Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 4

January 02, 2012 · · 66 comments

Does copyright conflict with free speech? The idea that it does has gained a lot of traction recently. Yet arguments of a conflict between copyright law and the First Amendment in the United States are relatively new — understanding why the two co-existed for nearly two centuries before these arguments began to appear should prove valuable to current scholarship.

In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions. Copyright laws were passed by the States after provisions for freedom of speech and the press were enshrined in law, indicating that the two were viewed as compatible. At that time, Liberty of the press was defined primarily as an absence of government licensing — even under broader definitions, protecting an author’s copyright was not viewed as offensive to a free press. In part, this was because copyright was conceived as a property right, and liberty does not extend to invasions of other’s rights.

Today I want to present perhaps one of the most important reasons copyright has historically escaped free speech scrutiny.

During their formative years, the liberty of the press and recognition of copyright were seen as means to an end. They shared the same goal — the advancement of knowledge, the arts, and sciences. And they were viewed as complementary, rather than conflicting, means to reach this goal.

Freedom of the Press Goals and Purpose

During the 18th century, at a minimum, the freedom of the press meant an absence of prior restraints on publishing — whether through government licensing or censorship. Noted jurist William Blackstone, who ensconced this minimalist definition of press liberty in his Commentaries on the Laws of England, described the aversion to previous restraints: “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.”

The Founding Fathers viewed the liberty of the press as promoting broader goals then this. In a 1774 Letter to the Inhabitants of the Province of Quebec, the First Continental Congress wrote:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

To the Continental Congress, the primary purpose of press liberty was political: a democratic government needs to be openly examined to function. But note the secondary purpose: “the advancement of truth, science, morality, and arts in general.” This is strikingly similar to the later constitutional purpose given for Congress’s copyright authority: “To promote the Progress of Science and useful Arts.”

A Free Press Promotes Knowledge

There are other examples from the 18th and 19th centuries of those who believed one of the purposes of free speech was to encourage knowledge.

The Cato Letters, a series of newspaper articles published in England in the 1720s that served as ideological inspiration for the Founding Fathers, included this oft-quoted passage on the freedom of speech: “Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius.”

In his preface to the 1738 edition of Milton’s Areopagitica, poet James Thomson1 writes about the importance of this goal of a free press to society:

What is it that distinguishes human Society from a brutish herd, but the flourishing of the Arts and Sciences; the free Exercise of Wit and Reason? What can Government mean, intend, or produce, that is worthy of Man, or beneficial to him, as he is a rational creature, besides Wisdom, Knowlege, Virtue and Science? Is it merely indeed that we may eat, drink, sleep, sing and dance with security that we choose Governours, subject our selves to their administration, and pay taxes? Take away the Arts, Religion, Knowlege, Virtue, (all of which must flourish, or sink together) and in the Name of Goodness, what is left to us that is worth enjoying or protecting? Yet take away the Liberty of the Press, and we are all at once stript of the use of our noblest Faculties: our Souls themselves are imprisoned in a dark dungeon: we may breathe, but we cannot be said to live.

Liberty of the press, as Milton argued for in what is considered one of the “most influential and impassioned philosophical defences” of the principle — here, taking the form of an absence of government licensing or censorship — is a prerequisite to the progress of knowledge, art, and science. Thomson was not alone in this sentiment.

Elsewhere, a London magazine from 1820 described the goal of the liberty of the press like this: “To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts”

And the first issue of the American Magazine of Useful and Entertaining Knowledge, published in 1834, included a brief article on newspapers, where it was writeen, “The progress of society has been onward, wherever there has been a free press maintained and encouraged. It has chased away much darkness from the civilized parts of the world, and spread light and knowledge in our path.”

Copyright Promotes Knowledge

The copyright statutes passed in the States prior to the drafting of the Constitution use similar language. The acts were passed with the purpose of “the encouragement of literature and genius” and the goal of, for example, “the improvement of knowledge, the progress of civilisation, and the advancement of human happiness.” The means of implementing this purpose to reach the goal was the securing of legal rights to “men of learning who devote their time and talents” to literature and genius.2

The impetus for these laws came in part from the efforts of authors like Joel Barlow. In 1783, he wrote the Continental Congress in favor of a copyright law. The famous poet and drafter of the Treaty of Tripoli told the Congress, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.”

