Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice

By , November 22, 2011.

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

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

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

Why is this?

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

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

It is quite evident that no new principles of liberty were intended to be set forth by the First Amendment, and that, however enticing a philosophical theory of freedom of the press and of speech may be, the guaranty must be construed with reference to the common law which gave it birth. When Blackstone declared in 1769 that the liberty of the press consisted in placing no previous restraints upon publications, he was not laying down a new principle of constitutional theory, but merely stating what he believed to be the existing law. Apparently his generalization was too broad. Injunctions against the infringement of a copyright were not infrequent in his day. 2Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913).

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

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

I believe a closer look at the historical record can shed more light on this mystery (though I don’t mean to suggest in any way that I am the first to do so). 3See, for example, Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies (2008) — and I’m always interested in learning about other examples. I think this historical record shows a number of reasons why copyright law, though not “categorically immune from challenges under the First Amendment”, 4Eldred v. Ashcroft, 537 US 186, 221 (2003). has nevertheless existed comfortably alongside the First Amendment.

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

Literary Property

Of course, any mention of “copyright” and “property” in the same sentence nowadays can cause some to go in a tizzy. Partly this is due to an impoverished concept of property; that property only refers to tangible objects (forgetting about intangibles like stocks, bonds, promissory notes, and other financial instruments), or that copyright can’t be property because infringement doesn’t deprive the holder of possession or ownership (except if I smash your car window, we’d say I violated your property rights even though you still possess the same amount of glass). Setting aside these naive arguments, the modern critique of copyright as property goes something like this: Although it is entirely correct to characterize copyright as property in a descriptive sense, we shouldn’t characterize copyright as property in a normative sense, because that would be bad, from a policy standpoint. 5See, for example, William Patry, Does it matter if copyright is property? Patry Copyright Blog, June 20, 2006, “What those who seek to have copyright classified as property is clear enough though: Blackstonian sole dominion, justified by the very classification of property … But what if copyright is just a tort, as indeed courts refer to it as. Might that not lead to consideration of things in a different light, one that involves more of the balancing of interests one typically sees, say in, negligence actions, a Coase Theorem of copyright?”;  Siva Vaidhyanathan, Copyright as Cudgel, Chronicle of Higher Education, Aug. 2, 2002. “We make a grave mistake when we choose to engage in discussions of copyright in terms of ‘property.’ Copyright is not about ‘property’ as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons.” These arguments are beyond the scope of this article — I’m concerned with whether copyright was thought of as property when the First Amendment was first enacted.

Indeed it was. In 1792, James Madison wrote that “property” has a “larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage“; this meaning includes more than just “a man’s land, or merchandize, or money.” 6James Madison, Property. Legal scholar Adam Mossoff describes this concept of property as the “dominant” understanding of property in 18th and 19th century America. 7Is Copyright Property? 42 San Diego Law Review 29, 41 (2005).

And copyright certainly fit within this understanding of property at the time — it was referred to as “literary property” more often than not. Copyright was expressly described as property in several of the State copyright acts that predated the US Constitution. 8“Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciencs: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” Massachusetts Copyright Statute (1783), New Hampshire Copyright Statute (1783), Rhode Island Copyright Statute (1783).

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

“An Act for securing Literary Property: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries and to the general extension of art and commerce.” North Carolina Copyright Statute (1785). The Supreme Court has classified and referred to copyright as property throughout its history — in 1823, for example, the Court stated, “The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source. It extends to literary property, the fruit of mental labour.” 9Green v. Biddle, 21 US 1, 57; See also Wheaton v. Peters, 33 US 591 (1834), discussing whether “literary property” is perpetual under copyright statute; Stephens v. Cady, 55 US 528, 531 (1853), speaking of the “property in the copy-right”; Canal Co. v. Clark, 80 US 311, 322 (1872), noting the “property” that exists “in copyrights”; Baker v. Selden, 101 US 99, 102 (1880), describing copyright as “exclusive property”; Holmes v. Hurst, 174 US 82, 86 (1899), explaining the nature of the “property” protected by copyright; Bobbs-Merrill v. Straus, 210 US 339, 346 (1908), referring to “copyright property”; Fox Film Corp. v. Doyal, 286 US 123, 127 (1932), “The production to which the protection of copyright may be accorded is the property of the author and not of the United States”; Dowling v. United States, 473 US 207, 217 (1985), exploring the “property rights of a copyright holder”; Stewart v. Abend, 495 US 207, 223 (1990), “the aspects of a derivative work added by the derivative author are that author’s property”.

In 1839, the New York Chancery Court decided Brandreth v. Lance, a libel case and “the first American court decision setting aside a government action on constitutional free speech or free press grounds.” 10Eugene Volokh, Flag Burning and Free Speech, Wall Street Journal, July 3, 2009. But in refusing to enjoin the libelous publication, the court implicitly notes that an injunction for copyright infringement would not infringe upon the liberty of the press:

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

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

But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as I see, received the unqualified approbation of the learned American commentator on equity jurisprudence. 11Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839).

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

Liberty of the Press does not Limit Copyright Injunctions

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

This immunity from an injunction, while applicable to libels, is not similarly applicable to other forms of injurious publications where the historical requirement of a jury trial is not so pressing. Accordingly, where the act of publication results in intimidation and coercion it is treated as an ordinary crime, and the liberty of the press does not then limit the jurisdiction of equity to protect property. Furthermore, according to the prevailing view, it seems that a publication, no matter how innocent in itself, may be enjoined if it is made in pursuance of a scheme which has an enjoinable element. Thus, although the courts are at variance as to whether an injunction may issue against a boycott, they are agreed that wherever such is the case, publications in aid thereof, even if libels, cannot claim the protection of the guaranty. In establishing this doctrine they assert that the right to engage in a lawful occupation is not less essential than that of free speech. In order, therefore, to obtain the greatest possible freedom of action and speech equally for all, these conflicting constitutional rights must be exercised in accordance with the maxim, Sic utere tuo ut alienum non laedas. Certainly, the press should not be employed unjustifiably to ruin another’s occupation, and where such ruin is imminent the injunction, though a dangerous weapon, becomes a proper one [Emphasis added]. 12Freedom of the Press and the Injunction, Columbia Law Review, Vol. 13, No. 8, pp. 732-734 (Dec. 1913); See also Constitutional Protection of the Right of Freedom of Speech and of the Press, Columbia Law Review, Vol. 17, No. 7, pp. 622-624 (Nov. 1917), “In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property [Emphasis added].” The footnote following this text reads, “When the publication was a petition repudiated by its signers, an injunction was granted on the basis of property right in the signature. Similarly, the infringement of a copyright has been enjoined”; The Americana: A universal reference library, comprising the arts and sciences, literature, history, biography, geography, commerce, etc., of the world, Volume 12, “Press, Freedom of the”, George Edwin Rines editor (1908): “Such legal checks [on the liberty of the press] as remain are merely intended to prevent outrages of religion or decency, to protect subjects from defamation, and to conserve the copyright of authors.”

