the public domain in the US — some because they had failed to follow copyright formalities that had previously been required under US law (Berne prohibits parties from subjecting other member works to formalities),1 some because the work’s subject matter had not been protected under US law (as was the case with sound recordings fixed before 1972). Congress, however, chose to ignore Article 18(1) when it implemented Berne, leaving these works in the public domain in violation of the treaty.
And they would have gotten away with it, too, if it wasn’t for that meddling TRIPS.
The Uruguay Round Agreements Act
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was created during the Uruguay Round of GATT in 1994. The international agreement, administered by the newly created World Trade Organization, both incorporated Berne standards and set up an international dispute resolution panel to enforce compliance. The EU made it known that one of the first panels would be brought against the US for failing to comply with Article 18(1) when it joined Berne.2
So § 514 of the Uruguay Round Agreement Act (URAA), the implementing legislation, was drafted to bring US law in line with its treaty obligations. The provisions restored copyright in any work that had fallen into the public domain in the US “for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.” The Act is limited to a work which is “not in the public domain in its source country through expiration of term of protection,” but “is in the public domain in the United States due to (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility.”3 The Act also includes provisions for “reliance parties” — those who had made use of the works because they had fallen into the public domain and would be affected by the restoration of copyright protection on those works. These provisions, among other things, require the filing of a notice of intent to enforce copyright by the owner of a restored work and limit the liability of reliance parties who infringe on restored works.
I did not believe that the legislation provided a direct incentive for the creation of new works, nor that, divorced from the Berne obligation, restoration represented good policy. But honesty in treaty adherence is good policy, and retroactive protection for U.S. works overseas is of benefit to both U.S. copyright owners and to the system as a whole. I thought those two objectives sufficient, from a policy and constitutional standpoint. And I say this as someone who believes, more fervently than even Larry Lessig, that the “Promotion of the Progress of Science” language in Article I, section 8, clause 8 is a real substantive limitation on Congress’s power. But I also believe that one must look to the system as a whole to see whether there has been a benefit provided by legislation, and in the case of GATT restoration, I answer that question affirmatively.
Golan Challenges URAA
In the wake of URAA and the subsequent Copyright Term Extension Act of 1997 (CTEA), which which extended the term of copyright an additional 20 years on currently protected works, a number of reliance parties joined together to challenge the constitutionality of the acts. In 2001, a lawsuit was filed by Lawrence Golan, an orchestral director and conductor; SA Publishing, a distributor of orchestral recordings and sheet music; Festival Films, Timeless Films, both distributors of public domain films and television shows; and several other similar parties. (For simplicity purposes, I’ll be referring to all plaintiffs as “Golan” and § 514 of the URAA as just “URAA” for the rest of this article.)
All the parties involved had been performing, copying, or distributing works that had been in the public domain before URAA restored copyright protection in them. Now, they were faced with either paying royalties on the works, ceasing the use of them, or risking litigation.
Golan initially sought a declaration in the District Court of Colorado that the CTEA and URAA were unconstitutional under the Copyright Clause and that the URAA was a restriction of free speech under the First Amendment. The case was put on hold when the Supreme Court granted cert in Eldred v. Ashcroft to consider the constitutionality of the CTEA. After the Supreme Court decided that the CTEA was within Congress’s constitutional authority, the District Court went back to Golan.
On March 15, 2004, it ruled on the government’s motion to dismiss for failure to state a claim.4 It held that Golan’s CTEA claim — that extending the copyright term runs afoul of the “limited times” prescription in the Copyright Clause — was foreclosed by Eldred.5 The remaining URAA claims, however, were “legally cognizable”; while they may ultimately be unsuccessful, dismissal wasn’t warranted at this stage. Golan alleged that Congress couldn’t remove works once they entered the public domain since doing so wouldn’t “promote the progress” of the arts as the Copyright Clause was argued to require; that the URAA restricted speech, and because it “altered the traditional contours” of copyright law, it was subject to First Amendment scrutiny; and that the URAA was retroactive legislation that upset settled expectations in an arbitrary and irrational way, violating Golan’s substantive due process rights.
Golan I
Following the court’s denial of the motion to dismiss, both parties moved for summary judgment. A new opinion was issued on April 19, 2005, that ruled on these motions.6 At this juncture, the court had to answer three questions. First, does the Constitution give Congress the authority to enact the URAA, or does, as the plaintiffs argued, the Copyright Clause create an absolute bar against removing works from the public domain. Second, assuming Congress did have such authority, does the URAA advance a legitimate governmental interest in a rational way. Finally, assuming it does, does the URAA infringe on other constitutionally-protected rights, notably the right to free speech.
Congress does have the power to restore copyright to works in the public domain, said the court. It drew upon distinctions between copyright and patent law, historical practice, and, perhaps most relevant, wartime copyright acts from 1919 and 1941 that restored copyright in foreign works which had similarly fallen in the public domain. The court also launched into an interesting and rather extensive historical analysis of the common law rights of authors that is worth reading in and of itself.
The second question, does URAA have a rational basis, was an easy one to answer. Courts very rarely find legislation unconstitutional under this level of scrutiny, and this time was no different — the District Court concluded that Congress was “attempting to promote protection of American authors by ensuring compliance with the Berne Convention”, a goal rationally related to URAA.
The last question facing the court was whether the plaintiff’s “First Amendment speech rights are infringed by the burdens of complying with the copyright protections that [URAA] has restored to works that they once freely disseminated.” Judge Babcock dismissed this argument in one sentence, stating “I see no need to expand upon the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.”7
The court thus granted the government’s motion for summary judgment and denied Golan’s motion. Golan appealed to the 10th Circuit.
Golan II
Two years later, the 10th Circuit released its decision on the appeal.8 Summary judgment decisions are reviewed by appellate courts de novo — literally, starting over — so the same questions are considered and analyzed anew.
The 10th Circuit begins with a succinct description of the constitutional limitations — including First Amendment limitations — on Congress’s authority to make copyright law in a post-Eldred world. With those principles established, it turned to the issues of the case.
First up, say hello to the CTEA again. Despite the dismissal of the CTEA claim three years prior due to the Supreme Court’s holding in Eldred, Golan attempted to try it again from a different tack. Eldred, the argument went, only said that Congress had the authority to extend existing copyright terms. But it didn’t decide whether the new length — “life-plus-70-years” — was constitutional in and of itself. Technically correct, but unavailing. “The rationale underlying Eldred compels us to conclude that the CTEA-imposed timespan passes constitutional muster,” said the court.
Like the District Court, the 10th Circuit found that URAA is within Congress’s authority under the Copyright Clause. Unlike the District Court, the 10th Circuit devoted considerable time to examining the First Amendment issues raised by URAA. Eldred had suggested that a law could only be subject to First Amendment scrutiny if it “altered the traditional contours of copyright.” The court picked apart what this means and concluded that URAA does alter the traditional contours of copyright.
Ok, so now what? While ordinarily one doesn’t have a first amendment right to infringe someone else’s expression, once a work moves into the public domain, and anyone is free to copy that expression, that copying is protected by the first amendment. Taking the work back out of the public domain interferes with those vested first amendment rights. The first amendment safeguards that are generally adequate to address free speech in copyright law — the idea-expression distinction and fair use — aren’t available here. Reliance parties want to use the entire expression of a restored work.
Identifying a free speech impingement is only the beginning of a court’s job. The 10th Circuit remanded to the District Court to complete the First Amendment analysis, concluding with instructions that should be familiar to anyone who has taken a bar exam:
In conducting its First Amendment analysis on remand, the district court should assess whether § 514 is content-based or content-neutral. Content-based restrictions on speech are those which “suppress, disadvantage, or impose differential burdens upon speech because of its content.” These restrictions “are subject to the most exacting scrutiny.” If § 514 is a content-based restriction, then the district court will need to consider whether the government’s interest in promulgating the legislation is truly “compelling” and whether the government might achieve the same ends through alternative means that have less of an effect on protected expression. By contrast, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral restriction must be “narrowly tailored to serve a significant governmental interest.”
Golan III
Golan went back down to the District Court, which released its opinion on April 3, 2009, on the motions filed for summary judgment in response to the Circuit Court’s holding.9 Both parties and Judge Babcock agreed URAA was a content-neutral regulation. But Judge Babcock held that URAA was not “narrowly tailored.” Congress could have given permanent protection to reliance parties rather than the temporary protection it did give them. Since the Berne Convention allows discretion in how member parties provide restoration, Congress could have done this while still complying with its legitimate international obligations. The court denied the government’s motion for summary judgment and granted the plaintiff’s motion.
Golan IV
Any questions about what the District Court’s decision that URAA was unconstitutional meant for the act disappeared when the 10th Circuit reversed the decision on appeal.10 The court began by noting that this case involves foreign affairs policy choices by Congress and the Executive Branch, choices courts should accord special deference to.
With that in mind, the court placed great weight on the fact that Congress chose to limit the protection for reliance parties here in order to further the interests of US authors abroad. It noted that “Congress heard testimony from a number of witnesses that the United States’ position on the scope of copyright restoration — which necessarily includes the enforcement against reliance parties — was critical to the United States’ ability to obtain similar protections for American copyright holders.”