Barlow’s letter encapsulated the reasoning behind the idea of copyright as an incentive to promote knowledge: literary and intellectual works took a considerable amount of time and resources to produce, and given the great public benefits that flow from them, some way of encouraging people to devote their time and resources to producing them was needed.

You can see this idea adopted and explained by others throughout the 19th century. In his famous speech to the English House of Commons in 1841, Thomas Babington Macaulay said:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

In 1853, Charles Bishop Goodrich published The Science of Government: As Exhibited in the Institutions of the United States, a popular early treatise on US government. His section on copyright takes the same view as Barlow and Macaulay:

Another power conferred upon congress was and is designed “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.” … The propriety of the power, and of its enlarged and liberal exercise, cannot be doubted. Individuals cannot devote their time and lives to the attainment of extensive or important knowledge, unless they can derive some personal benefit from their labor. In every useful invention, in the production of useful writings, the public have as much, and frequently a greater interest than the individual inventor or writer can have. Every measure which can with propriety be adopted to enlarge and extend the progress of science and of the arts, is calculated to accomplish the elevation of the people, and must therefore be regarded as of the utmost importance. The effect of our system, and the encouragement which it affords to the promotion of knowledge, has been apparent. Much advancement has been made, in fact it may be regarded as characteristic, and may be said of the American people, that they are progressive, inventive, and suggestive, in all their operations.

Patronage

At this point, one might think that the shared goals of a free press and copyright are only coincidental: one could easily find references to other means of promoting knowledge at the time. For example, in his first State of the Union address, President George Washington told Congress, “There is nothing which can better deserve your patronage than the promotion of science and literature,” but left it to them to decide “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients.”

Yet as the ideas of a free press and copyright developed, the relationship between the two strenghthened. There was something specific about securing legal rights to authors so that they may profit off their writings that not only advanced the arts and sciences but also advanced the principles of a free press.

As noted above, Macaulay spoke about two ways to remunerate authors: patronage and copyright. He follows that with an explanation of why the latter is more preferable to a free society:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Like Macaulay, Supreme Court Justice Joseph Story tied the freedom of the press and copyright together. In an 1826 discourse, Story wrote:

One of the most striking characteristics of our age, and that, indeed, which has worked deepest in all the changes of its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other times this was the privilege of the few; in ours, it is the possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who had no relish for active employment, and of those, whose monastic lives and religious profession sought to escape from the weariness of their common duties. Its progress may be said to have been gradually downwards from the higher to the’middle classes of society. It scarcely reached at all, in its joys or its sorrows, in its instructions or its fantasies, the home of the peasant and artisan. It now radiates in all directions; and exerts its central force more in the middle than in any other class of society. The means of education were formerly within the reach of few. It required wealth to accumulate knowledge. The possession of a library was no ordinary achievement. The learned leisure of a fellowship in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers was the narrow avenue to public favor. I speak of a period at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of life.

The principal cause of this change is to be found in the freedom of the press, or rather in this, cooperating with the cheapness of the press. … The daily press first instructed men in their wants, and soon found, that the eagerness of curiosity outstripped the power of gratifying it. No man can now doubt the fact, that wherever the press is free, it will emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he might exclaim with all the enthusiasm of Archimedes, and with a far nearer approach to the truth, Give me, where I may place a free press, and I will shake the world.

One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon the smiles of a favored few. The patronage of the great is no longer submissively entreated, or exultingly proclaimed. Their patrons are the public; their readers are the civilized world. They address themselves, not to the present generation alone, but aspire to instruct posterity. No blushing dedications seek an easy passport to fame, or flatter the perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawingroom. Authors are no longer the humble companions or dependents of the nobility: but they constitute the chosen ornaments of society, and are welcomed to the gay circles of fashion and the palaces of princes. Theirs is no longer an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits.

Copyright: a Critical Component of a Free Press

It would seem that Story and Macaulay’s view of copyright as an integral component of a free press held sway throughout the 18th century and into the 19th.

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

British lawyer James Paterson, in an 1880 commentary on the liberty of the press, speech, and public worship, said that ”When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom.”

Into the 20th century, we can find reaffirmation of these views. Historian Edward Bloom writes:

Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press.3

Finally, when legal scholars were just starting to develop the free speech critique of copyright, former Register of Copyrights Barbara Ringer offered these observations:

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public.4

The Engine of Free Expression

Nearly two centuries after the Bill of Rights and the first Copyright Act were passed, the Supreme Court said, “[T]he 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.”5

This metaphor, it would seem, accurately reflects the predominant historical view of copyright. Copyright and freedom of the press were seen as compatible, rather than contradictory, means to promote knowledge and learning. Liberty of the press freed the public from the caprice of the licensor, allowing diverse ideas and sentiments to disseminate. Copyright freed authors from patronage, providing security for the legal rights that encouraged devotion of time and talents to works that promote the progress of art and science.

Footnotes

  1. Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett. [↩]
  2. See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786). [↩]
  3. Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949). [↩]
  4. The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974. [↩]
  5. Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985). [↩]
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Copyright and Censorship

January 25, 2011 · · 8 comments

On January 19, 2011, members of New York City’s theater community and human rights supporters gathered to mark the one month anniversary of Belarus’ contested presidential election. The election was widely condemned as fraudulent, accompanied by the arrests of many peaceful protesters in Belarus with thousands more beaten.

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.

I’ve written about free speech and copyright several times in the past: noting the sometimes shaky relationship between artistic expression, the first amendment, and copyright; discussing the chilling effect of copyright infringement and the oft-forgotten speech interests of creators; and examining first amendment arguments against COICA and domain name seizures.

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.

Footnotes

  1. For more on Belarus and the Belarus Free Theatre, see Zone of Silence; Why Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest. [↩]
  2. Visit Voltaire: Voltaire Bio. [↩]
  3. Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964). [↩]
  4. 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.” [↩]
  5. Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.” [↩]
  6. New York Times v. US, 403 US 713, White concurrence n.1 (1971). [↩]
  7. Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985). [↩]
  8. A term coined by Frederick Schauer in First Amendment Opportunism. [↩]
  9. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004). [↩]
  10. David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004). [↩]
  11. Book Notices, 391 Yale Literary Journal 287 (April 1879). [↩]
  12. Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972). [↩]
  13. Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987). [↩]
  14. See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999. [↩]
  15. Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969). [↩]
  16. 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). [↩]
  17. 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). [↩]
  18. 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). [↩]
  19. A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). [↩]
  20. Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971). [↩]
  21. Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000). [↩]
  22. 478 US 697, 706 (1986). [↩]
  23. The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004). [↩]
  24. 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.” [↩]
  25. US v. Bodin, 375 F.Supp 1265). [↩]
  26. Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973). [↩]
  27. For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978). [↩]
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Artistic Expression, the First Amendment, and Copyright

September 24, 2010 · · 4 comments

The First Amendment is perhaps the most famous part of the Constitution. Defending People’s blogger Mark Bennett ran a tally of how many times each article and amendment (of the ten included in the Bill of Rights) in the Constitution was specifically mentioned in the week leading up to Constitution Day; the First Amendment was mentioned by bloggers nearly as many times as all others combined. In the words of the Oxford Companion to the Supreme Court of the United States, the Amendment “reflects vital attributes of the American character,” “is the cornerstone of the nation’s liberty,” and “is known and cherished by virtually all citizens.”

It may come as a surprise then, that very few cases concerning the First Amendment arose in the first hundred or so years of its existence. It wasn’t until after World War I that the Supreme Court began to develop many of the free speech doctrines we see today.1

What does this have to do with copyright? Well, if you take a closer look, you can see an inherent tension between the First Amendment and copyight law. The First Amendment prevents the government from restricting freedom of speech; copyright restricts the ability of a person to “speak” using the words of another.2

Like the development of modern free speech doctrines, this recognition of a conflict between the First Amendment and copyright law is a relatively recent phenomenon. It wasn’t until about the 1960s when the idea began to receive attention from legal scholars.3 It wasn’t until 1985 that the “kernels” of the modern doctrines addressing the tension between the First Amendment and copyright law were sown by the Supreme Court, in Harper & Row v. Nation Enterprises. In 2003, in Eldred v. Ashcroft, the Court fleshed out the current state of the law concerning the relationship between the First Amendment and copyright.

