How Much More Evidence

By , March 03, 2011.

How much evidence about the negative effects of online piracy can be ignored?

This week, the Canadian Intellectual Property Council released a report on The True Price of Peer to Peer File-Sharing. The report re-examined Don’t blame the P2P file-sharers: the impact of free music downloads on the purchase of music CDs in Canada, a 2007 report that cast doubts on the link between online piracy and music sales.

Using the same data from the 2007 report, analyst Dr. George Barker found the original conclusions to be incorrect.  Dr. Barker instead discovered:

1. three out of every four respondents said that if P2P were not available they would have purchased some or all of the music; and

2. almost two-thirds of the “hardcore” P2P downloaders (those who indicated in the survey that they acquired music by P2P only) said they would have purchased one-third of the tracks they downloaded if the songs were not available on P2P networks — this amounts to an average expense of $168 per person, adding up to hundreds of millions of dollars in extra revenue for the music industry per year from this group alone.

Based on this data, Dr. Barker concluded “that P2P downloads have strong negative effects on legitimate music purchases” and, contrary to the original analysis of the data, P2P downloading acts as a substitute for legitimate music purchases. Dr. Barker’s analysis infers that stronger copyright laws “would substantially increase music purchases and music industry sales revenues and, by implication, increase artist income and industry employment and contribute to both economic growth and higher government tax revenues in Canada.”

While it’s significant that a closer analysis of the original data reveals entirely different conclusions, this isn’t the first time the conclusions of the original report have been challenged. Noted economist Stan Liebowitz examined the original report’s conclusions when it first came out and found them “not only implausible” but actually “impossible to be true.”

Other studies independently confirm that reducing online piracy leads to increased sales. 1David Blackburn, On-line Piracy and Recorded Music Sales, Working Paper, Harvard University (2004), finding 30% reduction in files available online leads to 10% increase of industry sales in 2003; Kristina Groennings, An Analysis of the Recording Industry’s Litigation Strategy Against Direct Infringers, 7 Vanderbilt Journal of Entertainment & Technology Law 389 (2005), finding RIAA’s litigation strategy led to initial decrease in P2P filesharing and increase in album sales in 2003 and 2004 after several years of decline. Taking a broader perspective, one economic study of stock prices found that “current and past efforts by the media industry to check illegal file-sharing over P2P networks through stricter copyright laws and lawsuits against violators have a significant positive impact on expected long-term profitability and economic viability of major media firms. 2Sanjay Goel, Paul Miesing, Uday Chandra, The Impact of Illegal Peer-to-Peer File Sharing on the Media Industry, 52 California Management Review 6 (2010).

The conclusions of the CIPC report — “people buy things they like unless they can get them for free — seem obvious enough not to need studying in the first place. But despite study after study and piles of evidence that show the harmful effects of online piracy, there are those who continue to insist that piracy is not a problem. The arguments are not that this approach or that approach to diminishing piracy is unwise for whatever reason, but that the harm doesn’t even exist in the first place.

Prove It

The academic consensus is that online piracy has had a significant negative effect on music sales. I listed a number of major studies on the issue in a previous post here. Olberholzer-Gee and Strumpf provide a similar table of major academic studies on the effect of online piracy in their paper File-sharing and Copyright (Table 5). Studies since then reveal similar findings; for example, Choi and Kim found that piracy has a negative effect on online music sales in Korea in a 2010 study. 3Dongook Choi & Yeonbae Kim, Effects of Piracy and Digital Rights Management on the Online Music Market in Korea, TEMEP Discussion Paper No. 2010:72 (December 2010). While a handful of studies have argued that online piracy has no effect, or even a positive effect, on music sales — most notably an earlier study by Olberholzer-Gee and Strumpf — these studies are in the minority.

The effect of online piracy on music sales around the world is easy to see. Countries which have improved legal responses to online piracy in the past few years, like South Korea and Sweden, have seen music sales rise. In contrast, countries like Spain and Brazil, where copyright laws are lax or ineffective against digital infringement, have seen music sales fall at a rate above the global average. 4See IFPI Digital Music Report 2011 and IFPI Recording Industry in Numbers 2010.

And ineffective copyright enforcement around the world is not just a concern of major media industries. Jiarui Liu looks at the problem of piracy in emerging markets by examining the music industry in China. While it may seem that copyright enforcement in such countries is only a foreign problem, it turns out that rampant infringement has a profound effect on local artists:

In many cases, piracy of foreign works could be more devastating to domestic companies than to foreign companies. Because the competition from low-priced pirated works both online and offline undercuts stable income from royalties, Chinese musicians have witnessed the entire music industry becoming increasingly dependent on alternative revenue streams such as advertising, merchandizing, and live performance. The pressures of paid appearances and extended tours have started to squeeze the time that artists need to spend on music production. The alternative revenue streams also force many music companies to abandon traditional album contracts and operate in a way more like talent agencies that control all aspects of an artist’s career. Music companies are inclined to sign talents at a very young age with a long-term agency deal in order to exploit the full value of artists in the advertising market. In addition, the need to attract sponsorship opportunities puts more emphasis on non-musical qualities, such as a fresh appearance and healthy public image, which to some extent marginalizes “pure” musicians who have less value in those alternative markets.

Most importantly, as copyright piracy obstructs the communication of consumer preferences to musicians, an increasing number of musical works are created to accommodate the tastes of entrepreneurs (e.g., sponsors and advertisers) rather than those of average consumers, and this has caused a fundamental shift in the creative process of the Chinese music industry. Although entrepreneurs should arguably be willing to take whatever is popular among music fans as a draw to their own products, the expectations of entrepreneurs and consumers do not always meet in a dynamic market setting. For this reason, the interests of less commercial artists and new artists are more likely to be compromised. 5The Tough Reality of Copyright Piracy: A Case Study of the Music Industry in China, 27 Cardozo Arts & Entertainment Law Journal 621 (2010).

Commitment to effective intellectual property laws has ripple effects in a nation’s economy beyond the media industries. On Tuesday, attorney Lawrence J. Siskind, writing in The Recorder, asked Has Israel’s Approach to IP Law It Strong? In the article, he attributes some of Israel’s national growth over the past several decades to strengthening its approach to intellectual property. He quotes one report that says, “Israel, by 1990 was still mostly barren of technology and finance. … Israel generated few significant companies or technologies, no significant financial institutions, and little important science.” The country was known for wide-scale piracy at the time. But this changed by the turn of the new century (in part due to trade pressures from the US). “As Israel’s image morphed from IP pirate to IP protector, the country became a magnet for global investment.”

Courts, which are in the business of judging evidentiary claims, recognize the harms of online piracy. For example, the court in A&M Records v. Napster was convinced that “Napster use is likely to reduce CD purchases by college students.” Napster’s expert did not “provide credible evidence that music file-sharing on Napster stimulates more CD sales than it displaces.” Napster also tried to argue that the “sampling” of music its service provided (try-before-you-buy) stimulates retail music sales. The court was still not persuaded, calling the evidence used to support this argument “unreliable” and accepting “that the activity defendant calls sampling actually decreases retail sales of their music.” 6114 F.Supp.2d 896, 910-914 (ND Cali 2000).

Yet, some still find ways to rationalize away the conclusions revealed above.

Yes, But…

These ways include focusing a lot of attention on less-than reliable studies or distorting the literature that is out there.

As mentioned above, one of the favorite studies of the piracy-is-not-a-problem contingent is Olberholzer-Gee & Strumpf’s 2007 paper, The Effect of File Sharing on Record Sales: An Empirical Analysis. But the study looked only at a small period of time (17 weeks at the end of 2002) and uses some curious methodologies (“Our most important instrument  is the number of German secondary school kids who are on vacation in a given week”). Stan Liebowitz has been especially critical of the study, and has published several responses worth a read here, here, here, and here. But the biggest surprise comes from Olberholzer-Gee and Strumpf themselves, who backed off from their earlier claims in a 2010 paper.

Another report widely cited as evidence against the harm of piracy is the US Government Accountability Office’s April 2010 Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods. After the release of this report, many declared the debate over the effects of piracy over — most notably a number of interest groups in a full page ad that said “Content Industry Piracy Claims are Bogus.” 7Other examples include an article in Ars Technica titled “US government finally admits most piracy estimates are bogus.” But is that really what the report said?

No. Far from looking at all or even most piracy claims, the report only examined a small percentage of independent reports — and even then, it merely highlighted some of the limitations inherent in those reports. It’s most damning conclusions were aimed at only three government agency figures that have been used — an FBI estimate used in 2002, a CBP estimate also used in a 2002 memo, and an estimate used by the Motor and Equipment Manufacturers Association in 2005 attributed to the FTC. The GAO’s conclusion? It couldn’t substantiate these estimates. The broader takeaway of the GAO report reflects the consensus: piracy has significant negative effects, but it’s difficult to nail down a specific number or dollar figure on the harm caused.

A particularly telling example of distortion can be seen in an article on Torrentfreak, Pirates are the Music Industry’s Most Valuable Customers. The site draws that conclusion from an IFPI commissioned survey carried out by Jupiter Research. Torrentfreak highlights the survey’s results that, compared to music buyers, music pirates are “31% more likely to buy single tracks online, 33% more likely to buy music albums online, 100% more likely to pay for music subscription services, and 60% more likely to pay for music on mobile phone.” That sounds like a big deal until you look at the actual report. There, you’ll see that Torrentfreak played a little numbers game — the percentage of either group of participants to engage in any of these activities is small, so that even a few percentage points difference results in an impressive-sounding “more likely” figure. For example, only 2% of “music buyers” paid for a music subscription service compare to 4% of “music pirates.” Not as impressive when you put it that way.

While that kind of statistical shenanigary might be overlooked, what’s truly misleading is that if you look at the total figures provided by the report, the total music spending by “music pirates” is less than the total of “music buyers” (and every other segment surveyed).

Well What About…

Maybe there are causes besides piracy of decreasing music sales, the final argument goes.

Not so, according to Stan Liebowitz, who has examined data over the past 30 years to arrive at his conclusion. While some factors may have played some role, that role is at best secondary and at the very least only negligible. Nothing else — the general economy, shifts in consumer spending to other forms of entertainment, etc. — has caused as big an impact as the advent of online piracy. The data doesn’t support the idea, and neither do economic theories. 8Liebowitz’s own site summarizes his research in file-sharing and links to his papers on the subject.

Is it possible that piracy has positive benefits? The GAO report considered this question, as have several other studies. Maybe network effects increase the value of copyrighted works. Maybe the “sampling” of digital files that file-sharing allows lead to more purchases.

Again, the consensus among researchers is that any possible positive benefits of piracy are far outweighed by the negative effects. 9Note that these questions of “benefits” are mostly limited to economic benefits. Not addressed in this discussion are the equally, if not more, important personal considerations of creators: their free speech interests and the chilling effect of piracy, to name just two. Going back to Liebowitz, “sampling” is more likely to decrease sales rather than increase them. This seems like common sense if you think about it: if you can “sample” an entire work, over and over again, whenever and wherever you want, why would you ever buy it? Never mind that if piracy’s positive benefits were greater than the negative effects, we wouldn’t be having this debate, since creators and media industries would be doing better rather than worse after a decade of file-sharing.

Most creators don’t need to be convinced that piracy is a problem — the real question is how best to deal with it, whether that involves legal, technological, or business model solutions (or, most likely, some combination of the three). But despite all the evidence about the harms of online piracy, there will still be those who keep believing it is not harming creators and the media industries that invest in them. New research and studies will continue to be ignored or distorted. Alternative theories about piracy will be made that may sound nice, but without evidence to substantiate them, they are mere speculation.

References

References
↑1 David Blackburn, On-line Piracy and Recorded Music Sales, Working Paper, Harvard University (2004), finding 30% reduction in files available online leads to 10% increase of industry sales in 2003; Kristina Groennings, An Analysis of the Recording Industry’s Litigation Strategy Against Direct Infringers, 7 Vanderbilt Journal of Entertainment & Technology Law 389 (2005), finding RIAA’s litigation strategy led to initial decrease in P2P filesharing and increase in album sales in 2003 and 2004 after several years of decline.
↑2 Sanjay Goel, Paul Miesing, Uday Chandra, The Impact of Illegal Peer-to-Peer File Sharing on the Media Industry, 52 California Management Review 6 (2010).
↑3 Dongook Choi & Yeonbae Kim, Effects of Piracy and Digital Rights Management on the Online Music Market in Korea, TEMEP Discussion Paper No. 2010:72 (December 2010).
↑4 See IFPI Digital Music Report 2011 and IFPI Recording Industry in Numbers 2010.
↑5 The Tough Reality of Copyright Piracy: A Case Study of the Music Industry in China, 27 Cardozo Arts & Entertainment Law Journal 621 (2010).
↑6 114 F.Supp.2d 896, 910-914 (ND Cali 2000).
↑7 Other examples include an article in Ars Technica titled “US government finally admits most piracy estimates are bogus.”
↑8 Liebowitz’s own site summarizes his research in file-sharing and links to his papers on the subject.
↑9 Note that these questions of “benefits” are mostly limited to economic benefits. Not addressed in this discussion are the equally, if not more, important personal considerations of creators: their free speech interests and the chilling effect of piracy, to name just two.

