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.
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. 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.
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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.
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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.
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.  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.  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.”
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.
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.” 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.
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.
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. Courts have called out alleged infringers for “hiding behind the first amendment.” 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.”
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.
This changed in 1969 when Melville Nimmer asked Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?  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. Over the next several decades, the clouds slowly gathered with occasional articles on the subject. 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. Taken as a whole, the academic literature has shown an increased effort at “constitutionalizing” copyright, offering a “free speech critique” of copyright.
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.
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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.
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.
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.  “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.
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.” 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.
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.
At the same time, fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright. 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.
, Adrian Johns describes the experience in France during the French Revolution: