Domain Name Seizure Warrant and Probable Cause

By , December 28, 2010.

A month ago, as many readers are aware, the US federal government seized a number of domain names for sites engaged in counterfeiting and infringement. The seizures were applauded by many working in the creative industries.

In my previous post on the subject, I responded to criticisms that the seizures violate due process (they don’t) and the First Amendment (they don’t).

A new round of criticisms have sprung up recently when a copy of the seizure warrant for several of the domain names — specifically, those alleged to be facilitating copyright infringement as opposed to counterfeiting — appeared online. You can see the warrant and affidavit here.

The criticisms have been spearheaded primarily by Techdirt, where a series of posts have alleged “technical and legal errors” in the warrant and affidavit. 1See Homeland Security Presents ‘Evidence’ for Domain Seizures; Proves it Knows Little About the Internet — Or the Law; Full Homeland Security Affidavit to Seize Domains Riddled With Technical and Legal Errors; More and Bigger Mistakes Discovered in Homeland Security’s Domain Seizures.

Are there errors in the affidavit? If so, do they even matter? The answer is no. The confusion comes from misunderstanding the nature and purpose of warrants and the meaning of “probable cause.”

Probable Cause

A seizure of property for a forfeiture proceeding is very much like an arrest of a person for a criminal trial. The trial or forfeiture proceeding is where guilt or innocence is determined. All that is needed for a seizure or arrest is some basis for starting a trial or forfeiture proceeding against the person or property.

In the US, the Fourth Amendment establishes that basis as “probable cause.” Probable cause does not mean prima facie evidence of guilt — evidence that, as the Supreme Court said over 200 years ago, “would justify condemnation.” 2Locke v. United States, 11 US 339, 348 (1813). Instead, it means only that it is probable that a crime has been committed. Probable cause requires only a “reasonable ground for belief of guilt.”

Most often, probable cause is established by a warrant. The investigating officer writes up an affidavit describing the facts and circumstances that lead him to believe a crime has been committed and submits it to a neutral judge. The judge reviews the warrant and signs off on it if satisfied that probable cause has been established.

Recognizing the distinction between the standard of probable cause and the standard required to prove guilt is important to seeing why the criticisms of this warrant are baseless.

In 1949, the Supreme Court explained the distinction:

Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.

However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied.

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. 3Brinegar v. United States, 338 US 160, 174-76 (1949).

The Court could not be more clear on this last point. It has reiterated many times that probable cause is a preliminary and tentative determination, the affidavits accompanying warrants need not be “ironclad” or airtight, and magistrates should use common sense when deciding whether to issue a warrant, not focus on hypertechnicalities. 4See Brinegar; Spinelli v. US, 393 US 410, 419 (1969); Beck v. Ohio, 379 U. S. 89, 96 (1964); McCray v. Illinois, 386 U. S. 300, 311 (1967); United States v. Ventresca, 380 U. S. 102, 108 (1965); Barber v. Page, 390 U.S. 719, 725(1968).

The Court’s reasoning for giving warrants such leeway is based on the realities of law enforcement. As it said in US v. Ventresca (1965):

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. 5380 US 102, 108 (1965).

Sixteen years earlier, the Court said this common-sense approach that favors warrants but leaves room for reasonable mistakes properly balances the constitutional rights of individuals with the necessities of law enforcement:

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice. 6Brinegar v. United States, 338 US 160, 176 (1949).

Bottom line: seizures and forfeiture proceedings serve different purposes, like arrests and trials. The warrant is a preliminary instrument whose function is to establish probable cause of a crime. Actually proving guilt or innocence comes later. The realities of enforcing law require a lot of leeway in a warrant: it’s enough for probable cause that the facts and circumstances in the affidavit would lead a reasonable man to conclude that there is a likelihood that a crime was committed.

The Errors?

One of the “errors” alleged by Techdirt is the inclusion of statistics about the effects of online piracy in the affidavit. These statistics were likely added to provide context or background to the investigation for the judge reviewing the warrant. The “error” is that Techdirt disputes the validity of the statistics. But whether or not you agree with the accuracy of the statistics cited in the warrant is irrelevant: probable cause for copyright infringement doesn’t depend on the scope of the harm in the aggregate.

Other “errors” pointed out include the use and definition of certain terms. For example, the classification of Torrent-finder as a “bit torrent website” is disputed because it “hosts no tracker” and “hosts no infringing content.” But the terms are only descriptive, irrelevant to whether or not probable cause of a crime exists. Even if the terminology is technically incorrect, this is the type of “error” that the law doesn’t care about in warrants.

I’m not even sure the terminology used here is even wrong in the first place. BitTorrent is a protocol, so there’s an accepted, technical definition for that — but is there an accepted, technical definition for a “bit torrent website”? Wikipedia lists sites similar to Torrent-finder at Comparison of BitTorrent sites: sites that search through multiple torrent search engines but do not host trackers or infringing content themselves.

Some of the other “errors” found in the seizure warrant include what amount to possible defenses against criminal copyright infringement — for example, the operator of one of the sites whose domain name was seized claims that several of the songs available to download that had been identified in the warrant were authorized to be shared for promotional purposes. If true, this would of course mean that there was no infringement of those specific songs. But that’s an issue for the forfeiture proceeding, not the probable cause determination.

The Supreme Court has “flatly rejected the idea that the police have a standing obligation to investigate potential defenses before finding probable cause.” 7Acosta v. Ames, 386 F. 3d 5, 11 (1st Circuit, 2004), citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979). Possible defenses and claims of innocence are issues for the judge and jury, not law enforcement officials. Yes, this means that sometimes property is seized or people are arrested that later are found not guilty. That is the purpose of the trial — to determine innocent or guilt. But “the Constitution does not guarantee that only the guilty will be arrested” and “due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” 8Baker v. McCollan
 at 145.

Conclusion

An actual legal challenge to this warrant would not likely be successful, but I doubt that is the goal of those pointing out the “errors” they’ve found. It’s not as though if some of the technical definitions were worded differently, or alternate statistics were used, critics would have no problem with the seizures.

Their problem is disagreement with fundamental copyright laws, so any attempts to enforce those laws are attacked any way they can. Critics seem to want an exception from these rules of probable cause and procedure — rules that apply to pretty much every other law, both federal and state — for piracy. A “balanced” copyright law, it seems, is one that places all the burden on the copyright holder — from creating and investing in new works to policing and enforcing the rights in those works — while requiring that “every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting” a torrent search engine. 9Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require.

References

References
↑1 See Homeland Security Presents ‘Evidence’ for Domain Seizures; Proves it Knows Little About the Internet — Or the Law; Full Homeland Security Affidavit to Seize Domains Riddled With Technical and Legal Errors; More and Bigger Mistakes Discovered in Homeland Security’s Domain Seizures.
↑2 Locke v. United States, 11 US 339, 348 (1813).
↑3 Brinegar v. United States, 338 US 160, 174-76 (1949).
↑4 See Brinegar; Spinelli v. US, 393 US 410, 419 (1969); Beck v. Ohio, 379 U. S. 89, 96 (1964); McCray v. Illinois, 386 U. S. 300, 311 (1967); United States v. Ventresca, 380 U. S. 102, 108 (1965); Barber v. Page, 390 U.S. 719, 725(1968).
↑5 380 US 102, 108 (1965).
↑6 Brinegar v. United States, 338 US 160, 176 (1949).
↑7 Acosta v. Ames, 386 F. 3d 5, 11 (1st Circuit, 2004), citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979).
↑8 Baker v. McCollan
 at 145.
↑9 Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require.

Speech Interests of Creators

By , December 21, 2010.

As scholars, interest groups, and bloggers criticize copyright, many turn to the first amendment to add heft to their arguments. The nature and scope of copyright law is not just bad, they argue, it is unconstitutional.

The “free-speech critique of copyright” 1A phrase coined by law professor David McGowan in Some Realism About the Free Speech Critique of Copyright. seems appealing, at first glance. For starters, it sounds a lot better to say you’re defending the Constitution rather than complaining about having to pay for music and movies.

But this criticism of copyright law suffers in a number of respects. In Artistic Expression, the First Amendment, and Copyright, I showed how the free speech critique of copyright fails to take into consideration the free speech rights of creators. In this sense, the free speech critique isn’t about upholding the values of the first amendment where they’ve been previously ignored — it’s about playing favorites with first amendment values: the free speech rights of those who make creative or even consumptive uses of existing expressive works should be protected at the expense of the free speech rights of those who actually created the works in the first place.