.torrent = .crime

By , March 01, 2011.

I sometimes see the phrase “.torrent = .crime” used online in discussions about enforcing copyright online. It is considered by copyright critics as a dig against efforts to enforce the widespread copyright infringement occurring within the bittorrent ecosystem 1The bittorrent “ecosystem” describes the multitude of independent components — from torrent file hosts, to torrent search engines and meta search engines, to trackers — that together make the bittorrent protocol work. — the idea being that content producers have mistakenly declared torrent technology categorically unlawful.

Most recently, it has popped up in response to the US government’s seizure of domain names as part of Operation in Our Sites. A number of the sites targeted were part of the bittorrent ecosystem, like meta-search engine Torrent Finder. And with the pending appeal of Isohunt in the Ninth Circuit, the meme will likely persist — the torrent search engine’s appellate brief devotes considerable space to rebutting the association between torrents and infringement. Proponents of the meme believe the association is unfair and are quick to point out the many legitimate uses of the bittorrent protocol as evidence.

The snappy soundbite, however, glosses over the distinction between a technology and uses of a technology. It also relies on a fundamentally flawed premise: the fact that there are some legitimate uses of a technology does not make all uses of that technology legitimate. And within the general bittorrent ecosystem, there are a lot of illegitimate uses of the technology — so much so that the association between “torrent” and “crime” is not entirely unfair.

The Supreme Court, through its decisions in Sony Corp of America v. Universal City Studios, 464 US 417, and MGM v. Grokster, 545 US 913, maintained what is really a common sense distinction between technology and uses of that technology. Simply put, you can’t be liable simply for making something that can be used for copyright infringement, but you can be liable if you intend or encourage infringing uses.

Put another way, while direct infringement is a strict liability tort, meaning the intent of an infringer is irrelevant, secondary liability requires some form of culpability. Grokster reads Sony as saying you can’t impute this intent based solely on the characteristics of a device. But the rule in Sony doesn’t mean a manufacturer or service is completely precluded from liability if it satisfies the Sony safe harbor — a manufacturer or service provider can still be liable if it is found to be culpable in other ways, including whether it induced infringement.

The Supreme Court in Grokster noted three features of the evidence of intent that most showed culpability. Satisfying a known source of demand for copyright infringement, no attempt to filter or develop mechanisms for diminishing infringing activities, and selling advertising based on high-volume use — revenues increase the more people use it, and the overwhelming amount of people use it for infringing purposes. Any one of these alone is not enough to show culpability, but taken together, the intent to encourage infringement is, in the words of the Court, “unmistakeable.”

The torrent ecosystem facilitates piracy — not by design, but by use.

I’m talking about just the torrent ecosystem here — the trackers, hosts, and search engines that do little if anything to ensure their services are not used to aid in distributing unauthorized content. BitTorrent as a protocol is in no way a problem. Facebook, Twitter, and other large-scale systems use the BitTorrent protocol to distribute software updates to their servers; the same is true of gaming companies like Blizzard Entertainment, makers of Worlds of Warcraft. Many Linux distros are promulgated via bittorrent. The technology offers several advantages over other methods of distributing large amounts of data.

But outside these specific uses is a world of public torrent hosts that allow anyone to upload torrent files of any type of content, no questions asked, and search engines that can help users locate whatever they want. And it is here where, any way you look at it, “.torrent” actually does equal “.crime”. The overwhelming majority of what is being distributed in the general bittorrent ecosystem is infringing.

How overwhelming? According to the available research, anywhere from 90-99% of files available in the torrent ecosystem are infringing. 2Robert Layton & Paul Watters, Investigation into the extent of infringing content on BitTorrent networks, Internet Commerce Security Laboratory (2010), confirms 89% of all torrents in sample infringing; Sauhard Sahi & Ed Felten, Census of files available via BitTorrent, (2010), concluded 99% of files likely infringing; Columbia Pictures v. Fung, Order granting Plaintiffs’ motion for summary judgment on liability (2009), evidence showed approximately 95% of files available on defendant’s torrent search engines infringing. A study released January 2011 discovered only 1 legitimately offered file in the top 10,000 torrents offered by one of the largest public bittorrent trackers.

In the face of such overwhelming infringement, it’s absurd to think you can design a site or service that facilitates access to this universe of material, without any attempt at filtering or mitigating infringement, and escape liability. The fact that there are some legitimate uses for the technology does not mean that all uses of the technology are legitimate. Search engines, trackers, and torrent hosts exist for verified and authorized content. But that fact doesn’t save the general and open-for-all torrent sites; neither does the fact that the protocol is used by large-scale systems for distributing software updates. It’s not like Facebook and Twitter are going to Torrent Finder to find new patches.

The distinction between legitimate and illegitimate uses of bittorrent is a distinction between services where the use of the protocol is secondary to the service and the ability to pirate through the service is diminished and minimized, and services that tap into the general bittorrent ecosystem. The latter services may claim to have legitimate uses, but these claims are drowned out by the evidence.

The business model of these sites depends on popular — ie, copyrighted — content. It’s the major draw: Torrent Finder wasn’t making $15,000 a year advertising to people looking for the latest Linux distros or searching for unsigned bands. Isohunt’s Gary Fung admitted as much during the course of that litigation. 3Columbia Pictures v. Fung, p. 34. Courts looking at nearly every other major file-sharing service that has found itself subject to a lawsuit have come to the same conclusion: “While there is doubtless some demand for free Shakespeare,” said the Supreme Court in Grokster, “the evidence shows that substantive volume is a function of free access to copyrighted work.” 4545 US at 926.

Sites that have gone legit have discovered just how true this is. Search engine YouTorrent reported that it lost over half its traffic when it stopped indexing files from sites like PirateBay and only returned verified authorized and open-license results.

Some torrent site operators have adopted a “would if they could” attitude toward copyright infringement: they’d like to stop it, but it’s impossible to know what files are authorized and which are not. This argument doesn’t hold up against the significant percentage of infringing files available.

Some theories of secondary liability, like contributory infringement, require that the secondary party has some knowledge of the underlying misconduct, with the caveat that the secondary party cannot escape liability by being “willfully blind.” You can’t, like an ostrich with his head in the sand, deliberately ignore bad behavior and expect to stay out of trouble. While the question of willful blindness can often be a tough one to answer, courts haven’t had trouble in cases of file-sharing services. With such a high percentage of infringing files present on all these services — 89%, 95%, 99% — you can’t claim ignorance of infringement.

Anyone who bristles at the association of bittorrent with copyright infringement has to admit, if honest, that within the general bittorrent ecosystem, torrents have largely become synonymous with distributing unauthorized content. The technology itself is neutral, it can be put to legitimate or illegitimate uses, but any service wanting to become a component part of the unregulated, open, and public torrent universe has a high burden for establishing legitimacy.

 

References

References
↑1 The bittorrent “ecosystem” describes the multitude of independent components — from torrent file hosts, to torrent search engines and meta search engines, to trackers — that together make the bittorrent protocol work.
↑2 Robert Layton & Paul Watters, Investigation into the extent of infringing content on BitTorrent networks, Internet Commerce Security Laboratory (2010), confirms 89% of all torrents in sample infringing; Sauhard Sahi & Ed Felten, Census of files available via BitTorrent, (2010), concluded 99% of files likely infringing; Columbia Pictures v. Fung, Order granting Plaintiffs’ motion for summary judgment on liability (2009), evidence showed approximately 95% of files available on defendant’s torrent search engines infringing.
↑3 Columbia Pictures v. Fung, p. 34.
↑4 545 US at 926.

Friday’s Endnotes – 02/25/11

By , February 25, 2011.

Preliminary injunction against ivi TV — The online TV service thought it had discovered a loophole in the law, but the judge didn’t buy it. What jumped out at me was this bit from the section on irreparable harm: “In copyright cases, harm can often be irreparable either in light of possible market confusion, because it is ‘notoriously difficult’ to prove the loss of sales due to infringement, and because of loss of the First Amendment ‘right not to speak.'” The court cites to the 2nd Circuit’s decision in Salinger v. Colting (607 F.3d 68), which noted the First Amendment ‘right not to speak’ of a plaintiff in a copyright infringement suit as relevant to the “balance of hardships” step in deciding whether to issue a preliminary injunction. Said the 2nd, “‘[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.'”

Google files amicus brief in Isohunt appeal — I don’t have much to say here, except, having gone back through some of the previous documents in the lawsuit against the torrent site, I discovered this little gem in Isohunt’s own appellate brief: “[Defendant Gary Fung] has never sought or received financial support, other than earnings from advertising, sales of T-shirts and donations from individuals.”

NARM 2011 Entertainment & Technology Law Conference Series — The National Association of Recording Merchandisers is presenting its annual conference series featuring “discussions, topics and speakers that intersect the technology, copyright, and entertainment law issues” at the forefront of the entertainment business. The conference will be held in New York City February 28th (this Monday), San Francisco March 30, and Los Angeles May 12.

Kevin Saunderson speaks out on sampling — Says the Detroit techno icon, “I have a huge affection for sampling, it’s how some of the most inspiring and ground breaking tracks of our times were created. We’ve pretty much all sampled records at some time, and cleared the sample so we can use it on our releases, but it is just not cool to take someone else’s music, create a big old loop of it and then put your name on it and try to have success entirely off the back of another artist’s efforts.”

The Motown Sound: In Performance at the White House — Airing March 1 on PBS. President Obama made some remarks at the concert regarding Motown founder Berry Gordy and the legacy of Motown Records:

Now, apparently Berry tried a lot of things before following his heart into music.  A high school dropout, he failed as a record store owner, competed as an amateur boxer, finally took a job earning $85 a week on the assembly line at the local Lincoln-Mercury plant.  And it was there, watching the bare metal frames transformed into gleaming automobiles, that Berry wondered why he couldn’t do the same thing with musicians, and help turn new talent into stars.

And before long, he quit his job at the plant, borrowed $800, and set up shop in a little house with a banner across the front that read “Hitsville, U.S.A.”  His family thought he was delusional.  (Laughter.)  But as Berry said, “People thought the Wright Brothers had a stupid idea, so I say, ‘Bring on the stupid ideas.’”

[…]

Along the way, songs like “Dancing in the Streets” and “What’s Going On” became the soundtrack of the civil rights era. Black artists began soaring to the top of the pop charts for the first time.  And at concerts in the South, Motown groups literally brought people together –- insisting that the ropes traditionally used to separate black and white audience members be taken down.

Golan v Holder

By , February 22, 2011.

A lawsuit filed a decade ago has made its way to the Supreme Court.

Plaintiffs for Golan v. Holder filed a petition for writ of cert to the Court back in October. Briefing for the cert stage was completed earlier this month, and the Center for Internet and Society has links to the petition, response, and amici briefs.

Despite its lengthy trip to the Supreme Court, including several trips back and forth between the District Court of Colorado and the 10th Circuit, Golan has flown somewhat under the radar.

I recently took the time to read through the opinions generated during Golan’s trek. There’s a lot of different things at play here: the Copyright Clause, the First Amendment, international treaties, the public domain. For my nonlegal readers, I also think this litigation is a good way to see the appellate process in action and how courts approach a constitutional analysis.

What follows is sort of a Cliffs Note version of the litigation.

The Beginning

To understand the how and why of the issues involved in Golan, a bit of background is necessary. The Berne Convention for the Protection of Literary and Artistic Works first came into force in 1887 between Belgium, France, Germany, Italy, Spain, Switzerland, Tunisia, and the UK. The international agreement set minimum levels of copyright protection that member parties must provide for, and, more importantly, requires that member parties treat copyrighted works of authors from other Berne members the same as copyrighted works of their own domestic authors.

In part to ensure that countries don’t benefit from waiting to sign up, Berne provides for retroactive application to existing works. Article 18(1) requires protection for other Berne member works in the new country which “have not fallen into the public domain in the country of origin through the expiry of the term of protection.”