And in 1971, Justice White of the Supreme Court itself weighed in, noting that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” 13New York Times v. U.S., 403 US 713, J. White, concurrence, n.1 (1971).

Today, preliminary injunctions are common in copyright cases, and seizures of infringing goods are common, both through courts and administrative agencies. At the same time, while defendants have increasingly raised First Amendment defenses in the past 40 years, those defenses have almost without exception been unsuccessful. 14I provided examples in previous posts, including ICE Seizures Criticism: Magic Words, Responding to Sellars: Copyright and Content-based Regulations, and Rojadirecta seeks refuge in First Amendment.

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

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

References

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

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

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

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

Friday’s Endnotes – 11/18/11

By , November 18, 2011.

Should we move from copyright to workright? — John Degen picks up on Abraham Drassinower’s paper Copyright Infringement as Compelled Speech (which I highlighted last week). Degen looks at some of the big sticking points in copyright debates and wonders if it’s time to start conceptualizing the law as a workright rather than a copyright. Interesting stuff.

Starz CEO: Netflix Became an ‘Albatross’ — The entertainment company’s boss explains the reasoning behind the decision not to renew its licensing agreement with Netflix. Part of it was the reluctance of Netflix to incorporate tiered pricing for premium streaming like Starz provides, and part of it was Starz’s ongoing reemphasis on original programming over licensed feature films.

Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications — A scholarly article from Aaron B. Rabinowitz that finds, among other things, “prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes.”

Appeals court rejects request by serial downloader — The First Circuit denied Joel Tenenbaum’s request for a rehearing en banc after it had previously reinstated the original jury award of $675,000 and remanded to the District Court for further proceedings.

YouTube, NMPA reach ‘unprecedented’ deal to pay independent music publishers — The terms of the settlement reached between Google and the National Music Publishers Association stemming from litigation related to the current lawsuit involving Viacom are now available. YouTube will pay a percentage of ad revenue derived from videos that incorporate songs to indie music publishers that opt in.

Following a Supreme Court deadlock, Costco beats Omega on remand by invoking the equitable doctrine of “copyright misuse” — You can’t slap a copyrighted logo on the back of a watch to limit its importation under Copyright Act provisions. Costco should’ve thought of this seven years ago when it was first sued.

Universal Music sees recorded music near turnaround — Billboard reports positive news: execs at major label Universal believe the record industry may reach its inflection point toward “the end of 2013.” The growth of digital sales and new online services are helping to bring the decade long decline that halved the recording industry to an end.

Why I support the Stop Online Piracy Act

By , November 16, 2011.

[With the House Judiciary Committee holding a hearing underway on H.R. 3261, the Stop Online Piracy Act, I’d like to share my thoughts on the bill on a more personal level.]

I’m passionate about the framework provided by copyright law because I am passionate about the expressive works that have been created in the US over the past 200 plus years because of this framework. From the silly to the sublime, to those that educate and those that entertain, these works have advanced our society, our culture, and our economy.

As a media and cultural consumer, I am excited by the increasingly innovative new ways I can access the news, movies, television shows, music, and other works I love online, and I strongly hope that those who create them can continue to create. I believe the Stop Online Piracy Act is both necessary and carefully crafted to ensure creators have effective recourse against sites that profit off misappropriation of their work.

Effective copyright protection, on a fundamental level, is a significant governmental interest, and one of the few enumerated powers of the federal government in the Constitution. In 1832, the Supreme Court said “To promote the progress of the useful arts is the interest and policy of every enlightened government.” 1Grant v. Raymond, 31 US 218.

Only two years later, Supreme Court Justice Thompson said in his dissent to the seminal opinion in Wheaton v. Peters, “In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.” 233 US 591 (1834).

The history of copyright law presents a common theme of technological advancement bringing challenges to creators. In the past, we’ve seen these challenges with the introduction of new forms of media that allowed the recording of sound, images, and motion pictures; broadcasting in the form of radio and television; and even advancements in transportation that have made our world smaller and more connected. Today, creators face challenges to adapt to digital technologies and the Internet, which allows global communication on an unprecedented scale.

But no matter how rapidly technology advances, we should not lose sight of the fundamental principles of “justice, equity, morality, fitness and sound policy” that the protection of expression is built on.

In the words of James Madison, “The public good fully coincides” with “the claims of individuals” under copyright law. 3Federalist papers, No. 43. The introduction of new expressive works, whether in the form of books, music, films, television, or photographs, do much to advance this public good. They teach, entertain, and shed light on the human condition. So it is vitally important that those works are protected just as much online as they are offline.

Copyright Online

The Internet today looks vastly different today than it did in 1998, when the Digital Millennium Copyright Act was enacted. There was no Google, no YouTube, and no Facebook. The technologies that make rich, fully-interactive sites like these possible simply didn’t exist at the time. It would be hard to imagine a world wide web like this today. Today’s web allows a myriad of ways for people to engage in communication, commerce, social networking, entertainment, and learning. This is possible because the technology behind the web continued to progress, rather than being frozen in place. The same should be true of copyright law.

The consensus is that the DMCA has generally worked well for copyright holders and service providers. Its safe harbors shield service providers from liability for material uploaded by users where the service provider doesn’t have knowledge that the material is infringing, doesn’t receive a direct financial benefit from the infringing activity where the provider has the right and ability to control the activity, and acts expeditiously to disable access to uploaded material when it receives a notification of claimed infringement.

These notice-and-takedown provisions can be more effective and efficient for removing infringing material than litigation. They work well, in other words, for good faith, legitimate service providers who cooperate with copyright holders to detect and deal with online infringement.

They should not, however, provide cover for service providers who deliberately set out to build sites based on infringement — where, for example, the site was primarily designed to have no other purpose than to engage in or facilitate infringing acts, the site operator has taken deliberate action to remain unaware of a high probability that the site is used for infringement, or the site operator has taken affirmative steps to promote the use of the site for infringing acts.

The DMCA safe harbors were crafted to provide legal certainty in the new online world and protect service providers from the risk of liability for inadvertent or incidental infringement that they aren’t aware of or can’t monitor or control. They certainly weren’t crafted to protect against those who actively and deliberately design and operate their sites to profit off piracy.

In practice, the DMCA notice-and-takedown provisions are ineffective against sites like this. Many creators would find it a full time job to send notices against these types of sites. And the provisions are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Sections 102 and 103 of the Stop Online Piracy Act fill this gap by giving the Attorney General and copyright holders new tools that directly target rogue sites. The goal of this legislation is not to completely eradicate online piracy, or allow copyright owners to “go back to the way things were.” Piracy is inherently part of the copyright landscape, and it will always exist in some form or another.

The goal is rather to allow creators and legitimate intermediaries to continue to develop sustainable business models that allow both widespread dissemination of content and the ability to be remunerated for investing time and money creating that content. Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role.

Nearly forty years ago, former Register of Copyrights Barbara Ringer delivered an essay at a time when Congress was in the midst of reforming the Copyright Act to ensure it would remain relevant in the information age. Like today, it was a time of rapid technological change, with new stakeholders emerging and contentious debate. But though the technologies and players were different, Ringer’s words remain just as relevant today:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages. 4Barbara Ringer, Demonology of Copyright (1974).