When we discuss the relationship between the first amendment and copyright, it’s important to recognize that creators have free speech interests too. Earlier this month, I took a look at how copyright law helps protect the free speech rights of creators. Copyright is the “engine of free expression” that provides an incentive to invest in the creation and dissemination of ideas and expression. Piracy — the unauthorized distribution of near-exact copies of a work — creates a chilling effect on the speech of creators.

But copyright law does more than just promoting the creation and dissemination of new expression. It also helps to protect the free speech rights of creators after a work has been created.

David McGowan explores this point in Some Realism About the Free Speech Critique of Copyright.

Audiences understand works in light of a cluster of facts and circumstances we call context. Contexts change, so meanings can change. People may understand a work in different ways at different times. One way a meaning can change is for one person to take a work and place it in a new context of their own creation, trading on its meaning and thereby imbuing the work with their own perceptions.

[…]

The changeability of meaning is fundamental to the relationship between copyright and speech. Take whatever collective description of free-speech activity you prefer: the development of common culture, democratic civil society, or what have you. Call it “speech.” Because meanings can change, an author’s contribution to speech may end when a work is published, but it does not have to. If the law gives her the power, an author can keep on trying to manage the meaning of a work over time.

This point is not lost on the free speech critics of copyright. In fact, for some, it forms the basis for their argument.

For example, in Parchment, Pixels, and Personhood: User Rights and the IP (Identity Politics) of IP (Intellectual Property), John Tehranian classifies copyright infringement as something akin to a fashion statement. Just as some people choose to express themselves through the clothes they buy and how they wear them, some people choose to express themselves through the music they listen to and through remixing or mashing up existing works.

What’s unclear is why copyright law stands in the way of this expression, and what’s even less clear is how the first amendment requires copyright law to get out of the way more than it does now.

It doesn’t. The free speech criticism of copyright fails on this point because it neglects the creator’s free speech interests in managing the meaning of a work. As McGowan explains:

[W]hen one speaker wants to use another’s work, the relevant legal rules embody a choice between two speech interests. Because meanings can change, and because authors may affect that change, this choice is not a choice between an author who has had his say and one who wants to speak. It is between two people who would like to try to make people see a certain work a certain way.

So there is good news and bad news. The good news is that whichever of these rules, or any combination of them, the law adopts, a speech interest will be advanced. The bad news is that whichever rule it adopts, a speech interest will be harmed. Whether you consider it good news or bad, this fact means that no notion of speech, and no theory of the freedom of speech, provides a premise for preferring one rule over the other.

Now we can see what the Supreme Court means when it says “copyright law has built-in First Amendment accommodations.” 2Eldred v. Ashcroft, 537 US 186, 219 (2003). The copyright incentive spurs the creation and dissemination of new ideas and expression, while the distinction between ideas and expression (copyright protects only expression, not ideas) means users and downstream creators can use and build on these new ideas. Fair use allows others to use even the expression in existing works without permission in certain situations — situations such as criticism 317 USC § 107. and parody, 4Campbell v. Acuff-Rose, 510 US 569 (1994. where the use is valuable, but it is unlikely for a copyright owner to grant permission.

But any free speech critique of copyright that ignores or neglects the free speech rights of creators does a disservice to the values enshrined in the first amendment. Creators should not be asked to sacrifice their speech rights just because nonconstitutional arguments against copyright have faltered.

References

References
↑1 A phrase coined by law professor David McGowan in Some Realism About the Free Speech Critique of Copyright.
↑2 Eldred v. Ashcroft, 537 US 186, 219 (2003).
↑3 17 USC § 107.
↑4 Campbell v. Acuff-Rose, 510 US 569 (1994.

The Chilling Effect of Copyright Infringement

By , December 10, 2010.

A common criticism of copyright law or its enforcement is that it doesn’t adequately protect first amendment rights. Activist groups like the EFF, Public Knowledge, and the Center for Democracy & Technology are  quick to raise the issue at the first sign of any proposal or effort to protect copyright rights. I’ve previously addressed such arguments as they related specifically to COICA and domain name seizures.

The “free speech critique” of copyright can essentially be summed up as this: “Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please.” 1Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). The past few decades have seen a ton of academic scholarship devoted to this critique. 2Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); 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 Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (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); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). By and large, the consensus is that the restriction exists, and something needs to be done about it.

What’s missing from these arguments, however, is any discussion about the free speech rights of copyright owners. 3One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). Today I want to take a closer look at this discussion, one I broached before in Artistic Expression, the First Amendment, and Copyright.

Free Speech Rights of Copyright Owners

“Once it is decided … that the First Amendment operates in the copyright arena, it should be realized that it is a two-way street, for the copyright owner also has First Amendment rights.” 4William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985).

So says William Patry, one of the leading experts in the US on copyright law. He recognizes what many free speech critics of copyright don’t: free speech interests lay on both sides of the copyright owner-copyright user divide. And rather than standing in contradiction to each other, the first amendment and copyright law work in tandem to protect the free speech interests of both sides.

While this point is lost to free speech critics, US courts recognize it — first amendment defenses to copyright infringement actions are consistently rejected in lawsuits. “It should not be forgotten that the Framers intended copyright itself to be the engine of free expression,” wrote the Supreme Court in Harper & Row v. Nation Enterprises. Copyright and the first amendment co-exist to allow new ideas to be created and disseminated. Copyright provides an incentive to encourage the spread of new expression, while the first amendment removes roadblocks in the way of dissemination. What’s more, first amendment safeguards are built into copyright law: protection only extends to expression, not the underlying ideas; fair use allows criticism, commentary, and transformative uses without the permission of the copyright owner; and statutory exceptions exist for certain educational, library, and other “public” uses without permission to enhance access and dissemination of these works.

Copyright critics who raise first amendment concerns completely overlook the free speech rights of creators. One would think that the free speech rights of those who create original expression should, at the very least, be equal to the free speech rights of those who build upon existing works. But under the prevailing view, it seems that the free speech rights of creators of original expression are in fact subservient to subsequent users of that expression.

Even if we accept the notion that some people’s first amendment rights are more important than others, the copyright critic’s ranking doesn’t make sense. Why should we value the free speech rights of those who add new expression to the marketplace of ideas less than the free speech rights of those who build upon or reproduce that new expression?

As David McGowan writes in Some Realism About the Free Speech Critique of Copyright,

The free-speech critique wants courts to favor one type of speaker over another. It plays favorites. It therefore is at odds with any conception of free speech that prohibits judges from playing favorites among speakers, as both current doctrine and the most cogent speech theories do.

The Chilling Effect of Online Piracy

First Amendment doctrine cautions against laws that place a “chilling effect” on speech. Laws aimed at unprotected categories of speech (like libel or child pornography) that are not narrowly tailored may cause self-censorship or stifling of protected speech out of a fear of risking penalties or liability.

In the same vein, copyright infringement has a stifling effect on the creation and dissemination of new creation. Ineffective enforcement against infringement or undue burdens on copyright owner’s abilities to protect their rights reduces the incentive to continue to create new expression.

Essentially, copyright infringement creates a “chilling effect” on the free expression rights of creators.

This chilling effect is very real, as creators have attested to. Indie film producer Ellen Seidler recognized it while she was endeavoring to protect her rights. When submitting DMCA notices to Google to remove links to unauthorized version of her film, she was told copies of her notices would be posted to the Chilling Effects website. “The implication therein is that by asserting my rights and sending a DMCA to request the removal of infringing content I am somehow ‘chilling’ a pirate’s right to ‘free speech,’ she says. “Really?  In my view the only thing being ‘chilled’ is our right to make a living.”

Comic artist Colleen Doran describes first-hand how the chilling effect of online piracy affects her:

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

Freelance photographer Seth Resnick adds his perspective:

Copyright is the very basis of my existence and the existence of every freelance photographer in the country. As a freelancer, I exist only by the value of the intellectual property I am able to create. I have to control and license that property. If I don’t control the licensing I am unable to place any value on my art form of photography. Without the ability to license my intellectual property I simply can’t stay in the marketplace. A photographer or any artist who can’t stay in the market, can’t produce work which is a very part of our American culture.

Disputing the Chilling Effect of Online Piracy

Free speech critics may dismiss concerns about the “chilling effect” online piracy has on copyright holders as lacking in evidence or unworthy of attention. Yet they are quick to warn about the dangers to free speech that removing, say, a video of a dancing baby from one of numerous video sharing sites has. In the end, this argument is simply a choice between two speech interests — one that says some people’s rights are more important than others. And chilling effects are, by their definition, difficult to measure. But just as it’s not alright to say “censhorship is ok as long as no one actually ends up in jail,” it’s not alright to say “piracy is ok as long as no one actually files for bankruptcy.”

