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In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions.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 the First Amendment: The Unexplored, Unbroken Historical Practice, Part 3

December 19, 2011 · · 3 comments

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

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

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

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

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

Freedom of the Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Permissible Prior Restraint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And this is from the Supreme Court in 1971:

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

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

Footnotes

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

November 22, 2011 · · 5 comments

“If you would understand anything,” said Aristotle, “observe its beginning and its development.”

Understanding the historical relationship between copyright and the First Amendment is especially relevant today, with free speech concerns raised over pending rogue sites legislation — the PROTECT IP Act in the Senate and the Stop Online Piracy Act in the House — and domain name seizures — the Second Circuit will be hearing arguments about whether the seizure of the Rojadirecta domain names constitute a prior restraint in December.

Copyright law has long provided for preliminary injunctive relief (I believe the provisions of PROTECT IP and SOPA can be seen as a species of preliminary injunctive relief), and to a lesser extent, seizure and forfeiture. Over much of the 20th century, courts have turned to the First Amendment to strengthen procedural requirements in cases involving obscenity, libel, or news reporting. Yet preliminary relief for copyright infringement — whether injunctive, through actual seizures, or otherwise — has remained immune from any successful procedural First Amendment challenge.

Why is this?

The question is difficult to answer because most of the attention on the relationship between copyright and free speech has come only recently. Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent. Since then, however, and especially after the passage of the Digital Millennium Copyright Act and Copyright Term Extension Act in the late 1990s, many have turned their attention to finding contradictions between free speech and copyright.1

While the focus on contradictions is recent, earlier scholars had noted that copyright infringement at the very least plays by different rules when it comes to the First Amendment:

It is quite evident that no new principles of liberty were intended to be set forth by the First Amendment, and that, however enticing a philosophical theory of freedom of the press and of speech may be, the guaranty must be construed with reference to the common law which gave it birth. When Blackstone declared in 1769 that the liberty of the press consisted in placing no previous restraints upon publications, he was not laying down a new principle of constitutional theory, but merely stating what he believed to be the existing law. Apparently his generalization was too broad. Injunctions against the infringement of a copyright were not infrequent in his day.2

This quote suggests that the reason why equitable remedies for copyright infringement — injunctions and seizures especially — have withstood First Amendment scrutiny where those same remedies would fail in other cases remains somewhat of a mystery.

The beginnings and development of copyright and the First Amendment are still under-observed: Eldred v. Ashcroft devoted a scant two sentences to that history to show that, since the Copyright Act of 1790 and the First Amendment were adopted close in time, they are compatible.

I believe a closer look at the historical record can shed more light on this mystery (though I don’t mean to suggest in any way that I am the first to do so).3 I think this historical record shows a number of reasons why copyright law, though not “categorically immune from challenges under the First Amendment”,4 has nevertheless existed comfortably alongside the First Amendment.

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Literary Property

Of course, any mention of “copyright” and “property” in the same sentence nowadays can cause some to go in a tizzy. Partly this is due to an impoverished concept of property; that property only refers to tangible objects (forgetting about intangibles like stocks, bonds, promissory notes, and other financial instruments), or that copyright can’t be property because infringement doesn’t deprive the holder of possession or ownership (except if I smash your car window, we’d say I violated your property rights even though you still possess the same amount of glass). Setting aside these naive arguments, the modern critique of copyright as property goes something like this: Although it is entirely correct to characterize copyright as property in a descriptive sense, we shouldn’t characterize copyright as property in a normative sense, because that would be bad, from a policy standpoint.5 These arguments are beyond the scope of this article — I’m concerned with whether copyright was thought of as property when the First Amendment was first enacted.

Indeed it was. In 1792, James Madison wrote that “property” has a “larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage“; this meaning includes more than just “a man’s land, or merchandize, or money.”6 Legal scholar Adam Mossoff describes this concept of property as the “dominant” understanding of property in 18th and 19th century America.7

And copyright certainly fit within this understanding of property at the time — it was referred to as “literary property” more often than not. Copyright was expressly described as property in several of the State copyright acts that predated the US Constitution.8 The Supreme Court has classified and referred to copyright as property throughout its history — in 1823, for example, the Court stated, “The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source. It extends to literary property, the fruit of mental labour.”9

In 1839, the New York Chancery Court decided Brandreth v. Lance, a libel case and “the first American court decision setting aside a government action on constitutional free speech or free press grounds.”10 But in refusing to enjoin the libelous publication, the court implicitly notes that an injunction for copyright infringement would not infringe upon the liberty of the press:

It is very evident that this court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. …

The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. …

But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence.11

The court also notes in a footnote, “There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright” (Emphasis added).

Liberty of the Press does not Limit Copyright Injunctions

The idea that copyright is a property right and injunctions to protect property rights do not infringe free speech remained throughout the 19th century and into the 20th. The Columbia Law Review wrote in 1913:

This immunity from an injunction, while applicable to libels, is not similarly applicable to other forms of injurious publications where the historical requirement of a jury trial is not so pressing. Accordingly, where the act of publication results in intimidation and coercion it is treated as an ordinary crime, and the liberty of the press does not then limit the jurisdiction of equity to protect property. Furthermore, according to the prevailing view, it seems that a publication, no matter how innocent in itself, may be enjoined if it is made in pursuance of a scheme which has an enjoinable element. Thus, although the courts are at variance as to whether an injunction may issue against a boycott, they are agreed that wherever such is the case, publications in aid thereof, even if libels, cannot claim the protection of the guaranty. In establishing this doctrine they assert that the right to engage in a lawful occupation is not less essential than that of free speech. In order, therefore, to obtain the greatest possible freedom of action and speech equally for all, these conflicting constitutional rights must be exercised in accordance with the maxim, Sic utere tuo ut alienum non laedas. Certainly, the press should not be employed unjustifiably to ruin another’s occupation, and where such ruin is imminent the injunction, though a dangerous weapon, becomes a proper one [Emphasis added].12

And in 1971, Justice White of the Supreme Court itself weighed in, noting that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”13

Today, preliminary injunctions are common in copyright cases, and seizures of infringing goods are common, both through courts and administrative agencies. At the same time, while defendants have increasingly raised First Amendment defenses in the past 40 years, those defenses have almost without exception been unsuccessful.14

Call it what you will — a permissible prior restraint, a First Amendment exception, or a recognition of competing liberty interests — there is an unbroken historical practice of providing remedies for copyright infringement that would constitutionally fail in other areas of the law. This practice is premised in part on the view that copyright is a property right, and freedom of expression does not shield a defendant from invasions of property rights. As seen above, this premise appears to be established by the time of Blackstone’s Commentaries and has been alluded to several times since then.

Unbroken historical practice is obviously not ipse dixit proof of the constitutional firmity of a practice. But the development of the historical practice does increase our understanding of these issues today. Also, as mentioned earlier, the historical record reveals other reasons why the conflict that critics see between free speech and copyright has not been embraced by courts, reasons that I hope to write about in future posts.

Footnotes

  1. More detail on the history of copyright and First Amendment scholarship at my post, Copyright and Censorship. [↩]
  2. Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913). [↩]
  3. See, for example, Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies (2008) — and I’m always interested in learning about other examples. [↩]
  4. Eldred v. Ashcroft, 537 US 186, 221 (2003). [↩]
  5. See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, ”What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”;  Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. ”We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.” [↩]
  6. James Madison, Property. [↩]
  7. Is Copyright Property? 42 San Diego Law Review 29, 41 (2005). [↩]
  8. “Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783), New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).

    “An act for securing to the authors of literary works an exclusive property therein for a limited time.” Virginia Copyright Statute (1785) (title).

    “An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785). [↩]

  9. Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”; Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright; Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”; Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”. [↩]
  10. Eugene Volokh, Flag Burning and Free Speech, Wall Street Journal, July 3, 2009. [↩]
  11. Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839). [↩]
  12. Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 1917), ”In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.” [↩]
  13. New York Times v. U.S., 403 US 713, J. White, concurrence, n.1 (1971). [↩]
  14. I provided examples in previous posts, including ICE Seizures Criticism: Magic Words, Responding to Sellars: Copyright and Content-based Regulations, and Rojadirecta seeks refuge in First Amendment. [↩]
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Rojadirecta seeks refuge in First Amendment

September 21, 2011 · · 14 comments

 

Puerto 80 Projects has filed its opening brief in its appeal of the Southern District Court of New York’s denial of its petition to release its Rojadirecta domain names — which had been seized by ICE as property used to facilitate criminal copyright infringement — prior to the completion of the civil forfeiture proceeding. It separately has a motion to dismiss before the court in that proceeding, which I wrote about last week.