Copyright Law and Freedom of Expression

The introduction of the Stop Online Piracy Act has raised free speech concerns from various parties. It’s absolutely vital that the proposed bill — any bill for that matter — conforms with the First Amendment, which, I believe, it does. Noted First Amendment expert Floyd Abrams believes the bill is fully compatible with First Amendment protections as well, as he explained in a recent letter.

But it’s also important to keep in mind that copyright law itself serves an important role in furthering the goals of freedom of expression. This role has been recognized since the founding of the United States. As the Supreme Court said in Eldred v. Ashcroft, “the Framers intended copyright itself to be the engine of free expression.” 5537 US 186 (2003).

Founding Father and second president John Adams once wrote, “Property must be secured, or liberty cannot exist.” Our fourth president, and the Father of the Constitution, James Madison added, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

The Copyright Clause in the Constitution incorporates both these ideas, thus serving as a critical component in the protection of liberty. It gives Congress the power to secure to authors the exclusive rights in their writings in order to promote the progress of the useful arts and sciences. The importance of this power cannot be understated, and neither can the importance that these exclusive rights be truly secure in order to promote progress and spur diffusion of new expression.

That copyright law complements rather than conflicts with freedom of expression has been recognized many times since then.

For example, in an 1844 article appearing in The Reasoner magazine, the author writes: “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

And in an 1880 treatise on the liberty of the press, the author characterizes the “valuable property in the hands of the author who composes and publishes his thoughts” as one of the forms “which the right of free speech and thought assumes.”

Perhaps the best examination of the complementary relationship between copyright and freedom of expression comes Barbara Ringer, who noted:

[I]t is important to recognize that the Statute of Anne of 1710, the first copyright statute anywhere and the Mother of us all, was enacted precisely because the whole autocratic censorship/monopoly/ licensing apparatus had broken down completely. As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under common law principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles : recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

She later observes, “It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom.”

Prior restraint and censorship are antithetical to the First Amendment, but doing nothing in the face of rampant online piracy disgraces the goals of freedom of expression as well. The Stop Online Piracy Act helps secure creators’ rights online. Rogue sites jeopardize the ability of creators and firms to invest time and resources into creating new expression that advances society and culture. Current law is insufficient to address this harm; this bill would help restore the security of copyrights online.

Due Process

The rule of law is one of the most central and vital aspects of a free society. The US Constitution guarantees fair and impartial proceedings, protects citizens from arbitrary and unequalapplications of law, and limits what the government can do before depriving someone of life, liberty, or property.

But like freedom of speech, the concept of due process encompasses more than just Constitutional limits. Due process requires that rights have effective remedies available. Doing nothing violates the spirit of the rule of law.

The Stop Online Piracy Act strikes the correct balance between giving copyright holders an effective process for addressing sites whose only purpose is profiting off of the misappropriation of their works and ensuring that legitimate site operators are not punished.

I looked at the process of SOPA in more detail in previous posts: providing a walkthrough, showing why the bill will hit what it aims at, how it complements the DMCA, and why it merely provides new remedies for existing liability.

Conclusion

Sections 102 and 103 of the Stop Online Piracy Act represent a good start for creators who have long noted the injustice of others profiting from online piracy and escaping liability. Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

With this bill Congress can help secure the exclusive rights of creators. Doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content can continue.

References

References
↑1 Grant v. Raymond, 31 US 218.
↑2 33 US 591 (1834).
↑3 Federalist papers, No. 43.
↑4 Barbara Ringer, Demonology of Copyright (1974).
↑5 537 US 186 (2003).

SOPA: New remedies for existing liability

By , November 14, 2011.

That every person for every injury done him in his goods, land or person, ought to have remedy by the course of the law of the land and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land. 1Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9.

Ineffective remedies are often just as bad as no remedy at all. While innovative, sustainable services continue to develop, offering consumers exciting and convenient new ways to enjoy content that remunerates creators, rogue actors still find it easy to profit off the misappropriation of someone else’s time and talents.

The Stop Online Piracy Act (H.R. 3261) gives creators more tools to address this type of commercial piracy. Since it was introduced, however, it has been subject to much criticism, and with the House Judiciary Committee holding a hearing on the bill Wednesday, the criticism is sure to continue.

While some of the criticism is legitimate — few bills are perfect when they are first introduced, hence the need for hearings — a lot of it is unfounded. One thing that should be kept in mind is that SOPA does not expand the scope of copyright law, of what is protected or what is not.

The Stop Online Piracy Act creates new remedies, it does not create any new liability.

Section 103 of SOPA provides for a procedure, similar to the notice-and-takedown procedure of the DMCA, that allows copyright holders to better protect their work against commercial misappropriation. This procedure is limited to use against sites that are, as the bill terms them, “dedicated to theft of U.S. property.” The bill includes three separate definitions for a site “dedicated to theft of U.S. property.”

To see why SOPA doesn’t expand the scope of copyright law, compare its definitions to current law. These definitions, for sites “dedicated to the theft of U.S. property”, incorporate existing standards of liability. That is, sites or services that fall within the scope of these definitions are already potentially liable for copyright infringement. All Section 103 of SOPA does is give copyright holders a new tool to more effectively protect their work from commercial misappropriation.

No legitimate purpose

The first definition of a site “dedicated to the theft of U.S. property” under SOPA is one that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement.

The language of this definition mirrors that of the existing provision in the DMCA that prohibits devices that circumvent technological protection measures:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. 217 USC § 1201(a)(2).

But in a broader sense, this definition draws upon the theory of liability originally set forth in Sony Corporation v. Universal City Studios — the “Betamax” case. There, the Supreme Court held that the sale of a good “does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” This holding borrowed from the staple article of commerce doctrine in patent law. A corollary to this doctrine is that “where an article is ‘good for nothing else’ but infringement … there is no injustice in presuming or imputing an intent to infringe.” 3Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005).

There is recognition in Sony itself that its holding on contributory infringement doesn’t extend to products or services which have no purpose other than infringement. Justice Blackmun said in his dissent, “If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed.” Blackmun’s dissent bore a strong resemblance to an earlier draft of what, at one point, was the majority opinion in Sony. 4Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993). The language of that draft bears an even stronger resemblance to SOPA’s definition of a site “dedicated to theft of U.S. property”: “Sony can be liable for contributory infringement only if the Betamax’s ‘most conspicuous purpose’ or ‘primary use’ is an infringing use.” 5Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983).

Willful Blindness

Willful blindness is sometimes also referred to as “Nelsonian knowledge“, after flag office Horatio Nelson, who fought for the British Royal Navy in the late 1700s and early 1800s. The following story explains why — this particular story also serves as the origin of the phrase “turning a blind eye.”

When some of your great grandfathers were little boys, there was a great war between England and France. Many of the battles were fought at sea. England had good ships and brave sailors and bold captains in plenty; but the best sailor and the boldest captain of them all was Lord Horatio Nelson.