As for whether URAA was narrowly tailored to achieve this significant government interest, the court answered affirmatively. Narrow tailoring does not mean that a law must be the least restrictive method of advancing a government interest. The 10th Circuit was not even convinced that the District Court’s conclusion that URAA could have been drawn more narrowly — by expanding the rights of reliance partners — was less burdensome on speech interests; “the United States needed to impose the same burden on American reliance parties that it sought to impose on foreign reliance parties … [so] the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties.”
URAA represented a choice crafted by Congress to balance competing interests of US copyright holders and reliance parties, a policy choice best made by Congress and not the courts. The 10th Circuit concluded, “Plaintiffs may have preferred a different method of restoring copyrights in foreign works, but that is not what the Constitution requires; as long as the government has not burdened substantially more speech than necessary to further an important interest, the First Amendment does not permit us to second guess Congress’s legislative choice.”
Final Thoughts
While the story of Golan and the various opinions generated by the litigation over the last decade are interesting from an academic standpoint, the practical effects of the Supreme Court taking the case are elusive.
The Supreme Court rarely grants cert. I’m no expert in predicting Court decisions, but I don’t see many of the hallmarks of a case the Court would grant cert here. There’s no circuit split on the constitutionality of URAA. Two other Courts of Appeal heard constitutional challenges to the Act; both, like the 10th Circuit, upheld the Act.11 The 10th Circuit decision was unanimous, and it did not expand or add to the Supreme Court’s holding in Eldred. Given the deference accorded to Congress in the copyright realm by the Eldred court, and the amount of deference identified by the 10th Circuit that should be accorded to Congress’s crafting of URAA, it’s difficult to see the Supreme Court changing paths and second-guessing Congress’s policy choices here.
A Supreme Court decision either way would have little effect outside the parties to this case. URAA was passed to deal with the US joining the first major international copyright treaty. This type of situation will not come up again in the future.
So why push this case all the way to the Supreme Court in the first place?
Perhaps it’s a way to get the Court to say some nice things about the public domain. But despite the plaintiff’s framing of this case about the importance of the public domain in general, it’s not really about the public domain. While it’s not entirely settled that works which have entered the public domain because they’ve reached the end of the copyright term cannot be removed from the public domain, I think there’s very strong support for that idea in the law. But more importantly, I don’t think there’s any reason to think Congress would entertain the idea. It hasn’t for the past 200 years, and URAA, like the 1919 and 1941 restoration acts, only removed works that had l0st protection due to technical reasons because of exigent, specific, and unique circumstances.
Perhaps it is an attempt to gain a first amendment foothold in copyright law.12 I talked about this increasing trend of “free speech opportunism” from academia and public interest groups in Copyright and Censorship. I think this argument is merely a “facade” (as the Eldred Court put it) to dress up what is ultimately a policy disagreement with Congress.
Said the Court in Eldred, “the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” [↩]
See, for example, Golan v. Holder gets a second wind: “Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases.” [↩]
Members of the Belarus Free Theatre joined the gathering, having recently wrapped up a show in the City. In Europe’s last dictatorship, the Belarus Free Theatre is illegal. Shows are held in secret, with theater members and audiences subject to arrest. The members are barred from attending state universities or working in state employment. When the Belarus Free Theatre left for New York, they did so in the middle of the night, hidden in car trunks in order to avoid detection by the government. Once in the US, they heard news of their homes being ransacked, and their children being declared orphans — the government considering them “dead to the state.” The members fear arrest once they return to Belarus.1
Their crime? Performing theater.
That’s censorship.
Enforcing copyright law — whether through DMCA takedown notices, domain name seizures, etc — is not in the same league. Yet, copyright critics almost reflexively apply the label of “censorship” to any attempt at better protecting the rights of creators.
Today, I want to put a bookend on these previous discussions of free speech and copyright by looking at some of the broader issues in the debate.
On Censorship
The “copyright as censorship” comparison permeates much of the discussion surrounding free speech and copyright. It’s often noted that early copyright law grew out of press licensing statutes that were passed to both protect proprietary rights of book publishers and allow governments to control seditious publications. The dual purpose of copyright law at the time is probably more coincidental than anything; France, for example, had no copyright law at that time, yet still maintained censorship over the press.2 Nevertheless, copyright law today is completely divorced from any sort of government control over content. If copyright is censorship, it hardly resembles the type of censorship the Belarus Free Theatre faces.