Puerto 80 spends considerable time explaining why prior restraints are bad and what procedures are required under the Constitution. This point is indisputable and uncontroversial — preventing prior restraints is considered the “chief purpose” of the First Amendment.1 But what they don’t do is spend much time explaining why this particular seizure is a prior restraint.

In fact, they don’t explain why at all — they just flat-out state, “The government’s ex parte seizure of Puerto 80’s domain name constituted a prior restraint on speech.” Later, they repeat, “The government’s seizure of the subject domain names constitutes an unlawful prior restraint on speech that suppresses Puerto 80′s users’ and readers’ protected First Amendment activities.”

But calling something a prior restraint doesn’t make it a prior restraint. As the Supreme Court pointed out over 50 years ago, “The phrase ‘prior restraint’ is not a self-wielding sword.”2

The Defining Characteristics of a Prior Restraint

Ironically, Puerto 80 cites to Alexander v. US to support its first statement that this seizure is a prior restraint. It quotes the Court’s statement that “Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” But that doesn’t mean all restraining orders or injunctions are prior restraints — like the forfeiture of Alexander’s bookstores in this case, which the Supreme Court held constitutional.

More importantly, the Court later notes the reason to be careful with the “prior restraint” label. It said, “Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, see it is important for us to delineate with some precision the defining characteristics of a prior restraint.”

The second case Puerto 80 cites to for its self-defining statement provides a clue as to one of these defining characteristics: “An order that prohibits the utterance or publication of particular information or commentary imposes a ‘prior restraint’ on speech” (Emphasis added).

A prior restraint does not refer to any and all suppression of First Amendment activities; the suppression must reference specific subject matter or viewpoint. Although the Supreme Court has never fully defined “prior restraint”, it has been clear that only content-based injunctions can constitute prior restraints.3

For Puerto 80 to succeed in its prior restraint argument, then, it must show that this seizure was content-based. But how can this be? The First Amendment activities that it claims were suppressed revolve around the “forum discussions on the Rojadirecta.com and Rojadirecta.org sites”, which included “political discussions, commentary, and criticism by the site’s users.”  Surely Puerto 80 isn’t claiming that the government seized the domain names because of the content of those discussions — that it perhaps wanted to restrain certain opinions about baseball games.

Now, if the government did want to suppress a site because of the message it conveyed and used the Copyright Act — or any other generally applicable statute — as a pretext, then that likely would be an impermissible prior restraint. But no one is seriously suggesting that anything of that sort has occurred here.

The only way this seizure could be characterized as a prior restraint is if Puerto 80 can convince the court that the restraint of the copyright-protected material on the site is content-based. It attempts to do so, in an argument confined to a footnote. The only legal support for its claim comes from a law review article — co-written by Mark Lemley, one of the attorneys for Puerto 80.

The article hardly counts as legal support: it makes the argument that copyright injunctions should be treated more as prior restraints because currently, and historically, they have not. Indeed, preliminary injunctions in copyright are common, as are pretrial seizures of infringing materials and tools.

Admittedly, the seizure of a domain name to be forfeited as property facilitating copyright infringement is only a recent development. But Puerto 80 makes no attempt to distinguish this action from other copyright injunctions and sanctions.

Prior Restraint in Napster

Puerto 80′s argument is reminiscent of the prior restraint argument made by Napster.

Like Puerto 80, Napster stood in the shoes of its users and argued against a proposed preliminary injunction because it “would silence the entire Napster community, violating not only Napster’s free speech rights, but those of its users as well.” This injunction would be “particularly egregious because it would silence the Napster community in advance of any ruling by the Court confirming that Napster’s directory is protected by the First Amendment. Courts have uniformly viewed any injunction that could act as a prior restraint on free speech as presumptively invalid.”

The District Court disagreed with Napster — noting that in the realm of copyright injunctions, “free speech concerns ‘are protected by and coextensive with the fair use doctrine.’” The court addressed the injunction’s reach to non-infringing portions of Napster’s service, like its message boards and chat rooms. Napster could continue to operate those with the injunction, but

In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an “all-or-nothing predicament.” Even if it is technologically impossible for Napster, Inc. to offer such functions as its directory without facilitating infringement, the court still must take action to protect plaintiffs’ copyrights.

Napster appealed the grant of the preliminary injunction to the Ninth Circuit on a number of grounds, among them its continued belief that the injunction was an impermissible prior restraint. The court, however, recognized this as a frivolous argument, saying only that it would “briefly address Napster’s First Amendment argument so that it is not reasserted on remand.”

We note that First Amendment concerns in copyright are allayed by the presence of the fair use doctrine. There was a preliminary determination here that Napster users are not fair users. Uses of copyrighted material that are not fair uses are rightfully enjoined.4

Copyright and First Amendment Challenges

The fact that the domain name seizure isn’t a prior restraint doesn’t mean there’s no First Amendment issue. The Supreme Court has said that “content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression”5 and also that criminal and civil sanctions having some incidental effect on First Amendment activities are subject to First Amendment scrutiny “where it was conduct with a significant expressive element that drew the legal remedy in the first place … or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity.”6 But these are distinct arguments that Puerto 80 does not raise in its opening brief.

Nevertheless, it should be remembered that there’s good reason why prior restraint is rarely found in cases involving copyright. Copyright is “the engine of free expression”, and infringement causes harm to a copyright holder’s free speech rights.7 What’s more, copyright has “built-in free speech safeguards” that reduce the need for relying on First Amendment doctrines like prior restraint.

We’ve even seen courts explicitly resolve infringement cases on fair use grounds which had earlier been resolved on First Amendment grounds. In Triangle Publications v. Knight-Ridder Newspapers, the appellate court began, “For years, Courts and commentators have recognized a potential conflict between copyright and the First Amendment. However, until the District Court’s opinion in the case now before us, no Court had ever held that a copyright suit could be defeated by a First Amendment defense. We affirm the result reached by the District Court, but disagree with the Court’s rationale. Contrary to the District Court, we hold that fair use constitutes a valid defense to the copyright infringement suit involved in this case.”8

In most cases concerning infringement, free speech is raised only as a “self-wielding sword” — ”the last refuge of an infringing scoundrel”.9 When a case doesn’t involve some question of legitimate appropriation of a copyrighted work, “few courts” allow defendants “to hide behind the first amendment.”10 Based on the court filings so far, it’s my opinion that there’s no legitimate appropriation here, only a web site that seems keen on raising every defense it can to avoid responsibility for facilitating infringement.

A CAMP Conference is scheduled for October 3rd; the reply brief from the US is due November 15th.

 

Footnotes

  1. Near v. Minnesota, 283 US 697, 713 (1931). [↩]
  2. Kingsley Books v. Brown, 354 US 436, 441 (1957). [↩]
  3. DVD Copy Control Ass’n v. Bunner, 75 P.3d 1 (Cali Sup. 2003), citing Thomas v. Chicago Park Dist., 534 US 316 (2002). [↩]
  4. A&M Records v. Napster, 239 F.3d 1004, 1028 (9th Cir. 2001). [↩]
  5. Thomas v. Chicago Park at 323. [↩]
  6. Alexander v. US at 557, quoting Arcara v. Cloud Books, 478 US 697, 706-07 (1986). [↩]
  7. See Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010); Speech interests of creators; and The chilling effect of copyright infringement. [↩]
  8. Compare this to Suntrust Bank v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001), where the court vacated a preliminary injunction against the author of The Wind Done Gone, a parody of Gone With the Wind. Although it used the term “prior restraint” in its opinion, the injunction was vacated since the defendant’s strong fair use defense made it unlikely the plaintiff would succeed on the merits of the case. [↩]
  9. L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987). [↩]
  10. Sid & Marty Krofft TV v. McDonalds, 562 F.2d 1157, 1170-71 (9th Cir. 1977). [↩]
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Rojadirecta Seeks Return of Seized Domain Names

July 13, 2011 · · 5 comments

A company owning domain names that had been seized by ICE as part of its efforts to fight online piracy is seeking their return pending the outcome of the Government’s forfeiture proceeding against them. On Monday, the US filed its memorandum of law opposing the return.