Concerns might also be dismissed by saying creators aren’t really concerned about their right to speak, they just want more money. But this type of thinking ignores the fact that copyright incentives benefit everybody. Society benefits from the creation of new works, authors and artists are encouraged to continue creating new works. All piracy does is remove the benefit from those creating the new works. As Ellen Seidler notes, with piracy, “Everyone is making money, it seems, except those who own the rights”.

Finally, it might be argued that the chilling effect of copyright infringement is no longer an issue since digital technology has somehow made copyright incentives irrelevant. The happy thoughts that everyone else benefits from the content you create will make up for the incentive copyright provides; merchandising and personal appearances are enough to recoup the expenses of devoting time to creating that content. I realize this argument warrants enough attention for an entirely separate article, but for purposes of this article, it suffices to say that the argument doesn’t justify infringing on free speech rights, and it flies in the face of reality. How many people are flocking to see news photographers in person? How many t-shirts can authors of educational books sell? The quality of the creative work doesn’t matter as much as the marketing skills of the creator, or how good she looks on camera. This same idea has certainly worked well in politics, right?

Parting Thoughts

Recognizing the “chilling effect” that infringement has on the free expression rights of copyright owners is just one strand in unraveling the free speech critique of copyright. In the future, I hope to look at some of the other issues involved in the critique — why courts have categorically denied first amendment defenses in cases of infringement, and why this approach makes sense, for example.

However, I don’t mean to imply that freedom of expression is somehow not important. The first amendment reflects the importance of this freedom in our society. It is precisely because of this importance that there is a responsibility to take everyone’s freedom of expression rights into consideration. Favoring one group’s free speech interests over another’s runs counter to the values enshrined in the first amendment and the copyright clause.

References

References
↑1 Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
↑2 Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); 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 Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (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); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010).
↑3 One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).
↑4 William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985).

Online Piracy: Nothing New

By , December 08, 2010.

There’s this idea that online piracy is somehow “different” from real-world or traditional piracy. It’s like nothing the world has ever seen before — a paradigm shift that fundamentally changes how content is created and consumed and calls into question the very notion of copyright law.

Online piracy is defended by many and even celebrated by some. Terms like “innovation” are applied frequently to those who discover faster and easier ways to ensure everyone benefits from content except those who spend the time and money creating it. In November, for example, music blog Hypebot asked, “Does litigation drive innovation in music piracy?”

On a sidenote, it’s important to distinguish between real innovation and “false innovation.” An airline might be able to cut costs by foregoing maintenance, but we wouldn’t call that move “innovation.”

It’s not hard to find examples of this sort of revelry in “piracy 2.0.”

Last month, a group released a “Pirate Edition” of the file-sharing program Limewire after a court injunction shut down the original version of the software. Those responsible celebrated both the difficulty the content industries have in enforcing their copyrights and the ease in which pirates can recover from any setbacks.

“A horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons and released it FREE to the community to help keep the Gnutella network alive,” say the coders.

“Speaking for myself, the motivation is to make RIAA lawyers cry into their breakfast cereal. I hope the other monkeys have nobler intentions,” says the project leader.

The idea that piracy is a noble cause now that it has moved online, or that this new generation of pirates are more clever than the bootleggers of the past for figuring out ways to evade the law and take all the benefits of the copyright incentive for themselves is silly.

As long as there has been copyright, there has been copyright infringement. And though dissemination of creative works has moved from print to digital, pirates use the same techniques to stay one step ahead of the law.

Nothing illustrates this better than the following selection from Edward Cutler’s 1905 book, A Manual of Musical Copyright Law. (I previously posted a different section in Enemies of Monopoly of Brain-product). Cutler describes a particular method of piracy seen in England over a century ago:

The piracy in recent years of copyright musical compositions and the musical anarchy which, unfortunately, still reigns in this respect, form a disgraceful epoch in the history of English jurisprudence.

Abuses have arisen which would be impossible in any other civilised state, and which hold Great Britain up to derision throughout the civilised world.

In the closing years of the last century some unscrupulous person invented a scheme for robbing the proprietors of copyright (whether composer or publisher) of their just gains.

Wretchedly-got-up versions of songs, carefully chosen from among those which have gained popular favour, are secretly printed and secretly stored in cellars. A few copies are handed out to irresponsible hawkers and are offered for sale by them at a penny or twopence a copy in populous thoroughfares. If interfered with, the dozen or so copies which each hawker has with him are given up. The loss to the thief is inconsiderable. Another hawker in the next street renews the stock and the same game is played out daily.

Another form of the fraud is the house-to-house distribution of lists of pieces of music, from which the householder can choose, and the supply of the pieces chosen at low prices. No printers name or address is found on any of the pieces sold. The people who are responsible for the transaction remain in the background, and in this way many thousands of copies of any popularised pieces of music are got rid of and the legitimate sale of the publication almost, if not entirely, ceases. There appears to be an idea in many people’s minds that these pirates deserve some sort of questionable credit for their ingenious evasion of the law, thereby defeating a vicious monopoly. It is time to undeceive them in this respect. Audacious lying; concealment of addresses, and scuttling away are the laudable means by which these street buccaneers carry out their ends. Ingenious evasion or device there is none, and their boldness would not have succeeded but for the supineness of the Government, the unreasoning sympathy which appears to exist in the minds of a few short-sighted politicians, and the dishonesty of purchasers who knowingly buy the spurious articles. The effect of this wholesale robbery is disastrous.

The publishers (leaving out of the question the most wealthy and old established houses, whose capital enables them to stand the brunt of the competition on unequal terms) are many of them hardworking tradesmen who have invested their small capital in getting together a business, and in purchasing the copyright of one or two songs which offer a probability of success, and they are ruined wholesale. They pay singers to bring their songs before the public, and advertise very largely, only to find that they have been spending their money for the benefit of a pack of thieves, who filch the whole of their profits and entirely stop their sales. Unfortunately the votes of these deserving, but politically insignificant, sufferers can be treated as a “quantité negligeable.”

The parallels between what Cutler is describing and the recent targeting of the domain names of infringing websites are particular acute. Under the DMCA, a website dedicated to infringing activities can continue to operate while each individual copyright owner who finds her work on the site is limited to requesting removal file by file or link by link. The loss to the site is indeed “inconsiderable.”

Executive efforts like Operation in Our Sites and legislative efforts like COICA are more effective at disrupting these types of sites. Obviously, they won’t put an end to piracy: just as people were infringing during Cutler’s time, they will find ways to infringe 100 years from now. And absolutely the content industries must continue to adapt to technological changes and rely primarily on the quality of their work and the attractiveness and convenience of the services they offer.

But, as with every industry, the law plays a necessary role. It’s silly to think the law shouldn’t evolve along with technological changes in order to remain effective against widespread, consumptive infringement.

Special bonus: the next section of Cutler’s book is eerily reminiscent of the events surrounding COICA:

The copyright bill discussed before Lord Monkswell’s Committee contained a clause inserted by the writer conferring upon the owner of copyright power to seize pirated copies of his works. It also gave him power, without applying to any Court, to authorise a police constable to seize the pirated copies which might be taken before a Court of summary jurisdiction and destroyed.

The writer’s clause also contained words enabling the Court to act ex parte; (that is, on the evidence of the complainant alone, without the necessity of summoning the alleged infringer); to make an order for destruction in the absence of the latter. The clause also contained a Provision inflicting a penalty for every piratical sale. Had these two last provisions been allowed to remain, the whole mischief caused by the street pirates would have been remedied; but the words inflicting penalties and giving power to make ex parte orders were struck out, and the Bill eventually became law in a form which is useless. The Statute in question is printed verbatim in the appendix. In consequence of the utter failure of this admirable effort of the Legislature, a Bill was prepared and put into the hands of a private member containing clauses necessary to remedy the abuses. The measure was stifled by the efforts of a member for a Scotch district, who utilised the technicalities of Parliamentary procedure to throw the matter over another session. After endless efforts on the part of those who wished to see justice done, a Parliamentary Committee sat upon the matter, the Scotch member being nominated as one of the members; and again the real merits of the case were stifled, both in the proceedings before the Committee and before the House of Commons. In the latter place the procedure which stops short of the application of closure to a Private Members’ Bill enabled the matter in question to be thrown over to yet another session.

Is Copyright Infringement Theft? Part 2

By , October 11, 2010.

“They make me madder than a yak in heat.” – Marge Simpson

A little over a month ago, I wrote a post titled Is Copyright Infringement Theft? The post sparked several other thoughtful articles and many comments – most notably a response by Mike Masnick at the popular TechDirt blog, Why It’s Important Not to Call Copyright Infringement Theft.