The US did not join Berne until 1988. At the time, a number of foreign works that were still protected in their own country had fallen into the public domain in the US — some because they had failed to follow copyright formalities that had previously been required under US law (Berne prohibits parties from subjecting other member works to formalities), 1Article 5(2). some because the work’s subject matter had not been protected under US law (as was the case with sound recordings fixed before 1972). Congress, however, chose to ignore Article 18(1) when it implemented Berne, leaving these works in the public domain in violation of the treaty.

And they would have gotten away with it, too, if it wasn’t for that meddling TRIPS.

The Uruguay Round Agreements Act

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was created during the Uruguay Round of GATT in 1994. The international agreement, administered by the newly created World Trade Organization, both incorporated Berne standards and set up an international dispute resolution panel to enforce compliance. The EU made it known that one of the first panels would be brought against the US for failing to comply with Article 18(1) when it joined Berne. 2William Patry, The Constitutionality of GATT Restoration, Patry Copyright Blog, May 25, 2005.

So § 514 of the Uruguay Round Agreement Act (URAA), the implementing legislation, was drafted to bring US law in line with its treaty obligations. The provisions restored copyright in any work that had fallen into the public domain in the US “for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.” The Act is limited to a work which is “not in the public domain in its source country through expiration of term of protection,” but “is in the public domain in the United States due to (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility.” 3URAA § 514(h)(6); codified at 17 USC § 104A(h)(6). The Act also includes provisions for “reliance parties” — those who had made use of the works because they had fallen into the public domain and would be affected by the restoration of copyright protection on those works. These provisions, among other things, require the filing of a notice of intent to enforce copyright by the owner of a restored work and limit the liability of reliance parties who infringe on restored works.

Noted copyright scholar William Patry, who was copyright counsel to the House IP subcommittee at the time, provides insights into the drafting process of § 514 at The Constitutionality of GATT Restoration (with some more background at The Constitutionality of the Bootleg Statute). He notes:

I did not believe that the legislation provided a direct incentive for the creation of new works, nor that, divorced from the Berne obligation, restoration represented good policy. But honesty in treaty adherence is good policy, and retroactive protection for U.S. works overseas is of benefit to both U.S. copyright owners and to the system as a whole. I thought those two objectives sufficient, from a policy and constitutional standpoint. And I say this as someone who believes, more fervently than even Larry Lessig, that the “Promotion of the Progress of Science” language in Article I, section 8, clause 8 is a real substantive limitation on Congress’s power. But I also believe that one must look to the system as a whole to see whether there has been a benefit provided by legislation, and in the case of GATT restoration, I answer that question affirmatively.

Golan Challenges URAA

In the wake of URAA and the subsequent Copyright Term Extension Act of 1997 (CTEA), which which extended the term of copyright an additional 20 years on currently protected works, a number of reliance parties joined together to challenge the constitutionality of the acts. In 2001, a lawsuit was filed by Lawrence Golan, an orchestral director and conductor; SA Publishing, a distributor of orchestral recordings and sheet music; Festival Films, Timeless Films, both distributors of public domain films and television shows; and several other similar parties. (For simplicity purposes, I’ll be referring to all plaintiffs as “Golan” and § 514 of the URAA as just “URAA” for the rest of this article.)

All the parties involved had been performing, copying, or distributing works that had been in the public domain before URAA restored copyright protection in them. Now, they were faced with either paying royalties on the works, ceasing the use of them, or risking litigation.

Golan initially sought a declaration in the District Court of Colorado that the CTEA and URAA were unconstitutional under the Copyright Clause and that the URAA was a restriction of free speech under the First Amendment. The case was put on hold when the Supreme Court granted cert in Eldred v. Ashcroft to consider the constitutionality of the CTEA. After the Supreme Court decided that the CTEA was within Congress’s constitutional authority, the District Court went back to Golan.

On March 15, 2004, it ruled on the government’s motion to dismiss for failure to state a claim. 4Golan v. Ashcroft, 310 F.Supp.2d 1215. It held that Golan’s CTEA claim — that extending the copyright term runs afoul of the “limited times” prescription in the Copyright Clause — was foreclosed by Eldred. 5Said the Court in Eldred, “the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” The remaining URAA claims, however, were “legally cognizable”; while they may ultimately be unsuccessful, dismissal wasn’t warranted at this stage. Golan alleged that Congress couldn’t remove works once they entered the public domain since doing so wouldn’t “promote the progress” of the arts as the Copyright Clause was argued to require; that the URAA restricted speech, and because it “altered the traditional contours” of copyright law, it was subject to First Amendment scrutiny; and that the URAA was retroactive legislation that upset settled expectations in an arbitrary and irrational way, violating Golan’s substantive due process rights.

Golan I

Following the court’s denial of the motion to dismiss, both parties moved for summary judgment. A new opinion was issued on April 19, 2005, that ruled on these motions. 6Golan v. Gonzalez, No. 01-B-1854, 2005 WL 914754 (“Golan I”). At this juncture, the court had to answer three questions. First, does the Constitution give Congress the authority to enact the URAA, or does, as the plaintiffs argued, the Copyright Clause create an absolute bar against removing works from the public domain. Second, assuming Congress did have such authority, does the URAA advance a legitimate governmental interest in a rational way. Finally, assuming it does, does the URAA infringe on other constitutionally-protected rights, notably the right to free speech.

Congress does have the power to restore copyright to works in the public domain, said the court. It drew upon distinctions between copyright and patent law, historical practice, and, perhaps most relevant, wartime copyright acts from 1919 and 1941 that restored copyright in foreign works which had similarly fallen in the public domain. The court also launched into an interesting and rather extensive historical analysis of the common law rights of authors that is worth reading in and of itself.

The second question, does URAA have a rational basis, was an easy one to answer. Courts very rarely find legislation unconstitutional under this level of scrutiny, and this time was no different — the District Court concluded that Congress was “attempting to promote protection of American authors by ensuring compliance with the Berne Convention”, a goal rationally related to URAA.

The last question facing the court was whether the plaintiff’s “First Amendment speech rights are infringed by the burdens of complying with the copyright protections that [URAA] has restored to works that they once freely disseminated.” Judge Babcock dismissed this argument in one sentence, stating “I see no need to expand upon the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.” 7J. Babcock cited Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999); Los Angeles News Service v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992); SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263-1264 (11th Cir. 2001), reh’g denied, 275 F.3d 58 (11th Cir. 2001); Eldred v. Reno, 239 F.3d at 375.

The court thus granted the government’s motion for summary judgment and denied Golan’s motion. Golan appealed to the 10th Circuit.

Golan II

Two years later, the 10th Circuit released its decision on the appeal. 8Golan v. Gonzalez, 501 F.3d 1179 (“Golan II”). Summary judgment decisions are reviewed by appellate courts de novo — literally, starting over — so the same questions are considered and analyzed anew.

The 10th Circuit begins with a succinct description of the constitutional limitations — including First Amendment limitations — on Congress’s authority to make copyright law in a post-Eldred world. With those principles established, it turned to the issues of the case.

First up, say hello to the CTEA again. Despite the dismissal of the CTEA claim three years prior due to the Supreme Court’s holding in Eldred, Golan attempted to try it again from a different tack. Eldred, the argument went, only said that Congress had the authority to extend existing copyright terms. But it didn’t decide whether the new length — “life-plus-70-years” — was constitutional in and of itself. Technically correct, but unavailing. “The rationale underlying Eldred compels us to conclude that the CTEA-imposed timespan passes constitutional muster,” said the court.

Like the District Court, the 10th Circuit found that URAA is within Congress’s authority under the Copyright Clause. Unlike the District Court, the 10th Circuit devoted considerable time to examining the First Amendment issues raised by URAA. Eldred had suggested that a law could only be subject to First Amendment scrutiny if it “altered the traditional contours of copyright.” The court picked apart what this means and concluded that URAA does alter the traditional contours of copyright.

Ok, so now what? While ordinarily one doesn’t have a first amendment right to infringe someone else’s expression, once a work moves into the public domain, and anyone is free to copy that expression, that copying is protected by the first amendment. Taking the work back out of the public domain interferes with those vested first amendment rights. The first amendment safeguards that are generally adequate to address free speech in copyright law — the idea-expression distinction and fair use — aren’t available here. Reliance parties want to use the entire expression of a restored work.

Identifying a free speech impingement is only the beginning of a court’s job. The 10th Circuit remanded to the District Court to complete the First Amendment analysis, concluding with instructions that should be familiar to anyone who has taken a bar exam:

In conducting its First Amendment analysis on remand, the district court should assess whether § 514 is content-based or content-neutral. Content-based restrictions on speech are those which “suppress, disadvantage, or impose differential burdens upon speech because of its content.” These restrictions “are subject to the most exacting scrutiny.” If § 514 is a content-based restriction, then the district court will need to consider whether the government’s interest in promulgating the legislation is truly “compelling” and whether the government might achieve the same ends through alternative means that have less of an effect on protected expression. By contrast, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral restriction must be “narrowly tailored to serve a significant governmental interest.”

Golan III

Golan went back down to the District Court, which released its opinion on April 3, 2009, on the motions filed for summary judgment in response to the Circuit Court’s holding. 9Golan v. Holder, 611 F.Supp.2d 1165 (“Golan III”). Both parties and Judge Babcock agreed URAA was a content-neutral regulation. But Judge Babcock held that URAA was not “narrowly tailored.” Congress could have given permanent protection to reliance parties rather than the temporary protection it did give them. Since the Berne Convention allows discretion in how member parties provide restoration, Congress could have done this while still complying with its legitimate international obligations. The court denied the government’s motion for summary judgment and granted the plaintiff’s motion.

Golan IV

Any questions about what the District Court’s decision that URAA was unconstitutional meant for the act disappeared when the 10th Circuit reversed the decision on appeal. 10Golan v. Holder, 609 F.3d 1076 (“Golan IV”). The court began by noting that this case involves foreign affairs policy choices by Congress and the Executive Branch, choices courts should accord special deference to.

With that in mind, the court placed great weight on the fact that Congress chose to limit the protection for reliance parties here in order to further the interests of US authors abroad. It noted that “Congress heard testimony from a number of witnesses that the United States’ position on the scope of copyright restoration — which necessarily includes the enforcement against reliance parties — was critical to the United States’ ability to obtain similar protections for American copyright holders.”

As for whether URAA was narrowly tailored to achieve this significant government interest, the court answered affirmatively. Narrow tailoring does not mean that a law must be the least restrictive method of advancing a government interest. The 10th Circuit was not even convinced that the District Court’s conclusion that URAA could have been drawn more narrowly — by expanding the rights of reliance partners — was less burdensome on speech interests; “the United States needed to impose the same burden on American reliance parties that it sought to impose on foreign reliance parties … [so] the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties.”

URAA represented a choice crafted by Congress to balance competing interests of US copyright holders and reliance parties, a policy choice best made by Congress and not the courts. The 10th Circuit concluded, “Plaintiffs may have preferred a different method of restoring copyrights in foreign works, but that is not what the Constitution requires; as long as the government has not burdened substantially more speech than necessary to further an important interest, the First Amendment does not permit us to second guess Congress’s legislative choice.”

Final Thoughts

While the story of Golan and the various opinions generated by the litigation over the last decade are interesting from an academic standpoint, the practical effects of the Supreme Court taking the case are elusive.

The Supreme Court rarely grants cert. I’m no expert in predicting Court decisions, but I don’t see many of the hallmarks of a case the Court would grant cert here. There’s no circuit split on the constitutionality of URAA. Two other Courts of Appeal heard constitutional challenges to the Act; both, like the 10th Circuit, upheld the Act. 11Kahle v. Gonzales, 487 F.3d 697 (9th Cir 2007); Luck’s Music Library v. Gonzales, 407 F.3d 1262 (DC Cir 2005). The 10th Circuit decision was unanimous, and it did not expand or add to the Supreme Court’s holding in Eldred. Given the deference accorded to Congress in the copyright realm by the Eldred court, and the amount of deference identified by the 10th Circuit that should be accorded to Congress’s crafting of URAA, it’s difficult to see the Supreme Court changing paths and second-guessing Congress’s policy choices here.

A Supreme Court decision either way would have little effect outside the parties to this case. URAA was passed to deal with the US joining the first major international copyright treaty. This type of situation will not come up again in the future.

So why push this case all the way to the Supreme Court in the first place?

Perhaps it’s a way to get the Court to say some nice things about the public domain. But despite the plaintiff’s framing of this case about the importance of the public domain in general, it’s not really about the public domain. While it’s not entirely settled that works which have entered the public domain because they’ve reached the end of the copyright term cannot be removed from the public domain, I think there’s very strong support for that idea in the law. But more importantly, I don’t think there’s any reason to think Congress would entertain the idea. It hasn’t for the past 200 years, and URAA, like the 1919 and 1941 restoration acts, only removed works that had l0st protection due to technical reasons because of exigent, specific, and unique circumstances.