“Rojadirecta.com” and “Rojadirecta.org” were seized on February 1, 2011, as part of ICE’s third phase of Operation in Our Sites. The owner of the domain names, Puerto 80 Projects, and its legal counsel engaged in informal discussions with the government to return them, but Puerto 80 ultimately refused to accept the government’s condition that it stop facilitating copyright infringement in order to get its domain names back.

On March 22, Puerto 80 filed Seized Asset Claim Forms, identifying itself as owner of the domains and giving the US 90 days to file a forfeiture complaint in federal court. The US filed the complaint within the time frame, on June 17.

A few days earlier, Puerto 80 filed a petition for release of seized property. The petition and memorandum of law in support are available here. The EFF filed an amicus brief as well, available here.1

On Monday, July 11, the US filed its memorandum of law in opposition to the petition.

If the court grants the motion, it doesn’t mean Puerto 80 wins, it just means possession of the domain names will be returned to Puerto 80 during the forfeiture proceedings. The court may also enter any order necessary to ensure the property’s value is maintained while the proceeding is pending (like requiring Puerto 80 to post a bond), and the government may place a lien on it to prevent its transfer to another person.2 If the government eventually wins its forfeiture case, than the domain names are given back to be destroyed.

In many ways, this procedure is similar to a criminal defendant being released on bail after arrest and before trial.

Federal judicial forfeiture actions are governed by Supplemental Rule G of the Federal Rules of Civil Procedure. Those rules state that someone seeking return of seized property pending the outcome of a forfeiture proceeding may petition the court under 18 USC § 983(f).3

Section 983(f) lays out five conditions that must be met for a court to release property that is the subject of a forfeiture proceeding. It requires that:

(A) the claimant has a possessory interest in the property;

(B) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;

(C) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;

(D) the claimant’s likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and

(E) none of the conditions set forth in paragraph (8) applies.

Paragraph (8) states that release of seized property is unavailable if the property:

(A) is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;

(B) is to be used as evidence of a violation of the law;

(C) by reason of design or other characteristic, is particularly suited for use in illegal activities; or

(D) is likely to be used to commit additional criminal acts if returned to the claimant.

In its petition, Puerto 80 says it meets all these requirements. The substantial hardship caused by the continued possession of the domain names that Puerto 80 claims include a reduction in traffic, a loss of business goodwill, and deprivation of its users’ and visitors’ First Amendment rights.

The US responds that Puerto 80 hasn’t shown it satisfies the requirements of 983(f) and doesn’t mince words in doing so:

In attempting to provide justification for granting this extreme remedy, Puerto 80 seeks to characterize the website it operated under the Rojadirecta Domain Names as an online discussion forum and, in so doing, would have this Court decide, on an expedited basis and without a fully developed factual record, a variety of issues that are more properly raised either in a motion to dismiss the Government’s Verified Complaint or following a period of discovery. Indeed, through its petition, Puerto 80 is attempting to use a limited provision of forfeiture law designed to provide relief in only the rarest of circumstances in order to mount a broader challenge to a widely employed tool of law enforcement.

Specifically, the US argues that the hardships cited by Puerto 80 are not the substantial ones Congress intended when it wrote 983(f). Looking at both the case law and legislative history, the US points out that, especially in light of the examples given by the statute — ”preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless” — potential loss of goodwill and a 1/3 drop in traffic don’t qualify.

The US states that Puerto 80′s inclusion of the impact on the First Amendment rights of its users as a substantial hardship borne by Puerto 80 “borders on frivolous.” If there’s a First Amendment issue here, Puerto 80 must raise it in the forfeiture proceeding, not shoehorn it into a 983(f) petition.

Finally, the US states says the return of the domain names is likely to result in their further use in committing criminal copyright infringement, since it has no reason to believe Puerto 80 will stop the acts that led to the domain names being seized in the first place.

This portion is worth a read, as the US takes the time to elaborate on its theory of the case against the domain names — why it believes they facilitate criminal copyright infringement. It says “Puerto 80′s attempts to liken itself to an Internet search engine is wholly unavailing. Unlike a search engine or other site that aggregates links to existing content neutral material on the Internet, Rojadirecta organizes links to very specific content in a precise and targeted way.”

The US goes on to argue that even if Puerto 80 isn’t engaged in direct infringement on its website, it “certainly has engaged in contributory infringement, and has aided and abetted the infringement of others.”

My thoughts: this seems like an easy call for the court to make in favor of the US. Courts have read the “substantial hardship” requirement for these petitions strictly. An example given in the statute is “preventing the functioning of a business” — the case law suggests a substantial hardship is closer to completely preventing, ie a business would be forced to declare bankruptcy without the property seized, the functioning than significantly impeding the functioning.

The various substantive issues raised by Puerto 80 are more appropriately raised in the forfeiture proceeding itself. I don’t doubt they’ll do exactly that. But the 983(f) petition is a limited remedy, and I’d be surprised to see a court rule on substantive issues at this point.

Some other thoughts: Puerto 80 and the EFF devote considerable time to arguing that these seizures amount to an improper prior restraint under the First Amendment, and many in the blogosphere have shared this view. Those concerns extend to the pending PROTECT IP Act, since its provisions will largely depend on domain name seizures such as this.

The US disagrees, and its brief remarks on the issue in its memorandum suggest it’s approaching the issue similarly to how I’ve approached it here in previous posts.4 The government notes that the discussion forums remain on Rojadirecta’s site and are still accessible through other domain names, where case law dealing with seizures and the First Amendment have focused on whether or not the seizure actually removes expressive material from circulation.

In a footnote, the US states: “Indeed, it is clear from the record before this Court that the Government’s seizure of the Rojadirecta Domain Names was prompted by enforcement of the criminal copyright laws, and not as regulation of speech or other expressive conduct. As such, the seizure is not properly viewed as a prior restraint. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S.697, 706 n.2 (1986).”

Finally, a word about the Spanish court decision finding Rojadirecta not liable for copyright infringement. The US notes that this doesn’t preclude Rojadirecta for being liable for violating US copyright law. Generally, any business that operates in a country is subject to that country’s laws; you can’t, for example, operate a mail-order marijuana business in a country where that substance is legal and ship to US customers without getting into trouble.

The EFF argues, however, that the district court should give the Spanish court decision preclusive effect under the principle of comity. I don’t find this argument convincing.

A nation’s courts aren’t required to take a foreign court’s decisions into consideration (except when specifically required by a treaty agreement between the two countries).5 But they generally will do so under the concept of comity, unless there’s a strong policy reason not to. Comity is based on respect between nations and the presumption that other nations will reciprocate.

Typically, comity shows up when someone asks a court to enforce a foreign court’s judgment. The EFF states, however, that “the principles apply more broadly.” They do, but not in the general sense the EFF suggests.

Giving effect to a foreign court decision means treating it as if it was a US court decision. That means it prevents the relitigation of either the same claim between the same parties that had already been decided (“res judicata”) or the same issue that had already been decided in an earlier case involving one of the parties (“collateral estoppel”).

I don’t think either res judicata or collateral estoppel preclude the forfeiture of these domain names. The parties are different: the Spanish case involved Spanish copyright owner Audiovisual Sport S.L. and the operators of Rojadirecta, this case is between the US government and the Rojadirecta domain names. The issues are largely different too: the primary issue in the Spanish case was whether the website infringed on copyrights, the primary issue here is whether the domain names facilitated the infringement of copyrights. Indeed, the Spanish court even said in its decision, “The actions of making available and advertising the games that are transferred facilitate download”.6

The court has 30 days to rule on Puerto 80′s petition unless both parties consent to an extension. More on this case as it develops.