Supreme Court Justice John Marshall Harlan II described what he calls the “typical censorship situation” and its associated dangers in a 1964 dissent:
In the typical censorship situation material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower and the danger that protected expression will be repressed is less.
…
There are built-in elements in any system of licensing or censorship, the tendency of which is to encourage restrictions of expression. The State is not compelled to make an initial decision to pursue a course of action, since the original burden is on the citizen to bring a piece of writing before it. The censor is a part of the executive structure, and there is at least some danger that he will develop an institutionalized bias in favor of censorship because of his particular responsibility. In a criminal proceeding, however, the burden is on the State to act, the decision-maker belongs to an independent branch of the government, and neither a judge nor a juror has any personal interest in active censorship.
…
One danger of a censorship system is that the public may never be aware of what an administrative agent refuses to permit to be published or distributed. A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines.3
Thankfully, this “typical censorship situation” is largely an anachronism in the US today. It is worth noting some of Harlan’s points about what makes administrative censorship so dangerous to free expression, especially an institutionalized bias in favor of active censorship. Also notable is the distinction between executive censor and criminal proceeding — with less danger of restrictions on expression under the latter. This danger is attenuated further when we’re in a civil proceeding between two private parties, as most copyright infringement cases are.
However, what Harlan doesn’t talk about in this particular passage is the sine qua non of censorship: restricting expression because of disagreement over its content. Government censorship is typically targeted at suppressing politically dissident speech, or obscene and other “inappropriate” speech. This is where copyright as censorship arguments falter. It’s illogical to say that enforcement of piracy is based on a disagreement about the content — a copyright owner agrees completely with the content.4 Cases of creative or transformative infringement do sometimes present issues where a copyright owner sues to stop a subsequent use she disagrees with, but as we’ll see, the doctrine of fair use provides a safeguard against censorship.
Prior Restraints
Closely related to censorship is the idea of “prior restraints.” In the First Amendment realm, prior restraints — suppression of speech before a final judicial determination that it is unprotected speech — are considered worse than punishment after speech has been made.5 Courts consequently take a deeply skeptical look at any type of law or regulation that resembles a prior restraint. This includes preliminary injunctions in civil lawsuits because they are granted only on the basis that speech is likely to be unprotected.
Yet courts routinely award preliminary injunctions in copyright infringement cases. The Supreme Court has even gone so far as to say that “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.”6
What is it that makes courts treat copyright cases differently than other speech cases? The following excerpt provides a hint:
Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts. But in the words of New York’s Chief Judge Fuld:
“The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.”
Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.7
First Amendment Opportunism
Before delving into the issue of the First Amendment and copyright, I want to take a quick look at the issue of “First Amendment opportunism.”8 Free speech is one of the foundations of a democratic society. Censorship, the kind the Belarus Free Theatre faces, is ugly. As we’ll see, the question of whether copyright law adequately accounts for free speech is increasingly being asked, as well it should. But coloring the debate by alleging censorship — comparing the removal of a dancing baby video from a corporate video site to violent suppression of political dissidents — is a damaging use of hyperbole. It both minimizes the horrors of true censorship and paints opponents as evil rather than wrong.
At the same time, such language is merely an outgrowth of First Amendment opportunism in the copyright realm. What do I mean by this?
In some ways, the First Amendment is the “won’t somebody think of the children” of the legal world.
First Amendment scholar Frederick Schauer explains, “[T]he First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority. The individual or group gaining the support of the First Amendment often believes, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also appears to strike fear in the hearts of many who do not want to be seen as being against it.” Schauer calls this “First Amendment magnetism” and says it “leads strategic actors to gravitate to it as easily as politicians gravitate to the flag, motherhood, and apple pie.”
The magnetic force of the First Amendment generates two distinct phenomena. First, actors in the public arena (defined here to exclude the courts) are likely to rely on the First Amendment in pressing their causes, in the often-justified expectation that doing so will disproportionately, compared to relying on other dimensions of the law, attract allies, generate favorable attention by the press, and arouse the sympathies of other public actors. Second, lawyers representing clients with claims and causes not necessarily lying within the First Amendment’s core or traditional concerns will add First Amendment arguments and claims to their core claims, or will modify their core claims to connect them with First Amendment arguments, all in the hope that doing so will increase the probability of their success.9
David McGowan has attributed much of the growing trend in constitutionalizing copyright to this First Amendment magnetism. He notes:
Many copyright scholars object to the way Congress deals with their subject. With good reason, they feel Congress wields a copyright ratchet: terms get longer, and the scope of rights gets wider, but never the reverse. The rare exception occurs when publishers ask Congress to shore up fair use rights to make it easier for authors to get information they need to produce works. On this account, Congress is simply a tool rich media conglomerates use to soak consumers, who are rationally ignorant of the shameless fleecing their “representatives” give them.