Perhaps it is an attempt to gain a first amendment foothold in copyright law. 12See, for example, Golan v. Holder gets a second wind: “Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases.” I talked about this increasing trend of “free speech opportunism” from academia and public interest groups in Copyright and Censorship. I think this argument is merely a “facade” (as the Eldred Court put it) to dress up what is ultimately a policy disagreement with Congress.

References

References
↑1 Article 5(2).
↑2 William Patry, The Constitutionality of GATT Restoration, Patry Copyright Blog, May 25, 2005.
↑3 URAA § 514(h)(6); codified at 17 USC § 104A(h)(6).
↑4 Golan v. Ashcroft, 310 F.Supp.2d 1215.
↑5 Said the Court in Eldred, “the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.”
↑6 Golan v. Gonzalez, No. 01-B-1854, 2005 WL 914754 (“Golan I”).
↑7 J. Babcock cited Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999); Los Angeles News Service v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992); SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263-1264 (11th Cir. 2001), reh’g denied, 275 F.3d 58 (11th Cir. 2001); Eldred v. Reno, 239 F.3d at 375.
↑8 Golan v. Gonzalez, 501 F.3d 1179 (“Golan II”).
↑9 Golan v. Holder, 611 F.Supp.2d 1165 (“Golan III”).
↑10 Golan v. Holder, 609 F.3d 1076 (“Golan IV”).
↑11 Kahle v. Gonzales, 487 F.3d 697 (9th Cir 2007); Luck’s Music Library v. Gonzales, 407 F.3d 1262 (DC Cir 2005).
↑12 See, for example, Golan v. Holder gets a second wind: “Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases.”

Friday’s Endnotes – 02/18/11

By , February 18, 2011.

I’ve decided to start doing a weekly wrap-up of items I’ve found interesting enough to share, a mix of old and new, legal and nonlegal, relating in some way to copyright and the content industries. Enjoy!

Would the Bard Have Survived the Web? — From Authors Guild president Scott Turow, executive director Paul Aiken, and Shakespeare professor James Shapiro comes this fascinating essay comparing the “cultural paywalls” of the outdoor playhouses to the “virtual paywalls” of copyright. It explains how commerce and stable property rights help the arts and entertainment flourish. Predictably, most copyright skeptics completely missed the point of the article.

Senate Judiciary Committee hearing on online piracy and counterfeiting — Scott Turow proves he’s been busy lately, testifying at the Committee’s hearing on a new version of COICA. Representatives of other stakeholders representing the “big 5” players in the internet ecosystem needed to effectively address online piracy — domain name registrars, hosting service providers, payment card processors, internet service providers, and online advertising providers — also testified. Well, four out of the five did at least.

In Defense of Copyright: Creativity, Record Labels, and the Future of Music — via Lon Sobel’s Entertainment Law Reporter, Brian Day looks at the role of copyright and record labels as digital technology continues to dramatically change the music business landscape in this great article from the upcoming issue of Seton Hall Journal of Sports and Entertainment Law.

Good news or bad? CDs still 74% of all album sales — Overall, still not good news for the music industry, as total album sales continue to slump. Still, an interesting statistic. If you spend enough time on hip, young blogs, you start to think the only places selling CDs are antique shops.

The Chicago Code — I checked out this out when it premiered last week because it was created by the Shield’s Shawn Ryan and haven’t been disappointed. Dubbed a “love letter to Chicago“, and shot primarily in the Windy City With Broad Shoulders And Lots of Other Nicknames, the series features great performances and terrific writing. Mondays on Fox, or online at Fox and Hulu.

Ingrid Michaelson — I had the pleasure of seeing the talented Ingrid perform last fall. Earlier this month, she had a dessert recipe in Parade Magazine (it was delicious). This past week, Hypebot presented a look at a promotion experiment that she used to help make her fall tour profitable. Ingrid also premiered a new(er) video for her latest tune, Parachute:

[youtube]jr4fPdIAtyU[/youtube]

Can Google Be Seized By ICE?

By , February 15, 2011.

Is Google in danger of being seized by ICE for facilitating copyright infringement?

It seems quite a few people have asked that question in the wake of ICE’s Operation in Our Sites, which seized the domain names of pirate sites last July, November, and, most recently, a few weeks ago.

John Moe, of American Public Media, asked Homeland Security Investigation Special Agent James Hayes that very question and posted the audio online.

The idea seems to be that most of the domains seized point to sites that link to infringing material rather than hosting it themselves. Google links to infringing material. Hence, Google is at risk for forfeiture.

In Super Bowl Seizures, I mentioned that facilitating property needs a substantial connection to the underlying crime to be subject to forfeiture under federal law but glossed over what that means. Today, I want to look at this standard in more detail and see what it means for Google.

The Forfeiture Standard

Federal law provides for the forfeiture of “any property used, or intended to be used, in any manner or part to commit or facilitate the commission of” copyright infringement. 118 USC § 2323(a). As noted in my previous post, this language is very broad: facilitation means the property need only make the commission of the crime “less difficult or ‘more or less free from hindrance'”, and the statute covers any property used in any manner or part. One could theoretically trace a “for want of a nail” line of all sorts of property that make a crime less difficult to commit.

However, courts have generally recognized that the connection between property and crime must be more than de minimis. In the language most often used by courts, the connection must, at a minimum, be more than “incidental” or “fortuitous.”

This broad language has been narrowed by the passing of the Civil Asset Forfeiture Reform Act of 2000, which added to the law language that says (emphasis added) “if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” 218 USC § 983(c)(3). Congress intended the “substantial connection” language to require that the use of property to facilitate a crime is “significantly greater” than incidental or fortuitous. 3146 Congressional Record 5231 (2000).

On the other side of the spectrum, the forfeiture statute does not require that the facilitation of a prohibited activity is the principle use of the property. 4Bennis v. Michigan, 516 US 442, 450 (1996). Nor does it require that the property is indispensable to the commission of a prohibited activity. 5See, eg, US v. One Parcel of Real Estate Known as 916 Douglas Ave., Elgin, Ill., 903 F.2d 490, 493 (7th Cir. 1990).

The first big question is where to draw the line between substantial and insubstantial connections.

Incidental and Fortuitous versus Deliberate and Planned

The terms “incidental” and “fortuitous” are often contrasted with the terms “deliberate” and “planned” in forfeiture cases. 6Most often in Eighth Amendment challenges, though courts have used such terminology outside that context, e.g., US v. 475 Cottage Drive, 433 F.Supp.2d 647, 656 (MD NC 2006). A closer look at the meaning of these words may aid in understanding what kinds of property may be forfeited. From Merriam-Webster:

  • incidental – (1) being likely to ensue as a chance or minor consequence; (2) occurring merely by chance or without intention or calculation.
  • fortuitous – (1) occurring by chance; (2) coming or happening by a lucky chance.
  • deliberate – (1) characterized by or resulting from careful and thorough consideration; (2) characterized by awareness of the consequences; (3) slow, unhurried, and steady as though allowing time for decision on each individual action involved.
  • planned – (1) arranged the parts of; (2) devised or projected the realization or achievement of; (3) had in mind.

The Merriam-Webster’s Dictionary of Synonyms adds further shading to the meanings of these words. In its entry for “accidental, casual, fortuitous, contingent, incidental, adventitious,” the book notes:

The last five of these words are synonyms of accidental but not always of one another. Accidental denotes simply either happening by chance or not of the real or essential nature of a thing. Casual, fortuitous, and contingent come into comparison with accidental in the first of these senses; incidental and adventitious chiefly in the second sense. […] Fortuitous so strongly implies chance that it sometimes connotes the absence, or seeming absence, of a cause […] Incidental may or may not imply chance; it typically suggests a real and often a designed relationship, but one which is secondary and nonessential.

We also learn that “Deliberate implies full awareness of the nature of what one says or does and often a careful and unhurried calculation of the intended effect or of the probable consequences”, while “Plan, in its widest sense, regularly implies mental formulation of the method [of achieving a given end].”

Substantial Connection

These definitions are helpful, but not exactly enlightening. Now we know, for example, that the commission of criminal activity need not be the principle purpose of property for it to be subject to forfeiture, but it must be more than the secondary purpose of property. Let’s take a quick look at how the courts have dealt with these meanings.

On one hand, the Oklahoma Supreme Court held that marijuana residue found in a weapons safe was not enough to support forfeiture of the weapons for facilitating the possession of marijuana with intent to distribute — the presence of the marijuana was incidental and fortuitous. 7State ex rel. Redman v. $122.44, 231 P.3d 1150 (OK SCt. 2010). On the other hand, courts have found a substantial connection between houses and drug offenses when the houses were used to store narcotics or engage in narcotic transactions. 8For example, US v. Premises Known as 3639-2nd St., NE, 869 F.2d 1093 (8th Cir. 1989).

The Eighth Circuit held that there was not a substantial connection between a truck seen parked at property used to grow marijuana but used to transport roofing tile and the facilitation of the marijuana cultivation — the connection was “simply too tenuous and far removed to support its forfeiture.” 9US v. One 1976 Ford F-150 Pick-Up VIN F14YUB03797, 769 F.2d 525 (8th Cir. 1985). The government was unable to provide any evidence that the truck was ever used to transport marijuana or even seed, fertilizer, or other supplies used to cultivate the plants.

But the same circuit held that there was a substantial connection between the commission of child pornography offenses and the home of where the offender committed the crime. Said the court:

The house enabled Hull to establish a hardwired connection to the Internet, which allowed him to distribute the contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny. Hull posits that he could just as easily have used a motel room, but use of the residence avoided rental costs and the attention that would be attracted by frequent visits to local motels. 10US v. Hull, 606 F.3d 524, 527-28 (8th Cir. 2010).

If anything is clear, it’s that the standard for forfeiture, even with a “substantial connection” requirement, is still relatively low. But that raises the second question: to what extent should property owners be at risk of forfeiture for the actions of third parties?

Ownership and the Outer Bounds of Forfeiture

Who owns the property is irrelevant in forfeiture cases. In fact, prior to CAFRA, which added an “innocent owner” defense to all federal forfeiture statutes, the fact that an owner was unaware that his property was used to facilitate a criminal offense had been “uniformly rejected as a defense” in a long line of cases. 11Bennis at 449, quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974). For some of the earliest cases, see US v. Brig Malek Adhel, 43 US 210 (1844): “the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs”.

The problem that should be apparent is whether this principle has an outer bound. Forfeiture has been sought, after all, to varying degrees of success against multi-unit apartment buildings where a number of tenants had sold and used drugs, motels which were the site of numerous drug transactions, and businesses that had problems with customers using and selling drugs.

Courts have hypothesized about the outer bound. “It is said that a Pullman sleeper can be forfeited if a bottle of illicit liquor be taken upon it by a passenger, and that an ocean steamer can be condemned to confiscation if a package of like liquor be innocently received and transported by it,” said the Supreme Court in 1921. 12JW Goldsmith, Jr.-Grant Co. v. US, 254 US 505. Perhaps surprisingly though, such a situation has never reached a court. “When such an application shall be made it will be time enough to pronounce upon it,” continued the Court, a statement reiterated in 1996. 13Bennis at 450-51.

Since courts have not addressed the issue, it’s necessary to explore these outer bounds on our own. Two principles emerge. First, while ownership of facilitating property is irrelevant, some privity between the owner and the offender must exist. Courts have upheld forfeiture where property owners have leased, lent, or otherwise allowed the offender possession, but forfeiture of property that had been stolen or wrongfully acquired would probably not be allowed. 14I say probably because, like the Pullman sleeper and ocean steamer hypothetical, this principle has not been reached by courts but only implied. See Calero-Toledo at 689, which also cites Peisch v. Ware, 4 Cranch 347, 364 (1808); JW Goldsmith at 512; US v. One Ford Coupe Automobile, 272 US 321, 333 (1926); and Van Oster v. Kansas, 273 US 465, 467 (1926). Second, despite the many times courts have said the culpability of the owner in the underlying crime is irrelevant for in rem forfeiture, the culpability of the owner — based on similar principles in tort law — would play a role in the outer bounds of what facilitating property may properly be forfeited. This culpability would play a role in separating the Calero yachts from the ocean steamers, the Bennis automobiles from the Pullman sleepers, and the Torrent-finder domain names from the Google domain names.

The Deterrent Function of Forfeiture

It may be helpful at this point to revisit the purposes of forfeiture. Stefan D. Casella explains:

Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a “crack house” to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.

The idea that an instrumentality — a thing — can be treated as an offender and properly confiscated by the state as a way of preventing, deterring, or punishing crime is an ancient one, stretching at least as far back as biblical times: “if an ox gore a man or a woman to death, the ox shall be surely stoned, and its flesh shall not be eaten,” reads Exodus 21:28.

