Rojadirecta seeks refuge in First Amendment

By , September 21, 2011.

 

Puerto 80 Projects has filed its opening brief in its appeal of the Southern District Court of New York’s denial of its petition to release its Rojadirecta domain names — which had been seized by ICE as property used to facilitate criminal copyright infringement — prior to the completion of the civil forfeiture proceeding. It separately has a motion to dismiss before the court in that proceeding, which I wrote about last week.

[scribd id=65234499 key=key-hnwm3e62c0jf8z4t7e7 mode=list]

Puerto 80 spends considerable time explaining why prior restraints are bad and what procedures are required under the Constitution. This point is indisputable and uncontroversial — preventing prior restraints is considered the “chief purpose” of the First Amendment. 1Near v. Minnesota, 283 US 697, 713 (1931). But what they don’t do is spend much time explaining why this particular seizure is a prior restraint.

In fact, they don’t explain why at all — they just flat-out state, “The government’s ex parte seizure of Puerto 80’s domain name constituted a prior restraint on speech.” Later, they repeat, “The government’s seizure of the subject domain names constitutes an unlawful prior restraint on speech that suppresses Puerto 80’s users’ and readers’ protected First Amendment activities.”

But calling something a prior restraint doesn’t make it a prior restraint. As the Supreme Court pointed out over 50 years ago, “The phrase ‘prior restraint’ is not a self-wielding sword.” 2Kingsley Books v. Brown, 354 US 436, 441 (1957).

The Defining Characteristics of a Prior Restraint

Ironically, Puerto 80 cites to Alexander v. US to support its first statement that this seizure is a prior restraint. It quotes the Court’s statement that “Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” But that doesn’t mean all restraining orders or injunctions are prior restraints — like the forfeiture of Alexander’s bookstores in this case, which the Supreme Court held constitutional.

More importantly, the Court later notes the reason to be careful with the “prior restraint” label. It said, “Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, see it is important for us to delineate with some precision the defining characteristics of a prior restraint.”

The second case Puerto 80 cites to for its self-defining statement provides a clue as to one of these defining characteristics: “An order that prohibits the utterance or publication of particular information or commentary imposes a ‘prior restraint’ on speech” (Emphasis added).

A prior restraint does not refer to any and all suppression of First Amendment activities; the suppression must reference specific subject matter or viewpoint. Although the Supreme Court has never fully defined “prior restraint”, it has been clear that only content-based injunctions can constitute prior restraints. 3DVD Copy Control Ass’n v. Bunner, 75 P.3d 1 (Cali Sup. 2003), citing Thomas v. Chicago Park Dist., 534 US 316 (2002).

For Puerto 80 to succeed in its prior restraint argument, then, it must show that this seizure was content-based. But how can this be? The First Amendment activities that it claims were suppressed revolve around the “forum discussions on the Rojadirecta.com and Rojadirecta.org sites”, which included “political discussions, commentary, and criticism by the site’s users.”  Surely Puerto 80 isn’t claiming that the government seized the domain names because of the content of those discussions — that it perhaps wanted to restrain certain opinions about baseball games.

Now, if the government did want to suppress a site because of the message it conveyed and used the Copyright Act — or any other generally applicable statute — as a pretext, then that likely would be an impermissible prior restraint. But no one is seriously suggesting that anything of that sort has occurred here.

The only way this seizure could be characterized as a prior restraint is if Puerto 80 can convince the court that the restraint of the copyright-protected material on the site is content-based. It attempts to do so, in an argument confined to a footnote. The only legal support for its claim comes from a law review article — co-written by Mark Lemley, one of the attorneys for Puerto 80.

The article hardly counts as legal support: it makes the argument that copyright injunctions should be treated more as prior restraints because currently, and historically, they have not. Indeed, preliminary injunctions in copyright are common, as are pretrial seizures of infringing materials and tools.

Admittedly, the seizure of a domain name to be forfeited as property facilitating copyright infringement is only a recent development. But Puerto 80 makes no attempt to distinguish this action from other copyright injunctions and sanctions.

Prior Restraint in Napster

Puerto 80’s argument is reminiscent of the prior restraint argument made by Napster.

Like Puerto 80, Napster stood in the shoes of its users and argued against a proposed preliminary injunction because it “would silence the entire Napster community, violating not only Napster’s free speech rights, but those of its users as well.” This injunction would be “particularly egregious because it would silence the Napster community in advance of any ruling by the Court confirming that Napster’s directory is protected by the First Amendment. Courts have uniformly viewed any injunction that could act as a prior restraint on free speech as presumptively invalid.”

The District Court disagreed with Napster — noting that in the realm of copyright injunctions, “free speech concerns ‘are protected by and coextensive with the fair use doctrine.'” The court addressed the injunction’s reach to non-infringing portions of Napster’s service, like its message boards and chat rooms. Napster could continue to operate those with the injunction, but

In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an “all-or-nothing predicament.” Even if it is technologically impossible for Napster, Inc. to offer such functions as its directory without facilitating infringement, the court still must take action to protect plaintiffs’ copyrights.

Napster appealed the grant of the preliminary injunction to the Ninth Circuit on a number of grounds, among them its continued belief that the injunction was an impermissible prior restraint. The court, however, recognized this as a frivolous argument, saying only that it would “briefly address Napster’s First Amendment argument so that it is not reasserted on remand.”

We note that First Amendment concerns in copyright are allayed by the presence of the fair use doctrine. There was a preliminary determination here that Napster users are not fair users. Uses of copyrighted material that are not fair uses are rightfully enjoined. 4A&M Records v. Napster, 239 F.3d 1004, 1028 (9th Cir. 2001).

Copyright and First Amendment Challenges

The fact that the domain name seizure isn’t a prior restraint doesn’t mean there’s no First Amendment issue. The Supreme Court has said that “content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression” 5Thomas v. Chicago Park at 323. and also that criminal and civil sanctions having some incidental effect on First Amendment activities are subject to First Amendment scrutiny “where it was conduct with a significant expressive element that drew the legal remedy in the first place … or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity.” 6Alexander v. US at 557, quoting Arcara v. Cloud Books, 478 US 697, 706-07 (1986). But these are distinct arguments that Puerto 80 does not raise in its opening brief.

Nevertheless, it should be remembered that there’s good reason why prior restraint is rarely found in cases involving copyright. Copyright is “the engine of free expression”, and infringement causes harm to a copyright holder’s free speech rights. 7See Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010); Speech interests of creators; and The chilling effect of copyright infringement. What’s more, copyright has “built-in free speech safeguards” that reduce the need for relying on First Amendment doctrines like prior restraint.

We’ve even seen courts explicitly resolve infringement cases on fair use grounds which had earlier been resolved on First Amendment grounds. In Triangle Publications v. Knight-Ridder Newspapers, the appellate court began, “For years, Courts and commentators have recognized a potential conflict between copyright and the First Amendment. However, until the District Court’s opinion in the case now before us, no Court had ever held that a copyright suit could be defeated by a First Amendment defense. We affirm the result reached by the District Court, but disagree with the Court’s rationale. Contrary to the District Court, we hold that fair use constitutes a valid defense to the copyright infringement suit involved in this case.” 8Compare this to Suntrust Bank v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001), where the court vacated a preliminary injunction against the author of The Wind Done Gone, a parody of Gone With the Wind. Although it used the term “prior restraint” in its opinion, the injunction was vacated since the defendant’s strong fair use defense made it unlikely the plaintiff would succeed on the merits of the case.

