The Chilling Effect of Copyright Infringement

By , December 10, 2010.

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

The “free speech critique” of copyright can essentially be summed up as this: “Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please.” 1Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). The past few decades have seen a ton of academic scholarship devoted to this critique. 2Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). By and large, the consensus is that the restriction exists, and something needs to be done about it.

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

Free Speech Rights of Copyright Owners

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

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

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

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

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

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

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

The Chilling Effect of Online Piracy

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

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

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

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

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

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

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

Freelance photographer Seth Resnick adds his perspective:

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

Disputing the Chilling Effect of Online Piracy

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

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

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

Parting Thoughts

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

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

References

References
↑1 Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
↑2 Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010).
↑3 One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).
↑4 William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985).

Online Piracy: Nothing New

By , December 08, 2010.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Feds Seize Domain Names

By , December 06, 2010.

On November 29, the US Immigrations and Customs Enforcement agency executed seizure warrants on over 80 domain names for sites engaged in counterfeiting and online piracy. This round of seizures, dubbed “Operation In Our Sites v. 2.0”, is part of an ongoing investigation by ICE and follows a similar round of seizures which took place this past summer.

Many have noted similarities between Operation In Our Sites and the pending Combating Online Infringement and Counterfeits Act (COICA), which would create enhanced civil forfeiture mechanisms against websites dedicated to infringing activities. Both the Operation and COICA target the domain name of these websites; both result in blocking the domain name from resolving to the website.

And, like COICA, critics of Operation In Our Sites have raised concerns that these domain name seizures lack due process and violate the First Amendment. I previously addressed these two issues as they relate to COICA; today, I want to take a look at them in the context of these domain name seizures.

Seizure vs. Forfeiture

The first step in understanding what is going on here is making a distinction between seizure and forfeiture. It’s easy to get the two confused, but they are separate concepts, and the government has to play by two different (but sometimes overlapping) sets of rules to stay within constitutional bounds.

Seizure is the act of taking custody of property. Most of us are probably most familiar with seizure of property that is evidence of a crime: when police find the murder weapon during a search, they can seize it — take temporary possession of it — for further examination and for use at trial. But property is also typically seized prior to forfeiture proceedings. 1Most property, that is, as we’ll see later. A court only has authority of property within its territorial jurisdiction, and it can only assert that authority when the property has been taken into its custody. 2Dobbins’s Distillery v. United States, 96 US 395 (1878).

The US Constitution lays out specifically what is needed for a seizure to be lawful. The Fourth Amendment states that “unreasonable” seizures are prohibited, and property may only be seized when accompanied by a warrant, issued “upon probable cause” that describes with particularity the “things to be seized.”

Forfeiture is the “involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime.” 3West’s Encyclopedia of American Law, edition 2. Property may be forfeited as part of a sentence for a criminal conviction, or the government may seek forfeiture in and of itself through a civil in rem proceeding against the property. Civil forfeiture is limited to those types or classes of property set by statute. In civil forfeiture cases, the government has the burden of proving by a preponderance of the evidence that property was used in or derived from prohibited activities.

In short: property is seized to commence a civil forfeiture proceeding, and it is forfeited if it was used in the commission of a crime. This principle has been followed for centuries: British politician and lawyer John Sadler wrote in 1649, “No forfeiture before conviction; no seizure before indictment.” 4John Sadler, Rights of the Kingdom, pg. 281.

The US government may use civil forfeiture to enforce copyright laws against:

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

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

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A). 518 US Code § 2323(a)(1).

So, contrary to some descriptions of COICA, the authority to initiate forfeiture proceedings against domain names of websites involved in the commission of copyright infringement already exists. COICA merely enhances these forfeiture proceedings (for example, by adding requirements for advertising and financial transaction providers to take reasonable measures to block their services from forfeited domain names). However, whether the government pursues civil forfeiture against domain names under COICA, should it pass, or under existing law, the first step in that process would still involve what occurred on November 29th: the seizure of those domain names.

Seizure and Due Process

Most of us generally don’t question the authority of the government to seize property that is evidence in a criminal trial. If police have a warrant to look for a murder weapon, and they find it, they can bag it up and remove it from the owner’s possession.

But as mentioned above, property may also be seized pursuant to a warrant to be forfeited in and of itself. While some may find this practice troubling — especially if the government is seen as too aggressive in seizing property — the constitutional requirements for this type of seizure are largely the same as seizing property for evidence.

When it comes to the practice of seizing domain names, the question is: should the same rules that govern the seizure of ordinary property apply, or do domain names present special circumstances that require stricter rules of due process for their owners?

In making the claim that domain names present special circumstances, critics of the seizures seem to want to have their cake and eat it too. They say these seizures are unconstitutional — they should be subject to higher standards of due process because owners of domain names are being deprived of something more than owners of all other types of property subject to seizure. But at the same time, they say these seizures are ineffective because the owners aren’t being deprived of anything — they still have their content and servers, their sites can still be accessed by IP address, and in many cases, the owners have registered new domain names for their sites within hours of the seizures.

Let’s see whether the case for treating domain names differently than ordinary property hold up.

The Fifth Amendment states that “No person shall … be deprived of life, liberty, or property, without due process of law.” Generally, “due process” requires notice and a hearing. When it comes to seizure, the question boils down to whether the notice and hearing must occur before the government seizes property, or whether the hearing can occur after.

For most of history, the Supreme Court has held that notice and hearing after property is seized is sufficent; the Fourth Amendment requirements of probable cause and specificity for seizures satisfies due process. However, the Court has carved out exceptions to this principle. In 1993, in a forfeiture case involving real estate, the Court stated that the Fourth Amendment “does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings” — forfeiture proceedings must also comply with “well-settled jurisprudence under the Due Process Clause.” US v. James Daniel Good Real Property held that the government must provide notice and hearing before seizing real estate it wishes to forfeit.

The reasons for this exception were provided by the Court. “The practice of ex parte seizure … creates an unacceptable risk of error.” The government’s interest in this practice must be balanced with this risk. Primarily, the Court noted that since real estate can’t move, courts can establish jurisdiction over it without seizure. Thus, there is no pressing need to delay notice and hearing until after real estate is seized.

Notably, three justices dissented from this holding, noting that there was no basis in existing case law for the Court to look beyond the Fourth Amendment in seizure cases and no logical reason to distinguish real estate from personal property:

“Our historical treatment of civil forfeiture procedures underscores the notion that the Fourth Amendment specifically governs the process afforded in the civil forfeiture context, and it is too late in the day to question its exclusive application. As we decided in Calero-Toledo v.Pearson Yacht Leasing Co., 416 U. S. 663 (1974), there is no need to look beyond the Fourth Amendment in civil forfeiture proceedings involving the Government because ex parte seizures are `too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.'”

Nevertheless, when it comes to real estate, due process typically requires a hearing before the property is seized.

Domain names are not real estate, and the reasons in James Daniel Good Real Property for requiring a pre-seizure hearing are not applicable to the seizure of domain names. The “risk of error” involved in seizing domain names is no higher than those involved in the seizure of personal property: the content and servers are still available to the owner, the site can still be accessed through the IP address, and it is relatively easy for the owner to acquire a new domain name — something many of those affected did within hours of having their domains seized.