At the same time, worry over the harshness that may result from forfeiture is almost inherent. Forfeiture has “repeatedly been called a hard law” wrote Edward Shippen in a 1787 court case, a call that has continued to be repeated since then by courts, commentators, scholars, and even Congress. The harshness arises in part because of the necessities of law enforcement and the difficulties in enforcing certain laws. 15See, e.g., JW Goldsmith at 510-11. Shippen identifies one of the difficulties as the “devices of ingenious men,” making forfeiture laws “necessary.” “If the end can be accomplished without infringing the private rights of the subject, it is so much the better; but, at all events, the exigencies of government must be satisfied.” The Supreme Court said much the same in 1844:

It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. 16Brig Malek Adhel at 233.

Third Party Liability and Its Limits

The deterrent function is defeated if “ingenious men” can evade forfeiture by simply divorcing ownership of property from its use. At the same time, the irrelevance of ownership to forfeiture places responsibility on property owners to ensure the things they own are not used to cause harm. “In breaches of revenue provisions some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong,” said the Supreme Court on one occasion. 17JW Goldsmith at 510 On another, it observed that “to the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” 18Calero at 687-88

In fact, imposing increased responsibility on a third party to deter the wrongs of another is a common feature of the law, and there are many examples in other areas of the law that parallel what we see in forfeiture cases. 19Bennis at 452, “This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner’s consent to use it, petitioner was also potentially liable for her husband’s use of the car in violation of Michigan negligence law”; Van Oster at 467, “It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. They have their counterpart in legislation imposing liability on owners of vehicles for the negligent operation by those entrusted with their use, regardless of a master-servant relation”; Phile v. Anna, 1 Dall. 197 (1787), “It must certainly affect every humane man to fee the innocent suffer; but in society this is not strange or uncommon; and the distinction may properly be taken between criminal and civil cases. The law never punishes any man criminally but for his own act, yet it frequently punishes him in his pocket, for the act of another. Thus, if a wife commits an offence, the husband is not liable to the penalties; but if she obtains the property of another by any means not felonious, he must make the payment and amends. There are a variety of other instances, in which men are responsible for one another, in consequence of their connection in society.” In copyright law, obviously, third parties may be liable for aiding, benefiting from, or inducing infringement. Automobile owners may be liable for the negligent use of their car by someone who has borrowed it.

Wal-Mart is no stranger to the extent to which the law will hold a third party responsible for acts of another. According to the Wal-Mart Litigation Project, the company has been held liable for the injuries of a man shot by an unknown assailant in the parking lot, the injuries of a man shot by a child playing with a BB gun in the store, and the wrongful death of a man shot with ammunition bought at a store by minors because an employee failed to check ID. (I realize lawsuits like this often face heavy criticism; I point them out not to suggest they are or aren’t reasonable or logical but merely to describe the extent of third party liability as it currently exists.)

But there is a limit on how far this liability can be extended in forfeiture cases. This limit was recognized over 200 years ago by the Supreme Court when it said that “a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.” 20Peisch at 363. The limit was restated by the Court recently when, after a survey of cases throughout history, noted that “In none of these cases did the Court apply the guilty property fiction to justify forfeiture when the owner had done all that reasonably could be expected to prevent the unlawful use of his property.” 21Austin v. US, 509 US 602, 616 (1993).

Courts have applied this “all reasonable means” standard in a subjective way: what is reasonable from the perspective of the owner in his specific circumstances, not what a judge would consider reasonable. “A property owner is not required to take heroic or vigilante measures to rid his or her property” of illegal activity. 22US v. Lavaland Annex, 256 F.3d 949, 954 (10th Cir. 2001); US v. 710 Main Street, 753 F.Supp 121, 125 (SDNY 1990). But the owner must do something, and at least one court has held that being aware of suspicious facts regarding the use of property triggers the duty to act. 23See US v. 2011 Calumet, 699 F.Supp 108, 110 (1988).

Comparisons to Tort Law

The duties of owners in the forfeiture context share some similarities to legal duties in tort law, but they are not an exact match. Perhaps this is due to the historically limited and specialized role of forfeiture. The closest analogue may be the tort of public nuisance, and in fact many state laws providing for forfeiture have been characterized as public nuisance laws. 24See Bennis, Michigan statute declared any vehicle used for prostitution is a public nuisance and subject to abatement; C.J. Hendry Co. v. Moore, 318 US 133 (1943), “Section 845 of the California Fish and Game Code declares that a net used in violation of the provisions of the Code is a public nuisance and makes it the duty of any arresting officer to seize the net and report its seizure to the commission”; Van Oster, “The Kansas statute … declares that an automobile or other vehicle used in the state in the transportation of intoxicating liquor is a common nuisance and establishes a procedure followed in this case for its forfeiture and sale”; Lawton v. Steele, 152 US 133 (1894), New York act declares that “any net, etc., maintained in violation of any law for the protection of fisheries, is to be treated as a public nuisance, ‘and may be abated and summarily destroyed by any person'”. Like forfeiture, public nuisance has largely been defined through statute (although, unlike forfeiture, public nuisance also exists under common law), used to effectively address quasi-criminal activities where traditional criminal processes are ineffective. Prior to the introduction of zoning law, public nuisance laws were the only real way for towns and cities to regulate “less-desirable” businesses. And, like forfeiture, whether something is considered a public nuisance hinges more on the offense of property rather than any culpability of the owner.

And, like forfeiture cases, the outer bounds of what constitutes a public nuisance under a specific statute remains largely unexplored, especially when the property in question is engaged in legitimate business but happens to also be the site of targeted activity.

At best, we have a sort of “shoot from the hip” approach to deciding between actionable nuisances and facilitating property and legitimate businesses and uses of property. The parallel can be seen by comparing HSI Special Agent James Hayes’ response to the question of whether Google can be seized and the Washington Supreme Court’s decision in State ex rel Carroll v. Gatter. 25260 P.2d 360 (1953).

Hayes gave a decidedly nontechnical and nonlegal answer to the question. He noted that the federal government was only interested in targeting sites that haven’t done “due diligence” to ensure that they aren’t linking to infringing content. Their interest was limited only to those sites where piracy was the “main premise of doing business.” The Washington Supreme Court similarly gave a muddy, gut-feeling analysis in its decision. The court was faced with the question of whether the state could properly declare and abate the Oxford Hotel in Seattle as a public nuisance targeting places used for “purposes of lewdness, assignation, or prostitution.” The hotel had been the site of several acts of prostitution (some aided by bellmen employed by the hotel). However, the court noted that the intent of the law was to target places one would find in “red light districts”, and the Oxford Hotel had “a reputation for being a decent, orderly, respectable hotel in the community.”

Can Google Be Seized Or Not

I apologize if this discussion has not been particularly illuminating. Despite the long history of forfeiture, questions about its edges and outer bounds have not been thoroughly fleshed out. With that said, I’d like to offer my two cents on whether Google is at risk for having its domain name seized.

First, I don’t think there is a substantial connection between the Google domain name and links to infringing content that may appear in search results. Google’s search engine is designed to return results from as much of the web as it can scan, whether these results are links to html pages, documents, video, or audio, etc. Any links to infringing content appear only to the extent they exist. Displaying these links is only incidental to Google’s service.

The same can not be said for a site like Torrent-finder, one of the domain names seized by ICE. A site like this searches only public torrent trackers and returns results consisting solely of torrent files. When 90-99% of such files are infringing, the connection between a site like that and piracy can hardly be called incidental. 26Research by the Internet Commerce Security Laboratory at the University of Ballarat has found that 89.9 percent of torrents infringe copyright; BitTorrent census: about 99% of files copyright infringing. It is exceedingly difficult to argue that the designer of such a site didn’t have the unauthorized distribution of copyrighted works in mind when planning a site like that.

Google also has a continuing obligation, like any search engine, to remove links when it becomes aware that the content they link to is infringing. Although some would argue that Google could do a better job at this, few would say it’s not doing “due diligence” to limit the availability of links to infringing content. But again, when a site is returning only results consisting of an almost complete majority of infringing content, a much higher level of due diligence is required to remain legitimate. Simply responding to DMCA takedown notices as they arrive when faced with such widespread, apparent infringement is not enough to qualify such a service for safe harbor; this “head in the sand” approach is also not enough to immunize such a site from forfeiture.

Google, then, is in the same category of the hypothetical Pullman sleeper and cruise ship, beyond the outer bounds of forfeiture.

The bottom line is that debate over whether Google can be forfeited or not is largely academic. The government has limited resources and is not interested in going after legitimate businesses that do their due diligence and engage in reasonable measures to ensure their property isn’t used for criminal offenses. There are unfortunately plenty of pirate sites to keep ICE busy.

References

References
↑1 18 USC § 2323(a).
↑2 18 USC § 983(c)(3).
↑3 146 Congressional Record 5231 (2000).
↑4 Bennis v. Michigan, 516 US 442, 450 (1996).
↑5 See, eg, US v. One Parcel of Real Estate Known as 916 Douglas Ave., Elgin, Ill., 903 F.2d 490, 493 (7th Cir. 1990).
↑6 Most often in Eighth Amendment challenges, though courts have used such terminology outside that context, e.g., US v. 475 Cottage Drive, 433 F.Supp.2d 647, 656 (MD NC 2006).
↑7 State ex rel. Redman v. $122.44, 231 P.3d 1150 (OK SCt. 2010).
↑8 For example, US v. Premises Known as 3639-2nd St., NE, 869 F.2d 1093 (8th Cir. 1989).
↑9 US v. One 1976 Ford F-150 Pick-Up VIN F14YUB03797, 769 F.2d 525 (8th Cir. 1985).
↑10 US v. Hull, 606 F.3d 524, 527-28 (8th Cir. 2010).
↑11 Bennis at 449, quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974). For some of the earliest cases, see US v. Brig Malek Adhel, 43 US 210 (1844): “the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs”.
↑12 JW Goldsmith, Jr.-Grant Co. v. US, 254 US 505.
↑13 Bennis at 450-51.
↑14 I say probably because, like the Pullman sleeper and ocean steamer hypothetical, this principle has not been reached by courts but only implied. See Calero-Toledo at 689, which also cites Peisch v. Ware, 4 Cranch 347, 364 (1808); JW Goldsmith at 512; US v. One Ford Coupe Automobile, 272 US 321, 333 (1926); and Van Oster v. Kansas, 273 US 465, 467 (1926).
↑15 See, e.g., JW Goldsmith at 510-11.
↑16 Brig Malek Adhel at 233.
↑17 JW Goldsmith at 510
↑18 Calero at 687-88
↑19 Bennis at 452, “This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner’s consent to use it, petitioner was also potentially liable for her husband’s use of the car in violation of Michigan negligence law”; Van Oster at 467, “It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. They have their counterpart in legislation imposing liability on owners of vehicles for the negligent operation by those entrusted with their use, regardless of a master-servant relation”; Phile v. Anna, 1 Dall. 197 (1787), “It must certainly affect every humane man to fee the innocent suffer; but in society this is not strange or uncommon; and the distinction may properly be taken between criminal and civil cases. The law never punishes any man criminally but for his own act, yet it frequently punishes him in his pocket, for the act of another. Thus, if a wife commits an offence, the husband is not liable to the penalties; but if she obtains the property of another by any means not felonious, he must make the payment and amends. There are a variety of other instances, in which men are responsible for one another, in consequence of their connection in society.”
↑20 Peisch at 363.
↑21 Austin v. US, 509 US 602, 616 (1993).
↑22 US v. Lavaland Annex, 256 F.3d 949, 954 (10th Cir. 2001); US v. 710 Main Street, 753 F.Supp 121, 125 (SDNY 1990).
↑23 See US v. 2011 Calumet, 699 F.Supp 108, 110 (1988).
↑24 See Bennis, Michigan statute declared any vehicle used for prostitution is a public nuisance and subject to abatement; C.J. Hendry Co. v. Moore, 318 US 133 (1943), “Section 845 of the California Fish and Game Code declares that a net used in violation of the provisions of the Code is a public nuisance and makes it the duty of any arresting officer to seize the net and report its seizure to the commission”; Van Oster, “The Kansas statute … declares that an automobile or other vehicle used in the state in the transportation of intoxicating liquor is a common nuisance and establishes a procedure followed in this case for its forfeiture and sale”; Lawton v. Steele, 152 US 133 (1894), New York act declares that “any net, etc., maintained in violation of any law for the protection of fisheries, is to be treated as a public nuisance, ‘and may be abated and summarily destroyed by any person'”.
↑25 260 P.2d 360 (1953).
↑26 Research by the Internet Commerce Security Laboratory at the University of Ballarat has found that 89.9 percent of torrents infringe copyright; BitTorrent census: about 99% of files copyright infringing.

