The CASE Act: You Have Questions. We Have the Answers. — Everything you want to know (and more) about the copyright small claims process that would be created by H.R. 2426 and S. 1273.

Shifting Paradigms: the Heritage Committee study on copyright — Canadian attorney Barry Sookman takes a look at a report published this week by the Standing Committee on Canadian Heritage that summarized the conclusions made after examining the current state of copyright law in Canada and made a number of recommendations to improve protection and remuneration for creators and the creative industries.

Embedding Content or Interring Copyright: Does the Internet Need the “Server” Rule? — The Columbia Journal of Law & the Arts published this article from professors Jane Ginsburg and Luke Ali Budiardjo, which looks at the Ninth Circuit’s “server” rule, which concerns when the exclusive right of public display is infringed online. They conclude that “the principal difference between copyright law with and without the server rule comes down to the author’s ability to obtain the removal of links to infringing content, and to authorize embedding of content from a source to which the public had lawful access.”

State University’s Copyright Infringement Violates Takings Clause and First Amendment — A group of visual arts organizations, led by the National Press Photographers Association and the American Society of Media Photographers, filed a brief in support of a photographer who has made Takings Clause claims in Texas state court against a state university related to the unauthorized use of his photograph.

Sustainable Text and Data Mining: A Look at the Recent EU Copyright Directive — “While issues of the publisher’s right and the enhanced duty of platforms to ensure use of licensed materials (for most of the debate, Articles 11 & 13) consumed much of the oxygen and nearly all of the spotlight in the process leading to the adoption of the Copyright Directive, there were a variety of other important elements contained in the Directive, including the adoption of a specific exception to copyright for data and text mining.”

How Technology Is Changing Visual Art — “No doubt these tech tools make it much easier to create artwork, just as the high-quality cameras that come with today’s smartphones have turned us all into ‘photographers.’ But I believe you still need certain artistic skills to become an illustrator. You need to have a discerning eye and to be able to communicate by creating a visual vocabulary that’s uniquely your own. As an illustrator, you have to establish your point of view to solve problems and to go beyond just tracing a picture.”

Copyright and a Free Press — The US Copyright Office’s Brad Greenberg writes, “Our founding fathers saw copyright as a crucial vehicle for creating a free press. In England, the 1710 enactment of the Statute of Anne—the matriarch of copyright laws—unshackled publishers from the restrictions of a system that limited publishing to those who had received printing privileges from the Crown. Copyright law helped curb government censorship and at the same time provided new voices with economic incentives.”

FCC Asks Amazon & eBay to Help Eliminate Pirate Media Box Sales — Torrentfreak reports, “FCC Commissioner Michael O’Rielly has written to the heads of Amazon and eBay with a request to eliminate sales of pirate media boxes which illegally display the FCC compliance logo. In a letter to Devin Wenig and Jeff Bezos, O’Rielly seeks the total removal of such devices, noting that their fraudulent labeling is exacerbated by the effect they have on the entertainment industries.”

Jay-Z Triumphs in “Big Pimpin” Appeal as Egyptians Can’t Enforce Moral Rights — A long running suit appears to come to an end, as the Ninth Circuit held that the heir of an Egyptian composer could not sue Jay-Z “based solely on the fact that Egyptian law recognizes an inalienable ‘moral right’ of the author to object to offensive uses of a copyrighted work.”

“Music confounds the machine” — The transcript of T Bone Burnett’s keynote address at the AmericanaFest is a must read. A sample: “Technology does only one thing- it tends toward efficiency. It has no aesthetics. It has no ethics. It’s code is binary. But everything interesting in life- everything that makes life worth living- happens between the binary. Mercy is not binary. Love is not binary. Music and art are not binary. You and I are not binary. Parenthetically, we have to remember that all this technology we use has been developed by the war machine: Turing was breaking codes for the spies, Oppenheimer was theorising and realising weapons. Many of the tools we use in the studio for recording—microphones and limiters and equalizers and all that—were developed for the military. It is our privilege to beat those swords into plowshares.”

Green v DOJ Memorandum in support of Defendant’s motion to dismiss — Yesterday, the DOJ moved to dismiss the lawsuit filed by the EFF challenging Section 1201 of the Copyright Act under the First Amendment. The Section in part prohibits the circumvention of technological protection measures used to control access to copyrighted works, but as the DOJ points out in its memo here, “laws barring unauthorized circumvention of access controls do not regulate speech any more than laws barring unauthorized access to museums or libraries.”

Google swallows 11,000 novels to improve AI’s conversation — A Google spokesperson claims the use of the novels is fair use, “But [Authors Guild Executive Director Mary] Rasenberger isn’t convinced. ‘The research in question uses these novels for the exact purpose intended by their authors – to be read,’ she argues. ‘It shouldn’t matter whether it’s a machine or a human doing the copying and reading, especially when behind the machine stands a multi-billion dollar corporation which has time and again bent over backwards devising ways to monetise creative content without compensating the creators of that content.'”

Professors Mislead FCC on Basic Copyright Law — In a letter to the FCC regarding its set-top box proposal, a group of IP professors made the claim that a copyright owner’s right to distribute her work does not apply to electronic transmissions of works. But as Devlin Hartline explains here, “every single court that has ever considered this argument on the merits has rejected it.” Yesterday, FCC Commissioners decided at the last minute to postpone the set-top box proposal vote, which was subject to broad criticism by the creative community, among others.

Third Circuit Upholds Jury’s Award of $1.6 Million in Actual Damages for Infringement of Rare Photographs — In a July decision, the Third Circuit affirmed the lower court’s use of “multipliers” in calculating the actual damages to be awarded in an infringement lawsuit. The judge “applied a multiplier of three to five times the benchmark to account for the ‘scarcity’ or ‘rarity'” of the infringed photos “and a multiplier of 3.75 to 8.75 to account for the ‘exclusivity’ of [the] images during the infringement period.”

Obama’s intellectual property chief steps down — A sincere thank you and best wishes to Victoria Espinel, who, it was announced this week, is stepping down from her post as Intellectual Property Enforcement Coordinator. Espinel was the first IPEC, appointed late 2009. Her office released a Joint Strategic Plan in June, detailing its work and goals over the next three years.

The ‘Breaking Bad’ example for why illegal downloading must stop — One of the many ways copyright benefits the public: “Since production began in 2007, “Breaking Bad” has spent an estimated $60 million to $70 million on goods, services and wages for crew members in New Mexico — not counting wages paid to actors, writers and directors.” The same holds true for any other television show or film being made. (And no Breaking Bad spoilers please, I’m still catching up on Netfilx!)

“Open Source” Doesn’t Mean There’s Not a License — Open source and other copyleft licenses are often thought of as alternatives to copyright, but they rely upon copyright to exist. Particularly, the noneconomic control that copyright provides to creators; it’s just that in the case of open source, the control is targeted at such things as limiting commercial use or requiring downstream modifications to be released to the public under similar license terms.