This is one of those ongoing debates, along the lines of “Mac vs. PC” and “Kirk vs. Picard.” 1The truly geek would answer “Linux” and “Jack O’Neill.” Not surprisingly, many comments responded as if I had actually said “copyright infringement is theft.”  But the title of the post was merely a question, and in the body I explicitly said “I’m not going to answer that question today.”

I want to continue the discussion today. I think the debate serves as a launching point for many different discussions involving copyright law and the law in general. I obviously can’t cover all of those different discussions in one post, but hopefully I can highlight a few that I find interesting.

At the end of the day, I still think arguing over “theft” or “not theft” is a semantic sticking-point, but unlike Masnick, I think the foreclosure happens on both ends. He thinks “if you are seeking to understand what is happening and how to respond to it, calling it ‘theft’ immediately shuts the door on a variety of important points.” I think the same is true from the perspective of the creators and businesses in the creative industries: if you’re seeking to understand what is happening to them as we continue to move to a digital environment and how to respond to it, decrying anything but complete acceptance to widespread piracy – down to the very language they choose to use to describe it – shuts the door on a variety of important points.

Metaphor

Copyright infringement as theft is a metaphor. According to Masnick, calling copyright infringement “theft is wrong.” Why? “Because it’s wrong at an absolute level.”

When is a metaphor wrong? It’s a curious question. Over at the Legal Profession Blog, Jeff Lipshaw succinctly describes the role of metaphor in meaning using the example of subatomic particles. He says, “What thinking about electrons as billiard balls does is to give them a meaning by analogy to other things, and we base our view of the coherence of the explanation (not its rightness or wrongness) on how it compares to other explanations we already view as coherent.”

I included the Simpsons quote above to illustrate the difficulties in answering the question of the correctness of a metaphor. A yak in heat may very well exhibit aggressive behavior, making the comparison apt. But the comparison is at the very least a clumsy one; many of us are presumably unfamiliar with yak behavior, so the metaphor is more a non sequitur than a useful explanation.

“Love is like an onion, and you peel away layer after layer until you’re just … weeping over the sink.” – Pete Hornberger

The use of metaphor in language is very flexible. Its success in contributing to understanding is context-dependent. Saying you are “madder than X” aids the listener only if they have some knowledge of X. The metaphor itself does not depend on a literal comparison – computing the relative anger-level of you and X. Indeed, we tend to laugh at anyone who rebuffs a metaphor on literal grounds – imagine correcting Hamlet because troubles clearly don’t exist in liquid form. 2From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.”

And yet that is one of the arguments used by those against the idea of copyright infringement as theft: the comparison is wrong in a descriptive sense. I addressed the fallacy in this argument in my first post. Based on the response to that post, I wanted to explore it further today. The idea that the comparison is wrong in any sort of descriptive sense has no basis in logic, language, or history.

The other argument against equating infringement with theft has to do with metaphor in framing – comparing the two in a prescriptive, or normative sense. The idea is that the language one uses reflects the result one wants to achieve. This argument, by far, is the more salient of the two. I touched on this argument briefly in my first post. Some of the responses to that post have explored this argument, so I’d like to flesh it out a little bit more today.

Comparing Apples to Oranges

Masnick concludes his article by calling to mind the idea that comparing copyright infringement to theft is like comparing “apples to oranges”. Even here you can see the challenges with talking about the rightness and wrongness of metaphors – even our metaphor for describing incomparable concepts is flawed! 3Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche. One is a round, tasty fruit that grows on trees, while the other is – wait…

The argument against a descriptive comparison between infringement and theft fails logically, historically, and legally.

Logical

Perhaps the best illustration of the logical argument against equating copyright infringement to theft can be found in the following YouTube video:

[youtube]IeTybKL1pM4[/youtube]

Cute. But it misses the point on several levels. If you steal a bike and your friend has to ride the bus, you’re certainly a thief. But if your friend sneaks on the bus without anyone noticing and gets a free ride, what do we call that? 4A millennia old problem is what we call it.

Our concept of “property” is not based on inherent characteristics of physical objects – you can’t look at a bicycle under a microscope and deduce who owns it. It’s better to think of “property” as a set of relationships between people and tangible or intangible things. Property in this sense requires a recognition by law and/or society of the rights, duties, privileges, etc. that connect any given individual with any given thing. 5The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913).

The reasoning displayed in the video above is that (1) theft requires deprivation of possession, (2) reproducing a copyrighted work does not result in deprivation of possession, (3) thus, infringement is not theft. This argument begs the question, however, that the definition of theft is limited to deprivation of possession. The argument only works if you insist on restricting the definition of “theft” to that of common law larceny. This is an overly prescriptive restriction on the term. The idea is that the comparison is wrong not just on a literal level, but an arbitrarily narrow application of the literal meaning of “theft.”

It’s easy to reconcile infringement with theft using the broader view of property rights as a set of legal relationships between individuals and things. “Possession” is only one of the relationships recognized by law and society. “Theft” in its colloquial sense – the definition commonly used over time – involves some deprivation of a recognized right. “Theft” of a physical object typically means the deprivation of the exclusive right of possession. Copyright, by statute, secures the exclusive right to copy, among other rights. Copying without permission thus deprives the author of that exclusive right.

Historical

The above video is an example of “linguistic peeving.” In one sense, it is a latching onto a specific usage one believes is right, while proclaiming all other usages to be wrong. But when it comes to the use of language, we can compare claims of “peevery” against actual usage throughout history. “Lingustics is descriptive, not prescriptive.”

The debate over the words used in discussing copyright is nothing new. William St. Clair notes that “the language of stealing” became the main metaphor for copyright infringement at the end of the seventeenth century. 6William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers). Infringement was, at that time, “frequently equated with theft,” “shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital. And piracy.” 7Privilege and Property, pg 388.

New terms continue to be termed to describe the relationship between infringement and theft. Among hip-hop artists, the term “beat-jacking” – a derivation of carjacking – is used to describe the deliberate use without permission, or a false claim of authorship, of another writer’s instrumental. 8See, e.g., M.O.P. Denies Beat Jacking, Beatjacking or Fair Game?

This language usage is not hard to find among people within the creative fields. One of the responses to my initial post comes from friend and PlagiarismToday blogger Jonathan Bailey, who notes that while he limits the use of the term “theft” in connection with copyright infringement, he has no issue with its casual use in this context for three reasons: (1) It’s a common term, (2) It’s not meant to be literal, and (3) It’s not the only misnomer. Bailey’s site is aimed at content creators of all stripes, both large and small, and the terminology reflects to some extent the feelings these creators express when they see others copy their work.

Legal

In my first post, I specifically pointed out the fallacy in relying on the Supreme Court’s opinion in Dowling for “not theft” proponents, and included a quote from the Court in MGM v. Grokster equating unlawful copying to “garden-variety theft.” The first example illustrated the problems with misapplying judicial language to prove a point; the second, to show the comfort that the highest court in the land has in using the language at issue in a colloquial sense. This colloquial use of “theft” in the copyright context was not, however, an isolated incidence.

  • In the 1974 Supreme Court case Teleprompter Corp. v. Columbia Broadcasting System, Justice Douglas and Chief Justice Burger wrote in their dissent, “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft.” 9415 US 394, 417.
  • Judge Patel began his opinion in the District Court ruling in A & M Recordings v. Napster, “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings.” 10114 F. Supp. 2d 896, 900.
  • In 1980, the Second Circuit wrote in Iowa State University v. American Broadcasting, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” 11621 F. 2d 57, 61.

One could find examples of this language from branches of government outside the judiciary. Among other usages of describing copyright infringement as theft, I can point to:

Perhaps most strikingly, the case can be made that copyright preemption shows a similarity between infringement and theft. In the comments of his response, Masnick says the point of refraining from using “theft” language in the copyright context is that the two are not “analogous.”

The Copyright Act explicitly preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” (emphasis added). In other words, you can’t bring a cause of action in a state or local court if the rights at issue fall within the scope of copyright law. Among the causes of action which have been found by courts to be preempted by copyright law: conversion – the “wrongful exercise of dominion and control over tangible, physical objects”; 12Patry on Copyright 18:34 theft of services; 13See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672. and theft of satellite signals. 14Patry on Copyright 18:52

According to Wiktionary, “analogous” means “Having analogy; corresponding to something else; bearing some resemblance or proportion.” “Equivalent” means “similar or identical in value, meaning or effect; virtually equal.” If causes of action like conversion and theft of services – species of theft – are “equivalent” under the doctrine of preemption, than the argument that they are not analogous – that they don’t bear some resemblance or proportion – fails.

It’s simply disingenuous to say that a metaphor which has been commonly used for centuries by individuals of all stripes, courts, legislators, and governments is “wrong.” Legally and logically, the metaphor holds up. To say that copyright infringement is not theft on a descriptive level only demonstrates ignorance.