Simply put, the Court said, First Amendment concerns are adequately addressed by “copyright’s built-in free speech safeguards.” It noted two of those safeguards: the “idea/expression dichotomy” and the doctrine of fair use. It also suggested that there are supplemental safeguards, like copyright law’s exceptions for libraries and archives.

Criticisms of this approach began in earnest after Harper & Row and multiplied in the wake of Eldred.4 The overall theme is that copyright’s safeguards are not, in fact, adequate to address First Amendment concerns – specifically in cases of what I label “creative infringement.”5

But something is missing in the discussion about copyright and the First Amendment. For all the attention given to the First Amendment concerns of alleged infringers, there is scant attention devoted to the First Amendment concerns of infringees – artists and creators.

Artistic Expression and the First Amendment

Part of this lack of attention stems from how the subject matter of copyright – artistic expression – is viewed. As constitutional scholar Sheldon Nahmod states, “Artistic expression has been assigned a derivative and second-class status in the views of many first amendment thinkers, the Supreme Court, and other courts.”6 Much First Amendment scholarship focuses on protection of political speech, with other forms of speech – like artistic expression or commercial speech – relegated to the margins of the discussion.

This slighting of artistic expression in First Amendment theory is not historically unusual; many philosophic schools of thought have placed relatively little importance on the role of art in society. Some have been downright skeptical of artistic expression. Nahmod notes that, “According to Plato, the state must control art for the good of the society as a whole. Otherwise, art threatens the stability of the state.”7 He adds that contemporaries of Marx, too, “are so convinced of art’s influence that they view art as an appropriate subject for state control.”8

Artistic expression has been subjected to censorship in the US throughout its history, with restrictions largely aimed at sexual content. Book bans are not unheard of; the film industry has a storied past involving first local government ratings boards and, later, voluntary industry ratings systems. Industry groups play a role in protecting the slighted First Amendment rights of artists and creators. The RIAA states that part of is its mission is working to protect the “First Amendment rights of artists and music labels”; lest the more cynical readers think this is just PR lip-service, I point out the amicus brief filed just last week by the MPAA, RIAA, and other industry groups arguing that California’s recent law prohibiting the sale of violent video games to minors is unconstitutional.

But artistic expression can serve other purposes that make it, even absent any objectionable content, unworthy of more than second-class status in scholarly discussion. It can often be used as entertainment, a diversion from the drudgery of ordinary life. Here, we can draw analogies between artistic expression as entertainment and other forms of entertainment throughout history to see that this low opinion of artistic expression is not an anomaly. Sports have, at various times, been the subject of regulation or outright banning by governments. In England during the Middle Ages, soccer, bowling, golf, and other sports were the subject of bans at various times. Often, these bans reflected the idea that these sports diverted young men’s energy away from military training and were thus a threat to law and order.9

Despite its at-times uncomfortable fit within First Amendment theory and a general snubbery throughout history, artistic expression flourishes in the US. Movies and television shows created here are watched around the world. Jazz, rock and roll, and hip-hop have all arisen within the US. As a result of all of this, artistic expression in the US can sometimes find itself in an odd position. For example, in the late 80s and early 90s, several record store clerks were arrested for selling 2 Live Crew albums to minors;10 in 1994, the highest court in the US upheld that same group’s right to release a ribald, dirty parody of Roy Orbison’s Pretty Woman as fair use.11

Artistic Expression, the First Amendment, and Copyright

Attention to artistic expression’s place within First Amendment theory remains underdeveloped. However, within discussions of copyright law, the role of artists’ First Amendment rights is practically ignored.