It’s no fun beating one’s head against a wall. So if the representative branches sell out, at least by academic standards, their power to do harm must be limited. Two things are needed: a non-representative forum, to limit the power of producer wealth, and a law that trumps Congress’s Article I power to grant exclusive rights to authors. The First Amendment seems like just the thing. Like copyright, it deals with expression, which makes almost any argument facially plausible. More importantly, in a conflict with Congress’s Article I power, the First Amendment trumps.10
This isn’t to say that First Amendment magnetism is the same as naked opportunism, though it’s worth noting that this opportunistic use of free speech shows its head in practice. In 1879, one writer observed that “the ever active demagogue has been able to frame a cry of “free books for free men.” It is wonderful what an amount of things “free” men are entitled to have free. Free books, free and unlimited currency, free support from the State, etc., are supposed to have some connection with free speech, freedom of religion, and free trade, and therefore to be proper and valid cries.11 Courts have called out alleged infringers for “hiding behind the first amendment.”12 Even free speech critics have made note of a naked First Amendment opportunism. L. Ray Patterson notes that courts have consistently rejected First Amendment defenses in infringement actions but states that “in general, these cases were sound in rejecting the free speech defense as being the last refuge of an infringing scoundrel.”13
What we’re talking about here is an opportunism in the nonpejorative sense. Recognizing the existence of this First Amendment magnetism is important when discussing copyright law. The issue is not one of copyright versus free speech, no matter how often it is framed as greedy creators against defenders of the First Amendment.
With that in mind, let’s take a look at the brief history of copyright and the First Amendment.
Copyright and the First Amendment: A Brief History
The US Constitution, which grants Congress the power to “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,” was completed September 17, 1787. It officially went into effect March 4, 1789. The first federal copyright law, the Copyright Act of 1790, was signed by President Washington on May 31, 1790. The First Amendment was adopted December 15, 1791.
For nearly 200 years, the relationship between the first amendment and copyright law received little if any attention from courts or scholars. This is not entirely surprising if you consider the fact that first amendment free speech jurisprudence as a whole has only emerged within the past hundred years.14
This changed in 1969 when Melville Nimmer asked Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?15 Two more articles, by Paul Goldstein and Lionel Sobel followed shortly afterward — with Sobel’s article presciently asking about a “gathering storm” between copyright and the first amendment.16 Over the next several decades, the clouds slowly gathered with occasional articles on the subject.17 With the enactment of the Copyright Term Extension Act and the Digital Millennium Copyright Act in the late 90s, the storm clouds finally broke; the relationship between copyright and free speech grabbed a lot of attention from scholars.18 Taken as a whole, the academic literature has shown an increased effort at “constitutionalizing” copyright, offering a “free speech critique” of copyright.19
But despite all this academic attention toward a conflict between copyright and free speech, courts have consistently rejected separate First Amendment defenses in copyright infringement cases. On its face, this point understandably creates confusion; it’s easy to think that copyright is thus corrosive to free speech values. That’s not the case though.
As it turns out, copyright itself incorporates many of the same speech values that the First Amendment does.
Copyright’s Free Speech Values
The Supreme Court has on several occasions described copyright as the “engine of free expression.” By providing incentives to invest in creating and disseminating works, copyright drives new expression and ideas into the public sphere, benefiting everyone. Copyright infringement, especially wholesale piracy, short-circuits these incentives, creating a chilling effect on the creation of new works. Creators also have a continuing speech interest in their works, which copyright helps protect.
Copyright and the First Amendment thus serve many of the same values, just in different ways. They coexist rather than contradict. Lon Sobel explains this coexistence by demonstrating that the two operate in different spheres of influence:
The purpose of the first amendment is to guarantee freedom of expression. As Thomas I. Emerson had indicated, freedom of expression is necessary 1) to assure individual self-fulfillment, 2) to attain the truth, 3) to secure participation by the members of society in social and political decision making, and 4) to maintain a balance between stability and change in society.
Clearly none of these reasons for free expression is violated by the Copyright Act.
Individual self-fulfillment requires that man be free to express the beliefs and opinions he has formed in the process of developing his mind. As Emerson explained, expression is in fact an integral part in the development of ideas. “Hence suppression of … expression is an affront to the dignity of man.”
However, the expression of the beliefs and opinions of another, using the exact words the other used, is not any part of the development of one’s own ideas. True, “‘A dwarf standing on the shoulders of a giant can see farther than the giant himself.’” But any consideration of the ideas of another which is thoughtful enough to provoke new ideas in the mind of the reader, should also be thoughtful enough to enable the reader to restate his own new ideas. Thus, the Copyright Act prohibition of word-for-word copying of another can hardly be thought of as “an affront to the dignity” of the one who would have otherwise copied. The Copyright Act is merely an impediment to the one who would reap where he has not sown.
The attainment of truth depends upon free expression because no person or group can possess all knowledge. Truth is distilled from the volatile mixture of opposing opinions. But the expression of an opinion already expressed by another — in the same words used by that other — adds nothing to the search for truth. It is merely the repetition of an opinion that was already available from its original source. Nor is it an answer to allege that the infringer may be supplying customers the copyright holder was unable to supply. It is freshman economics that supply — to the extent it is variable — will increase to meet the demand.
Since the ascertainment of truth depends upon the consideration of every relevant fact and opinion, it is important that all members of society participate in social and political decision-making. Freedom of expression is necessary in order for people to participate truthfully and fully. Moreover, since, as the Declaration of Independence states, governments derive “their just powers from the consent of the governed,” the governed must have the freedom to express their consent — or lack of it. However, what is important in this regard is the participation of one’s self in the decision-making processes. The man who has expressed and copyrighted his own views has already contributed those views. The government is not further assisted by one who merely parrots that which has already been said. Therefore, copyright laws do not impede any useful participation in the decision-making processes.
[…]
In the sum and substance, the first amendment was designed to encourage and protect the communication of diverse ideas. Copyright laws, protecting as they do only particular expressions, do not conflict with any of the first amendment’s purposes.20
Copyright’s Internal Handling of Free Speech
If copyright law and the First Amendment coexist, does that mean they never contradict? Of course not. But courts’ handling of First Amendment issues in copyright cases differs from its handling of First Amendment issues in other types of cases.
To understand why, we need to first look a little closer at how courts deal with free speech arguments in general. One District Court provides a little background:
Courts often have spoken of certain categories of expression as “not within the area of constitutionally protected speech” … But such judicial statements in fact are not literally true. All modes of expression are covered by the First Amendment in the sense that the constitutionality of their “regulation must be determined by reference to First Amendment doctrine and analysis.” Regulation of different categories of expression, however, is subject to varying levels of judicial scrutiny. Thus, to say that a particular form of expression is “protected” by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment.21
In one sense, all laws or regulations impact free speech to some extent. ”[E]very civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,” said the Supreme Court in Arcara v. Cloud Books.22 ”One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim. Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders.”
Frederick Schauer points out an important distinction between the “coverage” and the “protection” of the First Amendment. He notes:
Like any legal rule, the First Amendment is not infinitely applicable. Though many cases involve the First Amendment, many more do not. Thus, the acts, events, behaviors, and restrictions not encompassed by the First Amendment at all, that remain wholly untouched by the First Amendment, are the ones we will describe as not being covered by the First Amendment. It is not that the speech (or anything else) is not protected by the First Amendment. Rather, it is that the entire event does not present a First Amendment issue at all, and the government’s action is consequently measured against no First Amendment standard whatsoever. The First Amendment simply does not show up.
When the First Amendment does show up, the full arsenal of First Amendment rules, principles, maxims, standards, canons, distinctions, presumptions, tools, factors, and three-part tests becomes available to determine whether the particular speech will actually wind up being protected.23
What sets copyright apart from other “speech” cases — obscenity, libel, “fighting words,” etc. — is that both the coverage and the protection of the First Amendment are handled internally rather than through the panoply of “rules, principles, maxims, standards,” and so on. The two major “built-in free speech safeguards” in copyright law are the idea-expression dichotomy and fair use.
Copyright protection doesn’t cover ideas, only the expression of those ideas. This distinction between ideas and expression has been called a “definitional balance” between free speech and copyright interests — a line between what is covered by the first amendment and what is not. Copyright provides an incentive to create and disseminate expression. By extension, the ideas expressed are also disseminated, benefiting the public. But protection ends where expression ends, and anyone is free to use the ideas in any given work. In a sense, the first amendment protects this “marketplace of ideas” but doesn’t extend to a “right to copy.”24 Or, as one court bluntly put it:
We do not find any denial of freedom of expression to the “tape pirate”. What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance.25
The fair use doctrine recognizes that some uses of copyrighted expression without the permission of the copyright owner are beneficial. Prior to the infusion of First Amendment rhetoric into the copyright realm, fair use was seen as an important component in furthering copyright’s constitutional purpose:
There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had gone before him.The scholar, like the ordinary user, of course could be left to bargain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference between the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author’s expense — to permit the second author to make limited use of the first author’s work for the public good.26
At the same time, fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright.27 The rationale is much the same. The only difference is a shift in framing the purpose of fair use as upholding first amendment values rather than progress of the useful arts and sciences values.