Footnotes

  1. I’m curious to know if this is the first time anyone has filed an amicus brief for this type of petition. [↩]
  2. 18 USC § 983(f)(7). [↩]
  3. FRCP Supplemental Rule G(8)(d)(i). [↩]
  4. See COICA: First Amendment, Domain Name Seizures Don’t Violate First Amendment, ICE Seizures Criticism: Magic Words A Response to ‘Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections’, and Responding to Sellars: Copyright and Content-based Regulations. [↩]
  5. By contrast, US states are required to recognize judgments made in another state’s courts under the Full Faith and Credit Clause of the Constitution. [↩]
  6. Declaration of Igor Seoane Miñán, Exhibit 1. [↩]
Posted in: Copyright news · 5 comments

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A Response to ‘Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections’

April 04, 2011 · · 37 comments

Two weeks ago, I discussed some of the criticisms of domain name seizures in ICE Seizures Criticism: Magic Words. It was, in part, a response to those who argue the seizures are unconstitutional — among them US Representative Zoe Lofgren and attorney David Mackarewicz, who continued the discussion in his response, Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections.

I made it a point to highlight the use of certain “magic words” in the debate — like “prior restraint” and “due process” — not, as Mackarewicz says, to “question the motives” of the seizures’ critics, but to bring to the forefront how they can be used in constitutional arguments.

Nobody wins popularity contests defending the constitutionality of a government action. It’s not hard to imagine a typical debate going like this:

“I think x is unconstitutional.”

“I disagree.”

“Why do you hate the constitution?”

Mackarewicz provides a perfect example of this right in the title of his response, claiming that supporters of these seizures “undervalue” constitutional protections. Presumably, this would include noted First Amendment advocate Floyd Abrams among those who undervalue the constitution, since he has concluded that COICA (which would use in rem forfeiture of domain names) does not run afoul of free speech protections.

Others are more blunt. Mike Masnick writes, “One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns,” citing my article as an example.

So you can see why constitutional arguments have special considerations different from other types of arguments. The temptation is always there to label those who don’t accept the argument that something is unconstitutional as foes of freedom.

Contrary to these accusations, I do value the Constitution and its protections against censorship and undue process. I can’t speak for others who believe the domain name seizures are constitutional — literally millions of Americans1 — but I imagine they value it too.

With that said, I want to respond specifically to some of the arguments raised by Makarewicz.

Due Process

It bears repeating what the due process issue is here: whether a hearing is needed prior to the seizure of domain names, alleged to facilitate copyright infringement, for the purpose of forfeiture, to give any claimants the opportunity to challenge the government’s probable cause determination.2 There is little doubt that, assuming the process is constitutional, domain names can be forfeited, it’s just a question of what process is constitutional.

Makarewicz writes, “The most troubling issue has undoubtedly been the series of Government domain name seizures, through which the DHS takes the domain names of accused infringers without first giving the accused a chance to defend their site at a hearing.” Later, he refers, quite correctly, to the rule that “a Government taking prior to notice and a hearing is not the norm, but is limited to “extraordinary circumstances.” There are only a few recognized exceptions to the rule that requires notice and a hearing prior to a deprivation of property.

However, one of those exceptions is when the government seizes property for the purpose of forfeiture. The Supreme Court has plainly said this on more than one occasion in recent history. In her concurrence-dissent of US v. James Daniel Good Real Property, Justice O’Connor writes:

We have already held that seizure for purpose of forfeiture is one of those “extraordinary situations,” Fuentes v. Shevin, 407 U. S. 67, 82 (1972) (internal quotation marks omitted), in which the Due Process Clause does not require predeprivation notice and an opportunity to be heard. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 676-680 (1974). As we have recognized, Calero-Toledo “clearly indicates that due process does not require federal [agents] to conduct a hearing before seizing items subject to forfeiture.” United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); see also United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986). Those cases reflect the commonsense notion that the property owner receives all the process that is due at the forfeiture hearing itself. (Emphasis added).3

Prior Restraint

As Floyd Abrams points out, “injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations.” Arguments that actions similar to seizure of domain names are prior restraints have been raised and answered by various courts already.4

But even if the seizure of a domain name could be considered a prior restraint, as Makarewicz argues, it doesn’t necessarily follow that a pre-seizure hearing is required.

When seizures raise First Amendment concerns, courts have only gone as far as to say that they require “rigorous procedural safeguards” to conform with the Constitution.5 For instance, in Roaden v. Kentucky, the Supreme Court held that the First Amendment, at a minimum, requires a warrant before seizing obscene materials. “The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression,” said the Court.6 But in a footnote, it added, “This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte.”7

That same year, in Heller v. New York, the Court reiterated the fact that seizures of expressive works do not always require an adversary proceeding prior to executing the warrant. “This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.”8 It explained that its reversal of a Kansas State Court judgment ordering the seizure of 1,715 copies of 31 novels in A Quantity of Copies of Books v. Kansas,9 based in part on the lack of an adversary hearing on the matter, did not create a blanket rule. ”In Mishkin v. New York,383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra … If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing.”10

The “classic” notion of a prior restraint involves some sort of licensing for publications or censor board to review whether certain items could be distributed to the public. That notion has been gradually broadened over the decades to include a range of government actions and laws that suppress speech before a final judicial determination that it is unprotected by the First Amendment.

Even so, while looking at prior restraint doctrine as courts and scholars have examined it, it seems to me that prior restraint still requires some kind of, well, restraint.

One common thread in these cases is that a prior restraint involves a prohibition on future expressive conduct. So, for example, the RICO forfeiture order examined by the Supreme Court in Alexander v. United States was not an improper restraint because it didn’t forbid the owner from any expressive conduct or require approval for any future expressive conduct. Said the Court, “the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials.”11

In Vance v. Universal Amusement Co., the Court held that a Texas nuisance statute (specifically, the portion of the statute naming the “commercial exhibition of obscene material” as a prohibited use) could not be used to close down movie theaters. Any such injunction would effectively prohibit the “future exhibition of unnamed films.”12

Another thread you see in the prior restraint cases is that they involve the removal of speech from circulation.

  • But there is no doubt that an effective restraint—indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public’s opportunity to obtain the publications was thus determined by the distributor’s readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized.13
  • “It is our view that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. … A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.” (Emphasis added).14
  • “In this case, of course, the film was not subjected to any form of ‘final restraint,’ in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.”15 “But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.”16
  • “Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.” (Emphasis added).17
  • “In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.”18

Looking at the above and other cases involving prior restraints, it’s difficult to see how seizing the domain name of a website dedicated to infringement is a prior restraint without taking too many logical leaps. No one is prohibited from expressing themselves now or in the future. The content on the websites remains in circulation.

That’s not to say that a specific domain name seizure can’t be a prior restraint. If the government seizes a domain name for the purpose of suppressing speech on that site it doesn’t like, under the guise of copyright laws, child pornography laws, or any of the other laws where forfeiture of facilitating property is authorized, then yes, most likely that is an unconstitutional prior restraint.

But that situation can be dealt with if it ever arises. The possibility that a law can be abused doesn’t make it unconstitutional; otherwise, I don’t know if we’d have any laws left! The Supreme Court itself has weighed in on this subject. ”The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them … Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.”19

Why Domain Name Seizures are Needed

One of the responses to this is to question why the domain names are seized at all if they are seemingly ineffective since the content remains online.

But they are effective. Remember, the domains are seized because they are property that facilitate criminal conduct —copyright infringement — occurring due to the sites. The domain name provides an easy to remember address that attracts more visitors to these sites. They allow better search engine optimization for the sites — in many cases pirate sites appear above sites offering the same content legitimately in search results. Most of these sites earn revenues from advertising — Brian McCarthy, arrested last month after his domain was seized, made $90,000 in three years off his site, and Torrent-Finder, seized last November, made over $15,000 in one year from only one of its advertising providers — so traffic and good search results are key to their success.

And the government has a legitimate interest in seizing domain names before a hearing. Seizure is needed to establish jurisdiction over the property for a forfeiture proceeding. Securing the exclusive rights of copyright holders is one of the enumerated powers of Congress listed in the Constitution, rights that the sites connected to the domain names are alleged to continually violate. While a domain name can’t be “destroyed” in the same sense as tangible property, a site owner can easily cancel the domain and get a new one if given a “heads up” by ICE, destroying the connection between the domain name and the site where the infringement is occurring. Finally, the infringement facilitated by the domain names causes irreparable and ongoing harm to copyright holders’ First Amendment rights, adding to the need for seizing without a pre-seizure hearing.20

Obviously, seizing domain names won’t eliminate piracy, but that was never their goal. Content industries have been dealing with one form of piracy or another as long as they’ve been around, so they know more than anyone that complete eradication is impossible. But the seizures do have an impact. They disrupt the operation of pirate sites, making it more difficult to engage in and profit off of infringement. And if a new version of COICA passes, the effect of the seizures will be even greater.