In most cases concerning infringement, free speech is raised only as a “self-wielding sword” — “the last refuge of an infringing scoundrel”. 9L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987). When a case doesn’t involve some question of legitimate appropriation of a copyrighted work, “few courts” allow defendants “to hide behind the first amendment.” 10Sid & Marty Krofft TV v. McDonalds, 562 F.2d 1157, 1170-71 (9th Cir. 1977). Based on the court filings so far, it’s my opinion that there’s no legitimate appropriation here, only a web site that seems keen on raising every defense it can to avoid responsibility for facilitating infringement.

A CAMP Conference is scheduled for October 3rd; the reply brief from the US is due November 15th.

 

References

References
↑1 Near v. Minnesota, 283 US 697, 713 (1931).
↑2 Kingsley Books v. Brown, 354 US 436, 441 (1957).
↑3 DVD Copy Control Ass’n v. Bunner, 75 P.3d 1 (Cali Sup. 2003), citing Thomas v. Chicago Park Dist., 534 US 316 (2002).
↑4 A&M Records v. Napster, 239 F.3d 1004, 1028 (9th Cir. 2001).
↑5 Thomas v. Chicago Park at 323.
↑6 Alexander v. US at 557, quoting Arcara v. Cloud Books, 478 US 697, 706-07 (1986).
↑7 See Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010); Speech interests of creators; and The chilling effect of copyright infringement.
↑8 Compare this to Suntrust Bank v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001), where the court vacated a preliminary injunction against the author of The Wind Done Gone, a parody of Gone With the Wind. Although it used the term “prior restraint” in its opinion, the injunction was vacated since the defendant’s strong fair use defense made it unlikely the plaintiff would succeed on the merits of the case.
↑9 L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987).
↑10 Sid & Marty Krofft TV v. McDonalds, 562 F.2d 1157, 1170-71 (9th Cir. 1977).

Friday’s Endnotes – 09/16/11

By , September 16, 2011.

Senate Judiciary Committee report on PROTECT IP, July 22, 2011:

The Committee notes that protecting intellectual property in the form of copyrighted material is not only important to our economy and jobs, but is also important for advancing the goals of the First Amendment. The United States Supreme Court has long held that copyright protection advances the goals of the First Amendment by “supply[ing] the economic incentive to create and disseminate ideas.” The “clause [of the Constitution] empowering Congress to grant patents and copyrights is [based] in the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.'”

Further, Justice O’Connor wrote that copyright law is the very “engine of free expression.” It exists not to prevent free speech, but to promote it. Justice O’Connor went on to recall that “freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.'” As rogue Internet sites evade U.S. intellectual property laws, they not only cause economic harm, but they trample on these First Amendment values.

UK Culture Secretary calls for boldness in dealing with online piracy — Barry Sookman reports on the speech given by UK Culture Secretary Jeremy Hunt to the Royal Television Society on September 14, 2011. The talk deals broadly with UK communications policy, but does address the problem of unlawfully distributed content online. Just a taste: “John Stuart Mill defined liberty as the freedom to do anything provided it does not impinge on the freedom of others. Unlawfully distributing copyrighted material is theft – and a direct assault on the freedoms and rights of creators of content to be rewarded fairly for their efforts. Fundamental to our concept of both freedom and the law is that it should apply to everyone without fear or favour. This means it must apply equally in the virtual world as in the physical world.”

Do it, or we’ll do it for you: Jeremy Hunt and Ed Vaizey stand up for human rights of UK artists — Chris Castle also comments on Hunt’s recent remarks, paying specific attention to the relationship between Google and Prime Minister David Cameron.

Study: 92% of music fans still prefer ownership — Digital Music News highlights a recent study by eMusic, administered by Insight Research Group that found this and other interesting statistics concerning consumer attitudes toward digital music, streaming services, and buying habits.

If free culture is going to be so great, why are bullies in charge of it? — John Degen looks at the far-too-common backlash that creators and creator advocates get from free culture advocates when they say something provocative like people should get paid for their work. Good article, but this comment from Degen, FTW: “it’s always been easy to NOT make a living at being a professional artist. The free culture movement is just making it easier.”

Found one! We re-unite an author with an “orphaned work” — On Monday, the Authors Guild and others filed suit against five universities and the HathiTrust for plans to release digital scans of “orphan works”, books that are still under copyright protection but where the rights-holder is unable to be found. In this blog post, the Authors Guild finds one of the authors on the list of orphan works the trust plans to release after a few minutes on Google.

Entrepreneurs Demonstrate It Is Time To Act On The Protect Ip Act — The Copyright Alliance looks at last week’s letter from tech entrepreneurs against the proposed rogue sites legislation. “By rehashing generations old history and repeating myths and misstatements about the bill, the main thing the signatories have shown is that there is nothing new they can bring to the debate, and that it is time for Congress to act on the legislation.”

The Supreme Court of Canada Copyright Tariff Pentalogy — The Supreme Court of Canada, which historically has heard copyright cases relatively infrequently, is set to hear five cases December 6-7. James Gannon presents a summary of the cases, all involving judicial review of Copyright Board decisions on collective licensing.

With Great Power Comes No Responsibility — Rob Levine questions Google’s apparent position that it has absolutely no responsibility when its services are used, exactly the way they were designed to be used, for illegal purposes. “On a literal level, the company abides by its public relations mantra, ‘Don’t Be Evil.’ But that’s only because it prefers to outsource bad behavior in a way that enables it to make money and still abide by the letter of the law. ”

Backstage helps out on September 11th — Last week, many US bloggers shared there thoughts on the 10th anniversary of the 9/11 attacks. Here, Eric Hart (my brother) looks at how NYC theater professionals and IATSE members pitched in to assist with rescue efforts and the aftermath.

Turntable comes clean about funding. Next up: label deals, more users — Some more updates on the much-buzzed new music service. I previously wrote about Turntable.fm and licensing; here, Peter Kafka reports that “Basically they’re gunning for a hybrid license which would have them paying more per stream than Pandora does, but less than a full-fledged, on-demand interactive service like Spotify ponies up.”

Tenenbaum: an alternative view — An older article, but with the Tenenbaum appeal currently awaiting decision and the Thomas-Rasset appeal to begin briefing in October, I thought it would be of interest. Both appeals concern what, if any, due process (Fifth Amendment) limitations are placed on a jury award of statutory damages. But here, attorney Emily Maruja Bass asks a different question: does the reduction of the jury’s award violate the Seventh Amendment rights of the plaintiffs? With great analysis, Bass presents a persuasive argument that it might.

Rojadirecta: Barking up the Wrong Tree?

By , August 09, 2011.

Of the 100+ domain names seized by ICE since it began Operation in Our Sites last summer, only one has raised a challenge. Rojadirecta, which allegedly catalogs hundreds of links, primarily to live sporting events streaming online, has enlisted no less than six lawyers in its effort to prevent its domain names from being forfeited by the US government.

On Friday, Rojadirecta’s petition for release of seized property was denied by the court. 1The petition was actually filed by Puerto 80 Projects, the company that owns the Rojadirecta site. To keep things simple, I’ll refer to both the site and the site’s owners and operators as Rojadirecta for this article. On the same day, it filed its motion to dismiss in the Government’s forfeiture proceeding against its domain name. The Government’s response is due by August 26th, and Rojadirecta’s reply to the response is due September 2nd.