Ought Copyright Infringement be Considered Theft

I mentioned earlier that the more salient argument in the “theft” debate has to do with “framing.” The self-ascribed camps of ‘pro-life’ and ‘pro-choice’ in the abortion debates illustrate precisely the power of framing in shaping the character of the debate. Within highly contentious debates, the question matters as much as the answer.

The heart of the issue about equating copyright infringement to theft is not whether it is theft, but whether it ought to be considered theft. That is, it is not important whether we can look to the past and see the metaphor as an accepted linguistic usage, but it is important to consider the effects that using the metaphor has on lawmakers, judges, and policy makers as they craft responses to future problems. 15I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area.

One quick note about plagiarism. Nandita Saikia springboarded off my post to consider whether plagiarism should be equated to theft. The issue of plagiarism is distinct from, but overlaps with, copyright infringement. Nevertheless, it warrants mentioning here. Jonathan Bailey points to recent research involving children and plagiarism. And generally, there has been an increase in the prevalence of plagiarism in the past several years. 16See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases. I think the issue of plagiarism is unequivocally a moral issue, but one that can be addressed outside the confines of copyright law. At the same time, discussions of plagiarism do inform some discussions of copyright law.

Back to copyright infringement in general, and also from India, Amlan Mohanty briefly discusses my piece in the larger context of Indian copyright law. Mohanty gets at the heart of the issue about framing, saying “The term ‘theft’ carries with it significant ethical connotations, is regarded as moral turpitude, and involves considerable value-judgement.”

In this sense, the question over whether infringement should be equated to theft comes down to whether infringement should carry the same moral considerations as theft is said to carry. The debate is over whether this metaphor – this use of language – accurately describes society’s and the law’s response to copyright infringement.

Fortuitously, John Locke, the philosophical godfather of American legal theory, actually used the term “stealing” as an example of how language aids in our understanding of the ideas behind laws: 17John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link

16. The denominations of actions often mislead us. But because very frequently the positive idea of the action, and its moral relation, are comprehended together under one name, and the game word made use of to express both the mode or action, and its moral rectitude or obliquity: therefore the relation itself is less taken notice of; and there is often no distinction made between the positive idea of the action, and the reference it has to a rule. By which confusion of these two distinct considerations under one term, those who yield too easily to the impressions of sounds, and are forward to take names for things, are often misled in their judgment of actions. Thus, the taking from another what is his, without his knowledge or allowance, is properly called stealing: but that name, being commonly understood to signify also the moral pravity of the action, and to denote its contrariety to the law, men are apt to condemn whatever they hear called stealing, as an ill action, disagreeing with the rule of right. And yet the private taking away his sword from a madman, to prevent his doing mischief, though it be properly denominated stealing, as the name of such a mixed mode; yet when compared to the law of God, and considered in its relation to that supreme rule, it is no sin or transgression, though the name stealing ordinarily carries such an intimation with it.

One may note that both theft and copyright infringement are against the law. If the problem with equating the two is that theft is immoral because it is contrary to the law, than the discussion is moot. Either one will subject you to civil liability; either one may subject you to criminal penalties. We “know” at an early age that garden-variety theft is illegal, and anyone who has seen an FBI warning on a movie or paid attention to the recent record label’s litigation campaign “knows” that copyright infringement is illegal.

In fairness, the pushback against equating the two is based on relative morality – copyright infringement is not as bad as theft – sussing out dichotomous forms of copyright infringement, 18See my post on Creative vs Consumptive Infringement for an introduction on this subject. and the importance of countervailing goals in copyright law beyond securing exclusive rights to authors.

These are not tiny bases. One could devote entire books to them – something William Patry has done as I noted in my first post.

William St. Clair describes the use of “theft” language in the copyright context as “literary knockabout.” 19Privilege and Property, pg 391. The historical effects have largely remained within the rhetorical arena. This metaphor is neither recent, nor solely attributed to the largest stakeholders – individual, amateur, and small-time creators typically make use of it. We can talk about whether or not the language has influenced the copyright debates in the wrong direction, but foreclosing the term “theft” in the copyright arena hinders the debate as much as using it puts up “a wall to understanding.”

References

References
↑1 The truly geek would answer “Linux” and “Jack O’Neill.”
↑2 From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.”
↑3 Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche.
↑4 A millennia old problem is what we call it.
↑5 The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913).
↑6 William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers).
↑7 Privilege and Property, pg 388.
↑8 See, e.g., M.O.P. Denies Beat Jacking, Beatjacking or Fair Game?
↑9 415 US 394, 417.
↑10 114 F. Supp. 2d 896, 900.
↑11 621 F. 2d 57, 61.
↑12 Patry on Copyright 18:34
↑13 See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672.
↑14 Patry on Copyright 18:52
↑15 I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area.
↑16 See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases.
↑17 John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link
↑18 See my post on Creative vs Consumptive Infringement for an introduction on this subject.
↑19 Privilege and Property, pg 391.

Is Copyright Infringement Theft?

By , September 07, 2010.

Is copyright infringement theft?

This question pops up often in online discussions, and nearly always sparks heated debate. You can see a recent example in the comments section of Obama administration: ‘Piracy is flat, unadulterated theft’ on Ars Technica. Many, many other examples abound online.

But I’m not going to answer that question today.

The biggest problem with this question is that – and this is going to sound very much like lawyerspeak – the answer depends on what the meaning of the word “theft” is. 1Cue obligatory Clinton jokes. Don’t dismiss such an answer right away. When I was in law school, I took a course taught by a judge in the nearby county court. He had been sitting for decades – well-qualified to teach about how the law worked in the real world. On more than one case, this judge would be in the middle of pointing out some minor point on correct use of terminology when he would pause and say, “I know this sounds like semantics. But the law is semantics – that’s what lawyers do: argue over words.”

The classic example of the relationship between the law and language is a hypothetical problem: “No Vehicles in the Park.” The hypo begins with a seemingly simple sign that reads “No vehicles in the park” and then asks what situations are prohibited by the rule and why. Bicycles? Park maintenance trucks? Ambulances on the way to the hospital? Wheelchairs? A war memorial consisting of a parked tank? It’s not enough to figure out what you think the result of each situation should be. In a democratic society, lawmakers and judges must ensure that laws are consistently applied, understandable, and fair. 2For a more in-depth look at law and language, check out Stanford Encyclopedia of Philosophy: Law and Language.

The argument over applying terms like “theft” to copyright infringement is not, however, about whether the comparison is legally appropriate, but about the similarities between the two in the colloquial sense of the word. This is where the opponents of the word begin to falter – attempting to prove their point by using the legal definition of the word to trump the colloquial definition. In other words, the argument goes, since the legal meaning of theft differs from the legal meaning of copyright infringement, any comparison between the two is invalid. By itself, this argument is barely worth refuting, but it has unfortunately been bolstered by the misuse of language from an otherwise inconsequential Supreme Court decision. This type of quote-mining from case law is prevalent in many debates – sort of a cross between an appeal to authority and contextomy – a practice that merits further discussion. If we want to learn what the law means, it sometimes help to understand common errors in understanding the law.

You’re in a Helicopter

I suspect a large part of the intensity over the use of “theft” to describe copyright infringement is based simply on linguistic peevery. The use of the word rubs some people the wrong way, and they have developed a strong objection to its use. Like language police, they immediately jump on anyone who dares to draw a comparison between the two concepts. Once the word is spoken, it won’t be long until you hear the legal argument. “Theft has a specific legal meaning, copyright infringement has a different legal meaning, thus copyright infringement is not theft.” This argument reminds of this old joke:

A helicopter was flying around above Seattle when an electrical malfunction disabled all of the aircraft’s electronic navigation and communications equipment. Due to the clouds and haze, the pilot could not determine the helicopter’s position and course to fly to the airport. The pilot saw a tall building, flew toward it, circled, drew a handwritten sign, and held it in the helicopter’s window. The pilot’s sign said “WHERE AM I?” in large letters. People in the tall building quickly responded to the aircraft, drew a large sign and held it in a building window. Their sign read: “YOU ARE IN A HELICOPTER.” The pilot smiled, waved, looked at her map, determined the course to steer to SEATAC airport, and landed safely. After they were on the ground, the co-pilot asked the pilot how the “YOU ARE IN A HELICOPTER” sign helped determine their position. The pilot responded “I knew that had to be the Microsoft building because, like their technical support, online help and product documentation, the response they gave me was technically correct, but completely useless.”

It’s technically correct that “copyright infringement” and “theft” have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. “Theft” in the legal sense has always meant something far narrower than “theft” in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another’s property by force or by stealth. It didn’t include the taking of property by deception or trick, and it also didn’t include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in “theft” if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion. 3See A History of the Criminal Law of England, Sir James Fitzjames Stephen, Volume 3 [Google incorrectly titles the book “Volume 2”](1883).

Dowling v. United States: Misusing Case Law

Despite the obvious shortcomings of this line of reasoning, it was given extra legs after the 1985 Supreme Court case Dowling v. United States. Paul Dowling ran a lucrative, interstate business selling bootleg recordings of Elvis Presley. Once caught, the federal government prosecuted him under the National Stolen Property Act, which made it a federal crime to transport stolen merchandise across state lines. The Supreme Court reversed his conviction on the grounds that the Act did not extend to items which infringed copyright.

This holding was like manna from heaven to the “copyright infringement is not theft” crowd. In particular, they point to the following language from the syllabus of the opinion: 4It’s worth pointing out that the syllabus of a legal opinion is not legal authority. For an interesting behind-the-scene’s look at the Supreme Court reporter of decisions who prepare the syllabuses, check out The Supreme Court’s Man of Many Words.

The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of [section] 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

If you make it into the actual opinion, however, you’ll find that the Court is careful to note the distinction between the legal and colloquial meanings of words:

While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose — “stolen, converted or taken by fraud” — to describe the sorts of goods whose interstate shipment § 2314 makes criminal. 5473 US 217-218

I mentioned earlier that mischaracterizing language from case law to bolster an argument is common. Our common law system is partially to blame for this pitfall, since cases create binding precedent that shape the law. However, it’s important to remember that the only thing binding from a court opinion is the holding. The reasoning a court uses is helpful in seeing how it arrived at the holding, and much of the dicta may be persuasive and useful to shaping one’s argument.  The danger is taking this language – anything besides the specific, narrow holding – as a binding conclusion to any argument. 6Other cases have similarly been distorted to “prove” certain arguments: Flora v. United States, 362 US 145 (Income tax is voluntary); Church of the Holy Trinity v. United States, 143 US 457 (US is a Christian nation); Interstate Commerce Commission v. Brimson, 154 US 447 (Census is unconstitutional). It’s not like the Dowling court made a broad pronouncement that “Henceforth, no one may describe copyright infringement as ‘theft.'” Or as one forum commenter said, “The comments are to long and it’s becoming a chore. I’ll just quote Dowling v. United States, a 1985 case regarding copyright infringement.”

The holding of Dowling was indeed narrow:

By virtue of the explicit constitutional grant, Congress has the unquestioned authority to penalize directly the distribution of goods that infringe copyright, whether or not those goods affect interstate commerce. Given that power, it is implausible to suppose that Congress intended to combat the problem of copyright infringement by the circuitous route hypothesized by the Government. 7473 US 220-221.

In other words, the federal government cannot prosecute an alleged copyright infringer under the National Stolen Property Act. 8The dissent in the case argues that the federal government can. It points out that the majority cites differences between the rights of copyright owners and other property owners as well as the differences between interference in those rights but fails to explain why those differences are relevant to the statute. It notes that other courts have interepreted “stolen, converted or taken by fraud” broadly enough to encompass intangible property. Finally, and most persuasively, it notes that Congress explicitly provided that penalties under the statue “shall be in addition to any other provisions” of the Copyright Act.  Curiously, those who point to the language of Dowling as incontrovertible proof that copyright infringement shouldn’t be called theft manage to miss a later Supreme Court case that says the opposite. Justice Breyer states in his concurrence to MGM v. Grokster:

No one disputes that “reward to the author or artist serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. 9545 US 913, 961 (2005) (Breyer concurring).

The lesson, if any, is to pay attention when someone quotes case law. It’s easy to find language that appears to support just about any proposition; the challenge is recognizing the common fallacies that arise from the use of such language.

Does it even matter? Yes, it does. Or does it?

Hopefully, this reliance on Dowling in the debate over copyright infringement and theft can be put to a rest. That still leaves the question of whether or not the comparison is appropriate in the colloquial sense. I doubt that debate will ever be resolved.

Quibbling over the use of words like “theft” stems from the larger debate about whether “intellectual property” should be considered “property.” People have been arguing over that point since – at the least – the first copyright law was written down in 1709. To some, the issue has great consequences. In Moral Panics and the Copyright Wars, noted copyright scholar William Patry writes:

No side in the Copyright Wars can claim semantic purity or sole virtue … One way we got where we are is through the misuse of language, specifically metaphors that characterize the nature of copyright as property and that characterize those who use copyright works without permission as thieves or parasites. When a court or legislature is faced with a copyright dispute, there is more than one way to frame that dispute. There is, after all, no Platonic copyright against which we can match the ideal form of copyright. Instead, the outcome is determined by reference to the contesting legal, economic, and social forces. Those forces in turn are defined and understood in terms of the conceptual frameworks employed. 10Pp. 14-15, Oxford University Press (2009).

Patry sees the use of metaphors like “theft” as an effort by content industries to push for self-serving copyright laws to “preserve their old business model of controlling consumers.” 11Pg. 22.

But there are others who see this argument as largely academic. Law professor Stuart P. Green notes:

Whether something will be regarded as “property” is nothing more, and nothing less, than a conclusion of law. As Stephen Carter has put it, “the term does not refer to any object or to any necessary set of legal rights that always inheres in a property relationship. Instead, the term refers to a bundle of rights that define, singly or collectively, the relationship of an individual to a resource.” Hence, simply because some resource is considered “property” for purposes of, say, mail fraud, copyright, or constitutional law, does not necessarily mean that it will be regarded as property for purposes of theft law, and vice versa. 12Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings Law Journal 168, 208-209 (2002).

Finally, there are those who think even the academic debate over terminology is pointless. In an online debate with Patry, noted copyright attorney Ben Sheffner had this to say:

I just have a hard time getting too worked up about what label we attach to copyright. And I suspect most non-philosophers agree. Consider this thought experiment: Go to a studio head and say, “I’ve got a deal for you. I’ll give you your copyright wish list: repeal first sale, make Justice Ginsburg’s concurrence in Grokster the controlling opinion, delete Cablevision, Perfect 10 v. Amazon (and a few other Perfect 10 cases while we’re at it) from the law books, and codify a “making available” right. But here’s the catch: From now on, you are forever forbidden from referring to copyright as ‘property,’ and must instead call it a ‘set of social relationships.'” Or go to a copyright skeptic, and say, “I’ve got a deal for you. I’ll give you your copyright wish list: reduce the term of copyright back to 14 years, expand fair use, eliminate the derivative works right, and repeal the anti-circumvention provisions of the DMCA. But there’s the catch: From now on, you must refer to copyright as property; no more of this ‘set of social relationships’ mumbo-jumbo.” I’m confident both the studio head and the copyright skeptic would take those deals in a heartbeat. Ultimately, it’s the substance, not the label, that matters.

I tend to agree with Sheffner. The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like “theft” to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.

References

References
↑1 Cue obligatory Clinton jokes.
↑2 For a more in-depth look at law and language, check out Stanford Encyclopedia of Philosophy: Law and Language.
↑3 See A History of the Criminal Law of England, Sir James Fitzjames Stephen, Volume 3 [Google incorrectly titles the book “Volume 2”](1883).
↑4 It’s worth pointing out that the syllabus of a legal opinion is not legal authority. For an interesting behind-the-scene’s look at the Supreme Court reporter of decisions who prepare the syllabuses, check out The Supreme Court’s Man of Many Words.
↑5 473 US 217-218
↑6 Other cases have similarly been distorted to “prove” certain arguments: Flora v. United States, 362 US 145 (Income tax is voluntary); Church of the Holy Trinity v. United States, 143 US 457 (US is a Christian nation); Interstate Commerce Commission v. Brimson, 154 US 447 (Census is unconstitutional).
↑7 473 US 220-221.
↑8 The dissent in the case argues that the federal government can. It points out that the majority cites differences between the rights of copyright owners and other property owners as well as the differences between interference in those rights but fails to explain why those differences are relevant to the statute. It notes that other courts have interepreted “stolen, converted or taken by fraud” broadly enough to encompass intangible property. Finally, and most persuasively, it notes that Congress explicitly provided that penalties under the statue “shall be in addition to any other provisions” of the Copyright Act.
↑9 545 US 913, 961 (2005) (Breyer concurring).
↑10 Pp. 14-15, Oxford University Press (2009).
↑11 Pg. 22.
↑12 Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 Hastings Law Journal 168, 208-209 (2002).

On top of Spaghetti: Copyright’s Complexity

By , September 01, 2010.