[…] In one battle this brave officer lost an eye. In another he lost an arm; but though he had but one eye and one arm, he was always the first in the fight and the last out. He never would give in. At the battle of Copenhagen two of his ships ran aground. Admiral Parker, who had command of the fleet, thought Nelson had no chance of winning: so he hung out the signal to “stop fighting.”

But Nelson took no heed of it. His one eye danced with glee as the guns roared, and ropes and bits of timber flew through the air. When a shot struck the mast of his own ship and broke it to hits, he only said. “Warm work this! But I wouldn’t lie out of it for all the world!” Some one told him that the signal was up to “stop fighting.”

He laughed: and putting the glass to his blind eye, he said: “I don’t see the signal. Keep mine flying for closer battle. Nail it to the mast.” And he kept on fighting till he won the battle; and for his great victory he was made lord admiral of the fleet. 6The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900).

The second definition of a site “dedicated to theft of U.S. property” under SOPA is a site where “the operator of the U.S.-directed site is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” copyright infringement.

The language is taken directly — word for word — from last May’s Supreme Court opinion for Global-Tech Appliances v. SEB. The Court stated that “a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing.”

Global-Tech presented the Court with the question of whether willful blindness can satisfy the knowledge requirement of 35 U.S.C. § 271. However, willful blindness itself is an incontrovertible part of the law. The Court explains:

The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge. It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.

The Court notes the wide acceptance of the concept of willful blindness. It begins its survey with a case from 1899 which embraced the idea and traces the doctrine through the 20th century. Today, “every Court of Appeals—with the possible exception of the District of Columbia Circuit, has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes.”

Finally, the Supreme Court presents a general formulation of willful blindness. “While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”

The doctrine of willful blindness applies to copyright law just as much as it does to law in general. 7In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005).

Inducement

The final definition of a site “dedicated to theft of US property” under SOPA is a site operated “with the object of promoting, or has promoted, its use to carry out acts that constitute” copyright infringement, “as shown by clear expression or other affirmative steps taken to foster infringement.”

Like the definition for willful blindness, this definition is taken directly from the Supreme Court. In Metro-Goldwyn-Mayer v. Grokster, the Court stated that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

The Court dubs this “inducement”, and it has been recognized as a form of secondary liability within copyright law for decades. In 1971, for example, the Second Circuit said that “one who, with knowledge of the infringing activity induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” 8Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162.

Effective recourse

The Stop Online Piracy Act incorporates long standing principles of liability, principles that have applied to service providers and web site operators since the beginnings of the world wide web. The actions that would subject a provider to SOPA’s provisions are the same ones that would subject it to a copyright infringement suit under existing law and are actions that would not be protected under DMCA safe harbors.

What has been missing has been effective remedies against operators and providers that clearly fall within the scope of this liability: sites that have been purposely designed for the sole purpose of infringement, sites whose operators have taken deliberate steps to blind themselves from the use of their sites to engage in wrongdoing, and sites whose operators have actively promoted the use of their sites for piracy. For smaller content producers and individuals especially, this lack of effective recourse has proven damaging.

The goal of SOPA is to remedy this lack of effective recourse, and ensure that creators have “justice and right” freely, fully, and without delay for the injury caused by rogue sites.

References

References
↑1 Chief Justice Thomas Philips, The Constitutional Right to a Remedy, 78 New York University Law Review 1309 (2003), paraphrasing Arkansas Constitution art. II, § 13; Illinois Constitution art. I, § 12; Maine Constitution art. I, § 13; Maryland Constitution Decl. of Rights, art. 19; Massachusetts Constitution pt. 1, § 11; Minnesota Constitution art. 1 § 8; New Hampshire Constitution pt. I, art. 14; Rhode Island Constitution art. I, § 5; Vermont Constitution ch. I, art. 4; and Wisconsin Constitution art. I, § 9.
↑2 17 USC § 1201(a)(2).
↑3 Metro-Goldwyn-Mayer v. Grokster, 545 US 913, 932 (2005).
↑4 Jonathan Band & Andrew J.  McLaughlin, The Marshall Papers: A Peek Behind the Scenes at the Making of Sony v. Universal, 17 Columbia – VLA Journal of Law & the Arts 427 (1993).
↑5 Draft Majority Opinion of Associate Justice Harry A. Blackmun at 35 (June 13, 1983).
↑6 The Brave Lord Nelson, Timely Topics, Vol. v. No. 1, pg 286 (Sept. 7, 1900).
↑7 In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), “Willful blindness is knowledge, in copyright law as it is in the law generally”; See also Island Software and Computer Service v. Microsoft, 413 F.3d 257, 263 (2nd Cir. 2005).
↑8 Gershwin Publishing v. Columbia Artists Management, 443 F.2d 1159, 1162.

Friday’s Endnotes – The Elevenses

By , November 11, 2011.

Eleven links for 11/11/11…

Give the Gift of Music — Winning essays from Give the Gift of Music’s autumn contest. Incredibly moving stories of how music and lyrics have inspired and helped others.

Fight for the Future — Worcester Mag profiles the “Fight for the Future” group, which is based in Worcester, MA, and debate over rogue sites legislation. Some quotes from yours truly in there.

Everything looks like a nail: the “social music” fallacy — A thought provoking essay from Fingertips Music. “Music is made to be shared? No, it isn’t. Unless you happen to run a large, international social media company. In which case, everything is made to be shared.”

5 ways we ruined the Occupy Wall Street Generation — It’s from Cracked Magazine, but still pretty observant. Number 2: “Creating the idea that entertainment has no monetary value.” The author writes, “See, when piracy hit Hollywood, they didn’t stop funding blockbusters — they stopped funding edgy, creative movies. They’re going with safer and safer bets. Piracy did that. We got that ball rolling, and there is no going back. Instead of Reservoir Dogs, we get Jack & Jill … and you have no idea how deeply sorry I am for that.”

How movie money works — “When you read articles claiming every Hollywood movie loses money, an obvious question arises: ‘Why do they keep making them, then?'” Screenwriter John August answers this question via podcast. Very informative.

Authors and Book Piracy — Literary agent Rachelle Gardner gives authors information and advice about book piracy.

On rogue websites legislation: when you’ve got them by the bucks, their hearts and minds will follow — Chris Castle, writing at the Huffington Post, ponders about opposition to rogue sites legislation from venture capitalists. “The good guys know that there is a difference between innovation and theft — but while this seems obvious, that distinction seems to be lost in a grandiose belief that the positive effects of crime are justified by ‘innovation’ and ‘Internet freedom.'”

The facts on PROTECT-IP and the Stop Online Piracy Act: What are rogue sites? — Sandra Aistars separates fact from fiction about what types of sites are targeted by legislation in the US House and Senate. Says Aistars, “The bills don’t regulate the Internet. They regulate bad actors.”

Counterfeit Military Parts “Threaten the Safety and Mission Readiness of our Armed Forces” — Counterfeit parts, often defective, are a rising problem in defense supply chains. A recent Senate Armed Services Committee held a hearing on the subject, and rogue sites legislation in the House and Senate include provisions to deal with this problem.