Was the court correct in refusing to release the domain name to Rojadirecta? Will Rojadirecta succeed in getting the Government’s forfeiture complaint dismissed?

The short answer to these questions are, in my opinion, yes and no. For the gory legal details, read on.

Petition to Release Seized Property

Civil forfeiture is based on the idea that property can be “guilty” — a strange idea, but not a new one. 2See Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663, 680-684 (1974) where the Supreme Court traces the history of forfeiture laws since Biblical times. But other than the defendant being property rather than a person, a civil forfeiture proceeding largely mirrors any other civil lawsuit. It begins with a complaint filed in court, proceeds through motions practice and discovery, and (if it makes it this far) ends in trial and judgment.

In a previous post, I wrote how the petition to release seized property largely mirrors the procedure of a criminal defendant being released on bail pending trial. Viewed this way, it’s easy to see why Rojadirecta didn’t succeed with its petition. Essentially, Rojadirecta’s lawyers made two arguments: “our client should be released on bail because he’s innocent” and “our client should be released on bail because he was wrongfully arrested.”

Those are certainly valid arguments, just not in this context.

As I detailed in my previous post, a petition like this is only granted if a claimant is suffering a substantial hardship due to the seizure. Most deprivations of property will cause some level of hardship, obviously; Congress added this procedure to reach those situations where the seizure would be devastating — situations like “preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless.” 318 USC § 983(f)(1)(C).

Rojadirecta failed to argue any of these.

It did argue, in part, that its users were suffering a substantial hardship due to the seizure because their First Amendment rights had been infringed. The court rejected this argument, causing some to scratch their heads, since it sounds like the court is saying it doesn’t think a loss of First Amendment rights is a substantial hardship.

That’s not what the court is saying, however. Infringement of free speech certainly causes substantial, if not irreparable, hardship. But the definition of “substantial hardship” in this particular statute is far more limited than the general meaning of the phrase. In addition, Congress didn’t intend to include free speech violations under this statute because those rights are already protected.

Claimants can challenge the legality of a seizure during the forfeiture proceeding itself or through existing procedures — for example, a Bivens action or a motion to suppress. 4US v. PlayboyMonthly.com, United States’ Motion to Dismiss Claimant’s Counterclaims, No. 8:10-cv-1214-T-27TBM (MD Fla. 2010); US v. $80,633, 512 F.Supp.2d 1196 (MD Ala. 2007). The 983(f) petition is an additional layer of procedural protection on top of existing procedures, designed for a specific purpose. Rojadirecta simply raised this issue in the wrong place.

Judging by the brevity of the order, the denial of Rojadirecta’s petition was, as I had predicted, an easy call for the court to make.

Rojadirecta’s Motion to Dismiss

A motion to dismiss will be granted if the complaint is insufficient on its face.

Civil forfeiture complaints are governed by the Supplemental Rules in the Federal Rules of Civil Procedure, which state in part that the Government must “state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.” “However,” as one court explains, “the Government is not required to allege in the complaint all of the facts and evidence at its disposal.”

It is sufficient for the Government to simply plead enough facts for the claimant to understand the theory of forfeiture, to file a responsive pleading, and to undertake an adequate investigation. The issue is one of pleading, not proof at trial. And it is for this reason that “[n]o complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.” 5US v. $22,173.00 in US Currency, 716 F. Supp. 2d 245, 248-49 (SDNY 2010.

What does the Government have to show to establish the forfeitability of property?

Federal civil forfeiture statutes, including those applying to criminal copyright infringement, are subject to CAFRA, the Civil Asset Forfeiture Reform Act of 2000. Under CAFRA, the Government must show that the defendant property is subject to forfeiture by a preponderance of the evidence. When the defendant property is alleged to be an instrumentality of a crime, the Government must also show that there is a substantial connection between the property and the alleged crime.

If the Government can show both, the only way a claimant can win is by rebutting the showing of a substantial connection or raising an affirmative defense to the forfeiture — the claimant is an “innocent owner” of the property, for example. Under CAFRA, an innocent owner is one who “did not know of the conduct giving rise to forfeiture; or upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.” 6Van Hofe v. US, 492 F.3d 175, 179-80 (2nd Cir. 2007).

18 USC § 2323(a)(1)(B) subjects the following to forfeiture: “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).” Subparagraph (A) refers to criminal copyright infringement offenses, including those set out in 17 USC § 506, which states:

(1) In general.— Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Facilitation “occurs when the property makes the prohibited conduct less difficult or more or less free from obstruction or hindrance.” 7In re 650 Fifth Avenue and Related Properties, Memorandum Opinion and Order, No. 1:08-cv-10934-RJH (SDNY March 30, 2011). As one court noted, “It is ‘[i]rrelevant whether the property’s role in the crime is integral, essential or indispensable.’ A single incident of facilitating criminal activity is sufficient to trigger forfeiture.” 8US v. LAM, No. 3:07-CR-374, Memorandum Opinion (ED Va. March 28, 2011).

Notice what is not required in civil forfeiture proceedings.

First, the Government does not have to prosecute or convict anyone of the underlying crime to seek forfeiture of property that facilitates that crime. 9See, for example, Van Hofe at 179, US brought civil in rem forfeiture action against residence used to facilitate commission of drug crime without indicting and prosecuting owners personally; Austin v. US, 509 U.S. 602, 627 (1993) (Scalia, J. concurring in part and concurring in judgment), conviction irrelevant to forfeiture proceeding; The Palmyra, 25 US 1, 15 (1827), “no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature”; US v. One Parcel of Real Estate Located at 7715 Betsy Bruce Lane Summerfield, 906 F. 2d 110,111-12 (4th Cir. 1990), “In civil forfeiture cases, property is subject to forfeiture ‘even if its owner is acquitted of — or never called to defend against — criminal charges.'”

Second, the forfeiture proceeding is not directed at the site operators of Rojadirecta, but at the domain name itself. 10See Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974). The culpability of the site’s owners is irrelevant. 11See US v. Cherry, 330 F.3d 658, n.16 (4th Cir. 2003). In fact, the civil forfeiture has been described as an “essential tool” when the government “can prove that the property was involved in a crime, but cannot prove who the wrongdoer was.” 12Stefan D. Cassella, Overview of Asset Forfeiture Law in the United States, United States Attorneys’ Bulletin, Vol. 55, vol. 6, pg. 17 (November 2007).

With this in mind, let’s turn to Rojadirecta’s general argument supporting its motion to dismiss. It states, “the Complaint, which focuses entirely on Puerto 80’s actions, fails to allege facts that, if proven, would suffice to show that Puerto 80’s operation of the Rojadirecta site constitutes criminal copyright infringement.”

As we’ve just seen, the Government’s forfeiture complaint doesn’t have to allege such facts. In other words, Rojadirecta is barking up the wrong tree with its entire argument. The question of whether or not the operators of Rojadirecta are directly or indirectly liable for criminal copyright infringement — as well as the question of whether or not criminal copyright infringement even allows for indirect liability — is completely unrelated to the question of whether the domain name can be forfeited for facilitating the commission of a criminal copyright offense.

I doubt, then, that Rojadirecta can succeed with its motion to dismiss. Its argument doesn’t apply to the Government’s claim that its property was used to facilitate the commission of criminal copyright infringement.