I don’t expect critics of the seizures to agree with the above. But they can express their disagreement without calling into question how much creators value constitutional freedoms — especially when they help fuel the “engine of free expression.”

To borrow some words of wisdom from the late Chief Justice Warren Burger, these critics “sound the alarm of repression.” But “to equate the free and robust exchange of ideas and political debate with” copyright infringement “demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press.’”21

Footnotes

  1. See the November 17, 2010 letter from nine unions representing over 3 million members to Senator Leahy in support of COICA; the Joint Statement Regarding ‘Combating Online Infringement and Counterfeits Act’ from four unions representing over 300,000 entertainment and media workers; and the January 18, 2011, letter from dozens of companies of all sizes supporting Operation in Our Sites for just three such statements of support. [↩]
  2. See US v. James Daniel Good Real Property, 510 US 43, 78 (1993): “At any hearing—adversary or not—the Government need only show probable cause that the property has been used to facilitate a drug offense in order to seize it; it will be unlikely that giving the property owner an opportunity to respond will affect the probable-cause determination.” [↩]
  3. 510 US 43, 74 (1993). [↩]
  4. See Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394, n.11 (9th Cir. 1997); A & M Records v. Napster, 114 F.Supp.2d 896, 922-23 (ND Cali 2000); Universal City Studios v. Reimerdes, 82 F.Supp.2d 211, 224-27 (SDNY 2000). [↩]
  5. Fort Wayne Books v. Indiana, 489 US 46, 62 (1989). [↩]
  6. 413 US 496, 504 (1973). [↩]
  7. 413 US at n.5. [↩]
  8. 413 US 483, 488 (1973). [↩]
  9. 378 US 205 (1964). [↩]
  10. 413 US 483, n.8. [↩]
  11. 509 US 544, 550-51 (1993). [↩]
  12. 445 US 308, 314 (1980). [↩]
  13. Marcus v. Search Warrant, 367 US 717, 736 (1961). [↩]
  14. Quantity of Copies of Books v. Kansas, 378 US 205, 210 (1964). [↩]
  15. Heller v. New York, 413 US 483, 490 (1973). [↩]
  16. Id. at 492. [↩]
  17. Fort Wayne Books v. Indiana, 489 US 46, 67 (1989). [↩]
  18. Roaden v. Kentucky, 413 US 496, 504 (1973). [↩]
  19. Caplin & Drysdale, Chartered v. US, 491 US 617 (1989). [↩]
  20. See, for example, Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010): “‘[t]he loss of First Amendment freedoms,’ and hence infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury’; also see my posts on Speech Interests of Creators and The Chilling Effect of Copyright Infringement. [↩]
  21. Inspired by his opinion in Miller v. California, 413 US 15, 34 (1973). [↩]
Posted in: Copyright Criticism · 37 comments

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ICE Seizures Criticism: Magic Words

March 21, 2011 · · 21 comments

The seizure of around 100 domain names over the past eight months by the US Immigration and Customs Enforcement agency (ICE) continues to draw discussion.

Silicon Valley Representative Zoe Lofgren has recently voiced her criticisms of the domain name seizures to Intellectual Property Enforcement Coordinator Victoria Espinel. Additional criticisms come from attorney and Sites and Blogs writer David Makarewicz, who last week wrote five reasons why the domain name seizures are unconstitutional. Chris Greenwood, of the Phoenix Independent Examiner, compares the arrest of Bryan McCarthy — one of the first individuals arrested in connection with Operation in Our Sites — to Muammar Gaddafi’s brutal crackdown on his own people.

Hyperbole aside, criticisms of the seizures often center around the use of certain magic words: “due process” and “prior restraint”.

In an interview with Ars Technica, Rep. Lofgren says without further detail, “[ICE's] effort to essentially seize — I think illegally — these domain names lacks due process.” Later, responding to an RIAA letter that addressed her First Amendment concerns regarding the seizures, she said bluntly, “This is prior restraint of speech, and you can’t do that in America.”

I’ve previously explored the constitutional issues surrounding both the domain name seizures and the related Combating Online Infringement and Counterfeits Act (COICA) here.1 In addition, noted First Amendment scholar Floyd Abrams has done a much better job than me addressing the First Amendment issues surrounding COICA, concluding that it doesn’t run afoul of the Constitution.

Nevertheless, criticisms seem to return again and again to the same charges — No due process! Prior restraint! — as though repeating these words enough will magically make domain name seizures unconstitutional.

But it won’t. Let’s see why.

Fourth Amendment

When discussing these domain name seizures, it’s always helpful to remind ourselves that “seizure” and “forfeiture” are two distinct events.2 Seizure is the initial taking of property into the government’s custody to establish jurisdiction for a civil in rem proceeding.3 Forfeiture is the final deprivation of the property without compensation. I think there’s little doubt that, assuming all aspects of the proceedings leading to a forfeiture are constitutional, the forfeiture of domain names are very much constitutional.4

So what does the constitution require for an initial seizure of property? The Fourth Amendment says, quite clearly, that seizures must be “reasonable,” and must be accompanied by warrants issued “upon probable cause” and “particularly describing” the “things to be seized.”

Simple enough. You can see the warrant and affidavit for the first round of domain name seizures yourself. Probable cause? Check. Particular description of things to be seized? Check.

That would end our constitutional inquiry if the Fourth Amendment provided the full measure of due process required in property seizures. But according to the Supreme Court, it doesn’t. “Though the Fourth Amendment places limits on the Government’s power to seize property for purposes of forfeiture,” said the Court in 1993,  ”it does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings.”5 [Emphasis added]. Seizures must still satisfy the due process requirements written into the Fifth Amendment.

Fifth Amendment

The Fifth Amendment, of course, provides that “No person … shall be deprived of life, liberty, or property, without due process of law.”

At a very basic level, due process means that government must act in accordance with law, as opposed to acting according to its whims. It also requires minimum levels of regularity and fairness in the procedures used by government.6 Even more basically, due process requires notice and a hearing before a final deprivation of life, liberty, or property.

The general process for a criminal trial should be familiar to most of us: an alleged offender is arrested (a seizure of a person), charges are filed, a trial is held, and a verdict is given. Process for a civil in rem forfeiture is much the same: property is seized, a complaint is filed, a trial is held, and a verdict is given. Like other civil proceedings, if no one shows up to defend the property, a default judgment is given.

Some critics have gone so far as to claim that the forfeiture process here lacks notice and a hearing. That’s simply untrue. The forfeiture complaint for the first group of domain names seized is available online for anyone to see for themself. No claimants have felt the need to contest these forfeitures, so the government is currently requesting a default judgement.

Notice of each of these seizures were sent to whatever name and address was used to register the domain name, as well as being posted on forfeiture.gov. Never mind the giant banners plastered on the web sites whose domain names were seized. If you woke up one day and saw that instead of your own web site, I think it’s fair to say that you would be put on notice that something was up.

The more realistic criticism is a far narrower one: do these seizures require that the hearing occurs before the domain name is seized. This is the criticism that Makarewicz raises. He states, “This right to prior notice and hearing is not a minor legal technicality.  It is an indispensible aspect of due process.  It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.” He goes on to correctly point out that, despite this indispensable aspect, “Over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement.”

Makarewicz concludes that these exceptions aren’t present here; the seizures aren’t exempted from the requirement to provide a hearing before they occur. I disagree.

Keep in mind, though the seizure of domain names themselves is relatively recent, seizing property in general is old as dirt — asset forfeiture is typically traced to Biblical times, and one of the first laws passed by Congress in 1789 provided for it.7 The particular federal forfeiture statutes at issue here are decades old.

And it’s not like they are little-used, obscure laws. Asset forfeiture has been a primary tool in the drug war since the 1980′s, for example. So it would be considerably surprising if constitutional objections to the laws haven’t been heard by courts.