Celebrating the Fortieth Anniversary of Justice Breyer’s Article The Uneasy Case for Copyright — The George Washington Law Review recently held a symposium to celebrate current Supreme Court Justice Stephen Breyer’s seminal article written 40 years ago. Six articles, plus an esssay by Breyer himself, are available at the GWLR site. I especially recommend Stan J. Liebowitz’s Is Efficient Copyright a Reasonable Goal?

Drassinower on Copyright Infringement & Compelled Speech — “Copyright infringement is wrong because it is compelled speech.” This academic paper from Abraham Drassinower develops a rights-based justification for copyright as a communicative act. Certainly not light reading, but very interesting.

Stop Online Piracy Act and the DMCA

By , November 10, 2011.

The online safe harbors for copyright infringement liability, enacted as part of the DMCA in 1998, have been credited for everything from saving the web to removing former Egyptian president Hosni Mubarak from power.

But while there is certainly disagreement over the scope of immunity for online service providers — appeals are currently pending in the Second and Ninth Circuits over many of the details of the provisions, for example — the law is generally considered to strike the appropriate balance where it applies.

Now with the introduction of the Stop Online Piracy Act in the US House, critics are concerned that the bill — specifically Section 103, which creates a notice mechanism for preventing sites “dedicated to theft of US property” from profiting off infringement similar to the notice-and-takedown procedure in the DMCA for removing infringing content uploaded by a service provider’s users — will upend this balance.

The EFF warns that the bill threatens to “effectively eliminate the DMCA safe harbors.” Public Knowledge writes that “SOPA would undermine the DMCA.” The Internet abounds with others raising the alarm over what would become of DMCA safe harbors should SOPA pass.

I had previously written about the need for copyright law to continue to adapt alongside technology. It makes as much sense to freeze the law relating to the online world as it was a decade ago as it does to freeze the technologies that shape the web as they were.

The Stop Online Piracy Act in many ways represents an update to the Digital Millennium Copyright Act — DMCA 2.0 — rather than an end-run around it. The existing safe harbors are good for certain things — user-generated sites and social networking sites to name just two — but not good for others.

Active and Passive Infringement

One major feature of the safe harbors, which illustrates both why they are ineffective against the type of commercial piracy targeted by SOPA and why SOPA enhances rather than eliminates these limitations on liability, is that they are primarily concerned with passive infringement: infringement that occurs through services that is inevitable, but which would be overly burdensome to fully prevent.

The online safe harbors were intended to encourage content owners and service providers to cooperate in order to “detect and deal” with online infringement.  They were also meant to give “greater certainty to service providers concerning their legal exposure for infringements that may occur in the course of their activities.” 1Final Conference Report on H.R. 2281, House 105-796, pg. 72 (Oct. 8, 1998). Note the passive “infringements that may occur” — the safe harbors weren’t made for service providers who set out to enable or facilitate infringement.

Perhaps the most popular safe harbor is the one laid out in 17 USC § 512(c), which immunizes service providers from liability for “Information residing on systems and networks at direction of users.” The text of 512(c) supports the idea that the safe harbor was designed for inadvertant and incidental infringement. It shields service providers for copyright infringement liability that arises only “by reason of the storage at the direction of a user of material.” The safe harbor does not apply if the service provider has actual knowledge that material or activity using the material infringes copyright, or if the provider receives a directly attributable financial benefit where it has the right and ability to control infringing activity.

It shouldn’t be controversial to say the DMCA safe harbors were crafted as a shield for service providers, not as a sword against creators and copyright holders. The notice and takedown procedure in Section 103 of the Stop Online Piracy Act thus builds upon the originally intended goals of the DMCA to target only those sites that actively set out to benefit from third-party infringement.

The provisions can only be used against sites that are “primarily designed or operated” to offer services in a way that “engages in, enables, or facilitates” copyright infringement; sites that take “deliberate actions to avoid confirming a high probability” that the site is used to carry out infringement; or sites that promote their use to engage in infringement “as shown by clear expression or other affirmative steps taken to foster infringement.”

Taken as a whole, the bill can only be used against sites that have purposefully taken actions to profit off piracy, actions that are well beyond the scope of the DMCA safe harbors.

DMCA safe harbors remain alive and well

This is not a departure from existing law. The third definition of a “site dedicated to theft of US property” repeats word-for-word the Supreme Court’s articulation of inducement — “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” [Emphasis added.] 2MGM v. Grokster, 545 US 913 (2005). And as one court noted, “inducement liability and the Digital Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are based on passive good faith conduct aimed at operating a legitimate internet business.” [Emphasis added.] 3Columbia Pictures v. Fung, CV 06-5579 SVW, Order granting plaintiff’s motion for summary judgment on liability (CD Cali. Dec. 21, 2009).

It’s also important to keep in mind that nothing in the bill negates the safe harbors. A copyright holder can only proceed in court against a site after it has sent a notice to an advertising or financial transaction provider and either those providers failed to comply with the notice or the site operator sends a counter-notification. Even then, the court is limited solely to granting an injunction against the site to cease and desist from doing further any of the actions described above that made it subject to a notification in the first place. 4Which make the claims that SOPA would lead to increased litigation, “shakedowns” of new services, or a boon for trial lawyers absurd: copyright holders already can sue a site for copyright infringement, and if successful, can collect monetary damages. A cause of action that is much narrower than copyright infringement, for which only limited injunctive relief is available, isn’t exactly attractive to someone looking to make a buck.

In practice, the DMCA notice and takedown provisions are ineffective against site operators who take an active role in facilitating, promoting, or turning a blind eye toward the use of their sites for infringing copyright. Many creators would find it a full time job to send notices against these types of sites, and most find that specific content removed quickly returns elsewhere. This results in sites playing a game of “catch me if you can” while continuing to profit off the work of others. And they are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Rogue sites sidestep the rule of law by using the DMCA safe harbors to shield themselves from liability while they take deliberate steps to profit off of piracy. With the Stop Online Piracy Act, the US House is hoping to truly secure the exclusive rights of creators; doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content is not hamstrung.

References

References
↑1 Final Conference Report on H.R. 2281, House 105-796, pg. 72 (Oct. 8, 1998).
↑2 MGM v. Grokster, 545 US 913 (2005).
↑3 Columbia Pictures v. Fung, CV 06-5579 SVW, Order granting plaintiff’s motion for summary judgment on liability (CD Cali. Dec. 21, 2009).
↑4 Which make the claims that SOPA would lead to increased litigation, “shakedowns” of new services, or a boon for trial lawyers absurd: copyright holders already can sue a site for copyright infringement, and if successful, can collect monetary damages. A cause of action that is much narrower than copyright infringement, for which only limited injunctive relief is available, isn’t exactly attractive to someone looking to make a buck.

Friday’s Endnotes – 11/04/11

By , November 04, 2011.

Return of the AmeriKat I: Berne takes a bite out of the US Constitution — The Supreme Court’s opinion in Golan v. Holder, which was argued last month, likely won’t be out for several months. In the meantime, IPKat offers a substantial look at the background and issues raised in the case.