Also, like personal property, domain names can be “moved” or “destroyed” as those terms are understood in the jurisdictional context. The situs of domain names is the location of the domain name registrar where the domain name is registered. As mentioned above, it is relatively easy for a website owner to register a new name overseas, removing the domain name from the court’s territorial jurisdiction.

Thus, the forfeiture of domain names present the same considerations that the Supreme Court has held justify postponing notice and hearing until after seizure in Calero-Toledo. The seizure permits the US “to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions”, domain names “could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given”, and “seizure is not initiated by self-interested private parties”, but by federal officials.

Seizure and the First Amendment

The argument is also made that these domain name seizures violate the First Amendment. Websites contain speech; ex parte seizure of websites, before a judicial determination that the content is not protected by the First Amendment (as is the case with infringing content) may be considered a prior restraint on speech. As we’ll see, the seizure of these domain names do not run afoul of First Amendment protections for many of the same reasons they do not run afoul of due process protections.

The Supreme Court has addressed the implications of the First Amendment in seizures most often under laws prohibiting obscenity. Obscenity is not protected by the First Amendment. Seizure of obscene materials, whether to use as evidence in a criminal trial or to initiate forfeiture proceedings, requires a close look by courts because of the risk that nonobscene, protected speech might end up being blocked.

In Quantity of Copies of Books v. Kansas, the Court reiterated its warning that “if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” This danger does not foreclose all seizures concerning speech, however. It merely means that the law requires certain procedural safeguards to protect against the abridgment of  speech rights.

First, as the Court stated in Stanford v. Texas, “the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude when the “things” are books, and the basis for their seizure is the ideas which they contain.” There is no question that the government has met this requirement; the seizures were made pursuant to valid, specific warrants issued by a neutral, impartial judge.

Second, “because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 6Heller v. New York, 413 US 483, 489 (1973). This does not mean that a judicial determination must occur before seizure. The Court in Heller v. New York said that it “has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Rather, “a judicial determination need only occur ‘promptly so that administrative delay does not in itself become a form of censorship.'” In effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.

The Court, however, upheld the seizure in Heller, and I think the reasoning is applicable to the seizure of these domain names:

In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of “promptness” those delays caused by the choice of the defendant. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pretrial motions and reserve the obscenity issue for trial.

The seizure of domain names is even less like a form of final restraint than the seizure of the film in Heller. Neither any content or servers containing the content were temporarily detained. The purpose of seizing these domain names is to establish and preserve in rem jurisdiction for forfeiture proceedings. The seizure doesn’t preclude access to the web sites or amount to a “form of censorship” — as stated above, one can access the site by IP address, and it is relatively easy for a site owner to set up a new domain name. Finally, domain name owners have full opportunity to challenge the seizures themselves through pretrial motions or a prompt judicial determination at a forfeiture proceeding.

Conclusion

The seizure of these 82 domain names satisfy both due process and the First Amendment. Criticism of this strategy on constitutional grounds is thus shaky. Critics may still question the rightness of the seizures, but as the Supreme Court pointed out over a century ago, “If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.” 7Springer v. United States, 102 US 586, 594 (1881).

As far as their effectiveness or necessity, I’m inclined to agree with Patrick Ross’s take:

The U.S. government has an obligation to ensure that U.S. copyright law is enforced in all markets, physical and online. Operation In Our Sites is but one example of many of how the Obama Administration recognizes the critical role copyright industries play in our economy, and individual artists and creators play in our economy and our culture.

I’m sure there will be some out there who criticize the seizure of these domains, just as there are those who criticize a bipartisan effort by lawmakers to facilitate the disruption of these for-profit online theft centers. Their criticism will begin with an assertion of the importance of copyright protection, then immediately be followed by a big “but.” (Any image that comes to mind from those last two words is wholly on you.)

Instead of constantly saying what they don’t like, maybe those critics could say that copyright enforcement is important, and follow with an “and,” i.e., “and we think the federal government should do x, y, and z to ensure successful enforcement.” If you don’t hear that “and” it’s probably because they weren’t sincere in the part before the “but.”

References

References
↑1 Most property, that is, as we’ll see later.
↑2 Dobbins’s Distillery v. United States, 96 US 395 (1878).
↑3 West’s Encyclopedia of American Law, edition 2.
↑4 John Sadler, Rights of the Kingdom, pg. 281.
↑5 18 US Code § 2323(a)(1).
↑6 Heller v. New York, 413 US 483, 489 (1973).
↑7 Springer v. United States, 102 US 586, 594 (1881).

COICA: First Amendment

By , November 29, 2010.

Last week, I’ve been taking a close look at the proposed Combating Online Infringement and Counterfeiting Act (COICA), which was unanimously approved by the Senate Judiciary Committee on November 18th. On Monday, I examined what the bill does, and on Wednesday I addressed due process criticisms.

Today I want to take a look at the most serious criticism: that COICA amounts to “censorship.” It’s a little tough, actually, to find discussion of COICA online that doesn’t mention censorship. Much of the criticism centers around the characterization of the COICA proceedings as a “prior restraint.” Others have expressed concerns that the bill would be “overbroad.”

Prior Restraint

The First Amendment says “Congress shall make no law … abridging the freedom of speech.” The Supreme Court has held that:

[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time. 1Nebraska Press Assn. v. Stuart, 427 US 539, 559 (1976).

The general rule regarding prior restraints, as restated by Mark Lemley and Eugene Volokh, is that “Speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment.” 2Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). In practice, this means that courts are reluctant to grant preliminary injunctions in cases involving speech (permanent injunctions, however, are fine, since they come after a final judicial determination that the speech at issue is unprotected). But when it comes to copyright infringement cases, as Lemley and Volokh point out,

[P]reliminary injunctions are granted pretty much as a matter of course, even when the defendant has engaged in creative adaptation, not just literal copying. How can this be? True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn’t protect copyright-infringing speech against such a restraint.

COICA provides that a domain name may only be blocked after an in rem proceeding is commenced and a court issues an injunction — preliminary or otherwise. As such, under current law, COICA’s provisions are no more a prior restraint than the preliminary injunctions routinely ordered in infringement cases. Now, one may argue that preliminary injunctions shouldn’t be available in copyright infringement cases as a whole, that despite case law to the contrary, they amount to constitutionally prohibited prior restraints. This is the argument made by Lemley and Volokh. However, even accepting such an argument, there is one exception: “piracy and other ‘easy’ cases.” 3This is one example of why I think it’s important to draw distinctions between “creative” and “consumptive” uses of copyrighted works. Lemley and Volokh explain that “most obvious cases of copyright infringement won’t implicate the prior restraint rule at all”:

The danger of preliminary injunctions is that they may temporarily suppress speech that ultimately proves to be protected. If a judge can, at the time of the preliminary injunction hearing, make a reliable finding that the speech is constitutionally unprotected, rather than just that it might be unprotected, then there should be no problem with issuing the preliminary injunction.

