Copyhype

Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.

“Constitution time is over.”

For academic and self-proclaimed “copyright activist” Lawrence Lessig, January 18, 2012, represents more than just the day the internet stood up to copyright law. In his view, it’s also the day “the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” For it was on that day that the Supreme Court handed down its decision in Golan v. Holder, ¹Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). or as Lessig puts it, it’s the day the Court signaled to the copyright bar: “Constitution time is over.” Lessig’s defeatist attitude is understandable. He had spent the past thirteen years representing four different plaintiffs challenging various copyright laws on constitutional grounds. Two of the cases were even heard by the Supreme Court; all four cases ended in resounding defeat for Lessig’s various constitutional arguments. ²See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). Upset with Congress’s treatment of copyright, it’s not surprising that Lessig would turn to the courts. To get a court to strike down a copyright statute, he had to constitutionalize the issue—courts simply aren’t in the business of second-guessing legislative choices unless those choices violate the Constitution. The problem for Lessig, though, was that the Constitution itself provides few limits on Congress’s power to create copyright laws. But “few limits” does not mean “no limits.”

One of Lessig’s major arguments was that a copyright law must give way to First Amendment concerns, and it’s that particular notion that I’ll focus on in this article. While Lessig may have been defeated on this argument in that he didn’t like where the Court ultimately drew the line between copyright and free speech, as we’ll see, he was certainly vindicated in that the Court definitively recognized that copyright must in fact significantly give way to free speech interests. One culmination of Lessig’s thirteen-year-long legal battle against copyright law in the federal courts is that the Supreme Court has given us a test to use in determining whether a copyright statute has run afoul of free speech—the “traditional contours” test. And contrary to Lessig’s complaint that this test forecloses meaningful First Amendment challenges to copyright, the test instead, I think, reasonably reflects the fact that free speech and copyright promote the same public good. This sentiment is reflected in something the Court said over two decades ago: “it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” ³Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

There is no doubt that copyright, in some sense, burdens free speech. The First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” At the same time, however, the Copyright Clause allows Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” But by creating a law that secures to an author a copyright in his work, Congress has inevitably created a law that abridges free speech. Copyright, just like any other type of personal property, provides its holder with the “right to exclude others from using his property.” ⁴Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”). It follows then that a copyright law burdens free speech since others are not free to speak that which a copyright protects. But, under the Constitution, how much can copyright burden free speech, exactly? Thanks to Lessig’s efforts, we now have the “traditional contours” test that answers just that question.

An Amorphous Test

In Eldred v. Ashcroft, ⁵Eldred v. Ashcroft, 537 U.S. 186 (2003). the Supreme Court squarely addressed a First Amendment challenge to the Copyright Term Extension Act (CTEA). ⁶Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304). Lessig himself participated in the oral arguments before the Court. The CTEA provided for an additional twenty years of copyright protection for most works, even those that were currently under copyright. Petitioners (Lessig’s clients) included individuals and businesses who depended on works that had fallen into the public domain for their products or services. Petitioners argued that, but for the CTEA, they would have been able to exploit works that otherwise would be in the public domain. Therefore, by extending the copyright term for these works, Congress had impermissibly abridged petitioners’ free speech rights. In light of this perceived conflict, petitioners asked the Supreme Court to find the CTEA unconstitutional under heightened First Amendment judicial scrutiny. Heightened scrutiny simply refers to how important the legislature’s ends must be, and how well those ends must fit with the means chosen to accomplish them. The greater the scrutiny, the more likely it is that a statute will be struck down as unconstitutional. So the party challenging a statute almost always argues for greater scrutiny, while the defending party, naturally, argues the opposite.

The Court declined the invitation to apply heightened scrutiny, instead agreeing with respondents that none was needed. Said the Court: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” ⁷Eldred, 537 U.S. at 219. In the Court’s view, imposition of heightened judicial scrutiny was not necessary because copyright law already contains two built-in First Amendment accommodations. The first, known as the idea/expression dichotomy, ⁸The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” ⁹Eldred, 537 U.S. at 219. The second, known as the fair use defense, ¹⁰The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”). “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” ¹¹Eldred, 537 U.S. at 219. According to the Court, these built-in accommodations strike a good balance between copyright and free speech since they allow for the free flow of ideas while providing only partial protection for an author’s particular expression.

The Court explained further that the “First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” ¹²Id., at 221. Petitioners’ asserted right to speak other people’s copyrighted works did raise First Amendment concerns, said the Court, but these concerns were adequately addressed by copyright’s built-in free speech protections. And then, in what can be described as an afterthought, the Supreme Court announced the “traditional contours” test: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” ¹³Id. The “traditional contours” test, then, is a simple conditional statement: If Congress did not alter copyright’s “traditional contours” when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny. In other words, a court will not have to look at how important the ends are, or how closely those ends fit the means chosen to accomplish them, so long as copyright’s “traditional contours” have not been altered in creating the statute. Lower courts sorely needed a test like this to apply when faced with a free speech challenge to a copyright statute. The problem, unfortunately, was that no one knew what these “traditional contours” were because the Court didn’t really say. How could courts apply the test if they didn’t even know when the test applied? And what exactly is (or isn’t) included within these “traditional contours”?

Kahle Tests The Waters

The year after the Supreme Court opinion in Eldred was handed down, a district court in California attempted to apply the newly-minted “traditional contours” test. In Kahle v. Ashcroft, ¹⁴Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004). plaintiffs (Lessig’s clients), including the Internet Archive, were in the business of taking works that had fallen into the public domain and posting them on the Internet. They brought suit challenging the constitutionality of the Copyright Renewal Act (CRA) ¹⁵Copyright Renewal Act of 1992, Pub.L. 102-307. and the CTEA on First Amendment grounds. The CRA removed the renewal requirement for works created between 1964 and 1977, and it provided that the copyrights for these works would be automatically renewed for a second term. Before the CRA, these works would have only received a second term if their owners had filed for a renewal. Now, they went full-term without the owners doing anything. The CTEA, as we just saw in Eldred, added an additional twenty years of copyright protection to these now automatically-renewing works. Plaintiffs argued that, but for the CRA and the CTEA, the vast majority of the works created between 1964 and 1977 would have fallen into the public domain on January 1, 2004. Rather than a conditional copyright regime that required authors to take affirmative steps to extend the copyright term for their works, the challenged statutes created an unconditional copyright regime where copyright protections were extended automatically. This transition from a conditional to an unconditional system—in effect, from one that was “opt in” to one that was “opt out”—argued plaintiffs, altered copyright’s “traditional contours,” thereby necessitating heightened judicial scrutiny under the “traditional contours” test.

The intuitiveness of this argument is undeniable: Whereas a copyright owner once had to renew his registration to get a second term, now he had to do nothing to obtain the same result (plus an additional 20 years of protection). For parties, like plaintiffs, waiting for these works to fall into the public domain so they could use them, this change was understandably seen as an alteration of copyright’s “traditional contours.” The district court didn’t agree, and it started its analysis with the observation that the Supreme Court hadn’t actually identified the protections it considered to be within copyright’s “traditional contours.” In fact, the court noted, the phrase “traditional contours” did not appear in any other reported decision prior to its use in Eldred. The court deduced that the two concepts recognized by the Court, namely the idea/expression dichotomy and the fair use defense, related only to the scope of copyright protection. Contrasting that with the procedural steps now being challenged, the court reasoned that removing the renewal requirement did not alter the scope of the copyright protection or the copyright holder’s substantive rights. As such, the court held that the challenged statutes did not alter copyright’s “traditional contours.” For the district court, the “traditional contours” simply were not affected by changes in copyright procedures, like removing the renewal requirement.

On appeal to the Ninth Circuit, ¹⁶Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007). plaintiffs fared no better. The circuit court accepted plaintiffs’ argument that abolishing the renewal requirement would increase the copyright term for the works in question while correspondingly decreasing the number of works entering the public domain. Nonetheless, the court of appeals found that automatically renewing a copyright’s registration was qualitatively no different than extending a copyright’s term, and the Supreme Court’s holding in Eldred had in effect already answered plaintiffs’ challenge: If extending copyrights for existing works was constitutional there, then automatically renewing and thus extending copyrights for existing works was also constitutional here. So long as “traditional First Amendment safeguards such as fair use and the idea/expression dichotomy” vindicate the plaintiffs’ affected free speech interests, said the court, “extending existing copyrights . . . does not alter the traditional contours of copyright protection.” ¹⁷Id., at 700 (internal quotation marks omitted). So for the Ninth Circuit, automatically renewing a copyright was no different than extending a copyright’s term, and plaintiffs’ clever framing of the issue fell flat. While the Supreme Court in Eldred did not define what it meant by copyright’s “traditional contours,” the Court’s decision did make clear that extending a copyright’s term leaves the “traditional contours” intact—that was the exact issue in Eldred. And once the circuit court framed the issue as one of simply extending a copyright’s term, plaintiffs’ game was over under the Court’s prior holding. Plaintiffs appealed to the Supreme Court, but the petition for certiorari was denied. ¹⁸Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

Coming up in Part II: Golan I & II, The “Traditional Contours” Test Defined, and Closing Thoughts.