The Reverse Class Action Lawsuit: Challenges of Enforcing Copyright Online

By , February 10, 2011.

The latest technique to appear in the struggle against online infringement is the “reverse class-action” lawsuit.

Earlier this month, OpenMind Solutions, a producer of adult films, filed suit against a defendant class consisting of all persons “engaged in copyright infringement activity via BitTorrent file sharing protocol during relevant time period” of its films.

A class action is “lawsuit by representation.” In some situations, the amount of individual parties is so large that joining them all together would prove highly unworkable, and the factual and legal issues are so similar that having individual lawsuits for each party would be a waste of time and resources. So the law allows these individuals to join as a class, with a representative party to do the litigating and the ultimate judgment (or settlement) being binding on all parties. This conserves scarce judicial resources and allows parties to have their day in court when damages in the aggregate are large but individual damages are too small for a lawsuit to make sense.

Most commonly, the class in a class action is a group of plaintiffs suing an individual defendant. Chances are, you’ve already been part of one of these class actions — maybe you’ve gotten a letter notifying you of a lawsuit involving all customers of company x who purchased product y in the last year followed a few months later by some gift certificate or coupon when a settlement was reached.

The Defendant Class Action

Class actions have been around for centuries. Susan T. Spence notes that litigation by representatives of certain groups (villages and parishes) was “well established in England by the 12th century.” 1For more on the history and origins of class action lawsuits, ClassActionBlawg has a nice collection of links at http://classactionblawg.com/2008/06/02/did-you-ever-wonder-where-class-actions-came-from/ In the US, the basis of the modern class action is found in Rule 23 of the Federal Rules of Civil Procedure, which provides requirements for when “one or more members of a class may sue or be sued as representative parties on behalf of all members,” and states have similar provisions.

While plaintiff classes are by far the most common, you’ll note that the language of Rule 23 provides for both plaintiff and defendant classes (“sue or be sued“). In the 16th, 17th, and 18th centuries, defendant classes were as typical as plaintiff classes. 2Vince Morabito, Defendant Class Actions and the Right to Opt Out: Lessons for Canada from the United States, 14 Duke Law Journal of Comparative & International Law 197, 203 (2004). Today, though rare, defendant classes still show up. 3For example, see Kerney v. Fort Griffin Fandangle Ass’n, 624 F.2d 717 (5th Circ. 1980); In re Broadway Funding Corp., 66 BR 1005 (Bankr. EDNY 1986); and also Tilley v. TJX Cos., 345 F.3d 34 (1st Cir. 2003), a copyright infringement case against a defendant class where, though the court vacated the class certification, noted that since it was “cognizant of the idiosyncratic circumstances that would seem in some ways to make class certification an attractive device in cases such as Tilley’s (in which a single copyright holder seeks to prevent continued infringement on the part of many defendants who sell identical articles),” it left the “district court free, on remand, to explore whether some suitable basis for class certification in fact exists.”

Although OpenMind’s lawsuit marks the first time a defendant class action has been brought against individual downloaders, the idea has been tossed around for some time. One of the earliest papers I’ve seen is a 2001 paper by a law student written during the litigation against Napster but before the RIAA’s lawsuits against individual downloaders. Who’s Walking the Plank: The Recording Industry’s Fight to Stop Music Piracy, by James Dye, also suggests the idea. 46 Pittsburgh Journal of Technology Law & Policy 5 (2005). Interestingly, more than one scholar has suggested the certification of defendant classes in online infringement cases as a way to better protect the defendants. 5Johnathan Reich, The Class Defense: Why Dispersed Intellectual Property Defendants Need Procedural Protections, 9 Duke Law & Technology Review (2010); Assaf Hamdani & Alon Klement, The Class Defense (2004).

Strategies for Enforcing Copyright Online

Pros and cons of OpenMind’s strategy aside, the story highlights the difficulties creators have in protecting their rights online. From Napster to Hotfile, industry groups have gone after intermediaries, but this is time-consuming, expensive, and there’s no shortage of newcomers to fill the void for every infringing site successfully shut down.

The RIAA’s efforts against individual downloaders was a mixed success — raising awareness that unauthorized downloading is illegal but having little long-term effect on piracy. After it ended the strategy in 2008, independent and individual creators have taken up suing individuals, though many are running into roadblocks in court and certainly not winning any PR points.

The DMCA takedown procedure offers creators one method for removing unauthorized content without having to go to court. However, creators of all stripes — from individual film-makers like Ellen Seidler all the way up to companies like Viacom — will tell you that the process is time-consuming and there’s simply too much infringing content available online. DMCA takedowns also only work for companies who act legally responsible — the internet has plenty of “catch me if you can” services that disregard notices.

One of the goals of the DMCA was to create incentives for content creators and service providers who benefit from that content to work together voluntarily in order to address infringement. 6See Senate floor debate on Conference Report on H.R. 2281, the Digital Millennium Copyright Act (Oct. 8, 1998), Sen. Leahy remarks: “This title is intended to preserve incentives for online service providers and copyright owners to cooperate to detect and address copyright infringements that occur in the digital networked environment.” When the RIAA ended individual lawsuits, it announced that it would shift its focus to exactly that. Other countries have put the force of law behind this strategy, typically through some form of “graduated response.” France’s HADOPI law is perhaps the most famous and began sending out notices of infringement to ISP customers last fall. The UK’s Digital Economy Act calls for similar requirements to limit internet access for repeat infringers, though implementation has been delayed.

Other new approaches are being tried out as we speak. In the US, of course, domain names of a number of sites facilitating infringement have been seized over the past several months. A new version of the Combating Online Infringement and Counterfeits Act is expected to be introduced this session, which would tie additional legal requirements for advertisers and financial transaction services to cut off business with seized sites. Other countries are exploring similar legislation. 7For example, Spain and the UK.

And in the past week, Intellectual Property Enforcement Coordinator Victoria Espinel released her annual report which disclosed that a number of legislative proposals for enforcing copyright online will soon be sent to Congress. The report was followed up with an executive order establishing two new interagency intellectual property enforcement committees.

Why Online Enforcement is Important

The goal of all of this is not to eliminate or stop piracy. The goal is to deter it — to secure to creators the ability to make their investments of time, energy, and money pay off. The goal is to give content industries and legitimate intermediaries the time needed to develop and grow sustainable online business models that ensure high-quality works continue to be made.

Some say the only response to piracy is to do nothing. Creators should be happy absorbing all the costs of creating while everyone else shares in the benefits. Unlike every other job on the planet, the people who create the books, movies, music, etc., that add to our knowledge and enrich our lives are not entitled to expect compensation.

The “content fire sale” that results from online piracy may benefit consumers in the short term — who doesn’t want something for nothing — and pirate sites — seized domain Torrent Finder made $15,000 in one year from advertising for giving other people’s content away — but a fire sale is not a sustainable model. The next generation of creators, and the progress of the arts, can best be promoted by ensuring that exclusive rights continue to be secured. The future will likely see the use of more new enforcement strategies.

References

References
↑1 For more on the history and origins of class action lawsuits, ClassActionBlawg has a nice collection of links at http://classactionblawg.com/2008/06/02/did-you-ever-wonder-where-class-actions-came-from/
↑2 Vince Morabito, Defendant Class Actions and the Right to Opt Out: Lessons for Canada from the United States, 14 Duke Law Journal of Comparative & International Law 197, 203 (2004).
↑3 For example, see Kerney v. Fort Griffin Fandangle Ass’n, 624 F.2d 717 (5th Circ. 1980); In re Broadway Funding Corp., 66 BR 1005 (Bankr. EDNY 1986); and also Tilley v. TJX Cos., 345 F.3d 34 (1st Cir. 2003), a copyright infringement case against a defendant class where, though the court vacated the class certification, noted that since it was “cognizant of the idiosyncratic circumstances that would seem in some ways to make class certification an attractive device in cases such as Tilley’s (in which a single copyright holder seeks to prevent continued infringement on the part of many defendants who sell identical articles),” it left the “district court free, on remand, to explore whether some suitable basis for class certification in fact exists.”
↑4 6 Pittsburgh Journal of Technology Law & Policy 5 (2005).
↑5 Johnathan Reich, The Class Defense: Why Dispersed Intellectual Property Defendants Need Procedural Protections, 9 Duke Law & Technology Review (2010); Assaf Hamdani & Alon Klement, The Class Defense (2004).
↑6 See Senate floor debate on Conference Report on H.R. 2281, the Digital Millennium Copyright Act (Oct. 8, 1998), Sen. Leahy remarks: “This title is intended to preserve incentives for online service providers and copyright owners to cooperate to detect and address copyright infringements that occur in the digital networked environment.”
↑7 For example, Spain and the UK.

Super Bowl Seizures

By , February 04, 2011.

ICE is back at it, seizing the domain names of 10 sites allegedly involved in streaming live sports online — a week before the Super Bowl.

One of the sites involved in this latest round of seizures has previously been successful against charges of copyright infringement in a Spanish court, leading to many questions about the process. How can these sites be liable if they don’t host content? What about court precedent concerning vicarious or contributory liability? And what about DMCA safe harbors?

These are fair questions, but they reveal a misunderstanding of what is going on. To understand why, we need to take a quick look at the difference between proceedings in personam and proceedings in rem.

In personam proceedings are cases against a person (or a legal entity like a corporation) and can be civil or criminal in nature. In rem proceedings are against property (and generally considered civil in nature, even when initiated by the government). In personam proceedings are by far the most common and most familar cases. But while in rem proceedings, particularly civil forfeiture proceedings, are not well-known, they do have a long history. Colonial courts were exercising in rem jurisdiction in forfeiture cases long before the Constitution was adopted, and the First Congress passed laws providing for forfeiture for customs offenses. 1See Austin v. US, 509 US 602 (1993) and US v. Parcel of Rumson, NJ, Land, 507 US 111 (1993).

In the copyright world, individuals or entities can personally be sued or charged with direct infringement if they reproduce, distribute, publicly display or perform, or make a derivative work without permission. They can also be held liable for indirect infringement if they themselves haven’t directly infringed but aided, benefited from, or induced a direct infringer. In the US, you also have DMCA safe harbors that may limit indirect liability for certain online service providers.

Things change when we start talking about in rem proceedings. Property itself can’t be “guilty” or “liable.” 2Although you sometimes hear in rem proceedings described as operating under the legal fiction that property itself is culpable. It also can’t be indirectly liable, and it certainly couldn’t qualify for DMCA safe harbors — how would a domain name expeditiously remove infringing material after receiving a notice?

Instead, forfeiture of property through in rem proceedings is typically based on the property being either contraband (the property itself is illegal), the proceeds (“fruits”) of criminal activity, or the tools and instrumentalities used to commit criminal activity. Note that these are independent of ownership. A car used to transport narcotics across state lines may be forfeited regardless of whether the owner of the car is involved or not (though federal law does provide for an “innocent owner” defense in civil forfeiture proceedings). The relevant relationship is between the property and the underlying criminal activity. That is, the question is not whether the site itself is directly or indirectly liable for copyright infringement, as it would be had the site owner been sued in civil court.

I’ve previously written about other aspects of these domain name seizures, but today I wanted to focus solely on this distinction. Let’s start by taking a look at the law that forms the basis of ICE’s actions.

Forfeiture Under 18 US § 2323

These seizures were made pursuant to 18 USC § 2323, which provides for civil and criminal forfeiture of property in copyright infringement cases. The statute reads:

(a) Civil Forfeiture.—

(1) Property subject to forfeiture.— The following property is subject to forfeiture to the United States Government:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90 section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.

(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

The domain names here have been seized as property used to commit or facilitate the commission of copyright infringement, so we’ll be specifically looking at § 2323(a)(1)(B).

Domain Names Are Property

The first question we have to ask is whether a domain name itself can be considered “property” under this statute. The answer is most likely yes. Congress has explicitly established domain names as property in other contexts, most notably the Anticybersquatting Consumer Protection Act. 315 § USC 1125(d)(2)(A).

Perhaps the best explanation of domain names as property comes from the Ninth Circuit, in Kremen v. Cohen. 4337 F.3d 1024 (9th Cir. 2003). The court was tasked with determining whether the Kremen had a valid conversion claim against Cohen after Cohen conned a domain name registry into transferring “sex.com” over to him. Since conversion requires the wrongful disposition of a property right, the court’s first question was whether there exists a property right in domain names.