Limits on Forfeiture

Some have wondered what limits the Government from seizing just about any web site’s domain name, considering the seemingly broad reach of civil forfeiture law. I’ve previously discussed some of the legal limitations preventing a seizure free-for-all; I want to briefly mention one more.

The Eighth Amendment’s prohibition of excessive fines places limits on civil forfeiture. The 2nd Circuit analyzes property forfeiture for excessiveness by considering the following:

(1) the harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense, giving due regard to

(a) the offense committed and its relation to other criminal activity,

(b) whether the claimant falls within the class of persons for whom the statute was designed,

(c) the punishments available, and

(d) the harm caused by the claimant’s conduct;

(2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and spatial extent of the use; and

(3) the culpability of each claimant.

It adds, “Determining the excessiveness of a civil in rem forfeiture is necessarily fact-intensive and the ‘quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law.’ Given the impossibility of establishing a formula for an excessive fine with surgical precision, this framework provides a useful template for the fact-finding process and the ultimate excessiveness inquiry.” 13Van Hofe at 186.

A more detailed look at how this inquiry works in practice is beyond the scope of this article.

References

References
↑1 The petition was actually filed by Puerto 80 Projects, the company that owns the Rojadirecta site. To keep things simple, I’ll refer to both the site and the site’s owners and operators as Rojadirecta for this article.
↑2 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663, 680-684 (1974) where the Supreme Court traces the history of forfeiture laws since Biblical times.
↑3 18 USC § 983(f)(1)(C).
↑4 US v. PlayboyMonthly.com, United States’ Motion to Dismiss Claimant’s Counterclaims, No. 8:10-cv-1214-T-27TBM (MD Fla. 2010); US v. $80,633, 512 F.Supp.2d 1196 (MD Ala. 2007).
↑5 US v. $22,173.00 in US Currency, 716 F. Supp. 2d 245, 248-49 (SDNY 2010.
↑6 Van Hofe v. US, 492 F.3d 175, 179-80 (2nd Cir. 2007).
↑7 In re 650 Fifth Avenue and Related Properties, Memorandum Opinion and Order, No. 1:08-cv-10934-RJH (SDNY March 30, 2011).
↑8 US v. LAM, No. 3:07-CR-374, Memorandum Opinion (ED Va. March 28, 2011).
↑9 See, for example, Van Hofe at 179, US brought civil in rem forfeiture action against residence used to facilitate commission of drug crime without indicting and prosecuting owners personally; Austin v. US, 509 U.S. 602, 627 (1993) (Scalia, J. concurring in part and concurring in judgment), conviction irrelevant to forfeiture proceeding; The Palmyra, 25 US 1, 15 (1827), “no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature”; US v. One Parcel of Real Estate Located at 7715 Betsy Bruce Lane Summerfield, 906 F. 2d 110,111-12 (4th Cir. 1990), “In civil forfeiture cases, property is subject to forfeiture ‘even if its owner is acquitted of — or never called to defend against — criminal charges.'”
↑10 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974).
↑11 See US v. Cherry, 330 F.3d 658, n.16 (4th Cir. 2003).
↑12 Stefan D. Cassella, Overview of Asset Forfeiture Law in the United States, United States Attorneys’ Bulletin, Vol. 55, vol. 6, pg. 17 (November 2007).
↑13 Van Hofe at 186.

Rojadirecta Seeks Return of Seized Domain Names

By , July 13, 2011.

A company owning domain names that had been seized by ICE as part of its efforts to fight online piracy is seeking their return pending the outcome of the Government’s forfeiture proceeding against them. On Monday, the US filed its memorandum of law opposing the return.

“Rojadirecta.com” and “Rojadirecta.org” were seized on February 1, 2011, as part of ICE’s third phase of Operation in Our Sites. The owner of the domain names, Puerto 80 Projects, and its legal counsel engaged in informal discussions with the government to return them, but Puerto 80 ultimately refused to accept the government’s condition that it stop facilitating copyright infringement in order to get its domain names back.

On March 22, Puerto 80 filed Seized Asset Claim Forms, identifying itself as owner of the domains and giving the US 90 days to file a forfeiture complaint in federal court. The US filed the complaint within the time frame, on June 17.

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A few days earlier, Puerto 80 filed a petition for release of seized property. The petition and memorandum of law in support are available here. The EFF filed an amicus brief as well, available here. 1I’m curious to know if this is the first time anyone has filed an amicus brief for this type of petition.

On Monday, July 11, the US filed its memorandum of law in opposition to the petition.

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If the court grants the motion, it doesn’t mean Puerto 80 wins, it just means possession of the domain names will be returned to Puerto 80 during the forfeiture proceedings. The court may also enter any order necessary to ensure the property’s value is maintained while the proceeding is pending (like requiring Puerto 80 to post a bond), and the government may place a lien on it to prevent its transfer to another person. 218 USC § 983(f)(7). If the government eventually wins its forfeiture case, than the domain names are given back to be destroyed.

In many ways, this procedure is similar to a criminal defendant being released on bail after arrest and before trial.

Federal judicial forfeiture actions are governed by Supplemental Rule G of the Federal Rules of Civil Procedure. Those rules state that someone seeking return of seized property pending the outcome of a forfeiture proceeding may petition the court under 18 USC § 983(f). 3FRCP Supplemental Rule G(8)(d)(i).

Section 983(f) lays out five conditions that must be met for a court to release property that is the subject of a forfeiture proceeding. It requires that:

(A) the claimant has a possessory interest in the property;

(B) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;

(C) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;

(D) the claimant’s likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and

(E) none of the conditions set forth in paragraph (8) applies.

Paragraph (8) states that release of seized property is unavailable if the property:

(A) is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;

(B) is to be used as evidence of a violation of the law;

(C) by reason of design or other characteristic, is particularly suited for use in illegal activities; or

(D) is likely to be used to commit additional criminal acts if returned to the claimant.

In its petition, Puerto 80 says it meets all these requirements. The substantial hardship caused by the continued possession of the domain names that Puerto 80 claims include a reduction in traffic, a loss of business goodwill, and deprivation of its users’ and visitors’ First Amendment rights.

The US responds that Puerto 80 hasn’t shown it satisfies the requirements of 983(f) and doesn’t mince words in doing so:

In attempting to provide justification for granting this extreme remedy, Puerto 80 seeks to characterize the website it operated under the Rojadirecta Domain Names as an online discussion forum and, in so doing, would have this Court decide, on an expedited basis and without a fully developed factual record, a variety of issues that are more properly raised either in a motion to dismiss the Government’s Verified Complaint or following a period of discovery. Indeed, through its petition, Puerto 80 is attempting to use a limited provision of forfeiture law designed to provide relief in only the rarest of circumstances in order to mount a broader challenge to a widely employed tool of law enforcement.

Specifically, the US argues that the hardships cited by Puerto 80 are not the substantial ones Congress intended when it wrote 983(f). Looking at both the case law and legislative history, the US points out that, especially in light of the examples given by the statute — “preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless” — potential loss of goodwill and a 1/3 drop in traffic don’t qualify.

The US states that Puerto 80’s inclusion of the impact on the First Amendment rights of its users as a substantial hardship borne by Puerto 80 “borders on frivolous.” If there’s a First Amendment issue here, Puerto 80 must raise it in the forfeiture proceeding, not shoehorn it into a 983(f) petition.