This could happen whenever the defendant has made identical or nearly identical copies of the plaintiff’s works, and there is no claim of fair use, but only some other copyright defense (such as that defendant has a supposedly valid license, or that plaintiff’s copyright wasn’t properly renewed, or something along those lines). Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category.

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement. Harper & Row, as we read it, divides uses of another’s work into two areas: on the one hand, use of another’s idea or facts, or fair use of another’s expression, which is constitutionally protected; on the other hand, use of another’s expression that’s not a fair use, which falls within the “copyright exception” to the First Amendment. So long as Congress and the courts restrict speech that’s within this copyright exception, there’s no First Amendment problem. And while the First Amendment imposes certain limits on copyright law — the requirement of copying, the idea-expression dichotomy, and some aspects of the fair use doctrine — it does not constitutionalize every nuance of the Copyright Act.

COICA’s provisions are targeted at these obvious cases of copyright infringement. The language of the bill reflects this: blocking only applies to sites “dedicated to infringing activities,” which include sites “primarily designed” to offer infringing works “in complete or substantially complete form” and only when “such activities are the central activities” of the site (emphasis added).

In Center for Democracy & Technology v. Pappert (CDT v. Pappert), a District Court case cited by several law professors in their letter in opposition to COICA, a Pennsylvania state law allowing websites to be blocked for containing child pornography was struck down as unconstitutional because it amounted to a prior restraint. 4F. Supp. 2d 606 (ED Pa, 2004). The case has been used because of the similarities between the PA law and COICA in blocking internet sites based on content. However, the similarities end there. The Pennsylvania law provided substantially different procedures than COICA does, and it was specifically those procedures that led to the court’s conclusion.

As the court in CDT v. Pappert explains:

The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission’s practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1963) and a procedure that allowed courts to order pre-trial seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).

Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. [Citations removed] 5CDT at 656-57.

Unlike the Pennsylvania law, COICA requires the government to prove by a preponderance of the evidence that a particular site is dedicated to infringing activities, an in rem proceeding is not an ex parte proceeding, and the registrant of the domain name does receive notice and an opportunity to be heard. 6See my previous post, COICA: Due Process. Thus, any comparisons between COICA and the law in CDT v. Pappert are inapposite and superficial at best.

Overbreadth

Besides the claim that COICA would act as a prior restraint, critics contend that the bill also violates the First Amendment because it would “suppress vast amounts of protected speech containing no infringing content whatsoever.” 7Law Professors’ Letter in Opposition to S. 3804 (Combating Online Infringements and Counterfeits Act). In other words, even though copyright infringement isn’t protected under the First Amendment, other speech that is protected will be affected when the domain name for the entire site is blocked.

Any law aimed at nonprotected speech, no matter how well written, can potentially reach protected speech. To reflect this reality without leaving lawmakers powerless to address harms of nonprotected speech or conduct, the Supreme Court has developed the “substantial overbreadth” doctrine: “particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep” — if it is, the law is void on its face. 8Broadrick v. Oklahoma, 413 US 601, 615 (1973).

A law that is not substantially overbroad on its face may nevertheless be found unconstitutionally overbroad if a substantial amount of protected speech is affected by the law as it is applied. Laws affecting speech must be narrowly tailored so that even if they are not substantially overbroad on their face, a defendant engaged in protected speech does not find himself within the laws scope. 9For simplicity’s sake I’m purposely avoiding discussion of the different levels of scrutiny that are involved in First Amendment analysis by courts.

A court may find a law not narrowly tailored if less restrictive means exist to accomplish the legitimate sweep of the law. 10See, for example, United States v. Playboy Entertainment Group, Inc., 529 US 803, 813 (2000). In CDT v. Pappert the District Court took the less restrictive means test to mean that “if a statute regulating speech provides distributors of speech with alternatives for compliance and the majority of distributors reasonably choose an alternative that has the effect of burdening protected speech, the statute is subject to scrutiny as a burden on speech.” 11CDT at 652.

Courts are reluctant to declare laws substantially overbroad on their face. “[The overbreadth doctrine] has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” 12Broadrick v. Oklahoma, 413 US 601, 613 (1973). The court in CDT v. Pappert, for example, held that the law allowing a website to be blocked for providing access to child pornography was not overbroad on its face; it did not prohibit nor chill protected speech. 13CDT at 648-49.

COICA is not substantially overbroad on its face as well. It targets only websites dedicated to infringing activities — conduct that is not protected by the First Amendment. Like the statute in CDT v. Pappert, it does not prohibit nor chill protected speech.

It is doubtful that COICA would also be overbroad as applied. The language of the bill — specifically the requirement that a website’s infringing activities must amount to the “central activities” of the site — limits the breadth of COICA to unprotected speech by definition. No doubt some protected speech would end up being blocked, but the First Amendment is not a shield for copyright infringement, and courts have little sympathy for defendants in situations like this who create an “all-or-nothing” predicament like this. 14See, for example, Dr. Seuss Enterprises, LP v. Penguin Books, 109 F. 3d 1394, 1406 (9th Cir, 1997).

That’s not to say that COICA would result in no cases where a substantial amount of protected speech may be blocked. No bill operates outside the constraints of the Constitution; the First Amendment is available to everyone no matter what law is at issue. It’s possible that a specific case could arise where a specific defendant’s freedom of speech is infringed by COICA. That doesn’t mean, however, that COICA itself is unconstitutional, and it certainly doesn’t mean COICA is a vehicle of censorship. 15See, for example, Virginia v. Hicks, 539 US 113, 123-24 (2003).

References

References
↑1 Nebraska Press Assn. v. Stuart, 427 US 539, 559 (1976).
↑2 Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
↑3 This is one example of why I think it’s important to draw distinctions between “creative” and “consumptive” uses of copyrighted works.
↑4 F. Supp. 2d 606 (ED Pa, 2004).
↑5 CDT at 656-57.
↑6 See my previous post, COICA: Due Process.
↑7 Law Professors’ Letter in Opposition to S. 3804 (Combating Online Infringements and Counterfeits Act).
↑8 Broadrick v. Oklahoma, 413 US 601, 615 (1973).
↑9 For simplicity’s sake I’m purposely avoiding discussion of the different levels of scrutiny that are involved in First Amendment analysis by courts.
↑10 See, for example, United States v. Playboy Entertainment Group, Inc., 529 US 803, 813 (2000).
↑11 CDT at 652.
↑12 Broadrick v. Oklahoma, 413 US 601, 613 (1973).
↑13 CDT at 648-49.
↑14 See, for example, Dr. Seuss Enterprises, LP v. Penguin Books, 109 F. 3d 1394, 1406 (9th Cir, 1997).
↑15 See, for example, Virginia v. Hicks, 539 US 113, 123-24 (2003).

COICA: Due Process

By , November 24, 2010.

On Monday, I discussed the Combating Online Infringement and Counterfeits Act, which had recently been unanimously approved by the Senate Judiciary Committee. Among the typical litany of complaints, critics claim that the bill lacks due process.