Where are all those mashers and mixers we keep hearing about? — One of the central tenets of some “copyfighters” is that remixing and mashing up somehow represents the new paradigm of culture, replacing “traditional” notions of authorship. The takeaway being that corporations like Google should be given free reign to profit off the aggregation of such remixes and mashups without any regard to the original creators. John Degen points to a recent study that reveals that, contrary to this tenet, only 12% of the respondents said they engage in remixing.

Public Safety Community Overwhelmingly Supports Rogue Sites Legislation — The Fraternal Order of Police and the International Association of Fire Fighters join an array of public safety organizations backing legislation aimed at online copyright infringement and counterfeit goods. Counterfeit safety equipment is a very real public safety issue.

Copyright Small Claims? — The US Copyright Office has recently begun seeking comments on possible remedies for small copyright claims. Attorney David Lizerbram takes a deeper look at the issue.

Does Culture Really Want to be Free? — Salon sits down with Robert Levine to discuss many of the issues he raises in his new book Free Ride. Full of choice quotes like this one: “I don’t think anyone is going to go to hell for downloading ‘Iron Man 2.’ But saying you have the right to download it is also pretty silly.”

5 Steps to Understanding Bill C-11 and “Digital Locks” — As Canada moves toward reforming its copyright law, concern has been raised over provisions dealing with technological protection measures. James Gannon explains what these provisions do and why they are needed.

The Entire $1.65B Acquisition of YouTube Took a Week, Was Negotiated at Denny’s — “Schmidt basically promised the founders unlimited resources in return for an “infinite amount of happy users” and an “infinite amount” of good content.” (Sadly, Schmidt could only promise a finite amount of Moons Over My Hammy.)

More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age — UCLA law student and friend of the site Brad Greenberg penned this forthcoming law review article about proposals to bring back copyright formalities in the digital age. Ultimately, he concludes that “returning to an opt-in copyright system via formalities would actually disincentivize authors who are presently motivated by copyright.”

Dispatches from the SOPAcolypse

By , November 02, 2011.

Harold Camping has famously predicted the end of the world three times.

His first prediction — September 6, 1994 — came and went with little fanfare. His second attempt at setting a date for the apocalypse was far more successful. The Internet was abuzz as May 21, 2011 approached. But again, the world did not end.

Undeterred, Camping checked his math and announced a new date. October 21, 2011, would mark the final day of everything we know, for real this time. Wrong once again, the former leader of the California-based Family Radio has apparently retired from his role as apocalyptic soothsayer.

Apocalypse Now?

I mention Camping because a similar phenomenon occurs in the copyright realm. It seems that whenever new legislation is introduced, there are those who are ready to predict that if it passes, it will surely result in the demise of the Internet, or innovation, or some other thing we hold dear.

You can see this in action by taking a look at some of the headlines in response to the US House’s introduction of the Stop Online Piracy Act (SOPA):

This are just a sampling of the dire predictions about the epic catastrophes SOPA would bring if passed — the SOPAcolpyse, if you will.

But, like Camping, copyright’s skeptics have made these predictions before.

Sometimes they are done with striking consistency. Sci-fi author Cory Doctorow says SOPA “might be the worst-ever copyright proposal in US legislative history.” Not one to make use of hyperbole sparingly, Doctorow also declared a 2005 French proposal the “worst copyright law in Europe”; in 2007, it was an EU proposal that would surely be the “worst copyright law in the world!”; little more than seven months later, he stated that a Canadian legislative proposal “promises to be the worst copyright law in the developed world.”

The same goes for copyright activist Lawrence Lessig, a big proponent of the “break the internet” line over the years. Talking in 2003 about his idea for a compulsory license that would cover P2P activity, he said, “We have to buy [music and movie companies] off, so they don’t break the Internet in the interim.” That same year on PBS’s NewsHour with Jim Lehrer, it was DRM: “The response that the music industry has insisted on would be technologies that would essentially break the Internet.” Fast-forward to 2008, and Lessig, speaking at an event hosted by Harvard’s Berkman Center, Google, and the Family Online Safety Institute, again cautions against letting copyright law “break the Internet.”

The Sky is Falling

The doomsday scenarios began on day one. In February 1993, the Clinton administration put together the Information Infrastructure Task Force to study the advancement and development of information technologies, including the burgeoning Internet and infant web. Part of their mandate was examining the intersection of copyright law, digital technologies, and networked communications and exploring what changes were necessary.

The Working Group on Intellectual Property Rights released its report, Intellectual Property and the National Information Infrastructure (the “White Paper”), in September of 1995, sparking the first wave of the “parade of horribles” that would accompany copyright reform from then on out.

Copyright scholar Pamela Samuelson penned an article in Wired magazine that gave a laundry-list of reasons to oppose legislation proposed after the White Paper was released: “your online service provider will be forced to snoop through your files”, it would “transform the emerging information superhighway into a publisher-dominated toll road”, it would “eliminate fair-use rights”, “it can be construed as outlawing many activities widely believed to be lawful.”

Others concurred. “The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”

The initial legislation evolved to become the Digital Millennium Copyright Act (DMCA), which became law in 1998. Some still weren’t convinced the days of a free Internet weren’t numbered. A writer in the Berkeley Technology Law Journal predicted shortly after the DMCA became law that:

The post-DMCA Internet will feature even more of those damnable “404 – file not found” messages than it currently does. As media companies expand their demand-letter operations from commercial “piracy” to include negative commentary, transformative uses, and what they deem to be a little bit too much sampling or quotation, the ranks of the independent Internet publishers will be radically depopulated.

Ten years later, many of those same critics couldn’t praise the DMCA enough. Wired magazine calls it “the law that saved the web.” “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”

A Decade of Falling Sky

Since the DMCA, most copyright legislation has elicited similar responses.

The No Electronic Theft (NET) Act was passed in 1997, expanding the definition of “financial gain” in criminal copyright infringement and increasing criminal penalties. Among the opponents of the bill was the Association for Computing, which raised concerns that it would restrict dissemination of science, criminalize the transfer of information protected by fair use, and chill free speech in research institutions. Others warned it would greatly expand the scope of criminal infringement; “aggressive prosecutors would abuse their discretion to win convictions” or “bring weak felony cases to get quick misdemeanor plea bargains.” 1Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003).

None of these concerns materialized. As Eric Goldman concludes after examining the five years following the Act, “the prosecutions to date appear generally consistent with Congress’ objectives for the Act.” None of the convictions could be fairly characterized as “de minimis“, none of the defendants could have raised a legitimate fair use defense, and universities and educators remained untouched by efforts under the Act. 2Id. 392-96.

The Artists’ Rights and Theft Prevention (ART) Act of 2005 added provisions to criminal copyright law that expressly targeted “camming” and distribution of pre-release commercial works. Critics called it draconian, foresaw an uptick in prison sentences, and decried a lack of fair use in the Act. The provisions have instead been used judiciously; prisons have not been filled with cammers and leakers.

2008 brought the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, a broad bill that amended civil and criminal provisions of the Copyright Act and created the Intellectual Property Enforcement Coordinator position, currently held by Victoria Espinel.