Finally, the US states says the return of the domain names is likely to result in their further use in committing criminal copyright infringement, since it has no reason to believe Puerto 80 will stop the acts that led to the domain names being seized in the first place.

This portion is worth a read, as the US takes the time to elaborate on its theory of the case against the domain names — why it believes they facilitate criminal copyright infringement. It says “Puerto 80’s attempts to liken itself to an Internet search engine is wholly unavailing. Unlike a search engine or other site that aggregates links to existing content neutral material on the Internet, Rojadirecta organizes links to very specific content in a precise and targeted way.”

The US goes on to argue that even if Puerto 80 isn’t engaged in direct infringement on its website, it “certainly has engaged in contributory infringement, and has aided and abetted the infringement of others.”

My thoughts: this seems like an easy call for the court to make in favor of the US. Courts have read the “substantial hardship” requirement for these petitions strictly. An example given in the statute is “preventing the functioning of a business” — the case law suggests a substantial hardship is closer to completely preventing, ie a business would be forced to declare bankruptcy without the property seized, the functioning than significantly impeding the functioning.

The various substantive issues raised by Puerto 80 are more appropriately raised in the forfeiture proceeding itself. I don’t doubt they’ll do exactly that. But the 983(f) petition is a limited remedy, and I’d be surprised to see a court rule on substantive issues at this point.

Some other thoughts: Puerto 80 and the EFF devote considerable time to arguing that these seizures amount to an improper prior restraint under the First Amendment, and many in the blogosphere have shared this view. Those concerns extend to the pending PROTECT IP Act, since its provisions will largely depend on domain name seizures such as this.

The US disagrees, and its brief remarks on the issue in its memorandum suggest it’s approaching the issue similarly to how I’ve approached it here in previous posts. 4See COICA: First Amendment, Domain Name Seizures Don’t Violate First Amendment, ICE Seizures Criticism: Magic Words A Response to ‘Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections’, and Responding to Sellars: Copyright and Content-based Regulations. The government notes that the discussion forums remain on Rojadirecta’s site and are still accessible through other domain names, where case law dealing with seizures and the First Amendment have focused on whether or not the seizure actually removes expressive material from circulation.

In a footnote, the US states: “Indeed, it is clear from the record before this Court that the Government’s seizure of the Rojadirecta Domain Names was prompted by enforcement of the criminal copyright laws, and not as regulation of speech or other expressive conduct. As such, the seizure is not properly viewed as a prior restraint. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S.697, 706 n.2 (1986).”

Finally, a word about the Spanish court decision finding Rojadirecta not liable for copyright infringement. The US notes that this doesn’t preclude Rojadirecta for being liable for violating US copyright law. Generally, any business that operates in a country is subject to that country’s laws; you can’t, for example, operate a mail-order marijuana business in a country where that substance is legal and ship to US customers without getting into trouble.

The EFF argues, however, that the district court should give the Spanish court decision preclusive effect under the principle of comity. I don’t find this argument convincing.

A nation’s courts aren’t required to take a foreign court’s decisions into consideration (except when specifically required by a treaty agreement between the two countries). 5By contrast, US states are required to recognize judgments made in another state’s courts under the Full Faith and Credit Clause of the Constitution. But they generally will do so under the concept of comity, unless there’s a strong policy reason not to. Comity is based on respect between nations and the presumption that other nations will reciprocate.

Typically, comity shows up when someone asks a court to enforce a foreign court’s judgment. The EFF states, however, that “the principles apply more broadly.” They do, but not in the general sense the EFF suggests.

Giving effect to a foreign court decision means treating it as if it was a US court decision. That means it prevents the relitigation of either the same claim between the same parties that had already been decided (“res judicata”) or the same issue that had already been decided in an earlier case involving one of the parties (“collateral estoppel”).

I don’t think either res judicata or collateral estoppel preclude the forfeiture of these domain names. The parties are different: the Spanish case involved Spanish copyright owner Audiovisual Sport S.L. and the operators of Rojadirecta, this case is between the US government and the Rojadirecta domain names. The issues are largely different too: the primary issue in the Spanish case was whether the website infringed on copyrights, the primary issue here is whether the domain names facilitated the infringement of copyrights. Indeed, the Spanish court even said in its decision, “The actions of making available and advertising the games that are transferred facilitate download”. 6Declaration of Igor Seoane Miñán, Exhibit 1.

The court has 30 days to rule on Puerto 80’s petition unless both parties consent to an extension. More on this case as it develops.

References

References
↑1 I’m curious to know if this is the first time anyone has filed an amicus brief for this type of petition.
↑2 18 USC § 983(f)(7).
↑3 FRCP Supplemental Rule G(8)(d)(i).
↑4 See COICA: First Amendment, Domain Name Seizures Don’t Violate First Amendment, ICE Seizures Criticism: Magic Words A Response to ‘Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections’, and Responding to Sellars: Copyright and Content-based Regulations.
↑5 By contrast, US states are required to recognize judgments made in another state’s courts under the Full Faith and Credit Clause of the Constitution.
↑6 Declaration of Igor Seoane Miñán, Exhibit 1.

Responding to Sellars: Copyright and Content-based Regulations

By , May 26, 2011.

Last week, Andy Sellars responded to a post I had made about the free speech critique of copyright mistake, where I provided his statement that “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed,” as an example of why it’s important to draw a distinction between how the word “content” can be used in a general sense and how the word is used in a specific manner in First Amendment jurisprudence, as shaped by US courts.

It’s well-worth a read. Today, I’d like to continue the discussion.

Sellars correctly notes that “The crux of Hart’s argument is that people like me (and Powell, Lange, Volokh, and Lemley) are using ‘content’ incorrectly in the First Amendment context. This is not pedantic. As Hart notes, the word ‘content’ carries a lot of weight in the First Amendment realm. Finding a restriction to be content-based invites strict scrutiny, from which few restrictions survive.”

Sellars response: “I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions.”

Sellars goes on to provide support for this argument in his post.

From a normative sense, there’s certainly no problem with Sellar’s contention that copyright should be considered a “content-based restriction of speech as First Amendment law traditionally defines that term.” Others have advanced that idea, and while I disagree with it, everyone is entitled to their own opinions.

But I disagree that this contention is correct in a descriptive sense.

Copyright is not a Content-Based Regulation of Speech

To reiterate, courts entertaining a First Amendment argument against a law are concerned with whether it acts to suppress ideas.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. 1Turner Broadcasting System v. FCC, 512 US 622, 641-43 (1994).

Contrary to Sellars assertion, copyright law is not a content-based restriction of speech” under this definition. In fact, it is not even a content-neutral regulation in First Amendment parlance, a point made explicit by the Supreme Court in Eldred v. Ashcroft.

But again, this doesn’t mean copyright law is immune from the constitution’s proscription on infringing freedom of speech. As Eldred points out, copyright law has built-in free speech safeguards: the idea/expression distinction and fair use. The effect of these safeguards is the same as the tests used outside of copyright law, it’s just the legal terms of art that are different.

Perhaps nothing illustrates this idea better than Triangle Publications v. Knight-Ridder Newspapers. The lower court had — for the first time in US history — defeated a copyright claim based on a First Amendment defense. 2Triangle Publications v. Knight-Ridder Newspapers, 445 F. Supp. 875 (D Fla 1978). On appeal, the 5th Circuit affirmed the lower court’s decision — but on the grounds of fair use rather than a First Amendment defense. 3Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir 1980).