Tun-Jen Chiang: Rehabilitating the Property Theory of Copyright’s First Amendment Exemption — “A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts. There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine.”

The Night Eric Schmidt Joked About Killing Newspapers — “I said to him, ‘It’s going to be on your tombstone: “I killed newspapers.”‘ And he said, ‘No, I love newspapers.’ And I said, ‘But you’re taking all of our money!’ And he said, like a good CEO, ‘It’s our money now.’”

Cross-posted on the Law Theories blog.

As a follow-up to my last post about why copyright is a right and fair use is a privilege, I wanted to respond to some of the issues brought up by people on the ‘net about what I had written. Let me start by saying that I understand that, normatively, some are upset by the very notion that copyright is a full-fledged right while fair use is relegated to being merely a privilege. A right sounds so much more important than a privilege, and it makes fair use sound like some second-class citizen to call it the latter. I think some people dismissed my post completely just based on its title—the reasoning didn’t matter since the conclusions weren’t what those people wanted to hear. I think such closed-mindedness is unfortunate and counterproductive, and if we don’t stop to understand what others are saying—even when we don’t like it—we’re doomed forever to talk past each other.

One person brushed off my post as arguing semantics and meaningless labels, but I think that the feedback I got from both sides of the debate shows that labels matter significantly to people. Besides, why would a person bother to reach out and say that my labels are unimportant unless that person thinks that labels are actually important? Labels matter. For example, I don’t think that Mike Masnick refers to copyright as a “monopoly privilege” because he thinks labels don’t matter. I think he specifically chooses both of those words because of the negative connotations associated with each. There’s nothing wrong with caring about labels, of course, though I do fault those such as Masnick who appear to do so opportunistically and only for rhetorical effect. When discussing legal terms of art, I prefer precision over perception. I don’t get the sense that Masnick feels the same way.

This passage from Professor Tom Bell exemplifies such thinking:

Nonetheless, for right or wrong, copyright represents an exception to the general rule that we can freely speak the truth. It thus won’t do to call copyright simply a “property right.” We should at least append the qualifying phrase, “and an anti-property right,” because copyright’s power comes at the expense of our rights in our pens, presses, and throats. Should we also call copyright an anti-person right? It endures only at cost to our liberties, after all. At any rate, copyright hardly deserves the honorable title, “property”; we would do far better to call it “privilege.” 1Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright 110-11 (2010).

Deciding whether something is a privilege based on our own subjective view as to whether the thing is “honorable” strikes me as an imprecise and inconsistent way to classify things. What makes more sense is a system that objectively classifies things, such as Hohfeld’s fundamental jural relations. Those who claim that copyright is a privilege and fair use is a right seem to be basing that view on nothing more than their gut feeling about the relative importance of each. The normative view that fair use shouldn’t be called a privilege because it’s just too important, I think, is based on the erroneous supposition that privileges are somehow less important than rights. Legally speaking, that’s not necessarily the case. This is demonstrated by the fact that a fair user’s privilege trumps a copyright owner’s right.

In fact, many of the “rights” that we hold most dear, guaranteed by the Bill of Rights, are not even rights in the Hohfeldian sense. The “Bill of Rights” should more accurately be called the “Bill of Privileges and Immunities.” 2See, e.g., Jay S. Bybee, Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539, 1552 (1995) (“[W]e should observe that the Bill of Rights is not a bill of rights in any Hohfeldian sense, in any sense that people have claims enforceable against the government. Amendments Two through Eight are written as privileges and immunities, while the First Amendment is a disability.”); Scott R. Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation, 18 Geo. Mason L. Rev. 301, 316 (2011) (“Nearly all of the rules we cling to as ‘rights’ against legislation under the U.S. Constitution are really immunities, and many of the ‘negative duties’ we recognize are actually disabilities, because the legal relationships set up in the U.S. Constitution are overwhelmingly secondary rules.”). Some faulted me for not mentioning the First Amendment in my post, but the fact that fair use is imbued with constitutional significance doesn’t change the fact that it’s a privilege. Moreover, I think that people are under the common misperception that the First Amendment creates Hohfeldian rights. It doesn’t. The First Amendment tells Congress that it can’t make any laws abridging the freedom of speech. In Hohfeldian terms, this creates in the government a disability and in us an immunity from laws that abridge our freedom of speech. 3See, e.g., Bybee, 48 Vand. L. Rev. at 1556 (“The First Amendment is a subject-matter disability . . . . [I]t puts a category of laws beyond the competence of Congress. The disability is so complete that Congress is expressly forbidden to enact . . . laws abridging . . . freedom of speech and press . . . . The First Amendment is a rule about rules.”); Restatement (First) of Property § 4 (1936) (“An immunity, as the word is used in this Restatement, is a freedom on the part of one person against having a given legal relation altered by a given act or omission to act on the part of another person.”).

One person expressed concern over the last sentence of my post where I said: “A rightholder, or anyone else for that matter, can make the exercise of a would-be fair user’s privilege as easy or as difficult as he likes—even impossible if he so wishes.” I think the point is rather obvious, but I’ll give an example. If I write a novel on my typewriter, I can take that manuscript and lock it up in my safe. Another has the privilege of making fair use of my novel, even if that privilege is somewhat diminished as the novel in unpublished, but that privilege doesn’t arm the privilege-holder with any sort of legally enforceable claim against me that I make the novel available to him so he can exercise his privilege. I can lock it up forever or loan it to everyone else in the world but him without any liability since I am under no duty of noninterference with respect to the would-be fair user.

This is not to say that the constitutional underpinnings of fair use are unimportant. They are. The immunities granted to us by the First Amendment have significant repercussions when it comes to the privileges we have, such as fair use, vis-à-vis the rights granted to copyright owners. As unnatural as it may seem to the uninitiated, an immunity, or even a privilege for that matter, can be a much more powerful weapon than a right. Great rewards await those who can get past the labels to examine the substances beneath, and to that end, in this post I’ll explain how the First Amendment implications of fair use operate doctrinally.

Ad Hoc Balancing vs. Definitional Balancing

The interaction of copyright law and the First Amendment is a favorite subject of mine, and I’d like to take a step back and discuss the Supreme Court’s current approach to the subject. It’s helpful to start with how First Amendment challenges to speech restrictions work generally. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .” Surely that means that all speech is protected, right? The answer, it turns out, is that not all speech is treated the same way, and, despite the minority view held by some absolutists, the First Amendment does not protect all speech. The tricky part is figuring out whether a particular instance of speech is protected or not.

Take, for example, the Sherman Act, which makes illegal agreements in restraint of trade. 4See 15 U.S.C.S. § 1 (Lexis 2013) (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.”). How should a court proceed if a defendant claims that the agreement he made with his codefendant is speech protected by the First Amendment, even if it’s in restraint of trade? The answer, as is so often the case in the law, is that the competing interests have to be balanced; the nonspeech interests have to be weighed against the speech interests. But where to do this balancing? The Supreme Court has identified certain types of speech that require a court to do a balancing of interests based on the particular facts of the case before the court. For other types of speech, the Court has found that no such balancing is necessary since the weighing of interests has already been done when the statute making that speech unlawful was promulgated. The former approach is referred to as ad hoc balancing, while the latter approach is referred to as categorical or definitional balancing.

Staying with the context of antitrust law, take the example of FTC v. SCTLA. 5FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990). There, a group of lawyers who represented indigent criminal defendants in Washington, D.C., agreed that they would not accept any new cases unless and until their fees were increased. The lawyers got their fee increase, but the FTC filed a complaint against them alleging that their group boycott was in violation of the antitrust laws. The lawyers argued that their concerted action was expression protected by the First Amendment. The Court of Appeals for the District of Columbia Circuit agreed, finding that such boycotts were significantly expressive such that an ad hoc balancing of the competing interests presented in the particular case was necessary. The Supreme Court reversed, ruling instead that such boycotts were categorically unlawful:

In sum, there is thus nothing unique about the “expressive component” of respondents’ boycott. A rule that requires courts to apply the antitrust laws “prudently and with sensitivity” whenever an economic boycott has an “expressive component” would create a gaping hole in the fabric of those laws. Respondents’ boycott thus has no special characteristics meriting an exemption from the per se rules of antitrust law. 6Id. at 431-32.

Thus, the Supreme Court found that the antitrust laws at issue were balanced against countervailing First Amendment values at the definitional level, and this in turn meant that there was no need to do an ad hoc balancing of the competing interests, taking into account the particular defendants’ interests, as the Court of Appeals had done.

When analyzing a content-based restriction, which limits speech because of the idea or viewpoint conveyed, the Supreme Court has developed a two-tiered approach, separating low-value speech from high-value speech. A court first has to determine if the speech in question occupies a subordinate position in the spectrum of First Amendment values such that it is classified as low-value speech. If so, then that speech receives little or no First Amendment protection. As the Court famously noted over seventy years ago:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 7Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).

Over the years, the Court has added many other types of speech that are classified as low-value, such as express incitement, false statements of fact, commercial advertising, and child pornography. With low-value speech, the Court’s approach is that of definitional balancing where the weighing of competing interests is done at the rulemaking level. Rather than do an ad hoc balancing of a particular defendant’s free speech interests, the Court instead looks at the class of speech at issue as a whole to determine whether it is protected by the First Amendment or not. Take, for example, obscenity, where the Court has established a three-part test for determining whether speech is obscene. 8See Miller v. California, 413 U.S. 15, 24 (1973). So long as a law regulating obscenity tracks the Court’s test, a First Amendment challenge of that law will necessarily fail—the First Amendment values have already been balanced by the Court at the definitional level.

The advantage of this definitional balancing is that courts down the road need only to apply the rule without doing any sort of ad hoc balancing based on the facts peculiar to the particular defendant before the court. It’s much easier to apply a general test than it is to consider the free speech interests of any given defendant. If the speech at issue does not fall into any of the classes of low-value speech, then it is high-value speech that receives significant First Amendment protection via an ad hoc balancing of the competing interests. A content-based restriction of high-value speech is analyzed under the rubric of strict scrutiny: The law at issue will be presumed unconstitutional, and it will only be upheld if it is “necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” 9Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); see also United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. . . . If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”).

The Supreme Court has also created a framework for analyzing a content-neutral restriction, which regulates speech without reference to its content. The primary example of a content-neutral regulation is a time, place, or manner restriction. For example, a law that regulates the maximum volume of amplified music permissible at a city-owned band shell is content-neutral since, though it regulates speech, it does so without regard to the ideas or viewpoints being expressed. A content-neutral regulation is analyzed under the rubric of intermediate scrutiny: For the law at issue to be upheld, it “must be narrowly tailored to serve the government’s legitimate, content-neutral interests,” though “it need not be the least restrictive or least intrusive means of doing so.” 10Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). This too is an ad hoc balancing of competing interests.

Thus, the Supreme Court’s approach to analyzing the constitutionality of a law that affects speech begins with classifying the law as being either content-neutral or content-based. If it’s content-neutral, then the ad hoc balancing of intermediate scrutiny is applied to it to determine whether the speech is protected by the First Amendment or not. If the speech interests outweigh the nonspeech interests, then it’s protected, and if the nonspeech interests outweigh the speech interests, then it’s not. If the law in question is content-based, the determination has to first be made as to whether the speech is classified as low-value speech or high-value speech. If it’s low-value speech, then the balancing has already been done definitionally at the rulemaking level, and if it’s high-value speech, then the ad hoc balancing of strict scrutiny is applied. I’m greatly simplifying things here, but these are the broad strokes.

Nimmer and the Definitional Balancing of Copyright

So how does copyright law fit into this framework? Professor Melville Nimmer published a seminal journal article in 1970 asking just that question. 11See Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1970). The answer, in Nimmer’s opinion, lay in definitional balancing. Professor Neil Netanel, whose recent law review article I recommended in last week’s Friday’s Endnotes on Copyhype, explains Nimmer’s definitional balancing approach:

Nimmer argued that the tension between copyright and the First Amendment can be satisfactorily resolved, even if it cannot be eliminated. His proffered solution was a method for balancing speech and non-speech interests that he labeled “definitional balancing.” *** As Nimmer described that methodological approach, a court considering whether a given law unconstitutionally abridges speech weighs the non-speech interests that the law aims to serve against the speech interests that the law burdens. Based on that assessment, the court then propounds generally applicable rules governing which types of speech may give rise to liability under the law in question and which must enjoy a First Amendment privilege. 12Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder, 60 UCLA L. Rev. 1082 ( 2013) [hereinafter “Netanel”].

Nimmer had published a law review article about definitional balancing in 1968, 13Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Cal. L. Rev. 935 (1968). focusing on the then-recent Supreme Court opinion in New York Times v. Sullivan where the Court applied definitional balancing to defamation law. 14See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). While we may take the idea of definitional balancing for granted now, at the time Nimmer was writing his articles it was a relatively novel approach to First Amendment jurisprudence. Nimmer’s view that definitional balancing could be applied to copyright law was certainly ahead of its time. Nimmer located the definitional balancing internally to copyright law within the idea/expression dichotomy, the fair use doctrine, and the constitutional fiat that the copyright term be for a limited time. In Nimmer’s view, there was no need to do an ad hoc balancing when analyzing a First Amendment challenge to a copyright law because these internal doctrines already balanced First Amendment values at the definitional level.