The response? Michael Seman of NetSherpa wrote, “The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas,” one that “means we’re close to losing the flow of culture that the Internet so greatly facilitates.” Mike Masnick said, “All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.” And noted copyright scholar William Patry remarked, “The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself.”

Grokster pt. 2

Legislative proposals aren’t the only things that brings out the freedom and innovation pessimists.

The Supreme Court issued its decision in Metro-Goldwyn-Mayer Studios v. Grokster in 2005, holding that “one who distributes a device with the object of promoting its use to infringe copyright” may be liable for the resulting infringing acts by its users. In its amicus brief to the Grokster court, the National Venture Capital Association warned that a rule holding Grokster liable would “have a chilling effect on innovation.”

However, since Grokster:

[V]enture capital in the media and entertainment sectors grew faster than the rest of the VC market in four out of the six years. By comparison, in the five years before the Grokster decision, growth was lower in four of them. From 2000 to 2004, media and entertainment venture capital accounted for about 4.6 percent of total VC dollars invested. From 2006 through 2010, media and entertainment VC dollars grew to 7.1 percent of total VC dollars. 3Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011.

This year alone, in a down economy, music-based startups have received nearly half a billion dollars in funding. And some of these startups are far more exciting than the mere hoarding of music files that Grokster and other P2P services offered.

Little difference that makes though. In a letter to Congress on the proposed PROTECT IP Act, a group of venture capitalists offer the same warning: the bill would “throttle innovation” and “chill investment.”

It’s the End of the World as We Know It

Despite this history, critics of the Stop Online Piracy Act promise that the bill spells the end of innovation, culture, freedom, and the very Internet itself, for real this time.

It won’t.

In the long term, the public benefits the most when both creators and innovators succeed. And our laws should continue to adapt to make sure that happens.

References

References
↑1 Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003).
↑2 Id. 392-96.
↑3 Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011.

How the Stop Online Piracy Act will hit what it aims at

By , October 31, 2011.

Creators are often told they have to learn how to “compete with free” because of online piracy. To some extent, this is true, but certainly not a new idea — piracy existed way before the Internet became so prominent in our lives. 1See, for example, Martin Luther’s Warning to the Printers, Wittenberg (1541): “Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God / and which is unworthy of any honest Christian.” Creators have been adapting, and continue to adapt, to the realities of digital technology — through a combination of new business models, technology, and carefully constructed legislation.

But what creators shouldn’t have to do is compete with paid. That is, the law should provide little leeway for those who profit off the infringement of the core exclusive rights protected by copyright law for centuries — rights that the US Constitution empowers Congress to secure to authors in order to promote the progress of the useful arts and sciences for all of society.

Most online firms recognize the value of copyright and creative works — rogue sites, however, believe that all of that value should go directly into their own bank accounts. Recognizing the ease of doing this and the harm it causes to creators, consumers, and the economy in general, Congress has pursued legislation addressing the problem of rogue sites: the PROTECT IP Act was introduced in the Senate last May, and the Stop Online Piracy Act (SOPA) in the House this past week.

Some of the early criticism of the House bill has centered around Section 103 of SOPA, which would provide a system for notifying advertising and payment providers of Internet sites that are dedicated to piracy and using their services.

The EFF predicts “we’re going to see a flurry of notices anyway – as we’ve learned from the DMCA takedown process, content owners are more than happy to send bogus complaints.” Larry Downes, writing on behalf of TechFreedom, claims the bill is “drafted to ensure maximum litigation.” And Gary Shapiro, president of the Consumer Electronics Association, notes “the potential for abuse by the notoriously litigious content industry is clear.”

If you read the bill, however, it is difficult to see these predictions coming true. Section 103 is appropriately called a “Market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property” — the market will naturally mitigate against any flurry of notices. The robust procedures envisioned in the bill, along with the penalties for abusing the notice process, also make it an unlikely candidate for abuse.

The Market-based System

The notification system under SOPA is similar to the one provided by the DMCA where content owners can notify service providers of infringing material uploaded by users. By comparing the two notification processes, we can see that, contrary to early criticisms, the notification process under SOPA is less likely to be abused than the DMCA.

A service provider has an incentive to remove content when it receives a DMCA takedown notice. Expeditiously removing content once it is notified preserves its safe harbor from any liability it might face. There is also little downside to removing content for the service provider. The DMCA shields the service provider from any legal claims from a user whose content was removed. 217 USC § 512(g). And, in most cases, any subsequent business repercussions of content takedown are slight — at worst, a user of a free service takes his business elsewhere.

While an ad provider or payment processor may, in some cases, be liable for contributing to copyright infringement, 3See Warner Bros. v. Triton Media, Consent Judgment, No. CV 10-6318-GW (CD Cali, Oct 27, 2010), defendant liable for “providing advertising consulting and referrals for, and/or providing other material assistance to” infringing websites. this requires a rare set of circumstances. 4See Perfect 10 v. Visa International, 494 F.3d 788 (9th Cir. 2007), payment processor not liable for copyright infringement for processing credit card transactions on infringing sites. Most ad and payment service providers, then, do not have the same additional legal incentives to comply with SOPA takedowns as online service providers have to comply with DMCA takedowns.

They also don’t have business incentives to comply with bad faith notices under SOPA. Each site they are ordered to block is, presumably, a paying customer or revenue source. I doubt many businesses would be happy to rubber-stamp any and every order that cuts into their bottom line without some way of making sure the site at issue is one that genuinely falls within the scope of this law.

Due Process

The bill provides a fair process for resolving disputes between content owners and ad and payment providers when they disagree about whether a particular site is dedicated to the theft of US property.

When an ad or payment provider receives a notice under SOPA, one of three things may happen: (1) the identified site files a counter-notice, (2) no counter-notice is filed and the provider complies with the notice and prevents its service from being used by the infringing site, or (3) no counter-notice is filed but the provider fails to comply with the original notice.

In the first and third scenarios, absolutely nothing happens to either the identified site or provider unless the copyright owner chooses to pursue further. In those cases, a copyright owner is limited to filing an action against the identified site’s operator, or the site itself if the operator is not locatable or resides outside the US. 5This dual in personam/in rem style cause of action is reminiscent of the one in the Anticybersquatting Consumer Protection Act, see Caesars World v. Caesars-Palace.com, 112 F.Supp.2d 502 (ED Va 2000) for a discussion of the constitutional propriety of the Act.

When an action is commenced, the court may issue an injunction — governed by the Federal Rules of Civil Procedure, the same rules that govern injunctions in any federal civil lawsuit — against the site owner to cease infringing activity. The copyright owner may then serve court orders against ad and payment providers providing services to the identified site.

When one of these providers gets such an order, it must use “technically feasible and reasonable measures” to prevent its services from being used by the identified site, but once it has put these measures into place, it has no duty to monitor.

If the provider still refuses to comply, the copyright owner may, upon a showing of probable cause that the provider has refused to comply, request further action by the court. Under the statute, the court would issue an order to show cause to the provider. If the provider cannot show cause why it has failed to comply, the court may order it to comply, or, in the case of a knowing and willing refusal to comply, it may “impose an appropriate monetary sanction”.