So when Sellars says:

Hart (and Prof. Greenberg, whom Hart cites) seem to be defining ‘content-based’ as efforts made to suppress ideas instead of means. Copyright is not ‘content-based,’ the argument goes, because ideas are not monopolized under copyright, and copyright makes no effort to preference certain ideas over others. Copyright addresses means. You can say what you want, you just can’t use protected expression to do so — we all know the quote from Eldred about using “other people’s speeches.” And they’re not alone in arguing this. The esteemed Chemerinski Treatise also suggests that “content-based” restrictions can be broken down into either (a) viewpoint-based or (b) subject-matter based, and those that are neither are content-neutral. Copyright is clearly neither.

This is an incomplete view of content-based restrictions.

He is ignoring the the clear import that law has given to the definition of “content-based.” It is not only me (and Prof. Greenberg) who has defined “content-based” in the way I described, it is the Supreme Court and lower courts — the same courts that came up with this language in First Amendment jurisprudence in the first place — that define it this way.

The Goals of Free Speech

Sellars next identifies some of the underlying goals of the First Amendment’s limit on abridging the freedom of speech.

The policies of the First Amendment similarly favor drawing “content-based” restrictions broadly, as the Court has. The concerns around government regulation of speech go beyond controlling content as a proxy for controlling viewpoint, a concern raised by Hart vis-à-vis Turner. The worry about undue interference in the marketplace of ideas is not our only concern in First Amendment law. There is a fundamental autonomy to speech that we identify and respect. We are all repulsed by the thought of someone telling us “you can’t say/print/post that,” whatever “that” is. We do not want to have to worry, or self-censor, or feel in any way restrained in our speech. (Imagine, for example, a law prohibiting the use of “filler words“ in public discourse. Clearly not viewpoint or subject matter based, and yet certainly likely to receive strict scrutiny.) The right to unencumbered expression is a natural right recognized by the First Amendment, limited by our law only in areas where we have another overriding concern. And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not.

It’s correct that fundamental autonomy to speech is an important policy of the First Amendment — not the only policy, but perhaps the one that most people readily grasp.

But autonomy to act freely is not without its limits. One rather salient limit is on your freedom to act when it impinges on someone else’s own freedom. Or to put it another way, “Your right to swing your arms ends just where the other man’s nose begins.” 4Zechariah Chafee, Freedom of Speech in War Time.

“In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.” 5Wheaton v. Peters, 33 US 591, 672 (1834) (J. Thompson dissent). However one characterizes the species of rights secured by copyright law, these are rights that Congress protects pursuant to an expressly enumerated power authorized by the Constitution. What’s more, copyright creators have their own speech interests that must be considered under the question of infringement. 6I’ve previously written on this subject, see Speech Interests of Creators and The Chilling Effect of Copyright Infringement for example.

Protecting the freedom of speech advances many goals beyond autonomy. The familiar refrain of Eldred that copyright is the “engine of free expression” illustrates most plainly how the First Amendment is only one tool of many for advancing these goals. Sellars, and other free speech critics of copyright, are concerned that the balance between copyright protection and the First Amendment limitation has tipped to the detriment of freedom of speech. But we should be equally as concerned that free speech can be negatively impacted if the balance tips the other way. As the Supreme Court noted:

It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “[T]o propose that fair use be imposed whenever the ‘social value [of dissemination] . . . outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” And as one commentator has noted: “If every volume that was in the public interest could be pirated away by a competing publisher, . . . the public [soon] would have nothing worth reading.” 7Harper & Row v. Nation Enterprises, 471 US 539, 559 (1985).

Despite the contrast in our approaches, however, Sellars and I reach the same conclusion. He writes:

But here’s the thing that may distinguish me from others that take this position: I’m okay with copyright existing as a content-based discrimination. I firmly believe that the First Amendment was not designed to trump the Article I power of Congress to provide limited-time exclusivity to writings.  I maintain that copyright (done well) is still an incredibly valuable tool for the creation and dissemination of culture. I agree with Hart when he argues that copyright is the engine of free expression. And I agree with Hart when he claims that copyright’s own “built in free speech safeguards” account for copyright’s First Amendment analysis. This is a perfectly accurate statement of the Court’s approach, at least in our post-Eldred pre-Golan world. (And I’m inclined to believe that this Court will only undercut the First Amendment role when it takes up Golan next term.)

Copyright’s Procedure

Where we depart is at Sellar’s concern that the First Amendment is not adequately represented in the latest approaches to protecting copyright:

But this does not mean that the First Amendment has no role to play in the copyright context. As an unprotected category of speech, it is still subject to the procedural protections that govern all speech regulation. Because another concern guides our First Amendment jurisprudence: the fear of overeager or premature action by the government in the name permissible speech regulation. As I detail fairly extensively in my article above, when adjudication of legality depends entirely on the exact words used and their meaning, courts wait to make sure that the speech meets one of the proscribable categories before they take it out of circulation. Our doctrine has created procedural protections to make sure that lawful, legal speech is not retrained or punished in the name of getting unlawful, proscribable speech (like infringing speech). The law does not require full adjudication, as Freedman v. Maryland shows, but it requires a neutral party to make that determination before speech is enjoined. This is the central problem I identify with Operation In Our Sites: no serious effort is made by any neutral party to determine the legality of speech before websites find their domains seized.

I disagree for several reasons — though the following reasons differ from my reasons for saying that the seizure of domain names is allowed under current First Amendment jurisprudence (namely, that no content is seized or removed from circulation, it remains in the custody of the site operator.)

First, it makes sense to deal with different kinds of speech with different approaches to what procedures are constitutionally adequate, a point glossed over by Sellars. While it seems attractive to have consistent rules for any case involving the First Amendment, that does little to advance its goals. The justifications for regulating obscenity differ greatly from those for regulating libel; the dangers that can arise out of overzealous regulation also differ greatly. Courts generally avoid treating First Amendment jurisprudence in different types of speech cases interchangeably. For example, the DC District Court noted in 2003 that “The Supreme Court has not extended Blount’s requirements of ‘built-in safeguards’ and judicial review beyond the obscenity context,  and lower federal courts have declined to apply Blount and its progeny in other contexts.” 8In re Verizon Internet Services, 257 F. Supp. 2d 244, 262.

Second, the unbroken history of the types of procedures, and procedural protections, available in copyright infringement cases lends support to the idea that existing copyright procedure is constitutionally adequate. Preliminary injunctions are common in infringement cases, and even ex parte injunctions, while rare, are not unheard of. 9For example, see the Order granting a TRO in Capitol Records v. Bluebeat (Nov 5, 2009). Large seizures of pirated and infringing goods are made every year by federal and state law enforcement. Federal administrative seizures of mass quantities of infringing goods are also common. I don’t see any systemic suppression of ideas or viewpoints throughout this history — or what benefits additional procedural protections could bring, and if they are worth the trade-off in detriments they would bring.

Finally, copyright law is simply ill-suited to being called a “government regulation” of speech. Although courts provide the forum for infringement suits, the dispute is a private rather than a public one. The free speech critique of copyright relies substantially on infringement lawsuits as a state action, since the First Amendment doesn’t limit the actions of private individuals.