Nimmer’s definitional balancing approach to copyright was first adopted by the Supreme Court in its 1985 opinion in Harper & Row. 15See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (1985). The issue there was whether the defendant’s use of a few hundred words from an unpublished manuscript of President Ford’s memoirs was fair use. In the Court’s opinion, the Second Circuit below had correctly noted “that copyright’s idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression. No author may copyright his ideas or the facts he narrates.” 16Id. at 556 (internal quotations and brackets omitted). The Court rejected the defendant’s argument that since the purported fair use involved a matter of great public concern, the traditional fair use test was inappropriate to balance the competing interests:

In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure’s manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. 17Id at 560.

Thus, the Supreme Court declined the invitation to apply an ad hoc balancing to the facts of the case at hand, instead finding that the Copyright Act and the First Amendment were balanced at the definitional level through the idea/expression dichotomy and the fair use doctrine. The Court thus imbued these two doctrines with constitutional significance, and it created a dividing line between speech that is protected by the First Amendment and speech that is not. Speech that is fair use or that appropriates only facts is protected by the First Amendment, while speech that appropriates expression but which is not fair use is not.

But the Court’s adoption of definitional balancing in Harper & Row did not stop many commentators from felling many trees while suggesting that ad hoc balancing was the better approach to weighing free speech interests against those sought to be promoted by copyright. For example, Professors Mark Lemley and Eugene Volokh argued that copyright is “a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a ‘property right’ should not exempt it from conventional First Amendment scrutiny.” 18Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 206 (1998). Since in their view copyright is a content-based restriction, that scrutiny to be applied would therefore be strict. Similarly, Professor Neil Netanel has argued that “under the category approach that has developed since the Nimmer article was published, copyright law constitutes content-neutral speech regulation that should be subject to heightened, but not strict, scrutiny.” 19Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 54 (2001). Netanel would place copyright “within a subcategory of content-neutral speech restriction that courts have subjected to considerably more rigorous scrutiny.” 20Id. at 55.

The Supreme Court has declined to follow the suggestion made by commentators that ad hoc balancing is the proper way to approach First Amendment challenges to copyright laws, and it has instead continued down the path of definitional balancing first adopted in Harper & Row. The two most recent opinions where the Court has discussed this are Eldred v. Ashcroft in 2003 and Golan v. Holder in 2012. 21See Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 132 S.Ct. 873 (2012). I wrote about the First Amendment implications of these two opinions in a prior post.

In Eldred v. Ashcroft, the Court analyzed a First Amendment challenge of the Copyright Term Extension Act (“CTEA”), which extended by 20 years the copyright terms of future and existing works. The petitioners had argued that the CTEA was a content-neutral regulation warranting the ad hoc balancing of intermediate scrutiny. The Supreme Court disagreed: “We reject petitioners’ plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards.” 22Id. at 218-19. The Court reiterated its statement from Harper & Row that the “idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act,” and it again cited the fair use doctrine as providing “considerable latitude for scholarship and comment.” 23Id. at 219-20 (internal quotations omitted). In summation, the Court wholeheartedly adopted Nimmer’s definitional balancing:

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. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. 24Id. at 221 (internal citations omitted).

I, and others, have dubbed this the “traditional contours” test. The Court is saying that so long as a copyright statute does not disturb the traditional contours, i.e., the idea/expression dichotomy and the fair use doctrine, then that statute will not be subjected to any sort of ad hoc balancing through the mechanism of heightened First Amendment scrutiny. Instead, the statute is already balanced at the definitional level via the internal safeguards of the traditional contours. Despite being a straightforward statement of the law, the traditional contours test was wildly misconstrued in the commentary, and a flurry of scholarly writing came out wondering what was within the traditional contours and what was without. The view was that if something could be identified as being outside of the traditional contours, then that would trigger heightened scrutiny and its concomitant ad hoc balancing.

Such thinking led to a First Amendment challenge to Section 514 of the Uruguay Round Agreements Act in Golan v. Holder. Section 514 granted copyright protection to foreign works that had previously been in the public domain in the United States. Petitioners argued that pulling works out of the public domain transgressed the traditional contours and thus required the application of heightened scrutiny to Section 514. The Supreme Court rejected the argument:

Given the “speech-protective purposes and safeguards” embraced by copyright law, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case. We reach the same conclusion here. Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. 25Golan, 132 S.Ct. at 890-91 (internal citations omitted).

The Court made clear in Golan what it thought it had made clear in Eldred, namely, that the traditional contours only include the idea/expression dichotomy and the fair use doctrine. And since these traditional contours balance the First Amendment with the Copyright Act at the definitional level, no ad hoc balancing through the application of heightened scrutiny is necessary. Thus, the Court’s current approach to a First Amendment challenge to a copyright law is to look at whether the law in question has altered the traditional contours of the idea/expression dichotomy and the fair use doctrine. If not, then the law passes constitutional muster without the need to do any ad hoc balancing, and if so, then ad hoc balancing is to be applied.

Netanel and the DMCA Anticircumvention Provisions

Not surprisingly, since the Court reiterated its statement of the traditional contours test in Golan, commentators have started constructing their arguments to work within that framework. One example is in the recent law review article by Professor Neil Netanel that I mentioned above. In the article, Netanel’s reading of the traditional contours test comports with my own:

Golan strongly suggests that it is by virtue of the idea/expression dichotomy and fair use privilege that copyright law not only is immune from First Amendment scrutiny but also comports with First Amendment requirements. Following Golan, Congress may apparently extend and expand copyright law as it wishes, without giving rise to First Amendment scrutiny, so long as it leaves the idea/expression dichotomy and fair use defense “undisturbed.” But if a Copyright Act amendment were to eliminate, eviscerate, or otherwise disturb the idea/expression dichotomy or fair use defense, the amendment should be stricken down as failing to pass First Amendment muster . . . . 26Netanel, 60 UCLA L. Rev. at 1102.

Netanel qualifies this last statement by noting that such a statute, which alters the traditional contours, wouldn’t necessarily be struck down since “Congress might enact some alternative provision that adequately accommodates constitutional protections of free speech” in the same way the traditional contours do. 27Id. But under the traditional contours test, a statute that alters the idea/expression dichotomy or the fair use doctrine would certainly be subjected to ad hoc balancing under the imposition of heightened First Amendment scrutiny.

Netanel identifies the DMCA anticircumvention provisions as altering the traditional contours since courts have interpreted them to “make no exception for circumventing access controls or hybrid technological-protection measures when needed to engage in fair use.” 28Id. at 1114. Instead, Netanel notes, courts read the DMCA “to preserve fair use only as a defense to a claim for traditional copyright infringement.” 29Id. at 1115. As an example of this, Netanel cites the Second Circuit opinion in Universal v. Corley where the court of appeals held that there is no fair use defense to a DMCA violation. 30See Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). The Second Circuit there had also stated that fair use is not required by the First Amendment, and Netanel faults the court of appeals for this: “After Golan and Eldred, that statement is no longer good law. As those rulings make clear, the availability of the fair use defense is a necessary condition for copyright law to survive a First Amendment challenge.” 31Netanel, 60 UCLA L. Rev. at 1115.