These are the only legal remedies available to a copyright owner under this section of SOPA. Copyright owners cannot shut down a site, they cannot collect monetary damages (any monetary sanctions go directly to the court). Success under this market-based system is getting an ad or payment provider to prevent its services from being used by a site dedicated to the theft of US property to profit off that theft.

Little room for mistakes

Under the DMCA, a content owner who “knowingly materially misrepresents” that content is infringing is liable for any damages, attorney fees, and costs incurred by the user as a result of the content being taken down. 617 USC § 512(f). One of the few cases that dealt with this part of the DMCA involved the infamous takedown of the dancing baby video on YouTube. In 2008, the Northern District Court of California concluded that a takedown notice requires a “good faith consideration of whether a particular use is fair use”; otherwise, a content owner may be liable for misrepresentation. 7Lenz v. Universal Music Corp., 572 F.Supp.2d 1150, 1156 (ND Cali 2008).

Even so, as the court pointed out, the amount of damages a content owner would face for such a misprepresentation would likely be “nominal.” Having a video removed from YouTube for a few days may be annoying, but provable financial damage? Probably not much. 8See Ben Sheffner’s discussion of the 512(f) damages provision in Lenz for more on this.

SOPA provides a similar provision against misrepresentation in notices — but while the language mirrors that in the DMCA, there are two practical realities that make it different.

First, a good faith effort to determine that an entire site is “dedicated to theft of US property” under the definition of the bill requires considerable more effort than determining whether a single file is infringing. The notification itself requires substantially more investigation than a DMCA notice. Under the DMCA, a copyright owner need only identify what work is being infringed and the content that is infringing. 917 USC § 512(c)(3). Under SOPA, the copyright owner must show, among other things, “specific facts to support the claim that the Internet site, or portion thereof, is dedicated to theft of U.S. property” and “clearly show that immediate and irreparable injury, loss, or damage will result” to the copyright owner in the absence of timely action; “Information reasonably sufficient to establish that the payment network provider or Internet advertising service is providing payment processing or Internet advertising services for such site”; and identification of evidence that indicates the site is US-directed.

Second, the risk of making a material misrepresentation is much higher. The operator of a site whose sources of income have been threatened is far likelier to push back than a user whose video was taken down. And unlike the nominal damages present in a DMCA takedown, the loss of ad revenues and credit card transactions because of a bad faith takedown could add up.

No law is immune from abuse, and copyright law shouldn’t be an exception. But the penalties for erroneous notices under SOPA have teeth, the procedures and remedies involved don’t encourage over-litigiousness. These provisions strike a proper balance that should prove to be effective against rogue sites and protective of good faith actors.

Taking the Profit out of Piracy

The provisions of Section 103 of the Stop Online Piracy Act will certainly continue to evolve during the legislative process; if SOPA and the PROTECT IP Act are successfully voted on, they will need to be reconciled before becoming law.

But these provisions represent a good start for creators who have long noted the ease (and injustice) of profiting from online piracy and escaping liability. They are aimed in theory at rogue sites, and in practice will be used against only rogue sites. Safeguards are built into the bill to limit abuse.

Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

References

References
↑1 See, for example, Martin Luther’s Warning to the Printers, Wittenberg (1541): “Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God / and which is unworthy of any honest Christian.”
↑2 17 USC § 512(g).
↑3 See Warner Bros. v. Triton Media, Consent Judgment, No. CV 10-6318-GW (CD Cali, Oct 27, 2010), defendant liable for “providing advertising consulting and referrals for, and/or providing other material assistance to” infringing websites.
↑4 See Perfect 10 v. Visa International, 494 F.3d 788 (9th Cir. 2007), payment processor not liable for copyright infringement for processing credit card transactions on infringing sites.
↑5 This dual in personam/in rem style cause of action is reminiscent of the one in the Anticybersquatting Consumer Protection Act, see Caesars World v. Caesars-Palace.com, 112 F.Supp.2d 502 (ED Va 2000) for a discussion of the constitutional propriety of the Act.
↑6 17 USC § 512(f).
↑7 Lenz v. Universal Music Corp., 572 F.Supp.2d 1150, 1156 (ND Cali 2008).
↑8 See Ben Sheffner’s discussion of the 512(f) damages provision in Lenz for more on this.
↑9 17 USC § 512(c)(3).

Friday’s Endnotes – 10/28/11

By , October 28, 2011.

“The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.” 1Gary Chapman, Copyright Bill Would Infringe on the Internet’s Real Promise, Los Angeles Times (May 20, 1996).

The bill referred to above is not the House rogue sites legislation unveiled this week, but the DMCA — the quote was written over 15 years ago. You could say today’s criticisms are simply “remixes” of the same criticisms heard every time new copyright legislation is proposed, but remixes involve at least some originality.

In other news …

Protect IP Act: Minorities Who Produce It, Should Get Paid For It — Dorrissa D. Griffin highlights a little-discussed aspect of copyright. Though content theft affects all creators, minorities are hit especially hard. Black artists, especially musicians, have historically struggled to be fairly compensated for their creative contributions. Griffin explains, “Fortunately, the recording industry has greatly reformed its practices, making it an exemplar of equal opportunity.  However, this has not been the case in the online world, where today’s Internet pirates simply copy and use copyrighted material without permission or remorse. Minority artists are impacted the most by this kind of theft because minority artists, writers and filmmakers often have little wealth (the wealth gap being as vast as it is) – except for their intellectual property. And once that gets stolen, nothing is left.”

Priorities and Special Projects of the United States Copyright Office October 2011 – October 2013 (PDF) — The US Copyright Office this week released its plan for the next 2 years, outlining 17 priorities and 10 special projects. Ambitious and commendable.

Backbeat: Robert Levine, David Carr Trade (Friendly) Barbs Over Levine’s New Book, ‘Free Ride’ — Levine’s Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back hit the US stands this week. Billboard shares this interesting discussion between the author and NY Times columnist David Carr at a recent panel discussion.

The Role of the Record Producer and Why We Need PROTECT IP/Stop Online Piracy Act by Luke Ebbin — MusicTechPolicy provides this guest post from record producer Luke Ebbin. Ebbin notes that the “new” music business world is an exciting and promising one for both musicians and fans. But in order to ensure its promises, “a fair and equitable market-based solution needs to be developed and enforced to protect the rights of the owner of the master recordings.”

What is so special about music? — I’ve been following researcher Paul Lamere’s work on music recommendation over the past several years, finding it fascinating. Here, he talks about the things that separate music from other forms of media, making it difficult to apply the same techniques for recommending, say, books to recommending music.

Google’s Spreading Tentacles of Influence — Businessweek reports on Google’s ramping up of traditional lobbying — the corporation hired its 16th lobbyist firm this week and has spent over $5 million on lobbying so far this year — as well as its “preferred way” of spreading money to public interest groups. Good article, though they missed an opportunity with the metaphor in the title — I would have used something that involves crawling rather than spreading.

References

References
↑1 Gary Chapman, Copyright Bill Would Infringe on the Internet’s Real Promise, Los Angeles Times (May 20, 1996).
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