Earlier this month, this picture 1Note: the image is meant to illustrate the UK music industry, which is largely similar to the US industry but does have some differences. made the rounds online:

The response to this diagram was typically something like, “Look at how complex the music industry is!” – and nothing more. I suppose the conclusion to be drawn is that complexity, in and of itself, is bad.

But if you diagrammed any industry, you’d likely end up with a picture just as complex. How bout the food industry? You have your farms and raw material suppliers, processors and plants, grocery stores and restaurants, institutional food service providers, plus distributors, shipping providers, warehouses, etc. All industries have some degree of complexity to them, especially if you show each link in every chain. Most participants in an industry, however, do not have to concern themselves with keeping track of the larger picture; even in the graphic above, you’ll notice that most hubs have only one or two connections to other hubs.

The world is complex, and the idea that complexity by itself is bad is a silly one. There are problems which arise in complex systems, but scratching your head at a diagram of the system is not one of them. Clarity is certainly a goal for participants within an industry, but that does not mean that one unfamiliar with a particular industry can pick up a working understanding of the entire system by glancing at a diagram like the one above. Simple systems carry risks as well. We have antitrust laws to ensure that industries do not become controlled by too few participants.

Instead of leaving things at that, I thought we could take a closer look at some specific characteristics of the music industry that make it complex.

Double Your Pleasure

Copyrights form the foundation of the music industry. Copyright law itself is complex, and the music industry has the added bonus of dealing with not one, but two separate and independent copyrights. Songs (musical works) are protected by copyright, as are recordings of songs (sound recordings, or phonorecords). In my experience, understanding this distinction is one of the steepest parts of the music industry’s learning curve. Traditionally, songs are represented by notes and lyrics on paper. A sound recording incorporates a song but is independently protected by copyright itself, though that copyright doesn’t incorporate the copyright of the underlying song. So, think about the song “Twist and Shout” and how it was recorded by the Isley Brothers and the Beatles. In this example, there are three copyrights: the song, the Isley Brothers recording of it, and the Beatles recording of it. 2Hypothetically speaking. The reality may be different since US federal copyright law did not recognize sound recordings as copyrightable subject matter until 1972, though some states and the UK did before then. The owner of the copyright on a sound recording and the underlying song may or may not be the same. In the music industry, record labels generally own the copyrights to the sound recordings while music publishers generally own the copyrights to the songs.

Once you grasp the concept of the two copyrights involved, you’re faced with another twist. A copyright is not a single right, it is a set of several rights: the right to reproduce, distribute, and prepare derivative works (I’ll get to public performance rights in a moment). And wouldn’t you know, each one of these rights can be licensed, transferred, or sold individually. Not too bad? Let’s throw in the right to public performance. The copyright in musical works includes a right to public performance. The copyright in sound recordings does not; however, it does include a public performance right by digital audio transmission.

In other words, each track on a CD has two separate copyrights involved, with two slightly different sets of rights attached to each copyright. Now that we know that we are starting with an inherently complex foundation, let’s take a brief look at how additional complexity in the music industry has evolved.

Adapting to Changes

With the introduction of every new technology, Congress, courts, and the music industry struggled at times to figure out what role copyright law played. It’s important to keep in mind that the words used to describe the exclusive rights in copyright – “reproduce”, “distribute”, “public performance” – are legal terms of art. Their meanings do not necessarily follow logic, and one can’t necessarily deduce whether a particular use is a reproduction, a distribution, a public performance, or some combination by opening up a dictionary. Instead, the meanings of the terms evolve constantly through statute and common law, guided as much by practical considerations as by legal formalism. 3Nimmer on Copyright discusses this issue in its introduction: “An even more fundamental problem, with ramifications for both judge-made rules and legislation, is that words are often used in the copyright context with special meaning, at variance from their more typical usages, and may even be used in disparate contexts in the copyright realm itself with different meanings.” The result is that the relationships between different parties in the music industry as represented in the image above are not always intuitive.

The rise of the administrative state over the past century increased government regulation in many areas, including copyright law. Specific exceptions to each right have been added over the decades. And, since the early 1900’s, Congress has increasingly regulated content industries directly through compulsory licenses – government set rates for certain specified uses. The administration of these compulsory licenses was often delegated to new or existing parties either by law or through industry practices. Several lines on the image above exist solely because of this regulation.

As with any industry, the music industry has grown more compartmentalized, with intermediaries specializing in individual roles within the complex system. One example of this division of labor is the formation of performing rights organizations (PROs) – groups which grant the right to publicly perform the songs of thousands of songwriters and music publishers to radio stations, tv networks, bars and restaurants. In a way, while intermediaries like PROs add another hub in the music industry, they reduce complexity overall; without them, each individual songwriter/publisher would need to form a relationship with each individual performance outlet.

Lessons to Learn

Certainly, the music industry and copyright law are complex – a result stemming from numerous factors. But mere complexity is not a defect. Looking at this image and saying, “Ha ha, it looks like spaghetti,” provides no insight. Comparing the current Copyright Act to the Tax Code 4Joseph P. Liu, Regulatory Copyright, 83 North Carolina Law Review 87, 88 (2004). begs the question: the less words, the better the law. Instead, we should look at the music industry and copyright law independent of their complexity. Is the current music industry sustainable? Is copyright law effective in fulfilling its purpose? These are far better questions then, “At what point do people say it’s time to scrap this mess and start from scratch?”

The complexity of the music industry does raise a valid point, though. Does a complex system like this create barriers to new players to join the game? The chart above was originally created by a company named Pure to announce its launch of a new streaming music service. It was used to illustrate the challenges the company faced in creating the service. The company’s CEO claimed it took three hours for someone to explain the chart to him, lamenting that “There were times along the way I almost gave up.” The conclusion often reached is that if companies like Pure – who “start from a fundamental position that we respect copyright” – give up when faced with untangling the web of copyright law, then services that don’t respect copyright will take their place. The law is firmly on content industy’s side, and enforcement efforts are increasing, but at the same time, lawmakers and the music industry must continue to look at ways to reduce the negative impacts of copyright’s complexity. 5Shameless plug: I propose one such way in my recent paper, Copyright Reform Step Zero.

References

References
↑1 Note: the image is meant to illustrate the UK music industry, which is largely similar to the US industry but does have some differences.
↑2 Hypothetically speaking. The reality may be different since US federal copyright law did not recognize sound recordings as copyrightable subject matter until 1972, though some states and the UK did before then.
↑3 Nimmer on Copyright discusses this issue in its introduction: “An even more fundamental problem, with ramifications for both judge-made rules and legislation, is that words are often used in the copyright context with special meaning, at variance from their more typical usages, and may even be used in disparate contexts in the copyright realm itself with different meanings.”
↑4 Joseph P. Liu, Regulatory Copyright, 83 North Carolina Law Review 87, 88 (2004).
↑5 Shameless plug: I propose one such way in my recent paper, Copyright Reform Step Zero.

That My Baby

By , August 30, 2010.

Check out this amazing video:

[youtube]http://www.youtube.com/watch?v=N1KfJHFWlhQ[/youtube]

Impressive, right? I mean, it’s no “Star Wars according to a 3 year old” 1Or “kittens inspired by kittens“. , but if you check out the stats, you’ll see it has gotten over one million views. Why all the fuss?

Lenz v. Universal Music Group

Stephanie Lenz, the mother of the child in the video, uploaded the clip to YouTube in February 2007. Several months later, Universal Music Group (UMG) sent a flurry of DMCA notices to YouTube requiring the site to remove videos that included unauthorized uses of Prince songs, including Lenz’s video (Prince’s “Let’s Go Crazy” was playing on the radio and caught by Lenz while she filmed). Lenz responded to the notice with a counter-notice to request the video be put back online. YouTube restored the video. Then, Lenz sued UMG for sending the original DMCA notice, claiming that it was sent in bad faith.

Lenz became somewhat of an internet folk hero: the innocent mother who just wanted to show her dancing baby to the world standing up to the big, bad music conglomerates. In the comments, Lenz is called a “hero” and a “legend,” while Prince is called a “scum bag,” a “miser”, and a “selfish, cold-hearted, insensitive, bitter and ugly jerk.” I can’t tell what UMG and the RIAA are called, since most of those names are censored.

But the story’s popularity has gone beyond YouTube and made it into academic literature. A HeinOnline search reveals close to 150 mentions of the video in legal journals. Many notable copyright scholars have devoted a considerable amount of time to the video. Lawrence Lessig, in his book Remix, devotes the first five pages of the introduction to telling the story of this video. He calls it “a perfect YouTube moment” and “a bit of shared culture.” Later in the book, he describes the video as “amateur creativity.” William Patry mentions the video several times in his latest, Moral Panics and the Copyright Wars, as well. On page 98, in a section titled “The Myths of Economic Freedom and Market Fundamentalism,” Patry notes that it is economic freedom which allowed Prince to “sanctimoniously demand” that YouTube remove this video. On page 169, he again uses the takedown of this video as an example of “suppression of free speech and creativity” under the DMCA.