Think of it this way. the idea-expression distinction sets the boundaries of what is covered by the First Amendment. The question is not whether using another’s expression is “protected” or “unprotected” but rather whether it falls within the First Amendment’s scope at all. Even then, we have long recognized that some uses of expression should be allowed, and that’s where fair use kicks in. Fair use balances the free speech interests of the public and subsequent creator against those of the original creator.
Both these doctrines adequately address first amendment concerns within copyright law. The free speech critique of copyright essentially argues that courts should address these concerns a second time in a separate analysis. But to date, courts have found no need to ask the same question twice.
Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.” [↩]
Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.” [↩]
Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969). [↩]
Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971). [↩]
Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996). [↩]
See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). [↩]
See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” [↩]
Copyright protection vests automatically when a work is created and currently lasts for the life of the author plus 70 years. The duration of copyright protection is frequently cited as one of the major problems in current law – one critic says “copyright protection lasts absurdly long,” a not uncommon view.1
Most commonly, arguments against copyright’s duration stem from the fact that all creative works, to some extent, build upon existing works. Too long of a time keeps new works from entering in the public domain, where they can be used without risking liability. There are also concerns that less-popular works may be lost forever due to the ravishes of time – archivists and librarians wary of preserving or displaying them without permission.
It would seem, then, that the length of copyright protection is an easy target for reform – indeed, many proponents of copyright reform address duration. However, several factors make copyright duration resistant to simple solutions. It’s easy to say “copyright lasts too long, make it shorter.” Taking on the subject is challenging; today, all I want to do, is give a broad introduction to copyright duration. I want to give a sense of the law as it stands now, then briefly survey some of the research and proposals regarding copyright duration.
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 [emphasis added]2
The Constitution adopts the utilitarian model of copyright: government grants a limited monopoly in expressive works to authors that eventually expires, placing the works in the public domain. This is in contrast to the perpetual, “natural rights” model of copyright. The idea is that society and future creators benefit the most when expressive works aren’t locked up forever. But there’s a long time between now and forever; how long is a “limited time”?
History shows a gradual expansion of the limited time of copyright protection. The first copyright law, the Copyright Act of 1790, set the duration of protection at 14 years, dependent upon registration, with an optional renewal of 14 additional years. The initial period of protection was increased to 28 years in 1831. The renewal period was increased to 28 years in 1909, for a possible total of 56 years of protection (28 + 28). The Copyright Act of 1976 dispensed with the need for formalities in securing copyright protection (as well as the need for renewal) and set the term of protection to the life of the author plus 50 years. Finally, the Copyright Term Extension Act of 1998 (CTEA) increased the term to the life of the author plus 70 years.3
The Supreme Court has only once addressed whether the Constitution places limits on copyright’s term, in the 2003 case Eldred v. Ashcroft (537 US 186).4 Even then, it did not answer “how long is too long.” In a constitutional challenge to the CTEA, both sides conceded that “life plus 70″ is a “limited time.”5 The question the Court answered was far narrower – whether the Constitution’s “limited time” language prohibited Congress from extending the term of protection for existing copyrighted works. The Court said there was no such prohibition, despite the argument that Congress could effectively create an unlimited copyright term by repeatedly passing extensions.
Lawrence Lessig, who argued against the CTEA in Eldred, subsequently tried direct challenges against the constitutionality of the “life plus 70″ term itself. The argument was raised and rejected by both the 9th Circuit – in Kahle v. Gonzales – and the 10th Circuit – in Golan v. Gonzales. Both courts accepted that Eldred did not directly address whether “life plus 70″ was outside the bounds of the Copyright Clause’s “limited times,” but ultimately held that the Supreme Court had implied that it was not, foreclosing Lessig from succeeding in his claim.
International agreements also govern copyright duration. The Berne Convention – of which currently there are 164 member nations - mandates a minimum term of life of the author plus 50 years.6 TRIPs, an international agreement administered by the World Trade Organization, requires member parties to adhere to those provisions of Berne that include minimum copyright duration.7
Copyright Duration and Economics
Given the economic justification that US copyright law subscribes to, it follows that we would use economics to see how well the law is meeting its goal. An “optimal” term of copyright protection should be one that best balances all the costs and benefits to creators and society. But, economists have struggled with answering the question of what constitutes the “optimal” term of copyright protection.