We often think of “property” narrowly — as tangibles like your house or your car. But property, as the Ninth Circuit noted, is a “broad concept that includes ‘every intangible benefit and prerogative susceptible of possession or disposition.'” 5Citing Downing v. Mun. Court, 88 Cal.App.2d 345, 350 (Cali Ct of Appeals 1948). Semantically, you could argue that just about anything counts as “property” under that definition, so we need some way of deciding what is considered property in legal contexts, especially when we talk about intangibles like domain names.

In Kremen, the court made use of a three-part test for determining whether a particular thing can be considered property in the legal sense:

  1. There 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

Domain names satisfy all three parts, the court concluded. In addition, other courts in the past have ordered the forfeiture of domain names as part of sentencing in criminal copyright infringement cases: two examples of this are here and here. Property subject to criminal forfeiture (for copyright infringement) is the same as property subject to civil forfeiture. 618 USC § 2323(b)(1).

Facilitation

Since domain names are considered property for forfeiture purposes, the next step is determining whether they can be used to commit or facilitate the commission of copyright infringement.

“Facilitation” when used in forfeiture statutes generally means any activity that makes the underlying criminal activity “less difficult or ‘more or less free from obstruction or hindrance.'” 7US v. Premises Known as 3639-2nd St, NE, 869 F.2d 1093 (8th Cir. 1989). Going back to § 2323(a)(1)(B), you’ll note that its coverage is very broad; it applies to any property used in any manner or part to facilitate the commission of a crime. Indeed, prior to 2000, many courts have read forfeiture statutes with similar “any manner or part” language very broadly — upholding the forfeiture of houses where a single drug transaction took place, for example.

That changed with the passage of the Civil Asset Forfeiture Reform Act of 2000, which provided that in all civil forfeiture statutes, “if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” 818 USC § 983(c)(3). This language “is intended to require that facilitating property have a connection to the underlying crime significantly greater than ‘incidental or fortuitous.'” 9146 Congressional Record 5231 (2000). And while the relationship between forfeiture law and the Eighth Amendment is beyond the scope of this post, I did want to note that the Constitutional prohibition against excessive fines places additional limitations on what can be forfeited. 10Austin v. US, 509 US 602 (1993).

Putting it All Together

With all the domain names seized, there was an alleged underlying criminal offense — the unauthorized transmission of live sports events, or unauthorized streaming of movies, or unauthorized reproduction of music. It is irrelevant whether the offense was occurring on the site the domain name pointed to or somewhere else. Maybe some of these sites would be found liable if sued in civil court, maybe some wouldn’t. We’re concerned only with whether or not there is a substantial connection between the domain name and said underlying criminal offense.

The answer to that question would come down to the specific facts of each site. It’s certainly less difficult to visit a site by domain name rather than IP address. And, as the owner of the seized Torrent-Finder domain name points out, sites like these typically rely on SEO to drive attract traffic and sell ads. If the site owner is using SEO to attract visitors looking for infringing content, then the connection between the domain name and the offense is more than just incidental and fortuitous. But is it significantly more? Again, that probably depends on the design of the site. The more a site is dedicated to infringing activities and the more a site attempts to profit from infringing activities, the greater the likelihood of a substantial connection.

What you can’t do, however, is look to existing court decisions involving direct or indirect liability for infringement: in rem forfeiture and in personam liability are two different questions.

References

References
↑1 See Austin v. US, 509 US 602 (1993) and US v. Parcel of Rumson, NJ, Land, 507 US 111 (1993).
↑2 Although you sometimes hear in rem proceedings described as operating under the legal fiction that property itself is culpable.
↑3 15 § USC 1125(d)(2)(A).
↑4 337 F.3d 1024 (9th Cir. 2003).
↑5 Citing Downing v. Mun. Court, 88 Cal.App.2d 345, 350 (Cali Ct of Appeals 1948).
↑6 18 USC § 2323(b)(1).
↑7 US v. Premises Known as 3639-2nd St, NE, 869 F.2d 1093 (8th Cir. 1989).
↑8 18 USC § 983(c)(3).
↑9 146 Congressional Record 5231 (2000).
↑10 Austin v. US, 509 US 602 (1993).

Lelia Broussard

By , January 31, 2011.

I’ve been a fan of singer-songwriter Lelia Broussard since hearing her song ‘Satellite’ on thesixtyone.com and seeing her perform live along with the equally talented Allison Weiss and Bess Rogers.

Like most emerging artists, Lelia makes full use of the internet to promote her music. Besides her website and thesixtyone, she’s on YouTube, Twitter, and  Bandcamp. She has a Kickstarter page to raise funds. And, of course, the tried and true email list.

Earlier this month, Lelia sent out an email to her list. Part of it read:

For those of you new to my music, I have been putting out music and touring since 2005 on an independent basis. I have several records out, a good bit of my music is on Itunes, and my newer CD is in the store on my own website, but if you can’t get enough of my music and want more more more, I recently decided to release a digital collection of all my old records that I have put out and a TON of unreleased rare tunes that I won’t ever release…some acoustic, some live, and some are full on studio recordings that never made it onto a record. However, because of some of the upcoming events and if all goes according to plan, I am only going to be able to offer this for a short time longer.

A few days later, Ms. Broussard followed up with another email. Apparently, many of her fans thought she had meant she was giving away all this music for free. Not so.

What followed was an impassioned message about the struggle musicians like Lelia face getting to the point where they can sustain a musical career.

I do give away a lot of music to my fans, when you join the email list and throughout the year and will absolutely keep doing that, no question! But I can’t give away everything!! #youguys

Please hear me out for a sec on this. I am at this moment in time, a very poor, underpaid musician. Right now, I am not even permanently living anywhere…it may sound like a jet set life, traveling here and there for shows, but believe me, its not! I wouldn’t trade if for anything, I can’t NOT make music, I just have to…but there you go, that’s the truth, not so glamarous and jet setty! #newword

Even if I were on a major record label, that could still be the case. Unless I start selling out much bigger clubs than I am currently playing, I am losing money when I go out on tour, and unless I independently sell at least 10,000 records, I am barely breaking even on putting out a record because of all the costs that come with that.

That is why you see me busting my ass doing fund  raising along with music, it’s the only way for me to fund my life and continue to write and record, and tour, and its how I am able to pay for some PR, radio campaigns, keeping all the things running that I do have. I haven’t raised enough for all of those things yet, but am working on it, which is why I keep at it like this and ask for support.

A lot of people just simply do not buy music anymore, they just illegally download it. I don’t like it, my musician friends don’t like it, but we realize its part of our world now, so we try to do  and release music/things that fans might want that they can’t get elsewhere and  that they would purchase, because they do want to support us.

I think Lelia’s message highlights some important points. The question of illegal downloading is often cast as generational, with young people seeing it as a way of life. It is also often framed as only an industry problem: corporate suits wanting to control culture versus new artists embracing the “benefits” of piracy. These are useful narratives for proponents of weaker copyright, but as Lelia attests to, they don’t necessarily hold up when compared to reality.

Although Lelia sells her music online, she also provides a good deal of it for free, either streaming or available for download. Some musicians choose to give all their music away online, others don’t even allow digital downloads for sale. Which is the best choice? I don’t know. But the bottom line is that it should remain the artist’s choice. Many copyright critics would rather take that choice away from artists, gussied up in a “it’s for your own good” argument.

Becoming a full-time musician is tough work. Yes, people would still create without the copyright incentive. But that’s not the best way to ensure our lives are enriched with the songs and sounds that connect with us emotionally and give us meaning. And as much as the internet has opened up new avenues for artists to connect with their fans, twitter followers, touring, and t-shirts are not enough to sustain a musical career.

Crafting good music often involves talents beyond that of individual artists like Lelia — talents of people like producers and engineers. Getting that music heard requires the investment of a great deal of time and money, and it also is aided greatly by other talented individuals like video producers and promoters.

Creativity provides many benefits. The question lurking beneath the copyright debates is “where should those benefits go?” Should they all flow to those looking for a cheap way to fill up their iPods and web sites looking for cheap ways to attract traffic and sell ads? Or should the law ensure that some of those benefits go back to those who devote their time and talents to create?

Copyright and Censorship

By , January 25, 2011.

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

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Members of the Belarus Free Theatre joined the gathering, having recently wrapped up a show in the City. In Europe’s last dictatorship, the Belarus Free Theatre is illegal. Shows are held in secret, with theater members and audiences subject to arrest. The members are barred from attending state universities or working in state employment. When the Belarus Free Theatre left for New York, they did so in the middle of the night, hidden in car trunks in order to avoid detection by the government. Once in the US, they heard news of their homes being ransacked, and their children being declared orphans — the government considering them “dead to the state.” The members fear arrest once they return to Belarus. 1For more on Belarus and the Belarus Free Theatre, see Zone of Silence; Why Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest.

Their crime? Performing theater.

That’s censorship.

Enforcing copyright law — whether through DMCA takedown notices, domain  name seizures, etc — is not in the same league. Yet, copyright critics almost reflexively apply the label of “censorship” to any attempt at better protecting the rights of creators.

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

Today, I want to put a bookend on these previous discussions of free speech and copyright by looking at some of the broader issues in the debate.

On Censorship

The “copyright as censorship” comparison permeates much of the discussion surrounding free speech and copyright. It’s often noted that early copyright law grew out of press licensing statutes that were passed to both protect proprietary rights of book publishers and allow governments to control seditious publications. The dual purpose of copyright law at the time is probably more coincidental than anything; France, for example, had no copyright law at that time, yet still maintained censorship over the press. 2Visit Voltaire: Voltaire Bio. Nevertheless, copyright law today is completely divorced from any sort of government control over content. If copyright is censorship, it hardly resembles the type of censorship the Belarus Free Theatre faces.

Supreme Court Justice John Marshall Harlan II described what he calls the “typical censorship situation” and its associated dangers in a 1964 dissent:

In the typical censorship situation material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower and the danger that protected expression will be repressed is less.

…

There are built-in elements in any system of licensing or censorship, the tendency of which is to encourage restrictions of expression. The State is not compelled to make an initial decision to pursue a course of action, since the original burden is on the citizen to bring a piece of writing before it. The censor is a part of the executive structure, and there is at least some danger that he will develop an institutionalized bias in favor of censorship because of his particular responsibility. In a criminal proceeding, however, the burden is on the State to act, the decision-maker belongs to an independent branch of the government, and neither a judge nor a juror has any personal interest in active censorship.

…

One danger of a censorship system is that the public may never be aware of what an administrative agent refuses to permit to be published or distributed. A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines. 3Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964).

Thankfully, this “typical censorship situation” is largely an anachronism in the US today. It is worth noting some of Harlan’s points about what makes administrative censorship so dangerous to free expression, especially an institutionalized bias in favor of active censorship. Also notable is the distinction between executive censor and criminal proceeding — with less danger of restrictions on expression under the latter. This danger is attenuated further when we’re in a civil proceeding between two private parties, as most copyright infringement cases are.

However, what Harlan doesn’t talk about in this particular passage is the sine qua non of censorship: restricting expression because of disagreement over its content. Government censorship is typically targeted at suppressing politically dissident speech, or obscene and other “inappropriate” speech. This is where copyright as censorship arguments falter. It’s illogical to say that enforcement of piracy is based on a disagreement about the content — a copyright owner agrees completely with the content. 4Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.” Cases of creative or transformative infringement do sometimes present issues where a copyright owner sues to stop a subsequent use she disagrees with, but as we’ll see, the doctrine of fair use provides a safeguard against censorship.

Prior Restraints

Closely related to censorship is the idea of “prior restraints.” In the First Amendment realm, prior restraints — suppression of speech before a final judicial determination that it is unprotected speech — are considered worse than punishment after speech has been made. 5Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.” Courts consequently take a deeply skeptical look at any type of law or regulation that resembles a prior restraint. This includes preliminary injunctions in civil lawsuits because they are granted only on the basis that speech is likely to be unprotected.

Yet courts routinely award preliminary injunctions in copyright infringement cases. The Supreme Court has even gone so far as to say that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” 6New York Times v. US, 403 US 713, White concurrence n.1 (1971).

What is it that makes courts treat copyright cases differently than other speech cases? The following excerpt provides a hint:

Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts. But in the words of New York’s Chief Judge Fuld:

“The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.”

Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value. 7Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985).

First Amendment Opportunism

Before delving into the issue of the First Amendment and copyright, I want to take a quick look at the issue of “First Amendment opportunism.” 8A term coined by Frederick Schauer in First Amendment Opportunism. Free speech is one of the foundations of a democratic society. Censorship, the kind the Belarus Free Theatre faces, is ugly. As we’ll see, the question of whether copyright law adequately accounts for free speech is increasingly being asked, as well it should. But coloring the debate by alleging censorship — comparing the removal of a dancing baby video from a corporate video site to violent suppression of political dissidents — is a damaging use of hyperbole. It both minimizes the horrors of true censorship and paints opponents as evil rather than wrong.