  • Public Knowledge has posted a letter from NetCoalition opposing COICA, raising several concerns revolving around due process.
  • The Competitive Enterprise Institute warns that the bill lacks “crucial safeguards to protect against the unwarranted suspension of Internet domain names.”
  • Wired magazine says, “In short, COICA would allow the federal government to censor the internet without due process.”
  • Legal scholar David Post writes at Volokh Conspiracy, “It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity.”
  • Even notable IP blog IPKat has stated, “There is no provision in the Bill requiring a hearing, trial or defence from the party served with one of these orders.”

Does COICA lack due process? To answer this question, let’s take a closer look at what we mean by “due process” and then see if the bill lacks it.

Due Process of Law

Due process is an ancient and fundamental concept in the rule of law. In his book Due Process of Law Under the Federal Constitution (1906), Lucius Polk McGehee describes it like this:

DUE Process Of Law, as the meaning of the words has been developed in American decisions, implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. The phrase is and has long been exactly equivalent to and convertible with the older expression “the law of the land.”

“Notice” and a “hearing” are important components of due process of law. COICA provides for both of these. Let’s look at the hearing first.

Hearing

In order to block the domain name of a site “dedicated to infringing activities,” the Attorney General must commence an in rem proceeding in a federal district court. As I said on Monday, an in rem proceeding is a full-blown lawsuit, except the defendant is property rather than a person.

That means the Attorney General has to present evidence to a judge and establish — by a preponderance of the evidence 118 USC §983(c). — that the particular site is “dedicated to infringing activities” as defined in the bill. This is how any lawsuit works. The idea that COICA provides some kind of automatic process where the AG can blacklist any site at will, as some critics seem to suggest, is entirely off-base. Courts are not in the business of “rubber-stamping” legal claims, even those made by the government.

But if the defendant in an in rem proceeding is property, do we truly have an adversarial hearing? Contrary to David Post’s odd statement that the property itself would have to show up for an adversarial hearing, it is the owners of the property in an in rem proceeding who intervene in court to argue the case. Generally, anyone with a colorable ownership or possessory interest in the property can appear in an in rem proceeding. 2US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).

COICA also provides that:

On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any further activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure.

Again, the court would issue any of these orders the same way it would issue them in any other case — no due process infirmaries present. But some critics have suggested that the legal obligations these orders trigger cause due process concerns.

Once an injunction is issued under this provision of COICA for a non-US domain, the Attorney General can serve the order on internet service providers, financial transaction providers, and online advertising providers. Those providers are than required to block the domain or prevent it from using their services.

These requirements are very limited. Service providers need only take “technically feasible and reasonable steps” to comply with the order and are not required “(aa) to modify its network or other facilities to comply with such order; (bb) to take any steps with respect to domain name lookups not performed by its own domain name system server; or (cc) to continue to prevent access to a domain name to which access has been effectively disabled by other means.” The other providers are also only required to take “reasonable” measures. Any entity receiving one of these court orders is granted legal immunity from any cause of action arising out of the reasonable measures taken to comply with the order.

In addition, the only means of enforcing these court orders is for the Attorney General to file for injunctive relief in court. Again, the party is afforded all due process of the law as anyone would have when sued for injunctive relief. COICA also provides for an additional defense for such parties: “A showing by the defending party in such action that it does not have the technical means to comply with this section, or that the order is inconsistent with this section, shall serve as a defense to such action to the extent of the inability to comply or such inconsistency.”

Finally, the bill provides that any owner or operator of the domain name, as well as any entity receiving a court order under COICA, may petition the court for modification of the order. The court may modify, suspend, or vacate the order based on evidence that “(A) the Internet site associated with the domain name subject to the order is no longer, or never was, dedicated to infringing activities; or (B) the interests of justice require that the order be modified, suspended, or vacated.”

Given all of the above, it’s difficult to see how the charge that any party affected by COICA won’t get the chance to be heard can hold up.

Notice

Due process requires the government to provide notice, or notification, to anyone whose life, liberty, or property is subject to deprivation in a legal proceeding. The notice must be sufficient; “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 3Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).

COICA requires the Attorney General to both send “a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available” and publish “notice of the action as the court may direct promptly after filing the action.” These notice provisions are sufficient under existing law.

Some critics have raised the concern of a website whose domain name registrant is different from the owner or operator, leading to the problem that the owner of a website wouldn’t receive notice of a COICA action. It is difficult to see how this is relevant for due process. COICA provisions are limited to an in rem proceeding against the domain name itself, not the website. The universe of people aside from the registrant who can show a colorable ownership or possessory interest in the domain name to intervene in the in rem action would likely be very small.

Conclusion

I believe COICA satisfies due process under existing law. But you don’t have to take my word for it.

The Anticybersquatting Consumer Protection Act, passed in 1999, provides for in rem actions against domain names. That’s over ten years where courts have heard due process challenges, many of which are similar to the ones being raised concerning COICA. 4See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000). The provisions in COICA reflect that experience and are written in a way to ensure the due process of law.

References

References
↑1 18 USC §983(c).
↑2 US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).
↑3 Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).
↑4 See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000).

Combating Online Infringement

By , November 22, 2010.

This past week, the Senate Judiciary Committee unanimously approved the Combating Online Infringement and Counterfeits Act (COICA, S.3804). The bill is targeted toward websites whose central activity is dedicated to infringement. It allows for seizure of the domain names of such sites when they are located in the US, and it requires service providers, advertising providers, and financial transaction providers to take reasonable measures to prevent their services from being used by such sites located outside the US.

COICA was introduced by Senator Patrick Leahy and cosponsored by seven Republican and eleven Democratic senators. Along with the unanimous approval by the Judiciary Committee, the bill has wide support among labor unions, business and trade organizations, and companies.

But as with any effort to promote the progress of the useful arts and sciences, the Judiciary Committee’s approval has set off a fresh round of cries that the “sky is falling” on free speech, internet freedom, and due process. Those who believe that copyright should benefit everyone except those who actually create the stuff that enriches our lives are ramping up their rhetoric of “blacklists” and “censorship.”

I wrote previously about COICA. Since it is moving closer to becoming law, I thought it merited some more attention to clear up some of the misunderstandings surrounding the bill. Specifically, I wanted to take a closer look at why COICA is needed and what it does.

Why COICA is Needed

The last bit of US legislation to substantively address online infringement was the Digital Millennium Copyright Act (DMCA), which was passed twelve years ago. The web was still in its infancy — Google was a month old when the bill passed. Since then, content industries have struggled to find ways to reduce internet piracy. The recording industry at first targeted intermediaries such as Napster and Grokster, moving next to its much-publicized lawsuits against individual filesharers, a campaign that ended nearly two years ago. More effective methods are needed.

Comic book artist and writer Colleen Doran provides a first-hand account of the effects online piracy has had on small creators and why legislation like COICA is needed. In The ‘Real’ Victims of Online Piracy, published in The Hill’s Congress Blog last Wednesday, she writes:

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

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

[…]

Everyone gets paid – manufacturers of computers, iPads, electricity, bandwidth – everyone except the creators of content.