David McGowan explains the problems he has with the “state action” argument:

It is false to say that copyright “targets” protected speech. The rights do not distinguish between protected and unprotected expression. Specific suits target speech, but in general these are not brought by government officials. They are brought by rights holders, as a trespass action would be brought by a landowner. For all the similarities in analysis, employing the language of general and specific regulations obscures a fact that a straightforward state-action analysis would stress: To the extent that there is “targeting,” or potentially worrisome motives, they involve private rights holders, who probably are after revenue or their own artistic vision, and not government officials trying to feather their nests, hide their misdeeds, or perpetuate their power. 10David McGowan, Some Realism about the Free Speech Critique of Copyright, 74 Fordham Law Review 101, 113-14 (2005).

McGowan’s comparison of copyright infringement to trespass is illuminating. We generally wouldn’t worry about the freedom of speech of someone who breaks into a home, no matter how much they are talking.

Noted First Amendment scholar Lillian BeVier considers this analogy between, on the one hand, the First Amendment and trespass and, on the other hand, the First Amendment and copyright and concludes that it is particularly apt. 11Copyright, Trespass and the First Amendment: An Institutional Perspective, 21 Soc. Phil. & Pol’y 104 (2004).

In the following passage, she takes a broader look at why copyright law resembles little the content-based regulations of First Amendment jurisprudence, providing a fitting conclusion:

Rubenfeld’s implication that copyright law is at odds with the First Amendment’s aversion to content regulation takes no account of a very important fact: even if the question of whether the defendant has infringed turns in every case on the “content” of both the plaintiff’s and the defendant’s work, the nature of the inquiry into content will not bring into play any of the reasons for the aversion to content regulation. The Court’s express distrust of content-based regulations is more than a convenient knee-jerk doctrinal guideline. It reflects a number of concerns that emerge from consideration of the First Amendment’s animating values. For example, it reflects a concern for equality —that particular categories of speech be treated equally so as to deflect the government from attempting to manipulate public discourse. Second, it reflects a concern to prevent government from regulating speech based on its communicative impact, thus forestalling restrictions of speech that surreptitiously rely on constitutionally disfavored justifications. It reflects a concern to foreclose the possibility that government will deliberately distort debate by preventing the communication of particular disfavored ideas, viewpoints, or items of information. Finally, it reflects a concern with improper legislative motivation.

But a judgment that a copyright defendant’s work reproduces the plaintiff’s, or is based upon it, or distributes or publicly performs it, though it will of course be based on the content of both the plaintiff’s and the defendant’s speech, simply raises none of these concerns. It does not jeopardize the equality of treatment of particular categories of speech so as to enable government to manipulate discussion. It does not turn on the speech’s communicative impact. And it does not raise the risk of an improper government motivation to prevent the dissemination of particular ideas, viewpoints, or items of information that the government disfavors. In fact, the predicate for copyright liability is not the communicativeness of an infringer’s speech at all. It is, rather, its similarity to the plaintiff’s — and even then it is only its similarity to the plaintiff’s expression, not to the ideas or facts therein.

References

References
↑1 Turner Broadcasting System v. FCC, 512 US 622, 641-43 (1994).
↑2 Triangle Publications v. Knight-Ridder Newspapers, 445 F. Supp. 875 (D Fla 1978).
↑3 Triangle Publications v. Knight-Ridder Newspapers, 626 F.2d 1171 (5th Cir 1980).
↑4 Zechariah Chafee, Freedom of Speech in War Time.
↑5 Wheaton v. Peters, 33 US 591, 672 (1834) (J. Thompson dissent).
↑6 I’ve previously written on this subject, see Speech Interests of Creators and The Chilling Effect of Copyright Infringement for example.
↑7 Harper & Row v. Nation Enterprises, 471 US 539, 559 (1985).
↑8 In re Verizon Internet Services, 257 F. Supp. 2d 244, 262.
↑9 For example, see the Order granting a TRO in Capitol Records v. Bluebeat (Nov 5, 2009).
↑10 David McGowan, Some Realism about the Free Speech Critique of Copyright, 74 Fordham Law Review 101, 113-14 (2005).
↑11 Copyright, Trespass and the First Amendment: An Institutional Perspective, 21 Soc. Phil. & Pol’y 104 (2004).

The Free Speech Critique of Copyright Mistake

By , May 17, 2011.

Did you hear that Florida just outlawed sex?

This was pointed out by Southern Fried Scientist, after reading of a Florida bill that prohibits “knowing sexual conduct or sexual contact with an animal.” Humans are, after all, animals, so by definition, Florida has just made normal sexual relations a crime.

Obviously, that’s not what happened. As Rick Hasen at Election Law Blog points out, “A court facing a question of interpreting the statute would almost certainly read the statute’s use of the term ‘animals’ as ‘non-human animals,’ both to avoid absurdity and to conform with (1) the intent of the drafters; (2) the purpose of the statute; and (3) a commonly used (if scientifically inaccurate) understanding of the term ‘animal’ to exclude humans.”

But it does provide a good example of language in the law. Law, in many respects, is semantics. It is based on words written down in constitutions, statutes, and court opinions, and shaped by how courts, lawyers, and the public interpret those words.

Underneath the veneer of the plain meaning of language in law is a mass of complex and sometimes inscrutable precepts. Hasen, above, advances three such precepts to explain why ‘animal’ doesn’t include humans in the Florida law. To a lawyer, understanding how language works in law is second nature, but to the layperson, much of it may seem like “the art of the puzzling and confounding.”

Law professor Frederick Schauer describes this better than I do:

There are times when law uses language of its own making, often in  Latin — replevin, assumpsit, quantum meruit, habeas corpus, res judicata — and sometimes even in English—bailment, demurrer, due process, joinder, interpleader, easement. Such terms have little if any meaning for the layperson, but they can still have plain meanings in law and for lawyers and judges. So as long as one believes in anything close to plain or literal meaning at all, such terms, when used inside the legal world, do not present special problems. Like the words of ordinary language, the meaning here is determined by the rules of use of the relevant linguistic community, but here that community is the community of legal actors rather than the men on the Clapham omnibus.

Things become somewhat more problematic, however, when terms have both ordinary and technical legal meanings. We know that ‘due  process’ in the Fifth and Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart. The  women on the D train are no more likely ever to use the term than are the men on the Clapham omnibus. But the same does not hold true for ‘speech’ and ‘religion’ in the First Amendment or ‘arms’ in the Second or ‘searches’ in the Fourth. Here there are both ordinary and legal meanings, and the question is about the relation between them. So too outside of constitutional law, where words such as ‘trespass,’ ‘complaint,’ and even ‘contract’ have legal meanings that diverge from their nonlegal ones. 1A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008).

When is content not content?

What does this have to do with copyright?

Well, some critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech. 2See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms. A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.” 3Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011). (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws. 4Eldred v. Ashcroft, 537 US 186, 218-19 (2003). But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content?