But they have. The question of whether the statutes used to seize these domain names requires a pre-seizure hearing has been answered. In US v. E-Gold, the District Court of DC held that “the circumstances giving rise to the seizure of assets upon probable cause that the assets were used in violation of specified criminal statutes meets the ‘extraordinary circumstances’ three-part test for seizure without a predeprivation hearing.”8 The Western District Court of Kentucky also acknowledged that exceptions to a predeprivation hearing “apply in civil forfeiture actions” under § 983.9 In US v. Bajakajian, the Supreme Court itself heard an Eighth Amendment challenge to a federal forfeiture action, one that occurred without a predeprivation hearing, lending further credence to the lawfulness of the process involved under these laws.

Bottom line, case law from the lowest courts to the Supreme Court over a period of decades fully supports the notion that these seizures comply with due process.

Won’t Somebody Think of the First Amendment?

Due process claims against a decades old law that has been thoroughly tested in courts don’t convince me, but critics of the domain name seizures have another magic word to rely on: prior restraint.

As I point out in Copyright and Censorship, a claim that the First Amendment is being violated is powerful; who wants to say they’re against free speech?

And among First Amendment claims, the most powerful charge is that a certain action amounts to a “prior restraint.” Since the birth of the concept of freedom of speech, it has widely been accepted that a prior restraint on speech is far worse than subsequent punishment of speech.10

For that very reason, prior restraint is very powerful as a magic word. So much so that the Supreme Court has addressed the need for caution. “The phrase “prior restraint” is not a self-wielding sword,” it said in Kingsley Books v. Brown. “Nor can it serve as a talismanic test.”11

Critics often rely on a string of cases where the seizure of large quantities of expressive materials without a prior judicial determination that they were not protected by the First Amendment was found to be a prior restraint.12 But the key distinction is that it is only the property interest in a domain name that is being seized here, not the content of the web site itself or the servers that the content resides on. A domain name is not like 1,715 books (what was seized in Quantity of Copies of Books v. Kansas) no matter how you spin it. Saying that seizing the domain name is kind of like seizing the content is like saying someone is “kind of pregnant.”

What’s more, those cases all involved obscenity.13 Whether a specific work is obscene or not is a legal determination, one that cannot be made by law enforcement officials, which is why courts have called for stronger procedural safeguards when obscene materials are seized. Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don’t need a judge to determine that something depicts a minor engaged in explicit sexual conduct.14

Copyright infringement — especially the consumptive infringement at issue here rather than creative infringement where questions of fair use or substantial similarity can be raised — is similarly an objective question. Law enforcement officials, with the aid of copyright holders, can tell for themselves that yes, this web site is distributing Toy Story 3, and no, they do not have permission.

Seizures of infringing materials bear out the fact that stronger procedural guarantees are not applicable in the copyright context. The argument that the obscenity seizure cases apply was explicitly rejected in Jondora Music Publishing v. Melody Recordings.15 In US v. Bodin, the defendant’s First Amendment argument against seizure was dismissed even more explicitly and summarily, with the court stating, “We do not find any denial of freedom of expression to the ‘tape pirate.’”16 You can see implicit support of this proposition too; for example, the 9th Circuit upheld the seizure of 25,000 infringing recordings in Duchess Music v. Stern pending a hearing on the merits.17

Finally, the Supreme Court itself has eluded to the constitutionality of restraining the distribution of infringing materials prior to an adversarial hearing when it said, “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”18

Domain name seizures are not prior restraints in any sense of the word. They aren’t made based on the content of any expression. They do not remove any expression from circulation. And they don’t bar any future expression from either the web site owner or its users.

This conclusion is buttressed by the Supreme Court’s holding in Arcara v. Cloud Books, which upheld the closure of a bookstore under a general nuisance statute for its role as a place of prostitution and lewdness. Said the court:

The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited — indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.19

In Alexander v. US, the Court applied the same reasoning to uphold a forfeiture of a number of bookstores based on defendant’s conviction under RICO for obscenity violations, despite the defendant citing to the same string of obscenity cases previously discussed. Chief Justice Rehnquist noted that the forfeiture

[D]oes not forbid petitioner to engage in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials …20

While not a prior restraint on expression, domain name seizures do have an impact on noninfringing expression on web sites — blog posts, message boards, etc. However, this impact does not impinge on First Amendment protections.

As Floyd Abrams concludes, these domain name seizures are not unconstitutionally broad. Further support for this conclusion comes from courts upholding injunctions that applied to both infringing and noninfringing aspects of a defendant’s product or service. The court in A&M Records v. Napster put it this way: “Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.’”21

Conclusion

David Makarewicz questions the government’s interest in protecting its citizens’ copyrights, saying “preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing.” But the question of the government’s interest in stopping piracy is not some sort of abstract, philosophical inquiry.

Securing creators’ copyrights is one of Congress’s powers. Even if one ignores all the evidence about the economic harms of piracy, and the irreparable harm it causes to creators’ own free speech rights and the chilling effect it has on future expression, the fact remains that of the handful of enumerated powers given to the Legislative branch by the Framers of the Constitution, promoting the progress of the arts by securing creators’ exclusive rights is one of them. And since 1790, copyright laws have been in place to advance this goal.

As the 10th Circuit noted recently,  ”Copyright serves to advance both the economic and expressive interests of American authors. In addition to creating economic incentives that further expression, copyright also serves authors’ First Amendment interests.”22 These interests, and the challenges of enforcing them online, have led to these domain name seizures.

The criticisms of the seizures are essentially disagreements over policy dressed up as constitutional concerns — much like the disagreement over extending term limits in Eldred v. Ashcroft. There, Justice Ginsburg noted that “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms.” The same is true here; critics don’t like the domain name seizures or COICA and have brought the Constitution into play to add rhetorical heft to their disagreements.

I personally think domain name seizures, especially if combined with a COICA-type law that encourages other companies within the internet ecosystem to take reasonable measures to ensure their services aren’t used to harm creators, are a valuable tool for minimizing the harms of piracy. Questioning this policy is fair, but painting these actions as violating the constitution, and repeating the same magic words instead of providing real arguments — while providing no alternative solutions in their place — only detracts from the debate.

Footnotes

  1. See COICA: Due Process, COICA: First Amendment, Feds Seize Domain Names, Domain Name Seizures Warrant and Probable Cause, and Domain Name Seizures Don’t Violate First Amendment. [↩]
  2. See, e.g., Marine Midland Bank v. US, 11 F.3d 1119, 1124 (2nd Cir. 1993). [↩]
  3. The Brig Ann, 13 US 289, 291 (1815), ”In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the Court. It is actually within its possession when it is submitted to the process of the Court; it is constructively so, when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem.” [↩]
  4. Though forfeitures are subject to the Eighth Amendment: US v. Bajakajian, 524 US 321 (1998). [↩]
  5. James Daniel Good Real Property, 510 US 43. [↩]
  6. See Peter Strauss, Due Process, Legal Information Institute. [↩]
  7. See In Depth: A History of Asset Forfeiture, Las Vegas Review-Journal, April 1, 2001, for a brief timeline. [↩]
  8. 521 F.3d 411, 417 (2008). [↩]
  9. US v. Content of Accounts, 3:10-CV-228-H, June 21, 2010. [↩]
  10. See, e.g., Nebraska Press Assn v. Stuart, 427 US 539 (1976), “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”; Balboa Island Village Inn v. Lemen, 156 P.3d 339, 323-32 (Cali S.Ct. 2007), discusses at length the history and doctrine of prior restraints. [↩]
  11. 354 US 436, 441 (1957). [↩]
  12. Notably Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U. S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964); Roaden v. Kentucky, 413 U. S. 496 (1973), and Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46 (1989). [↩]
  13. Alexander v. US, 509 US 544, 551 (1993). [↩]
  14. US v. Kimbrough, 69 F.3d 723 (5th Cir. 1995). [↩]
  15. 362 F.Supp. 494, 500 (D. NJ 1973), seizure without prior adversary hearing didn’t violate defendant’s First or Fifth Amendment rights. [↩]
  16. 375 F.Supp. 1265, 1267 (WD. Ok. 1974). [↩]
  17. 458 F.2d 1305 (1972). [↩]
  18. New York Times v. US, 403 US 713, J. White, concurrence, n.1 (1971). [↩]
  19. 478 US 697, n.2 (1986). [↩]
  20. 509 US 544, 550-51 (1993). [↩]
  21. 114 F. Supp.2d 896, 922-23 (ND Cali 2000), citing Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997). [↩]
  22. Golan v. Holder, 609 F.3d 1076, 1084 (10th Cir. 2010). [↩]
Posted in: Copyright Criticism · 21 comments

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Domain Name Seizures Don’t Violate First Amendment

January 17, 2011 · · 6 comments

Earlier this month, Techdirt posted a rebuttal to my article on last November’s domain name seizures. If you recall, the warrant and affidavit for the seizure of five domain names as part of the US government’s Operation in Our Sites 2.0 made its way online. Techdirt initially pointed out what it saw as errors in the warrant and affidavit in a series of posts. I responded by noting that whatever errors are in the warrant and affidavit are largely irrelevant. Seizure warrants must only show probable cause that the property in question was used to facilitate the commission of a crime — not prove it.