It costs big bucks to finance these pirate sites. Major advertisers and open source ad providers like Google pay them.

Congress is moving on a bill that promises to cut funding for pirates, and the usual suspects who have become accustomed to getting whatever they want online without paying for it are crying foul.

Both Bob Pisano, president of the MPAA, and the Global Intellectual Property Center have also recently written about the detriment of online piracy to creators and consumers and how COICA helps address the difficulties and challenges of enforcing copyright online.

Others have noted the specific need for encouraging advertising providers to block their services from rogue pirate sites, sites that often rely primarily on ad revenue for their profits. As Patrick Ross points out, advertising providers may be reluctant to block such sites since it would mean giving up market share or subject them to liability. COICA solves these problems by clearly identifying sites with primarily illegal purpose and extending legal immunity to service providers who take reasonable and technically feasible measures to block service to those sites.

The idea for a bill like COICA has been percolating for some time now. The Information Technology & Innovation Foundation identified a need for the types of policies enshrined in COICA in December 2009 in its report Steal These Policies: Strategies for Reducing Digital Piracy. From the executive summary:

Other approaches, however, such as blocking websites, may require governmental approval before industry can act. Toward this end, there is a need for a process by which the federal government, with the help of third parties, identifies websites and organizations around the world that are materially engaged in piracy so that ISPs and search engines can block them, advertising networks and other companies can refuse to place ads with them, and banks and credit card companies can refuse to process payments to them.

What COICA Does

The Combating Online Infringement and Counterfeits Act targets the worst of the worst infringing sites — what have been called “rogue websites.” These sites offer little except access to first-run movies, entire television series, or album after album of music. The bill refers to these sites as “dedicated to infringing activities.” “Infringing activities” includes:

offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays.

A site is “dedicated” to such activities if, “when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.”

COICA would provide the US Attorney General with the authority to commence in rem proceedings against the domain name of a web site that is dedicated to infringing activities. Most civil litigation involves someone suing someone else — an in personam proceeding. A proceeding in rem, by contrast, is against specific property — often represented in court by the owner of the property as a third-party claimant. Aside from the difference in who’s suing whom, in rem and in personam proceedings are, by and large, the same: they are commenced in the same courts, subject to the same rules of evidence and rules of civil procedure, and end up in trial if not resolved before then.

Along with federal court rules and constitutional limitations that apply to all in rem proceedings, domain name forfeiture proceedings under COICA are governed by Title 18, §983 of the US Code, General Rules for Civil Forfeiture Proceedings. These provide, among other things, that the government has the burden of establishing by a preponderance of the evidence that the property is indeed subject to forfeiture — that is, the Attorney General has to prove to the judge that the web site is “dedicated to infringing activities.” They also explicitly provide for an “innocent owner” defense where the owner of the property had no knowledge that it was used for illegal purposes.

Upon commencement of the in rem proceeding, the court may issue a temporary restraining order, preliminary injunction, or permanent injunction against the domain name. These types of court orders are governed by existing law. To get a preliminary injunction, for example, the Attorney General “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 1Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008).

Any order granted against a domestic domain is then served on the domain name registrar or registry, which is required to suspend operation and lock the domain name. Orders granted against non-domestic domains are to be served on service providers, financial transaction providers, and online advertising providers. Those providers are then required to take reasonable measures to prevent their own services from being used by the web site associated with the domain name.

In my previous post on COICA, I mentioned some of the advantages such a proceeding has over other methods of enforcing copyright in the online realm. I also mentioned how COICA is not really a significant departure from existing law. It is more an optimization of existing law to address some of the most difficult challenges of online piracy.

Asset forfeiture has played an important role in law enforcement for centuries. Today, in the US, asset forfeiture is typically available either as part of sentencing for a criminal defendant or separately through an administrative or civil in rem proceeding. Civil forfeiture authority, however, is not inherent; it must be provided through legislation. 2LII Backgrounder on Forfeiture.

Forfeiture of infringing materials and property used to commit or facilitate the commission of copyright infringement is already provided for by law. This past summer, US authorities carried out Operation in Our Sites, an initiative that, among other things, resulted in the seizure of seven domain names for websites engaged in online piracy.

COICA is not the first law to expressly allow for civil forfeiture of domain names via in rem proceedings: the Anticybersquatting Consumer Protection Act (ACPA, 1999) provides for them as well. Provisions in COICA involving situs and venue mirror those found in ACPA.

Financial service providers and online advertising providers who provide services to sites dedicated to infringing activities already exists in the law. Last month, luxury goods manufacturer Gucci got a permanent injunction against two financial service providers that provided services to websites selling counterfeit goods. Not long after that, on October 29th, Warner Bros. and Disney won damages and an injunction against Triton Media, a company responsible for placing advertising on sites dedicated to copyright infringement.

Essentially, COICA sets forth an expressly defined procedure for reducing online piracy through civil forfeiture of domain names, as opposed to an ad hoc approach that could be cobbled together under existing law. In addition, it establishes clear safeguards to ensure the process is effective and legally sufficient. It gives clear guidelines to third-party operators like financial transaction providers and advertising providers so that they are assured of knowing what is expected of them as legitimate businesses while also providing immunity from liability resulting in technically feasible and reasonable measures to block sites operating outside of the law.

Later this week, I’ll take a closer look at some of the criticisms and concerns that have been raised over COICA.

References

Enemies of Monopoly of Brain-product

By , November 12, 2010.

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life. 1Who’s Who, 1907, pt II, pg 433. Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.” 2See the New York Times for an explanation of this saying. Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws. 3According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4“Property is theft” — Pierre-Joseph Proudhon. are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes” 5Roughly, “bees make honey not for themselves.” From Virgil. and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright. 6I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne, 7I.e., prior to the Statute of Anne, considered the first modern copyright law. when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS. 8MS. = manuscript. musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.” 9The Copyright Act 1842 extended copyright to musical compositions in England. This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd, 10Thomas Noon Talfourd. and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

References

References
↑1 Who’s Who, 1907, pt II, pg 433.
↑2 See the New York Times for an explanation of this saying.
↑3 According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.”
↑4 “Property is theft” — Pierre-Joseph Proudhon.
↑5 Roughly, “bees make honey not for themselves.” From Virgil.
↑6 I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.”
↑7 I.e., prior to the Statute of Anne, considered the first modern copyright law.
↑8 MS. = manuscript.
↑9 The Copyright Act 1842 extended copyright to musical compositions in England.
↑10 Thomas Noon Talfourd.

Drawing Distinctions

By , November 11, 2010.

Earlier this month, I wrote about the Copyright Principles Project, an independent initiative that presented twenty-five recommendations for reforming copyright law for the digital age. One of the reasons I felt it was worth mentioning was because, unlike many other reform efforts, the Copyright Principles Project included participants from a wide variety of perspectives: academics, content industry representatives, and private practitioners.