Netanel is overstating the traditional contours test. The test merely states that the existence of the traditional contours is sufficient to avoid the need for ad hoc balancing. If either of the traditional contours is altered, then a court is to engage in ad hoc balancing via the application of heightened scrutiny. But the traditional contours test does not say, as Netanel suggests, that the existence of both traditional contours is necessary to survive this ad hoc balancing. A statute could alter fair use yet still survive the subsequent application of heightened scrutiny. Thus, Netanel’s suggestion that “the availability of the fair use defense is a necessary condition for copyright law to survive a First Amendment challenge” is mistaken.

Netanel also takes issue with the Second Circuit’s statement in Corley that fair use “has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.” 32Corley, 273 F.3d at 459. “This argument raises a fascinating question,” Netanel posits, that even if “fair use secures a given speaker’s right to copy copyrighted material for a particular use, does that necessarily mean that the speaker is entitled to make a direct digital copy?” 33Netanel, 60 UCLA L. Rev. at 1116. After stating that the case law offers no satisfactory answer, Netanel claims that “in light of Golan and other cases, the more plausible argument is that there must be a fair use defense to the DMCA anticircumvention prohibition, lest the DMCA run afoul of the First Amendment.” 34Id.

In support of this conclusion, Netanel cites a report from the Register of Copyrights which argues that effective fair use may not be possible without perfect digital copies. Moreover, Netanel cites a line of cases where it was held that foreclosing a particular medium of expression burdens free expression and gives rise to heightened First Amendment scrutiny. To this, Netanel argues that anything restrictive of a person’s use of a given technology for the communication of protected speech can give rise to heightened scrutiny as well. Netanel concludes that “the DMCA’s prohibition of the use of circumvention technology needed to engage in effective, constitutionally protected fair use would seem to run afoul of the First Amendment. . . . Under Golan’s definitional balancing approach, fair use copying should enjoy an absolute privilege against liability under the DMCA.” 35Id. at 1118.

I think Netanel’s arguments miss the mark. First of all, the fair use defense codified in Section 107 by its terms applies only to prima facie violations of the rights granted to copyright owners in Section 106: “Notwithstanding the provisions of sections 106 . . . the fair use of a copyrighted work . . . is not an infringement of copyright.” 3617 U.S.C.S. § 107 (Lexis 2013); I leave aside the application of Section 107 to Section 106A. The reason courts don’t apply fair use to infringements of other rights, such as the anticircumvention rights granted by the DMCA, is because the violation of those rights is not copyright infringement. Despite fair use not being a defense to a DMCA violation, Netanel is trying to make it one by cleverly sneaking it in the back door. He does this by playing the First Amendment trump card and claiming that the DMCA anticircumvention provisions have altered the traditional contours such that ad hoc balancing is necessary under the test articulated in Eldred and Golan.

The problem with this line of reasoning, I think, is that the DMCA has done no such thing. The traditional contours have not been affected, and fair use is still a perfect defense to a claim of copyright infringement. Part of the problem with Netanel’s approach is that he’s treating fair use as right, as demonstrated by his framing the question he’s trying to answer by presupposing that “fair use secures a given speaker’s right to copy copyrighted material for a particular use.” It does no such thing. As I mentioned at the outset of this post, just because fair use has a constitutional dimension, that doesn’t mean that it’s magically transformed from a privilege into a right in the Hohfeldian sense. It’s still a privilege that negates the duty one would otherwise have not to copy, and it creates in the copyright owner the correlative no-right, that is, the lack of a legally enforceable claim against another should he so copy.

Just because our exercise of the fair use privilege is protected by the First Amendment, that doesn’t mean we can violate the rights of others while making fair use of a given work. For example, think of my manuscript sitting in my locked safe. That the First Amendment protects another’s privilege to make fair use of it doesn’t negate his duty not to break into my safe. Fair use might relieve him of liability for my copyright claim should I sue him for copyright infringement, but it’s certainly not going to excuse him from liability for the tort and crime of breaking into my safe in the first place. The same can be said of the DMCA anticircumvention provisions. Fair use might absolve a person of liability for copyright infringement if he violates my anticircumvention rights and makes fair use of my work, but it’s not going to make his violation of the DMCA anticircumvention provisions disappear. The ends don’t erase the means.

Netanel is absolutely correct to argue that fair use is (or at least can be) speech protected by the First Amendment. The Supreme Court has made that clear in Harper & Row, Eldred, and Golan. I say “can be” because not all fair use is constitutionally protected speech. For example, the Supreme Court’s decision in Sony finding that certain time-shifting was fair use did not turn on application of the First Amendment. 37See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). But just because fair use is speech protected by the First Amendment, it nonetheless remains only a privilege. And as a mere privilege, there is no duty of noninterference in others. A fair user has no legally enforceable claim against those that stand in his way as he attempts to make fair use of a given work. The First Amendment provides the fair user with only a shield, not a sword, and a fair user has but a privilege, not a right.

But this does not mean that a copyright law cannot be or should not be subjected to heightened First Amendment scrutiny, and the funny thing is, I actually agree with Netanel that ad hoc balancing should be applied to the DMCA anticircumvention provisions. I arrive at that conclusion by a different pathway. As I mentioned in my prior post about Eldred and Golan, I think that the Supreme Court has only applied the traditional contours test to statutes, such as the CTEA or Section 514 mentioned above, that define the scope of substantive copyright rights granted by Section 106. This makes sense because the traditional contours, i.e., the idea/expression dichotomy and the fair use doctrine, definitionally balance substantive copyright rights (such as the reproduction right) with countervailing First Amendment values. But when a statute doesn’t define the scope of the substantive copyrights rights—as the DMCA anticircumvention provisions do not—then it makes no sense to say that the statute is definitionally balanced by using reasoning that has been applied only to substantive copyright rights.