Techdirt followed up:

[T]he biggest flaw in Hart’s argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required … In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause.

Fair enough. Let’s pay some attention to whether these seizures violate the First Amendment.

We’re talking here about “prior restraints”. The doctrine can be summed up as “speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment”,1 though the simplicity of that statement belies the complexities and nuances of the doctrine that courts have wrestled with as they’ve applied it.

In the US, prior restraints on speech are considered worse than punishments given after speech is made. Courts are especially suspicious of prior restraints; but at the same time, they recognize that simply labeling something a “prior restraint” does little. As the Supreme Court explained in Kingsley Books v. Brown:

The phrase “prior restraint” is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: “What is needed,” writes Professor Paul A. Freund, “is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.”2

In this case, we’re talking here about whether the seizure — the initial taking of the property into governmental custody to initiate forfeiture proceedings — is an impermissible prior restraint. Whether the ultimate forfeiture of these domain names violates the First Amendment is a completely separate question; though, for purposes of this article, I’m assuming that they would not. Forfeiture after a final judicial determination generally doesn’t raise First Amendment issues, even if it results in some blocking of protected speech.3

The argument that these domain name seizures violate the First Amendment comes down to timing: does the First Amendment require a hearing before the domain name is seized, or are the procedures available after a seizure occurs — the Rule 41(g) motion, the actual forfeiture proceedings, etc — adequate?4

The answer to that question is actually not an easy one to answer. As far as I know, no court has heard a First Amendment challenge to the seizure of a domain name as property used in the facilitation of a crime in order to be forfeited.5

As I see it, we’re actually dealing with three separate questions here.

  1. Are the domain names that have been seized considered “expressive content” such that a higher bar than seizure of ordinary property is required?
  2. Are the seizures predicated on presumptively protected speech — the allegedly infringing works disseminated on the sites — so that, in effect, they are akin to seizing expressive content and thus require the same higher bar?
  3. Is there a high enough burden caused by the seizures on the other expressive content on these web sites — message boards, blog posts, etc — making these seizures an impermissible prior restraint?

I’ll take a look at each of these questions in turn.

The Expressive Content of Domain Names

As Techdirt correctly points out, the seizure of expressive works differs from the seizure of other types of property. From Constitution of the United States, Analysis and Interpretation:

Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases. Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures … Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity.

The Supreme Court has struck down several large-scale seizures of allegedly obscene materials, which are presumptively protected by the First Amendment — Marcus v. Search Warrant, 367 US 717 (1961); Quantity of Copies of Books v. Kansas, 378 US 205 (1964); Fort Wayne Books v. Indiana, 489 US 46 (1989). Of these, though, only Quantity of Copies of Books explicitly held that a hearing was required before the seizure.6

The Court has also upheld as constitutional the seizure of a limited number of copies of materials to preserve as evidence — Heller v. New York, 413 US 483 (1973); New York v. PJ Video, 475 US 868 (1986). These seizures didn’t require a prior hearing, only a prompt adversary hearing.7

So how do we fit the domain name seizures within these cases?

We don’t.

All of the above cases involve the seizure of an expressive work because of the content. Whether the seizure is for the purpose of evidence or forfeiture, the fact remains that what was seized was seized because of the message it conveyed — most often, that message being allegedly obscene.

But with the domain names at issue, the seizures were not based on the content of the domain name itself. The web sites could be called “torrent-finder.com”, “xyyzzx.com” or even “piracy-harms-creators.com” — the name itself is irrelevant. Instead, these seizures were made because the domain  names are allegedly property8 used to facilitate the commission of a crime (copyright infringement).9

Domain names themselves can contain expressive content, though admittedly not much. Whether or not the First Amendment is implicated in any sort of regulation that targets domain names is all about context: domain names are not automatically entitled to or excluded from First Amendment protections. “The appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.”10

Perhaps the area where the First Amendment comes into play with domain names most often involves so-called “gripe sites.” The Anticybersquatting Consumer Protection Act (ACPA) allows for the forfeiture of domain names similar to a trademark owner’s mark when they were registered in bad faith — ie, for the sole purpose of selling the domain name to the trademark owner. But here, just as with obscene books, it’s the content of the domain name itself at issue. ACPA gives way to the First Amendment when the domain name is used to express an opinion rather than as a trademark.

The cases above just don’t apply here. The domain names seized are not like books — ICE didn’t target them because it disagreed with what the site owner called the site. Even if a court recognizes a specific domain name as containing an expressive element, it is unlikely to prohibit its seizure under these circumstances.11

Seizure as Pretext

Our analysis doesn’t stop here. It could be argued that the seizure of these domain names is predicated on their role in copyright infringement. If the seizures were, for example, predicated on allegedly being obscene or libelous, they might be impermissible prior restraints. That is, until there is a final judicial determination that the content of the sites is obscene or libelous, the content is assumed to be protected speech, so any attempt to block it before such a determination is not allowed by the First Amendment.

This argument can be quickly dismissed. Copyright infringement is simply not treated the same as obscenity or libel for First Amendment purposes. One example of this is that preliminary injunctions are routinely granted in copyright infringement cases while they are routinely denied in libel or obscenity cases due to the risk of prior restraint. While many have argued that copyright law should be subjected to heightened First Amendment scrutiny, the fact remains that courts have yet to accept this argument.12

But even among those who question the traditional treatment of copyright and the First Amendment, a distinction is made between creative and consumptive infringement. Mark Lemley and Eugene Volokh, who argue that preliminary injunctions in copyright cases are unconstitutional, don’t believe their argument reaches to “piracy and other ‘easy’ cases.” As they explain:

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

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

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement … courts can, pursuant to the Copyright Act’s authorization, preliminarily enjoin speech that clearly falls within the “copyright exception” without violating the First Amendment. So long as there’s a reliable determination on the merits that the speech does fall within the exception–rather than just a finding that the speech might fall within the exception–courts may act even based on only a tentative determination of other, constitutionally irrelevant, factors related to the copyright claim. This may inadvertently lead to temporary suppression of speech that ultimately proves to be noninfringing, but it won’t lead to temporary suppression of speech that is constitutionally protected. (Emphasis added)13

In other words, what Lemley and Volokh are saying, and what courts have implied over the years, is that the type of wholesale copying of a work present on the sites whose domain names were seized — as opposed to copying that falls within the bounds of fair use or is somehow transformative in nature — is not free speech within the First Amendment. It may be authorized by the copyright owner, but it is not protected by the Constitution.

We can think of seizures as cousins of preliminary injunctions — both deprive the alleged infringer of something before a full determination on the  merits. If preliminary injunctions in copyright cases — especially ones involving piracy or consumptive infringement — aren’t prior restraints, than neither are seizures.

Incidental Burdens

The final argument is that seizing these domain names impacts the expressive content on web sites unrelated to infringing works — forum and blog posts, articles, public domain works being shared, etc. There’s no question that seizing a domain name has some impact on whatever content exists on a web site. The question is whether this impact violates the First Amendment.

The challenge here is that one could argue that just about every law or regulation impacts free speech. Being thrown in prison limits your ability to speak to the public; a fine reduces the amount of money you have to spend on disseminating your message.14

We need some way to sort out when a law that isn’t aimed at speech but has an incidental impact on speech runs afoul of the First Amendment and when it doesn’t. The Supreme Court has provided one way to sort this out: when the conduct that a generally applicable law is aimed at contains an expressive element, then the application of that law in that case must take the First Amendment into consideration, otherwise, the First Amendment doesn’t apply.