One of the contributers to the Project was Jeremy Williams, Senior Vice President and Deputy General Counsel of Warner Bros. Entertainment. This past April, Williams joined Pamela Samuelson — the Project’s coordinator — and several other Project contributors for a two-day conference marking the 300th anniversary of the Statute of Anne, the first modern copyright law. Hosted by the Berkeley Center for Law & Technology, the Copyright @ 300 symposium used the anniversary as an opportunity to look back at “the law’s influence on the history and evolution of the Anglo-American copyright tradition” and look forward to copyright law’s challenges in the future.

Williams spoke to attendees at a seminar titled “Looking Forward: What Challenges Does Copyright Face in the Twenty-First Century.” The Berkeley Center has audio from the event available online. I recommend giving it a listen; Williams talks about the importance of copyright attitudes for the future and touches on a number of themes I’ve discussed here from a perspective that is seldom seen in online discussions and academic literature.

Copyright attitudes

Williams joshingly introduces himself as a “defender of those poor, down-trodden Fortune 500 companies.” The health of copyright in the future, he states, depends entirely on the attitudes of “Digital Natives.” It will not be long before the generation that never knew a world where everything is connected will be “lawmakers, norm-makers, and consumers.” Williams goes on to ask, “How do we promote respect for good copyright attitudes” when millions are simultaneously authors, distributors, and infringers.

This past Monday, I pointed out a recent paper that sheds some light on what these “Digital Natives” currently know and think about copyright law. Williams’s talk reflects a recognition of what the authors of that paper have found to be true. With those current attitudes in mind, he lays out what he considers should be the two main goals of copyright policy as it looks ahead:

  1. Empower individuals as creators. Policymakers and stakeholders should try to steer clear of talk about the “wrongness” of noncommercial copying. Extending this goal to small producers, content creators should strive to make licensing of their content for creative uses cheap and easy, and give wide berth for fair use.
  2. Move enforcement away from individuals and toward digital intermediaries.

Creative vs. Consumptive Uses

Next, Williams discussed the importance of distinguishing between creative and consumptive uses, a distinction I have previously made on this site. I wrote that the distinction is important to make because you’re dealing with an entirely different set of questions when you talk about fair use, remixes, and mashups then when you talk about filesharing. As it turns out, this is exactly the approach that Williams suggests is important for the future of copyright.

He says that promoting healthy copyright discussion requires a different approach for both types of uses: increased tolerance toward creative uses and increased focus on widespread, uncompensated dissemination of consumptive uses and the harm they cause.

From his own experience at Warner Bros., Williams identifies the primary creative uses that major creative companies deal with most often: fan uses and, as he puts it, ad hoc uses, like mash-ups. He suggests that companies like his should tolerate and support noncommercial uses — even tolerate some commercial uses. This is the approach he has taken, giving the okay to fan sites even when they use incidental advertising to support the site but drawing the line at fan merchandising. For third-party user-generated content sites like YouTube, he advocates “smart” technological filters that can identify uses of copyrighted works but allow creative uses like mash-ups.

Most importantly, Williams reiterates that these kinds of discussions should not revolve around copyright law. Rather, the focus should be on fostering mutually respectful behavior between creators and users.

Individual vs. Industrial Responsibility

The rest of Williams’s talk seemed to continue a meta-theme of drawing distinctions to further the health of copyright in the future. The next distinction he discussed was between individual responsibility for upholding copyright protection and “industrial” responsibility.

Basically, Williams says we should move away from placing responsibility on individuals as much as possible. People should be able to enjoy copyrighted works without thinking about copyright law.

The digital intermediaries — user-generated content and social networking sites — should instead be induced to help reduce the harm of widespread, uncompensated dissemination of copyrighted works, and copyright owners should be allowed to share in the value their works provide to these sites. Interestingly, Williams believes we should reduce the present focus on secondary liability doctrines. These doctrines suffer two disadvantages: because they require a showing of direct infringement, there is still a focus on individual behavior, and the factors involved in determining secondary liability — knowledge, inducement, etc. — are difficult to apply, leading to an uncertain and muddy legal landscape.

Williams’s recommendation? “Be direct about it.” Those who can protect copyright, should protect it. Those who can are likely to be the previously-mentioned social networking and user-generated content sites. Williams thinks the best way to implement this is through voluntary agreements and reasonable technological measures, with the law operating in the background as a way of inducing these sites to help solve problems in ways that are not commercially harmful to them.

Protest vs. Obliviousness

While you can find those people who embrace piracy as a “cause”, who believe they are making a “statement” or protesting against somebody or something when they share files without permission, the majority of people, especially digital natives, download simply because they can. Williams relates a conversation he had with his daughter. He asked her what her friends “think” when they choose to download music off p2p or torrent sites; she answered, “they don’t think.”

Unauthorized files are simply “there,” and unless you know otherwise, it is not unreasonable for someone to assume that if you find something online, you can download it. The future of copyright depends on addressing this obliviousness and helping the next generation understand the value copyright gives to creators.

Good Guys vs. Bad Guys

Williams wraps up his remarks by pointing out the one distinction that shouldn’t be made. Both sides in the copyright debates need to move past an “us vs. them” mentality, a “good guy-bad guy” way of thinking. Copyright is good for society and culture. Most people recognize the value of creativity and of artists. The emphasis should move away from the rules of copyright — ie, the notion that copyright exists solely to punish infringers — and toward the role of copyright.

Kids and Kopyright

By , November 08, 2010.

Media Law Prof Blog points out a recent paper that examines the attitudes and beliefs of youngsters about copyright: Youth, Creativity, and Copyright in the Digital Age, by John Palfrey, Urs Gasser, Miriam Simun, and Rosalie Fay Barnes. The abstract reads:

New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, “Digital Natives” — young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways — are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.

The paper is worth reading and should prove valuable to other scholars and commentators for its research. The conclusions of the authors shouldn’t be too surprising to many of you, but it is useful to have confirmation of the assumptions of attitudes about copyright law among young people. In addition, the authors provide quite a few interesting quotations from “Digital Natives” which adds depth to the qualitative findings.

Among other things, the researchers found that confusion about copyright starts with the very basics: what does copyright ‘mean’? “Many of the young people we spoke to confused copyright with notions of plagiarism or patent protections; for example, one high school student wrote: ‘[copyright is] protected by law so you can’t steal ideas.'” Anyone familiar with copyright law won’t be surprised by that finding, as conflation of copyright with patents or plagiarism persists in any age group. 1Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?”

Perhaps the confusion between copyright infringement and plagiarism — issues that are distinct but overlap — isn’t really a big deal. Of greater concern is the increased number of the younger generation who see nothing wrong with copyright infringement or plagiarism. As Jonathan Bailey has pointed out, the number of students who view plagiarism as “serious cheating” has decreased in the past decade.

Along with the basics, confusion over copyright specifics is prevalent in younger generations too. Again, this shouldn’t come as a surprise since such confusion is prevalent among the population as a whole. Last week, a minor scandal arose on the internet after an exchange between a writer and the editor of Cooks Source magazine after the writer discovered the magazine had reprinted one of her articles without permission. 2Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010. In a rather condescending reply, the editor, although claiming over three decades experience in the publishing industry, incorrectly told the author that “the web is considered ‘public domain.'”