Justice Breyer cites an amicus brief filed by 17 economists in his argument in his dissent in Eldred that the CTEA’s “life plus 70″ was unconstitutional.8 Those economists conclude that the costs of the CTEA’s copyright duration outweighed any benefits realized by creators. However, economists Stan Liebowitz and Stephen Margolis, in a direct response to the 17 economists’ brief, note that existing empirical research doesn’t definitively conclude what length of protection provides the maximum benefit proportional to creators and society.9
In light of these arguments, a few researchers have attempted to tackle the question of optimal copyright duration. One example is Rufus Pollock, who concludes that the optimal copyright term is 15 years.10 Others have examined what effect term extensions have had, such as Png and Wang, who found an 8.5-10% increase in movie production in 19 countries which had extended copyright protection from “life plus 50″ to “life plus 70.”11
Proposals
Many people have proposed shortening copyright term from its current length. The proposals vary in length but are typically a set number of years. Also common are proposals that reintroduce registration formalities to copyright, tied in to a fixed initial term and combined with optional renewal periods.
The best known example of this type of proposal is Lessig’s Public Domain Enhancement Act, introduced in Congress in 2003 and 2005 with little success. The bill would have set an initial period of 50 years of protection, with a fee of $1 every ten years to maintain copyright protection afterward. Failure to pay the maintenance fee would result in the expiration of copyright protection.
Joseph Liu proposes an alternative to reducing the length of copyright protection that addresses some of the concerns of its critics.12 He argues that courts should expressly consider how old a copyright is in their fair use analyses – giving more latitude to creators who make transformative use of older copyrighted works than newer ones. He notes:
[O]ver the course of the copyright term, the impact of protection on copyright incentives wanes, as does an author’s moral claim to the fruits of his or her labor. At the same time, the societal interest in ensuring widespread access to works and in encouraging re-use and adaptation of copyrighted works increases. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to these changes in copyright interests over the length of the copyright term.13
While not directly related to the issue of copyright duration, I would include proposed legislation regarding “orphan works” here. Orphan works are those works where the creator is difficult or impossible to find – foreclosing even authorized use of a work without risking liability. Libraries and archives especially confront the problem of orphan works. The current length of copyright protection (and the removal of formalities) has resulted in a vast number of older works which cannot be utilized by these institutions. Orphan works legislation had been highly anticipated to pass through Congress in 2006 and 2008 but ultimately failed. The US Copyright Office has a comprehensive report detailing the problem and outlining its proposal.
Drawbacks to Proposals
As noted above, copyright duration is governed not only by US law, but through several international agreements. In addition, the Berne Convention prohibits formalities as a prerequisite for copyright protection, a feature numerous proposals share. Any proposals to reduce the copyright term below the minimums of these treaties would either require (1) amending the treaty, (2) withdrawing from the treaty, or (3) running afoul of the treaty and accepting the consequences. Patrick Ross of the Progress & Freedom Foundation notes that these proposals tend to fail to consider the implications any of these courses of action would entail.
Besides the complexities of international law, many of the proposals also ignore the complexities of economics. Copyright is a lightening rod for outrage, and copyright duration seems an easy target for reform, so it’s natural that a simple solution like “copyright is too long, make it shorter” would be attractive. The 14 year term of the first Copyright Act operates as a model. After all, the Framers were smart enough to make the Constitution, so it follows that they would be smart enough to make a copyright law that works in today’s world.
Professor Thomas Nachbar advises caution when following this logic though, saying it would be a mistake to assume “the Framers faced the same copyright-related problems that we face today.”14 “Given how profoundly the markets for intellectual property have changed since the time of the framing, we should be wary of historically based arguments that the Constitution speaks to the modern problems of intellectual property law,” he notes. “It would be nice if the Framers had possessed the super-human prescience and intelligence to do so, but we shouldn’t rush to embrace myths that tell the story of how they did.”
Conclusion
No doubt, the duration of copyright protection will continue to occupy a central place in the copyright debates. I will most likely explore the topic in more detail in future posts, with this article serving as merely an introduction. Arguments and proposals concerning term length touch on many different areas and involve a complex array of factors. For now, I can only say that I share Nachbar’s cautionary approach – addressing copyright duration doesn’t provide any “easy answers” to the multitude of criticisms aimed at copyright law in general.
Anonymous works, pseudonymous works, and works made for hire received protection for 100 years after creation or 75 years after publication, whichever occurs first, under the 1976 Act; that increased to 120 years after creation or 95 years after publication under the CTEA. In addition, the 1976 Act extended the renewal period for works created under the 1909 Act from 28 to 47 years, increased to 67 years under the CTEA. [↩]
(1993). [