Thus, I think Netanel’s intuition that the DMCA anticircumvention provisions need to be subjected to ad hoc balancing is correct. This is so because the definitional balancing applied to substantive copyright rights, such as the reproduction right or the distribution right, tells us nothing about whether other rights, such as the anticircumvention rights, are balanced. Perhaps they are, or perhaps they are not. I also agree with Netanel that some flavor of intermediate scrutiny is appropriate since the DMCA anticircumvention provisions create only content-neutral restrictions. But there’s no need to frame the argument by saying that the DMCA anticircumvention provisions alter the traditional contours for the simple reason that the traditional contours test doesn’t apply to the rights created by the DMCA anticircumvention provisions since those rights are not substantive copyright rights. Like Netanel, I’ll pass for now on doing the actual analysis of whether the DMCA anticircumvention provisions pass the ad hoc balancing of heightened scrutiny, choosing instead to reflect on what the proper test should be for its own sake.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright 110-11 (2010).
2. See, e.g., Jay S. Bybee, Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539, 1552 (1995) (“[W]e should observe that the Bill of Rights is not a bill of rights in any Hohfeldian sense, in any sense that people have claims enforceable against the government. Amendments Two through Eight are written as privileges and immunities, while the First Amendment is a disability.”); Scott R. Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation, 18 Geo. Mason L. Rev. 301, 316 (2011) (“Nearly all of the rules we cling to as ‘rights’ against legislation under the U.S. Constitution are really immunities, and many of the ‘negative duties’ we recognize are actually disabilities, because the legal relationships set up in the U.S. Constitution are overwhelmingly secondary rules.”).
3. See, e.g., Bybee, 48 Vand. L. Rev. at 1556 (“The First Amendment is a subject-matter disability . . . . [I]t puts a category of laws beyond the competence of Congress. The disability is so complete that Congress is expressly forbidden to enact . . . laws abridging . . . freedom of speech and press . . . . The First Amendment is a rule about rules.”); Restatement (First) of Property § 4 (1936) (“An immunity, as the word is used in this Restatement, is a freedom on the part of one person against having a given legal relation altered by a given act or omission to act on the part of another person.”).
4. See 15 U.S.C.S. § 1 (Lexis 2013) (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.”).
5. FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990).
6. Id. at 431-32.
7. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
8. See Miller v. California, 413 U.S. 15, 24 (1973).
9. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); see also United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. . . . If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”).
10. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989).
11. See Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1970).
12. Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder, 60 UCLA L. Rev. 1082 ( 2013) [hereinafter “Netanel”].
13. Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Cal. L. Rev. 935 (1968).
14. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
15. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (1985).
16. Id. at 556 (internal quotations and brackets omitted).
17. Id at 560.
18. Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 206 (1998).
19. Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 54 (2001).
20. Id. at 55.
21. See Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 132 S.Ct. 873 (2012).
22. Id. at 218-19.
23. Id. at 219-20 (internal quotations omitted).
24. Id. at 221 (internal citations omitted).
25. Golan, 132 S.Ct. at 890-91 (internal citations omitted).
26. Netanel, 60 UCLA L. Rev. at 1102.
27. Id.
28. Id. at 1114.
29. Id. at 1115.
30. See Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001).
31. Netanel, 60 UCLA L. Rev. at 1115.
32. Corley, 273 F.3d at 459.
33. Netanel, 60 UCLA L. Rev. at 1116.
34. Id.
35. Id. at 1118.
36. 17 U.S.C.S. § 107 (Lexis 2013); I leave aside the application of Section 107 to Section 106A.
37. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

Chiang on the Property Theory of Copyright’s First Amendment Exemption — Lawrence Slolum highlights law prof Tun-Jen Chiang’s recent article Rehabilitating the Property Theory of Copyright’s First Amendment Exemption. Highly recommended for anyone interested in copyright and free speech issues. “A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption, based on the history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts. There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine.”

White House must strengthen foundation of US innovation — Tennessee Rep. Marsha Blackburn shares some thoughts on copyright. “America has always been a society that rewards good ideas and protects property rights in a free-market capitalist system, not one premised on permission-less innovation where others can free-ride or take someone’s creation without even asking.”

The Power of Repeated Listening — Jeremy Schlosberg discusses how appreciation of good albums grows over repeated listens and how there’s a danger of forgetting this as we become increasingly surrounded by ever more and newer stuff to catch our attention. Great stuff.

Nimmer on Copyright: Celebrating 50 Years — Video from the U.S. Copyright Office event last May, held as part of its Copyright Matters series. David Nimmer discusses the influential treatise, started by his father, the late Melville Nimmer, half a century ago. Nimmer is joined by other copyright luminaries who share insights on the impact of Nimmer on Copyright.

A Guide to Music Performance Royalties, Part 1 — News about disputes over royalties between Pandora and musicians is often accompanied by misunderstandings about the different rights and royalties at play. Chris Castle offers a helpful primer on these topics. Also check out the Trichordist’s take, The Digital Royalty Fight: A Primer for Business Journalists. Part 1.

Copyright and the Creative Process — David Newhoff: “While planning the production of goneElvis, I wanted to use my friend Martin Ruby’s cover of ‘Tonight’s the Night,’ famously recorded by The Shirelles, but I was turned down by the publishers when I requested the license for which I could not of course pay. It seems the tendency these days is to view this kind of obstacle as unfair or muting the creative process of the next generation; but this attitude is a mistake, and I’d venture that almost any serious artist will agree. Because I couldn’t have what I thought I wanted in the first place, I ended up with something much better simply because I was forced to go look for it.”

Music Licensing Takes Center Stage at Congressional Hearing — On Wednesday, the House Judiciary Committee held a hearing on music licensing and the Internet Radio Fairness Act. At the risk of shameless self-promotion, I have a recap of the hearing over at the Copyright Alliance’s Idea/Expression blog.

Copyright Policy and Economic Doctrines— Robert D. Atkinson of the Information Technology and Innovation Foundation offers this fascinating paper looking at the influence of differing economic doctrines on copyright discussions. “Views on copyright policy are shaped in large part by the economic doctrine held by the advocate, scholar or policymaker. These differences in doctrine cause partisans to view facts differently and to focus on small segments of complex debates, leading to a breakdown of constructive dialog and much ‘talking past each other.'”

Why Are Cable Companies Forcing People to Turn to Piracy? — “Hint: they’re not. Also, they’re probably better at running their business than their many, many freelance marketing consultants among the digerati.”

Everything, Everywhere, All the Time — The Cynical Musician, responding to Rep. Chaffetz’s challenge during Wednesday’s IRFA hearings to name another successful internet radio service besides Pandora, describes why the internet only wants one of everything. “Once we have someone in this position, there’s very little other businesses can do to compete. They can’t sell something that the established power player isn’t selling, ‘coz he is. They can’t go for geographic advantage because there’s no issue of distance on the internet. They cannot hope to sell when the big guy’s closed, ‘coz he’s always open. Their only hope is either to compete on price, which is a race to the bottom (and one could argue that online everyone’s living in silt as it is) or on purchasing experience, which only becomes a factor if they can match the established player’s prices – tricky if you ain’t got the scale to make it up on.”

Deconstructing: Pandora, Spotify, Piracy, And Getting Artists Paid — Chris Ruen provides a detailed, in-depth look at IRFA and hot it fits into the context of the larger discussion of copyright’s vitality in a digital age. “The digital revolution has brought about a great many things. However, the obvious exploitation of artists — in knowing denial of their basic rights — remaining at such an industrial scale in 2012 is an embarrassment to that revolution; it is the cancer at the core of its lofty talk of “openness”; it is what child labor was to the Industrial Revolution.”