The authors present several ideas for increasing copyright literacy among “Digital Natives.” One of the challenges of copyright education is the disconnect between the law and what is considered socially acceptable behavior. The ease with which content can be distributed and accessed online, even on legitimate services like YouTube adds to the challenge of helping young internet users distinguish between what types of uses are allowed and what types of uses are not.

However, the authors note that the focus of any copyright curriculum should not lie solely on copyright as mere restrictions and prohibitions. More important is educating students about copyright’s goals and purposes of encouraging creativity and art. Showing how copyright protection helps artists, and how “Digital Natives” can work within the copyright system to become the next generation of creators, will achieve more than presenting copyright as a set of rules aimed at punishing young people.

Although the authors of this article show some skepticism toward industry copyright education efforts, I’d like to point them out. The RIAA has a section devoted to tools for educators on its web site, with different programs for elementary, high school, and university students. The Copyright Alliance Education Foundation presents a comprehensive array of related educational programs for teaching copyright to young people, as well as educators themselves, on its site.

I agree about the need for increased copyright literacy among young people, whatever the approach. I believe, however, as pointed out in a previous post, that there is an even greater need for increasing literacy about the law in general — and not just for young people.

References

References
↑1 Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?”
↑2 Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010.

Can the Copyright Office Regulate?

By , November 04, 2010.

In my previous post about the Copyright Principles Project, I highlighted those proposals that recommend a greater role for the US Copyright Office. Whether or not the Copyright Office should take on a greater role is a subject that undoubtedly can generate plenty of discussion. But today, I want to look at a different issue:

Can the Copyright Office take on a greater role?

Certainly, Congress could easily add new positions to the Copyright Office to bolster its expertise, or the Office can be more active in its advisory role; I’m not talking about that. The question I’m asking relates to those recommendations that contemplate the Office exercising substantive agency powers — creating regulations (rulemaking) and  resolving disputes in a quasi-judicial manner (adjudication). And the question is not whether taking on these powers is practical or worthwhile, but whether taking on these powers is constitutional. 1This article is largely adapted from a section I wrote in Copyright Reform Step Zero.

It’s kind of an odd question; after all, the Office currently does exercise rulemaking powers — creating exceptions to the prohibition against circumventing DRM and technological protections 2Technically, it is the Library of Congress which creates these regulations, after consulting with the Copyright Office, but for this article, I will be referring to the rulemaking authority of the Copyright Office regardless of which department ultimately promulgates the regulations. — and its sister department within the Library of Congress, the Copyright Royalty Board, exercises adjudicatory powers — determining certain compulsory license rates in a court-like setting. But unlike administrative agencies that were specifically created to exercise these types of powers, the Copyright Office began as a “paper-pushing” department and only over time “grew into” a more robust agency.

This unusual path from ministerial department to something approaching a full-fledged administrative agency has given rise to lingering concerns about the consitutionality of the Copyright Office’s authority to engage in rulemaking and adjudication. To understand these concerns, let’s first take a quick look at how federal agencies in general can exercise these powers in a constitutional manner and then trace the growth of the Copyright Office’s authority since its humble beginnings.

Agencies and Separation of Powers

Today, much of federal law is executed through administrative agencies. Congress passes a law, and then agencies — the EPA, the FCC, the IRS, etc. — create regulations to fill in the details of the law. Agencies might also engage in adjudication, resolving disputes or adjusting regulatory benchmarks within their purview through judicial-esque proceedings. The basic idea behind this system is that agencies have greater expertise and flexibility than Congress to address these details.

In one sense, administrative agencies act like mini-versions of a three-branch government: combining legislative (creating regulations), judicial (adjudication), and executive (enforcing regulations) functions. The Constitution, however, establishes a federal government based on separation of powers. Since the New Deal, Congress and Presidents have increasingly relied on administrative agencies to carry out many government functions, so the courts have had to figure out ways to fit this “fourth branch” of government within the constitutional framework while maintaining checks and balances.

The Constitution prohibits Congress from delegating legislative power to another body. But since 1825, courts have recognized a distinction between general, “important” legislative provisions and mere details. 3Wayman v. Southard (1825): “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.” Today, agencies can create regulations to “fill up the details” when “Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” 4Mistretta v. US, 488 US 361 (1989).

A second requirement to maintain constitutionally sufficient delegation is that the authority must go to an independent or executive branch agency; Congress cannot delegate quasi-legislative authority to a legislative agency. 5Buckley v. Valeo, 424 U.S. 1, 138-41 (1976). True legislation requires passage by both houses of Congress (bicameralism) and the President’s signature (presentment). 6INS v. Chadha, 462 U.S. 919, 946 (1983). If Congress retains any sort of control over the agency it delegates quasi-legislative authority to, courts view the delegation as a constitutionally improper circumvention of those two requirements. By control, I don’t mean mere influence. The control must be meaningful, like the ability to appoint or remove agency officers 7Bowsher v. Synar, 478 U.S. 714, 726 (1986). or the power to veto agency decisions. 8INS v. Chadha at 954-59.

Growing into a Regulatory Agency

Many of the federal agencies today began during the New Deal, and were expressly authorized by Congress to regulate specific areas of the law. The Copyright Office, however, began a few decades earlier, without any substantive regulatory purpose as the goal. Under the first Copyright Act of 1790, copyright registrations were handled by district courts. This continued until 1870, when copyright administration was centralized in the Library of Congress. Congress created the Copyright Office in 1897 as a department within the Library dedicated to copyright administration. For most of the Copyright Office’s history, its duties were limited to processing registrations and other “ministerial” tasks.

The Copyright Office has had the authority to issue regulations since its creation, but it has historically exercised that authority in a limited manner — rules governing interest on late payments to the Office, for example. 9MPAA v. Oman, 969 F.2d 1154, 1156 (DC Circ 1992). The triennial DRM exception rulemaking procedures set out in the DMCA in 1998 — 101 years after the Office was established — represents the first time the Copyright Office took on substantive rulemaking authority.

Perhaps because of the Copyright Office’s limited exercise of regulatory authority, little attention has been paid to whether that authority is constitutional. The notable exception is E. Fulton Brylawski’s 1976 article The Copyright Office: A Constitutional Confrontation, 1044 George Washington Law Review 12. written during the build up to the passage of the Copyright Act of 1976. Brylawski argued that the Copyright Office was a legislative agency and the Act would give the Copyright Office rulemaking authority that exceeds what the Constitution allows. As discussed earlier, Brylawski is right on the latter point: a legislative agency can’t make regulations. But is he right on his first point? Is the Copyright Office indeed a legislative agency?

Legislative or Executive?