Public interests groups have also joined in the fun. Lenz was aided in her lawsuit by the Electronic Frontier Foundation, which described the case as part of its “ongoing work to protect online free speech.”

Wow.

Threats to freedom of speech and creativity are paramount. But when your claim is that they are threatened by a law passed twelve years ago and the removal of this video is the best example you have as proof, the discussion gets a little silly.

This is a video of a baby. Cute? Maybe. Harmless? Yes. But heroic? A “bit of shared culture” whose removal amounts to “suppression of free speech and creativity?”

Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.

The DMCA and Freedom of Speech

The Digital Millennium Copyright Act of 1998 (DMCA) was made up of several major sections, including the Online Copyright Infringement Liability Limitation Act (OCILLA), which established safe harbors for online service providers that protect them from copyright infringement liability. I briefly discussed these DMCA safe harbors in Viacom Appeals Lawsuit Against YouTube. For more information, check out the Wikipedia entry on OCILLA and Chilling Effect’s comprehensive FAQ About DMCA. To recap, the DMCA shields online service providers from secondary copyright liability if they remove material when requested by a copyright owner through a DMCA takedown notice. The user who originally uploaded the material may send a counter-notification to restore the content if they believe the takedown notice was sent in error.

This “notice-and-takedown” procedure was at the heart of Lenz’s case against UMG and has been widely criticized by copyright scholars, legal academics, and bloggers. Partially, the criticism stems from a perceived threat to our freedom of speech:

The DMCA flips the defaults on speech. Where ordinarily speech remains available until someone files and wins a lawsuit or settlement against it, the DMCA forces a speaker to take action to re-assert the lawfulness of his speech, in the form of a counter-notification, or if he wants uninterrupted speech, a lawsuit. It is precisely this mechanism by which the chilling effect operates to censor. 2Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, pp. 7-8 (March, 2010).

Copyright laws occupy a unique position in the free speech landscape. On the one hand, they are without a doubt a categorical restriction on one’s right to speak – you cannot communicate someone else’s expression without permission. On the other hand, copyright is often considered the “engine of free expression” – the exclusive rights it grants provide incentives to authors to create and disseminate new ideas and expression. 3Harper & Row v. Nation Enterprises, 471 US 539 (1985). Mindful of this inherent paradox, courts have consistently rejected First Amendment defenses to copyright laws. 4L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 3 (1987). Instead, they typically subscribe to the view that copyright law has “built-in First Amendment accommodations” – namely, the idea-expression continuum and fair use. 5Eldred v. Ashcroft, 537 US 186, 219 (2003). Criticism of the DMCA often does not recognize this different approach to freedom of speech in the copyright context, nor does it consider the free expression rights of copyright owners.

A DMCA notice applies only to the specific site it is targeted at. While “the right to upload videos to YouTube” may some day be recognized as a fundamental right, for now most people  likely realize that there are numerous ways to get your message out on the internet. Yet free speech critics of the DMCA takedown procedure seem to be unaware of these alternatives. One author even went so far as to claim that perhaps presidential candidates would have the resources to share a video elsewhere, but “most individuals would not have alternatives” if their video was removed from YouTube. 6Seltzer, supra.

YouTube may be the most popular video hosting site, but it is far from the only one out there. Here is a list of over 300 video sharing sites like YouTube. Not enough? Wikipedia has a list of video hosting sites with over a dozen more not on the first list. You don’t even have to limit yourself to video-only sites since there are many companies which offer shareable file-hosting. Here’s one list with over 30 such services– many free. Worst comes to worst, you can set up your own site and host your own content. It may cost a couple bucks a month, but does that rise to an unconstitutional restriction on free speech? Is it a violation of the First Amendment to require you to pay to host and distribute your own content just because companies exist that offer to do that for free?

Wanting the Baby and the Bath Water

The burden DMCA takedown notices place on users like Lenz often accompanies free speech criticism.

Shouldn’t we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair. 7TechDirt, Should Copyright Holders Pay for Bogus DMCA Takedowns?

Leaving aside worrying about the tragedy someone faces when they can’t have their video hosted on another person’s site for free, this type of criticism misses a key aspect of the DMCA: it does not affect the liability of the user. Complying with the takedown procedures of the DMCA only shields the service provider from secondary liability. If a user uploads copyrighted content without permission, that user has directly infringed a copyright. The DMCA does not stop the content owner from suing the user directly. A content owner can still sue the user for copyright infringement after sending a DMCA notice even after the content is taken down by the service provider since the infringing act has already been completed. The owner can even sue the user without sending a DMCA notice – it is only the service provider who receives a safe harbor from liability.

The reason content owners don’t routinely sue users is based on practical considerations – primarily the cost of lawsuits. In a way, the DMCA protects users. It gives content owners a more efficient alternative to managing piracy that doesn’t require mass lawsuits on users. Without the DMCA, a user uploading copyrighted content would still be faced with the same liability.

So how about those users, like Lenz, whose content was not infringing but removed anyway? Well, the DMCA provides a counternotice procedure for users to respond to situations where a notice was mistakenly sent – notice that requires little more than your name, identification of what was removed, a statement affirming a good faith belief that it was removed by mistake, and a signature. 817 USC § 512(g)(3). In Lenz’s case against UMG, the court also held that content owners must determine if a specific use is fair before sending a DMCA notice while allowing a user to recover damages, attorney fees, and court costs if a particular notice was sent in bad faith rather than by mistake. This seems to me a fair balance. The same procedural burden is placed on content owners to protect their copyrights from thousands of infringing uses among multiple sites as it is on the rare user like Lenz whose content was removed from a free, third-party site by mistake or bad faith.

But this, it seems, is still not enough for some critics of the DMCA takedown procedure. After the court awarded Lenz attorney’s costs in her case, one critic responded:

Compare this, of course, with the statutory damages given to those who infringe on copyrights — starting at $750 for sharing a single item and going way up from there. How is that equitable? 9TechDirt, Damages Possible, But Limited, For Bogus DMCA Takedowns.

Again, this misconstrues key aspects of the Lenz case and the DMCA. Damages are available to users who receive “bogus” takedown notices – it’s just that in Lenz’s case, there were no damages (only attorney fees and costs). While it may be difficult to come up with examples of a user who would suffer a cognizable loss as a result of their content being wrongfully taken down from a third-party site, I’d imagine that type of situation is rare. No matter to critics though, as it seems they want the baby and the bath water. They’re arguing not that the burden of responding to takedown notices is too high, but that there should be no burden at all. It’s too much trouble for the one Lenz who may have a fair use argument out of thousands of YouTube user users who do upload infringing material to say “on the contrary, my use is fair.”

One Final Note

I realize the story revolving around the “Let’s Go Crazy” video has largely run it’s course, but I think it remains relevant today. The case has become enshrined in copyright criticism as a seminal example of “attacks” on freedom of speech and creativity by the hands of the big, bad content industries. For a while it occupied center stage in the copyright debates, which struck me as odd, considering what it is: a low-quality video of a stranger’s baby dancing. But as I came to realize, the use of this video as a launching pad for copyright criticism typifies much of the imbalance between creators and users that is present both online and in academic scholarship – how do we protect the “heroic” Lenz’s from those who wish to destroy free speech?

Perhaps those one million people who have seen the video have benefited. Perhaps our society and culture have been enriched by this display of amateur creativity, and the progress of art and knowledge has been promoted. However, before fully embracing this line of thinking, we should ask who else benefits from it. Who benefits from the idea that user-generated content, which drives traffic to a site, should have stronger protections from removal. Who benefits from the idea that other sites are not an adequate alternative to YouTube? And who benefits from placing less burdens on users to stand behind whatever they upload, less burdens on the sites to police what is uploaded, and more of a burden on the content owners?

References

References
↑1 Or “kittens inspired by kittens“.
↑2 Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, pp. 7-8 (March, 2010).
↑3 Harper & Row v. Nation Enterprises, 471 US 539 (1985).
↑4 L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 3 (1987).
↑5 Eldred v. Ashcroft, 537 US 186, 219 (2003).
↑6 Seltzer, supra.
↑7 TechDirt, Should Copyright Holders Pay for Bogus DMCA Takedowns?
↑8 17 USC § 512(g)(3).
↑9 TechDirt, Damages Possible, But Limited, For Bogus DMCA Takedowns.
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