What do I mean by the role of artists’ First Amendment rights within copyright law? Courts that have addressed the tension between the First Amendment have, as I stated above, said that copyright law has built in safeguards to protect the First Amendment rights of those who make use of copyrighted works. But there’s another side of the coin. In Harper & Row - repeated later in Eldred – the Supreme Court declared that “the Framers intended copyright itself to be the engine of free expression.”12 The metaphor adopted by the court explains how copyright and the First Amendment accomplish the same goal – the dissemination of new ideas – through distinct means. Copyright pushes the dissemination – by providing an incentive to create new expression – while the First Amendment removes the obstacles in the way of that dissemination.

In many ways, the copyright incentive provides the most free method to spread new ideas. We don’t have to rely on the wealthy to fund whatever expression captures their fancy. We don’t have to rely on government to fund whatever expression it deems serves the state. Instead, we have a society where the values of artistic expression – as beauty, sublime, frivolity, or entertainment – and the value of artistic expression is determined solely by its members and the market. Patrick Ross, of the Progress and Freedom Foundation, puts it this way:

Our culture is remarkably vibrant and expressive, and is consumed around the world (even if many of those global consumers enjoy deriding our culture while consuming it). We embrace freedom of expression. We don’t burn down buildings when someone publishes a cartoon we find offensive. A bookstore can display the latest David McCullough biography beside a paperback collection of bathroom jokes. In fact, our culture seems pretty indestructible (we’ve survived the lip-synching scandals of Milli Vanilli and Ashlee Simpson, after all). While there will always be those who appoint themselves guardians and protectors of our culture, we can recognize that they aren’t truly needed. That is, they aren’t needed as long as artists retain their longstanding role in the culture. Artists, through the flexible exercise of their rights bundles, allow the culture to be enriched. No corporation can lock that culture down, and no p2p pirate can significantly erode that culture, as long as society collectively thanks its artists by respecting property rights.

But you won’t find much discussion of copyright’s role in the dissemination of new ideas when First Amendment concerns are raised in the context of copyright law. The “engine of free expression” metaphor is mentioned only in passing, ignored, or even dismissed as a “judicial sound bite.”13 That’s just wrong. In any case of “creative infringement,” there are two sides to the “free expression” coin. Any discussion of free expression rights which focuses on the rights of only one side (the alleged infringer) while ignoring the other (the infringee) is incomplete.

Footnotes

  1. The Oxford Companion cites Justices Holmes’ and Brandeis’ dissent in Abrams v. United States (1919) as sowing the “kernels of modern free speech doctrine.” [↩]
  2. I use the terms ‘speak’ and ‘words’ here in a very broad sense, as copyright protection extends to subject matter beyond the written word. [↩]
  3. See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971) (predicting a “coming clash between ‘free speech and press’ principles and copyright clause exclusive-rights principles.” [↩]
  4. See footnote 2 of Alan Garfield, The Case for First Amendment Limits on Copyright Law, for a sampling of several dozen books and articles exploring the subject. [↩]
  5. One such example of the relevance of this distinction regarding the First Amendment and copyright is provided by Mark Lemley and Eugene Volokh, who agree that “there’s no First Amendment problem” for preliminary injunctions in “piracy and other ‘easy’ cases” of copyright infringement. Freedom of Speech and Injunctions in Intellectual Property Cases (1998). But free speech concerns have also been raised in cases of “consumptive infringement” – albeit on issues outside the scope of copyright law. ((See the EFF’s amicus brief in Achte-Nuente v. Does for one such example. [↩]
  6. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime and the First Amendment, Wisconsin Law Review (1987). [↩]
  7. Nahmod, p. 227 [↩]
  8. Nahmod, p. 224 [↩]
  9. Andrew Pittman, The Interaction of Sport and Law: Where Has it Been, Where is it Now, and Where is it Going?, 2 Journal of Legal Aspects of Sport 64 (1992). [↩]
  10. Steve Jones, Ban(ned) in the USA: Popular Music and Censorship, 15 Journal of Communication Inquiry 73 (1991). [↩]
  11. Campbell v. Acuff-Rose Music, 510 US 569 (1994). [↩]
  12. 471 US 558 [↩]
  13. Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003): 233. [↩]
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