In US v. O’Brien, the defendant was charged with destroying his Selective Service registration certificate during a protest. The Court noted that while the law prohibiting mutilation of such cards was aimed at nonexpressive conduct, in this case the burning of the card was done to express an opinion. The Court then provided a test, still followed today, to determine if the First Amendment was violated in situations like this. That test provides that, when conduct prohibited by law contains an expressive element, the First Amendment is not violated if the law in question (1) “is within the constitutional power of the Government”, (2) “furthers an important or substantial government interest”, (3) “the governmental interest is unrelated to the suppression of free expression”, and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”15 Ultimately, O’Brien’s conviction was upheld under this test.

If O’Brien applies to these domain name seizures, there is a chance they are not allowed under the First Amendment. The seizures almost certainly satisfy the first three prongs of the test: copyright is specifically authorized in the constitution,16 protecting copyrighted works from online piracy furthers an important government interest,17 and the seizures are certainly not aimed at suppressing whatever is being said on these web sites’ forums. That leaves the fourth prong, and while I can see making an argument that seizing the domain name of a web site places too great a burden on free speech, I’m inclined to think it doesn’t. The expressive content is still available online, it can be accessed by IP address, and getting a new domain name for the site is a nominal process (something many of the site owners did).18

However, it’s more likely that O’Brien doesn’t apply here. The Court in Arcara v. Cloud Books held that O’Brien only applies “where it was conduct with a significant expressive element that drew the legal remedy in the first place.” When the conduct a law targets lacks an expressive element, then the First Amendment doesn’t apply, even though the law effectively blocks incidental, protected expression.

The conduct targeted here is copyright infringement, not posting in message boards. The unauthorized distribution of copyrighted works is not protected by the First Amendment. These web sites were not involved in any sort of expressive activity through such copyright infringement. Since the seizure of their domain names was aimed at preventing this conduct, Arcara controls, and the First Amendment is not implicated.19

Conclusion

The effectiveness of these seizures remains to be seen. This story indicates that in some cases, they do seem to have had some disruptive effect. And if Congress passes a new version of the Combating Online Infringement and Counterfeits Act, this method of addressing online piracy will become even more effective.

Regardless of their ultimate effectiveness, the fact remains that reducing online piracy requires innovative approaches. Seizing domain names of sites dedicated to piracy is one such novel approach — one that does not damage freedom of speech.

The Supreme Court has said in the past:

It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice. See Tigner v. Texas, 310 U. S. 141, 148. If New York chooses to subject persons who disseminate obscene “literature” to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that “Liberty of speech, and of the press, is also not an absolute right,” 283 U. S., at 708, it likewise made clear that “the protection even as to previous restraint is not absolutely unlimited.”20

Footnotes

  1. Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). [↩]
  2. 354 US 436, 441-42 (1957). [↩]
  3. See, eg, Arcara v. Cloud Books, 478 US 697 (“Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises”); 511 Detroit Street v. Kelley, 807 F.2d 1293 (6th Circ. 1986) (“We refuse to hold that a statute threatening fines that could impair the operation of a business is an impermissible prior restraint on expression, even where that business also involves dissemination of protected materials. The fact that a person does some business disseminating protected materials cannot immunize that person from large fines that may be imposed for violation of criminal law”); A&M Records v. Napster, 114 F.Supp.2d 896 (ND Ca 2000) (“In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.’”); US v. Pryba, 674 F.Supp. 1504 (ED Va 1987) (“The First Amendment cannot be a shield for criminal activity … The forfeiture remedy, properly construed and applied, does not impermissibly restrain further dissemination of speech”). [↩]
  4. Techdirt, then, is not quite correct in asserting that the domain name seizures have occurred with no adversarial hearing. As I pointed out earlier, the forfeiture complaint for the first round of domain name seizures was filed in court last month, providing for a hearing. [↩]
  5. In CDT v. Pappert, 337 F.Supp.2d 606, a District Court struck down a state law requiring ISP’s to block access to web sites providing child pornography because it was overbroad for First Amendment purposes. But while the process used to block access to the sites was sometimes similar to the procedure used by ICE to seize these domain names, the similarities end there: (1) the state law involved obscenity rather than copyright infringement,  (2) ISP’s frequently blocked entire IP addresses rather than single domains, resulting in the blocking of thousands of unrelated and innocent web sites since multiple web sites can share the same IP address, and (3) the law provided no meaningful notice or hearing to owners of sites that had been blocked. CDT is simply not applicable to these seizures. [↩]
  6. Some courts and commentators have stated that Fort Wayne does as well. However, I would argue, as at least one other court has, that Fort Wayne does not, in fact, state such a rule. The rule the Court did state is far more elusive: “while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” A Missouri District Court, however, explains that rather than a lack of pre-seizure hearing, theFort Wayne seizure was improper because “it was premised upon the fact that ‘the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect.’ Since there had been no preseizure hearing to establish probable cause on the issue of obscenity, the Court reasoned that probable cause to believe a RICO violation had occurred was inadequate to remove allegedly obscene books or films from circulation.” BAP v. McCulloch, 994 F.Supp. 1131, ED Mo. 1998. [↩]
  7. Another case I’ve seen mentioned is Bantam Books v. Sullivan, 372 US 58 (1963). I don’t believe the case is applicable here; what’s more, it says little about the issue of the timing of hearings for prior restraint, saying only that prior restraints are tolerated when the judicial determination is “almost immediate.” [↩]
  8. As to the question of whether or not domain names can be considered property used to facilitate a crime for purposes of 18 USC § 2323, the answer is most likely yes. The 9th Circuit has used a three-part test to determine if something is property: (1) “There must be must be an interest capable of precise definition”, (2) “it must be capable of exclusive possession or control”, (3) “the putative owner must have established a legitimate claim to exclusivity”. (Kremen v. Cohen, 337 F.3d 1024). The court concluded that “domain names satisfy each criterion.” In addition, courts have ordered the forfeiture of domain names as part of criminal copyright infringement sentences — see, eg, here and here. Under 18 USC § 2323, the definitions for property subject to criminal forfeiture and civil forfeiture are the same. [↩]
  9. As to the question of whether linking to infringing material can be considered facilitating the commission of copyright infringement, the answer again is likely yes. See Eugene Volokh, Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), citing “Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (holding that the publisher of a link to an infringing site may be contributorily liable for the infringement that the link facilitates); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293-96 (D. Utah 1999) (enjoining defendants from ‘post[ing] on defendants’ website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff’s copyright’); 17 U.S.C. § 512(d) (2000) (providing a safe harbor from damages liability to people who link or refer to infringing material, but only if they didn’t know it was infringing); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455-58 (2d Cir. 2001) (enjoining publication of links to a page containing material that violated the Digital Millennium Copyright Act)”. [↩]
  10. Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Circ. 2005) quoting Name.Space v. Network Solutions, 202 F.3d 573 (2nd Circ. 2000). [↩]
  11. For a similar First Amendment analysis, check out Aaron Burstein, Stopping Internet-Based Tobacco Sales, 16 Health Matrix 279 (2006) which concludes that domain name seizure is a permissible commercial speech regulation. [↩]
  12. See Eldred v. Ashcroft, 537 US 186 (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. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.” “Or, we add, to copy, or enable the copying of, other people’s music,” In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). [↩]
  13. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). [↩]
  14. See Arcara v. Cloud Books, 478 US 697, 706 (1986). [↩]
  15. 391 US 367, 377 (1968). [↩]
  16. US Const. Art 1 § 8. [↩]
  17. See, for example, the 2010 Joint Strategic Plan on Intellectual Property Enforcement: “Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that.” [↩]
  18. I also don’t think the burden these seizures place on the site visitor’s right to access the content on these sites violates the First Amendment, in line with Supreme Court rulings like Kleindienst v. Mandel, 408 US 753 (1972). [↩]
  19. See Sequoia Books v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) for a court applying Arcara to a case involving forfeiture. [↩]
  20. Kingsley Books v. Brown, 354 US 436 (1957). [↩]
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COICA: First Amendment

November 29, 2010 · · Comments Off

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

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

Prior Restraint

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

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

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

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

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

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

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

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

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

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

As the court in CDT v. Pappert explains:

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

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

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

Overbreadth

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

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

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

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

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

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

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

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

Footnotes

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