Congressional Research Service Memo on Constitutionality of IRFA Section 5— The Trichordist raised First Amendment concerns a few weeks ago about one of the lesser-known provisions of IRFA a few weeks ago, one that would create anti-trust liability for copyright owners who “impede” direct licensing efforts by internet radio services. The concerns stem from a recent lawsuit by SiriusXM against SoundExchange and A2IM that alleged just that, premised on blog posts the organizations had made explaining to artists some of the details of recent direct license offers. After an exchange with David Lowery at the Future of Music Coalition’s annual summit earlier this month, bill sponsor Senator Wyden passed along the concerns to the Congressional Research Service, which recently completed its analysis.

Music startups aren’t dead — they’re just changing — Former Last.fm exec Matthew Hawn responds to recent criticisms from Peter Kafka and David Pakman concerning the difficulties of finding sustainable business models for digital music startups. “Start-ups create the most value when they carve out new business models and transform the way we used to do things. They are less valuable (and thus less viable) when they just wringing the last drop of money out of old models. The truly great ones transform industries and build new opportunities, growing the market for everyone.”

Fair (?) dealing in Canada’s colleges — John Degen posts troubling video of members of the Writers’ Union of Canada being blocked from attending a series of seminars from the Association of Canadian Community Colleges about new “fair dealing” policies. “On November 12th, 2012, freedom meant writers were free to be removed by security, and access meant writers were allowed access only to the airport parking lot (for a fee).”

Myths and Facts about Copyright — More criticism about Derek Khanna’s recent policy brief published briefly on the Republican Study Committee’s website, this time from James DeLong at The National Review.

How Are Google’s Anti-Piracy Search Policies Working? — The answer, according to Vox Indie’s Ellen Seidler, is “not too well.”

A lot of ink has been spilled over the years over copyright. Many of the arguments against copyright, however, start to sound the same; trotted out again and again no matter how often they are debunked.

Case in point — the following is testimony from Irwin Karp, in his capacity as general counsel of the Authors League of America, during a hearing on copyright law revisions for what would become the Copyright Act of 1976, nearly 40 years ago.

Karp, who passed in 2006, “was a tireless advocate for author’s rights and remembered by many for his work on the 1976 Copyright Revision Act and on the Berne Convention.” Here, he is testifying specifically about “sections 107 and 108 of the Copyright Revision Bill and the issue of ‘library photocopying'”, but his remarks are just as applicable to broader issues. Karp lays out the purposes of copyright law — including its important free speech function — and then moves on to tackle the most popular “anti-copyright” arguments — copyright is a “monopoly”, it restricts access to knowledge, it is merely a government “privilege”. It’s telling that in the past thirty-five years, copyright skeptics have done little to move beyond these arguments.

As the Supreme Court has explained, the Copyright Clause of the Constitution was intended to establish independent, entrepreneurial, self-sustaining authorship and publishing as the means of serving the public interest in securing the production of valuable literary and scientific works. In so doing, the Copyright Clause serves a second purpose — it implements the First Amendment’s freedoms to express and publish ideas, information, opinions and all manner of literary, scientific and artistic works. The First Amendment protects against restraints on these freedoms. But the Copyright Clause is the only constitutional provision which establishes a legal-economic foundation for exercising them. The Copyright Clause thus frees authors from the need for subsidization by the state or other powerful, institutional “patrons”, and from the restraints such support often imposes. And it was intended to sustain the existence of a diversity of independent publishers, who would give a wide range of viewpoints access to the market place of ideas.

The Supreme Court has emphasized that the Copyright Clause of the Constitution

“was intended to grant valuable, enforceable rights to authors, publishers, etc. without burdensome requirements; ‘to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.'”

The Court said that the “economic philosophy” underlying the Copyright Clause

“is the conviction that the encouragement of individual efforts by personal gain is the best way to advance public welfare through the talents of authors . . .” {Mazer v. Stein, 347 U.S. 201, 219)

Thus, the instrument chosen by the Constitution to serve the public interest, i.e., the securing of literary and scientific works of lasting value — is an inde- pendent, entrepreneurial property-rights system of writing and publishing. The Copyright Act establishes the rights which prevent others from depriving authors and publishers of the fruits of their labor. But it does not guarantee a fair reward, or any reward. For authors and publishers, both commercial and non-profit, must depend on income derived from uses of their books and journals to compensate for the talent, labor and money expended in creating them, and provide working capital for further publications. And as entrepreneurs, they must assume the ever-present risk that books and journals produced by substantial labor and cash outlays will fail financially although they make valuable intellectual contributions to the public interest.

We urge that Congress should not disrupt the delicate balance of this essential system. Carving exemptions out of the “enforceable rights” of authors and publishers does not serve the public interest. For although the resulting uncompensated uses may further the convenience or ambitious plans of some “user” group, they diminish or destroy the ability of authors and publishers to serve the ultimate public interest — to continue producing new works of lasting benefit. The publication of scientific and technical journals, for example, richly serves the public interest — but it is at best a marginal economic operation. Learned societies and others who publish them do not grow fat on their profits. Squeezed by ever-increasing costs and static circulations, publishers will be forced to close down some journals or not start new ones if they are denied reasonable compensation for uses of their articles in the new medium of systematic, library one-at-a-time reproduction. Periodicals and journals are neither immortal nor immune from the laws of economics. The process of attrition may not be apparent to library spokesmen, but it is nonetheless inevitable. Yet, while they are willing to make substantial payments to the Xerox Corporation, suppliers and library employees to provide users with hundreds of thousands of copies of copyrighted articles, they demand of Congress the privilege of denying the journal’s publishers any compensation. [Ironically, libraries pay the Xerox Corporation a per-page fee — a royalty, if you will — for each page of each article they reproduce].

THE ANTI-COPYRIGHT ARGUMENTS

It has become ritual for library organization and Ad Hoc Committee spokesmen to accompany their demands for new exemptions with a series of attacks on copyright, calculated to suggest that the author has no legitimate claim to reasonable protection for the work he creates.

THE “ANTITRUST ARGUMENT”

Library and Ad Hoc Committee spokesmen charge that a copyright is a “monopoly”, suggesting it offends the Sherman Act. This is not so. The copyright in a book is not a “monopoly” in the antitrust sense. It does not give the author control over the market in books, or the business of publishing them. His book must compete in the market place with the 40,000 other titles published that year and the hundreds of thousands still in print from prior years, including many that deal with the same subject. His copyright only gives him certain rights to use the book he created. The owner of a copyright only has a “monopoly” in the innocuous sense that all property owners do — each owns a collection of rights, granted by law, to use that which he has created, purchased or inherited.