At the same time, such language is merely an outgrowth of First Amendment opportunism in the copyright realm. What do I mean by this?

In some ways, the First Amendment is the “won’t somebody think of the children” of the legal world.

First Amendment scholar Frederick Schauer explains, “[T]he First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority. The individual or group gaining the support of the First Amendment often believes, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also appears to strike fear in the hearts of many who do not want to be seen as being against it.” Schauer calls this “First Amendment magnetism” and says it “leads strategic actors to gravitate to it as easily as politicians gravitate to the flag, motherhood, and apple pie.”

The magnetic force of the First Amendment generates two distinct phenomena. First, actors in the public arena (defined here to exclude the courts) are likely to rely on the First Amendment in pressing their causes, in the often-justified expectation that doing so will disproportionately, compared to relying on other dimensions of the law, attract allies, generate favorable attention by the press, and arouse the sympathies of other public actors. Second, lawyers representing clients with claims and causes not necessarily lying within the First Amendment’s core or traditional concerns will add First Amendment arguments and claims to their core claims, or will modify their core claims to connect them with First Amendment arguments, all in the hope that doing so will increase the probability of their success. 9Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).

David McGowan has attributed much of the growing trend in constitutionalizing copyright to this First Amendment magnetism. He notes:

Many copyright scholars object to the way Congress deals with their subject. With good reason, they feel Congress wields a copyright ratchet: terms get longer, and the scope of rights gets wider, but never the reverse. The rare exception occurs when publishers ask Congress to shore up fair use rights to make it easier for authors to get information they need to produce works. On this account, Congress is simply a tool rich media conglomerates use to soak consumers, who are rationally ignorant of the shameless fleecing their “representatives” give them.

It’s no fun beating one’s head against a wall. So if the representative branches sell out, at least by academic standards, their power to do harm must be limited. Two things are needed: a non-representative forum, to limit the power of producer wealth, and a law that trumps Congress’s Article I power to grant exclusive rights to authors. The First Amendment seems like just the thing. Like copyright, it deals with expression, which makes almost any argument facially plausible. More importantly, in a conflict with Congress’s Article I power, the First Amendment trumps. 10David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004).

This isn’t to say that First Amendment magnetism is the same as naked opportunism, though it’s worth noting that this opportunistic use of free speech shows its head in practice. In 1879, one writer observed that “the ever active demagogue has been able to frame a cry of “free books for free men.” It is wonderful what an amount of things “free” men are entitled to have free. Free books, free and unlimited currency, free support from the State, etc., are supposed to have some connection with free speech, freedom of religion, and free trade, and therefore to be proper and valid cries. 11Book Notices, 391 Yale Literary Journal 287 (April 1879). Courts have called out alleged infringers for “hiding behind the first amendment.” 12Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972). Even free speech critics have made note of a naked First Amendment opportunism. L. Ray Patterson notes that courts have consistently rejected First Amendment defenses in infringement actions but states that “in general, these cases were sound in rejecting the free speech defense as being the last refuge of an infringing scoundrel.” 13Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987).

What we’re talking about here is an opportunism in the nonpejorative sense. Recognizing the existence of this First Amendment magnetism is important when discussing copyright law. The issue is not one of copyright versus free speech, no matter how often it is framed as greedy creators against defenders of the First Amendment.

With that in mind, let’s take a look at the brief history of copyright and the First Amendment.

Copyright and the First Amendment: A Brief History

The US Constitution, which grants Congress the power to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” was completed September 17, 1787. It officially went into effect March 4, 1789. The first federal copyright law, the Copyright Act of 1790, was signed by President Washington on May 31, 1790. The First Amendment was adopted December 15, 1791.

For nearly 200 years, the relationship between the first amendment and copyright law received little if any attention from courts or scholars. This is not entirely surprising if you consider the fact that first amendment free speech jurisprudence as a whole has only emerged within the past hundred years. 14See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999.

This changed in 1969 when Melville Nimmer asked Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press? 15Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969). Two more articles, by Paul Goldstein and Lionel Sobel followed shortly afterward — with Sobel’s article presciently asking about a “gathering storm” between copyright and the first amendment. 16Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971). Over the next several decades, the clouds slowly gathered with occasional articles on the subject. 17Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996). With the enactment of the Copyright Term Extension Act and the Digital Millennium Copyright Act in the late 90s, the storm clouds finally broke; the relationship between copyright and free speech grabbed a lot of attention from scholars. 18See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). Taken as a whole, the academic literature has shown an increased effort at “constitutionalizing” copyright, offering a “free speech critique” of copyright. 19A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).

But despite all this academic attention toward a conflict between copyright and free speech, courts have consistently rejected separate First Amendment defenses in copyright infringement cases. On its face, this point understandably creates confusion; it’s easy to think that copyright is thus corrosive to free speech values. That’s not the case though.

As it turns out, copyright itself incorporates many of the same speech values that the First Amendment does.

Copyright’s Free Speech Values

The Supreme Court has on several occasions described copyright as the “engine of free expression.” By providing incentives to invest in creating and disseminating works, copyright drives new expression and ideas into the public sphere, benefiting everyone. Copyright infringement, especially wholesale piracy, short-circuits these incentives, creating a chilling effect on the creation of new works. Creators also have a continuing speech interest in their works, which copyright helps protect.

Copyright and the First Amendment thus serve many of the same values, just in different ways. They coexist rather than contradict. Lon Sobel explains this coexistence by demonstrating that the two operate in different spheres of influence:

The purpose of the first amendment is to guarantee freedom of expression. As Thomas I. Emerson had indicated, freedom of expression is necessary 1) to assure individual self-fulfillment, 2) to attain the truth, 3) to secure participation by the members of society in social and political decision making, and 4) to maintain a balance between stability and change in society.

Clearly none of these reasons for free expression is violated by the Copyright Act.

Individual self-fulfillment requires that man be free to express the beliefs and opinions he has formed in the process of developing his mind. As Emerson explained, expression is in fact an integral part in the development of ideas. “Hence suppression of … expression is an affront to the dignity of man.”

However, the expression of the beliefs and opinions of another, using the exact words the other used, is not any part of the development of one’s own ideas. True, “‘A dwarf standing on the shoulders of a giant can see farther than the giant himself.'” But any consideration of the ideas of another which is thoughtful enough to provoke new ideas in the mind of the reader, should also be thoughtful enough to enable the reader to restate his own new ideas. Thus, the Copyright Act prohibition of word-for-word copying of another can hardly be thought of as “an affront to the dignity” of the one who would have otherwise copied. The Copyright Act is merely an impediment to the one who would reap where he has not sown.

The attainment of truth depends upon free expression because no person or group can possess all knowledge. Truth is distilled from the volatile mixture of opposing opinions. But the expression of an opinion already expressed by another — in the same words used by that other — adds nothing to the search for truth. It is merely the repetition of an opinion that was already available from its original source. Nor is it an answer to allege that the infringer may be supplying customers the copyright holder was unable to supply. It is freshman economics that supply — to the extent it is variable — will increase to meet the demand.

Since the ascertainment of truth depends upon the consideration of every relevant fact and opinion, it is important that all members of society participate in social and political decision-making. Freedom of expression is necessary in order for people to participate truthfully and fully. Moreover, since, as the Declaration of Independence states, governments derive “their just powers from the consent of the governed,” the governed must have the freedom to express their consent — or lack of it. However, what is important in this regard is the participation of one’s self in the decision-making processes. The man who has expressed and copyrighted his own views has already contributed those views. The government is not further assisted by one who merely parrots that which has already been said. Therefore, copyright laws do not impede any useful participation in the decision-making processes.

[…]

In the sum and substance, the first amendment was designed to encourage and protect the communication of diverse ideas. Copyright laws, protecting as they do only particular expressions, do not conflict with any of the first amendment’s purposes. 20Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971).

Copyright’s Internal Handling of Free Speech

If copyright law and the First Amendment coexist, does that mean they never contradict? Of course not. But courts’ handling of First Amendment issues in copyright cases differs from its handling of First Amendment issues in other types of cases.

To understand why, we need to first look a little closer at how courts deal with free speech arguments in general. One District Court provides a little background:

Courts often have spoken of certain categories of expression as “not within the area of constitutionally protected speech” … But such judicial statements in fact are not literally true. All modes of expression are covered by the First Amendment in the sense that the constitutionality of their “regulation must be determined by reference to First Amendment doctrine and analysis.” Regulation of different categories of expression, however, is subject to varying levels of judicial scrutiny. Thus, to say that a particular form of expression is “protected” by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment. 21Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000).

In one sense, all laws or regulations impact free speech to some extent. “[E]very civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,” said the Supreme Court in Arcara v. Cloud Books. 22478 US 697, 706 (1986). “One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim. Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders.”

Frederick Schauer points out an important distinction between the “coverage” and the “protection” of the First Amendment. He notes:

Like any legal rule, the First Amendment is not infinitely applicable. Though many cases involve the First Amendment, many more do not. Thus, the acts, events, behaviors, and restrictions not encompassed by the First Amendment at all, that remain wholly untouched by the First Amendment, are the ones we will describe as not being covered by the First Amendment. It is not that the speech (or anything else) is not protected by the First Amendment. Rather, it is that the entire event does not present a First Amendment issue at all, and the government’s action is consequently measured against no First Amendment standard whatsoever. The First Amendment simply does not show up.

When the First Amendment does show up, the full arsenal of First Amendment rules, principles, maxims, standards, canons, distinctions, presumptions, tools, factors, and three-part tests becomes available to determine whether the particular speech will actually wind up being protected. 23The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).

What sets copyright apart from other “speech” cases — obscenity, libel, “fighting words,” etc. — is that both the coverage and the protection of the First Amendment are handled internally rather than through the panoply of “rules, principles, maxims, standards,” and so on. The two major “built-in free speech safeguards” in copyright law are the idea-expression dichotomy and fair use.

Copyright protection doesn’t cover ideas, only the expression of those ideas. This distinction between ideas and expression has been called a “definitional balance” between free speech and copyright interests — a line between what is covered by the first amendment and what is not. Copyright provides an incentive to create and disseminate expression. By extension, the ideas expressed are also disseminated, benefiting the public. But protection ends where expression ends, and anyone is free to use the ideas in any given work. In a sense, the first amendment protects this “marketplace of ideas” but doesn’t extend to a “right to copy.” 24See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” Or, as one court bluntly put it:

We do not find any denial of freedom of expression to the “tape pirate”. What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance. 25US v. Bodin, 375 F.Supp 1265).

The fair use doctrine recognizes that some uses of copyrighted expression without the permission of the copyright owner are beneficial. Prior to the infusion of First Amendment rhetoric into the copyright realm, fair use was seen as an important component in furthering copyright’s constitutional purpose:

There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had gone before him.The scholar, like the ordinary user, of course could be left to bargain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference between the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author’s expense — to permit the second author to make limited use of the first author’s work for the public good. 26Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973).

At the same time, fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright. 27For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978). The rationale is much the same. The only difference is a shift in framing the purpose of fair use as upholding first amendment values rather than progress of the useful arts and sciences values.

Think of it this way. the idea-expression distinction sets the boundaries of what is covered by the First Amendment. The question is not whether using another’s expression is “protected” or “unprotected” but rather whether it falls within the First Amendment’s scope at all. Even then, we have long recognized that some uses of expression should be allowed, and that’s where fair use kicks in. Fair use balances the free speech interests of the public and subsequent creator against those of the original creator.

Both these doctrines adequately address first amendment concerns within copyright law. The free speech critique of copyright essentially argues that courts should address these concerns a second time in a separate analysis. But to date, courts have found no need to ask the same question twice.

References

References
↑1 For more on Belarus and the Belarus Free Theatre, see Zone of Silence; Why Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest.
↑2 Visit Voltaire: Voltaire Bio.
↑3 Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964).
↑4 Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.”
↑5 Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.”
↑6 New York Times v. US, 403 US 713, White concurrence n.1 (1971).
↑7 Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985).
↑8 A term coined by Frederick Schauer in First Amendment Opportunism.
↑9 Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).
↑10 David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004).
↑11 Book Notices, 391 Yale Literary Journal 287 (April 1879).
↑12 Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972).
↑13 Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987).
↑14 See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999.
↑15 Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969).
↑16 Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971).
↑17 Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996).
↑18 See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010).
↑19 A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).
↑20 Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971).
↑21 Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000).
↑22 478 US 697, 706 (1986).
↑23 The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).
↑24 See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”
↑25 US v. Bodin, 375 F.Supp 1265).
↑26 Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973).
↑27 For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978).
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