At first glance, it might be difficult to see how anyone could say the Copyright Office is not a legislative agency. The Copyright Office is a department within the Library of Congress. The Library of Congress is, well, of Congress. Not surprisingly, then, the US government places the Library of Congress in the legislative branch. 11United States Government Manual, 2009-2010 p. v. Courts, too, have characterized the Library of Congress as legislative. 12See Harry Fox Agency v. Mills Music, 720 F.2d 733 (2d Cir. 1983) (“The Library of Congress … is a part of the legislative branch itself”); Barger v. Mumford, 265 F.2d 380, 382 (DC Cir. 1959) (“Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch of the Government”). The Copyright Office’s own website states that it is “part of the legislative branch of government.” And if you look through the US Code, you’ll find repeated references to the Library of Congress being in the legislative branch 13Check out 5 USC § 5531(4), for example. — the Library itself is codified under Title 2, which governs the legislative branch.

Noted copyright expert William Patry considers the above conclusive evidence that the Library of Congress, and by extension the Copyright Office, is a legislative agency. Other scholars have found the need to address the characterization of the Copyright Office when discussing proposals to increase rulemaking or adjudicatory authority. Michael Carroll notes lingering concerns about this subject in Fixing Fair Use. 14Pp. 1131-32. I noted previously that the proposal he makes inspired one of the possibilities for advancing recommendation #4 in the Copyright Principles Project. Edward Lee cites the fact that the Copyright Office is a legislative agency as one of the reasons why it cannot be relied upon to fill in gaps in the law through rulemaking. 15Warming up to User-Generated Content, 2008 University of Illinois Law Review 1459, 1475 (2008).

So … case closed, right? Not quite. When it comes to separation of powers, labels are irrelevant. After all, if the Library of Congress was renamed the National Library, it would be silly to think the constitutional analysis would change. What matters is what branch of government the Copyright Office is an agency of, and agency is determined by control.

Let’s take a look at the two most popular indicators of control: appointment (and removal) power and veto authority over regulations. The legislature has neither when it comes to the Copyright Office. The Register of Copyrights is appointed by (and can be removed by) the Librarian of Congress, who in turn is appointed by the President. Congress does not retain any power to approve or veto Copyright Office rules. Brylawski’s assertion that the Library of Congress is under the control of the Joint Committee of Congress on the Library? — simply not true. 1629 Cong. Rec. 1947 (1896) (Rep. Dockery).

Most strikingly, Congress debated at some length about what branch of government held sway over the Library of Congress when the Copyright Office was being created and if the Office would constitutionally have authority to issue regulations. The final bill gave the Copyright Office rulemaking authority, reflecting the fact that Congress was satisfied that the setup they settled on was constitutionally sound. 17For a comprehensive list of citations to those debates, check out 1 William Patry, Patry on Copyright § 1:41 n.4, especially , e.g., 29 Cong. Rec. 318-19 (1896) (Rep. Dockery): “This Library of Congress is a department of the Government. It is an executive department and should be under the control of the executive branch”.

Settle it in the Courts

Brylawski got an opportunity to take his arguments to the courts. In 1978, he was the attorney for the plaintiff in Eltra v. Ringer, one of the few times the constitutionality of the Register of Copyright’s rulemaking authority was raised. The Fourth Circuit rejected the “label” argument, stating:

It is irrelevant that the Office of the Librarian of Congress is codified under the legislative branch or that it receives its appropriation as a part of the legislative appropriation. The Librarian performs certain functions which may be regarded as legislative (i. e., Congressional Research Service) and other functions (such as the Copyright Office) which are executive or administrative. Because of its hybrid character, it could have been grouped code-wise under either the legislative or executive department. But such code-grouping cannot determine whether a given function is executive or legislative.

The court noted that other courts, including the Supreme Court, had given weight to Copyright Office regulations for decades. “It seems incredible,” said the court, “that, if there were a constitutional infirmity” for that long, no one ever noticed it. In the end, the court concluded that the Copyright Office was an executive office, operating under an officer appointed by the President, not Congress.

The characterization of the Copyright Office as an executive office was reaffirmed in a March 2010 DC Circuit memorandum order. In Live365 v. Copyright Royalty Board, Live365 challenged the constitutionality of the appointment of Copyright Royalty Board Judges.

Wait, what? What does the appointment of Copyright Royalty Board Judges have to do with the rulemaking authority of the Copyright Office?

As it turns out, quite a bit. The question in Live365 boils down to: “is the Library of Congress an executive or legislative agency”: the same question involved in determining whether the Copyright Office has rulemaking authority.

The DC Circuit rejected the argument that the Library of Congress is a legislative agency. The President, not Congress, appoints the head of the department, so it is an executive agency. 18For a detailed look at this and the other issues raised in Live365 v. CRB, check out Department of the Inferiors? posted at CommLawBlog.

That, along with the fact that Congress doesn’t retain any veto authority over the Library’s (and Copyright Office’s) regulations, leads to the conclusion that the Copyright Office does have authority to issue substantive regulations. So yes, the Copyright Office can take on a greater role in the administration of copyright law. The Copyright Principles Project and other proposals have advanced various recommendations embracing a greater role for the Office, whether through Congress delegating additional regulatory arenas or through the creation of new adjudicatory bodies. The question remains whether the Office should be given a greater role. Given the benefits an agency may provide — flexibility and expertise — I think this question merits further exploration.

References

References
↑1 This article is largely adapted from a section I wrote in Copyright Reform Step Zero.
↑2 Technically, it is the Library of Congress which creates these regulations, after consulting with the Copyright Office, but for this article, I will be referring to the rulemaking authority of the Copyright Office regardless of which department ultimately promulgates the regulations.
↑3 Wayman v. Southard (1825): “The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.”
↑4 Mistretta v. US, 488 US 361 (1989).
↑5 Buckley v. Valeo, 424 U.S. 1, 138-41 (1976).
↑6 INS v. Chadha, 462 U.S. 919, 946 (1983).
↑7 Bowsher v. Synar, 478 U.S. 714, 726 (1986).
↑8 INS v. Chadha at 954-59.
↑9 MPAA v. Oman, 969 F.2d 1154, 1156 (DC Circ 1992).
↑10 44 George Washington Law Review 12.
↑11 United States Government Manual, 2009-2010 p. v.
↑12 See Harry Fox Agency v. Mills Music, 720 F.2d 733 (2d Cir. 1983) (“The Library of Congress … is a part of the legislative branch itself”); Barger v. Mumford, 265 F.2d 380, 382 (DC Cir. 1959) (“Library of Congress has long been treated as being in or under the jurisdiction of the legislative branch of the Government”).
↑13 Check out 5 USC § 5531(4), for example.
↑14 Pp. 1131-32. I noted previously that the proposal he makes inspired one of the possibilities for advancing recommendation #4 in the Copyright Principles Project.
↑15 Warming up to User-Generated Content, 2008 University of Illinois Law Review 1459, 1475 (2008).
↑16 29 Cong. Rec. 1947 (1896) (Rep. Dockery).
↑17 For a comprehensive list of citations to those debates, check out 1 William Patry, Patry on Copyright § 1:41 n.4, especially , e.g., 29 Cong. Rec. 318-19 (1896) (Rep. Dockery): “This Library of Congress is a department of the Government. It is an executive department and should be under the control of the executive branch”.
↑18 For a detailed look at this and the other issues raised in Live365 v. CRB, check out Department of the Inferiors? posted at CommLawBlog.
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