THE “RESTRAINT OF INFORMATION” ARGUMENT

Library and Ad Hoc Committee spokesmen charge that a copyright places a restraint on information. This is not so. A patent prevents others from using the ideas it protects. A copyright does not impose such restraints. Anyone is free to use the ideas, facts or information presented in a copyrighted book or article. The copyright only protects the author’s expression, not the ideas, facts or information. Other writers can draw on them. Other writers are free to independently create similar (indeed closely similar) works; the copyright only prevents substantial copying of the author’s expression.

In Progress and Poverty, Henry George made this trenchant observation about copyright :

“Copyright . . . does not prevent any one from using for himself the facts, the knowledge, the laws or combinations for a similar production, but only from using the identical form of the particular book or other production — the actual labor which has in short been expended in producing it. It rests therefore upon the natural, moral right of each one to enjoy the products of his own exertion, and involves no interference with the similar right of any one else to do likewise . . .”

The Copyright is therefore in accordance with the moral law — (p. 411)

THE “MERE PRIVILEGE” ARGUMENT

To Library and Ad Hoc Committee spokesmen, it smacks of immorality to suggest that the author has a moral claim to copyright protection in a work that he created, that would not have existed but for his talent, labor and creative efforts. They charge that copyright is not “property” because the rights are created by statute, and that Congress is not required to pass copyright laws since Art. I, Sec. 8 “merely” says that it “shall have the power” to do so. But the phrase “Congress shall have the power” does not precede the copyright clause of Sec. 8 — it prefaces the enumeration of all powers granted to Congress, including the powers to collect taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 intended that Congress would enact copyright laws as well as exercise these other vital functions.

Of course a copyright is property. Like all other property, it is “a creature and creation of law . . .” (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of rights granted by the state, through legislation or court decision Copyright is hardly the only form of property created by statute. Property rights in billions of dollars worth of land, minerals and other natural resources have been created by acts of Congress.

But there is one basic distinction. These other statutes grant individuals perpetual, exclusive rights in resources that belonged to the Nation; they take property from the public domain and give it to private citizens. The Copyright Act grants the author rights in something he created and that already belonged to him at common law; and within a short time, the Act takes his creation from him or his heirs and places it in the public domain. Henry George was right in saying the author’s claim to adequate copyright protection rests on “natural, moral right”. The common law recognized that right, holding that an author “has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it.” (Ferris v. Frohman). And as the Register noted, these exclusive common law rights “continue with no limit even though the work is used commercially and widely disseminated.”

Library and Ad Hoc Committee spokesmen have not asked Congress to grant them an exemption from the property rights of the Xerox Corporation which would permit them to use its machines without charge to reproduce “single copies” of journal articles or other copyrighted works. Property rights in machinery is something that apparently wins their respect. But the copyright owner’s right to compensation for systematic library reproduction stands on equally firm moral and legal footing. And his contribution to the libraries’ copying operations is indispensable. Unless the American Chemical Society and other publishers can afford to continue producing their journals, the Xerox machines and libraries will not have articles to reproduce.

Real cost of ‘free’ downloads — Ken Paulson, president and CEO of the First Amendment Center, pens this must read op-ed on copyright and free speech, just in time for the 225th annivesary of the drafting of the US Copyright Clause (September 5th). “In the end, this is not about business models or emerging technology. It’s about living up to the promise we made to Webster and the first generation of Americans who believed that art should be free, but not necessarily free of charge.”

“Legitimate” piracy — John Degen takes a trip down the “freecult logical vortex for legitimizing piracy.” “If you, the professional content creator, are stupid enough to actually create valuable content and even think about putting it near the Internet, you are inviting piracy. And if you think technological protection measures (TPMs) will protect the value of your valuable content, you’re even more stupid. If you think the law should address your problem, you’re some kind of freedom-hating corporate monster. Also, stupid.”

Pro-Music’s Global Guide To Music Services — Eliot Van Buskirk of Evolver.fm presents a list of legitimate music services, categorized by country, from Pro-Music.org. The list is long, but certainly not exhaustive — music listeners have tons of other ways to legally enjoy music online, more than any other time in history.

Survey on Digital Content Usage 2012: Sanctions and warnings regarding copyright infringements are gaining acceptance among the public — The IFPI presents a report that showcases the attitudes and behaviors of German consumers regarding online media. Some of the key findings, according to the IFPI: “Three of every four Germans believe it is appropriate to fine people who offer copyrighted media content online without permission. More than half the population (53 percent) endorses the imposition of fines on people who illegally download media content. Consumers feel that warnings would have a preventive effect: 57 percent of Germans believe that up- and downloaders would discontinue their copyright-infringing activities upon receiving a warning from the provider.”

Piracy and Internet Search – The Debate — Along the same lines, researcher Brett Danaher wonders what the effect of Google’s recent move to downgrade search ranking based on takedown notices will have. Danaher notes that his previous research has shown that “laws aimed at deterring consumers from filesharing can increase music sales” and “shutting down a major cyberlocker increased movie sales,” but the effect of Google’s new policy remains to be seen.

The Andersen P2P file sharing study on the purchase of music CDs in Canada — One of the few studies that concluded that filesharing helps, rather than hurts, recorded music sales again faces fundamental questions. As Barry Sookman reports, the 2007 paper’s key conclusion that filesharing leads to higher music sales had previously been revised by the author, dropping the claim. This week, a new paper, re-examining the same data as the original paper, reports the exact opposite conclusion, and notes the original and revised papers are “fundamentally flawed.” The new paper, by Australian economist Prof. George Barker “consistently [found] a negative and statistically significant partial correlation between CD purchases and P2P downloads.”

RapidShare: We’ll help Hollywood, but ‘not at all costs’ (Q&A) — Declan McCullagh of CNet interviews RapidShare general counsel Daniel Raimer. Though there is still a ton of infringing content available on the service, it is encouraging to see the company express interest in mitigating that. Says Raimer, “We believe it’s a much more interesting market to have the legitimate customers upload important files that they want to have for long periods of time — a reliable cloud computing service that they can trust. These are the types of customers we want. Legitimate customers don’t really want to argue whether your service costs $4.99 a month or $50 a year. Copyright pirates are different. They really want everything for free. They’re definitely not the long-time customers.”

A Commendable Response from Zedo — On Tuesday, Chris Castle discovered that ad platform Zedo was serving ads on several notable torrent sites. By Wednesday, the company responded with a promise to make sure it doesn’t happen in the future. Kudos to Zedo. But as Castle notes, “This exchange highlights the most important aspect of the collision of legitimate companies with the seedy underbelly of the Internet–it’s not enough to sit back and wait for someone to formally notify you when things are going wrong.”

David Lowery to host SXSW panel on music piracy? — Adland reports that David Lowery has submitted a proposal for a panel on an “Innovative, Open, Ethical & Sustainable Internet” for this year’s SXSW. If this sounds interesting, follow the link in the article to the panel picker to vote it up — voting ends August 31.

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.