The answer lies in understanding how language is being used. Law professor Marc Greenberg explains:

The strength, and weakness, of this argument lies in the definition of the term ‘content’ in the Free Speech context, in the context of judicial interpretations of the First Amendment, and in the copyright context.  I submit that content in the free speech context refers both to the ideas a speaker presents, and the language or other expressive means used to present that idea.  For courts applying the term ‘content’ in a strict scrutiny context seeking to determine if a statute violates the First Amendment by banning certain works, the term ‘content’ is focused on the ideas expressed, and not on the means of expression used. Finally, copyright, in particular infringement cases, focuses purely on the means of expression used, since the statute expressly precludes protection for ideas. The Critics seek to use the free speech definition as a basis for challenging copyright—arguing under this definition that since copyright clearly ‘deals’ with content, it is a content-based law which requires strict scrutiny and a bias in favor of finding that it violates First Amendment protections.  The problem with this approach is that content, when subject to any copyright law analysis, only pertains to expression, and therefore the claim that for constitutional purposes it means more than that is erroneous. Professor Baker supports the Critics’ view by suggesting that under a strict scrutiny analysis, warranted because copyright deals with content, the market incentive concerns underlying copyright do not rise to the level of a compelling government concern, and proposes that perhaps those concerns can be addressed by less restrictive means. He writes: “If content must be examined to determine if a law is violated then the law is content based.” Does  this  mean that reporting a theft of art from your home, in which the police must have a description of the art, means that art theft is a content-based law?  Similarly, in a case of the theft of a rare book, a description of the book, the art on the cover, and its subject matter is required—does this make the theft law subject to a content-based strict scrutiny?  Additional examples from art and music illustrate the problems with this approach.  A copy of a musical piece focuses on the sequence of notes, not the underlying melody or musical concept embodied in the piece.  A derivative copy of a piece of artwork repeats elements of the composition, not the content, consisting of the concept of the piece.

The question that should be asked is whether the restriction on content found in copyright law really abridges someone’s freedom of expression and whether there is a fair policy in saying that anyone is free, for example, to paint a portrait.  However, they are not free to take someone else’s property, their painting of a portrait, and use that for their own benefit.  Interestingly enough, what this argument does is turn one of copyright’s attributes, the ability to reuse the work via copies without diminishing it, against the creator.  There is no question that if I wanted to paint a portrait, and saw a similar portrait you did on your wall,  that I cannot, in my expression of free speech, come into your house, take your painting, cut out the face in it, and put it in my painting.  But because art in the digital world can more easily be reproduced through mechanical means, suddenly it is a violation of your freedom of expression to take a copy of the work, which is sold with the express understanding that it may not be used by you, and use it for your own purposes, be they commercial or noncommercial. 5Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007).

This point shouldn’t be dismissed as merely arguing semantics. It’s important to make the distinction between “content” in the ordinary sense of the word and “content” in the First Amendment sense of the word. And not because it lets copyright law escape constitutional protections.

How does copyright deal with content?

The First Amendment protects against government control over “content” in the ordinary sense.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. (Citations removed). 6Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994).

The Supreme Court has developed doctrines to test whether general laws violate the First Amendment. These doctrines aren’t applied to copyright law — not because it is immune from First Amendment scrutiny, but because copyright law’s own “built-in free speech safeguards” already account for First Amendment analysis. And these safeguards mirror the tests developed by the Court surprisingly well.

When you recognize “content” as the ideas conveyed by a speaker, and recognize that a government cannot generally suppress these ideas, you see that copyright law already accounts for this through the idea/expression distinction — the law only protects the specific expression of an idea, not the idea itself.

Traditional First Amendment jurisprudence recognizes that laws that don’t specifically target the “content” of speech may nevertheless violate free speech principles. Such laws are typically analyzed under the test set out and explained by the Supreme Court in US v. O’Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it. 7United States v. O’Brien, 391 US 367, 376-77 (1968).

Copyright’s analogue to the O’Brien test is found in the fair use doctrine. That is, when does copyright law allow the speech that is made with the normally prohibited conduct of copying another’s expression?

Like O’Brien, courts use a balancing test. The balancing test is the familiar four-part fair use analysis, which looks at: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 817 USC § 107.

Implicit in the fair use factors are the same prerogatives of the O’Brien test. Along with the preamble, enumerating several purposes of fair use, the factors guide courts in considering whether a specific use promotes the progress of the useful arts. The qualitative and quantitative factors, along with the effect on the potential market, ensure that the restriction on using copyrighted expression is no greater than necessary to promote that progress.

I’ve talked a lot about the intersection of free speech and copyright on this site. The notion that the two areas of law are in conflict should be put to rest — I’ve even advanced the notion that copyright helps expand free speech rights. A careful analysis of the language we use, and how legal doctrines incorporate that language, show that the two are wholly consistent with the values that underlie our concept of what a free and just society should embody.

References

References
↑1 A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008).
↑2 See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms.
↑3 Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011).
↑4 Eldred v. Ashcroft, 537 US 186, 218-19 (2003).
↑5 Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007).
↑6 Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994).
↑7 United States v. O’Brien, 391 US 367, 376-77 (1968).
↑8 17 USC § 107.

Friday’s Endnotes – 05/13/11

By , May 13, 2011.

Content and Technology is not an Either/or Choice — The Copyright Alliance disputes the framing of efforts to better protect IP rights as a choice betweencopyright and innovation. “The copyright community and the technology sector drive and sustain each other.  They each contribute disproportionately to the wealth of this nation, and both sectors depend on a vibrant, legal marketplace of digital content.”

Celebrating World Press Freedom Day, and What the First Amendment Means to the MPAA — The Motion Picture Association of America’s new chairman Chris Dodd reflects on the role of the organization in defending free speech rights for filmmakers, a theme I discussed on this site recently. “Many people don’t realize that the MPAA itself was born as an answer to government censorship.  Before the establishment of the MPAA’s Classifications and Rating Administration, early filmmakers battled a mishmash of local, state and federal boards that mandated strict ‘moral standards’ that often destroyed the artistic integrity of films or kept them from being shown at all.”

Limewire Case Settles, Mid-Trial, For $105 Million — Thursday evening brought news that the file-sharing service reached a settlement agreement with the record labels that had brought suit against it before the close of the first week of the jury trial to determine damages. Q: How much of the settlement is going to the artists? A: More than they got from Limewire.

MPAA v. Zediva is Shaping up to be Quite the Legal Showdown — Remember Zediva, the video-on-demand startup that streams movies online from actual DVDs in remote DVD players to avoid licensing fees? They were, of course, sued by film studios. PaidContent reports that both sides seem to be placing a high priority on this lawsuit, considering the high-power lawyers being called on for litigation.

YouTube boosts movie rentals with over 3,000 Hollywood titles — The video-sharing site joins online movie providers like iTunes and Amazon, allowing users to watch films for a couple of bucks. The titles include classics like Goodfellas and newer releases like Inception.

Library of Congress and Sony create the National Jukebox — The record label has made thousands of previously unavailable historical recordings available to the general public through a joint effort with the Library of Congress. According to the LA Times, “The collaboration between Sony and the Library of Congress is intended to keep any cost to taxpayers to a minimum and to make the streaming files available quickly. In return, Sony will receive data on which recordings are streamed most frequently to help determine which may have commercial potential.” Win-win-win.

Interview: The Art of Video Games at the Smithsonian — Boing Boing contributor Rob Beschizza interviews the organizer and exhibition curator of the Smithsonian’s upcoming Art of Video Games exhibition. “We want to show people that video games are more than they might appear on the surface, that they can have incredible depth, beauty, and emotion.”

4 Predictions for Copyright Reform Attempt 4 — With the recent Canadian elections completed, it is likely that the new government will resume the efforts to reform the nation’s copyright law. Attorney James Gannon offers his predictions on what changes to expect this time around in light of recent developments in copyright law and digital technologies.

The E-Book Gold Rush — Author Lee Goldberg injects some reality into the recent success stories of self-publishing authors in the digital world. Yes, authors can find new opportunities with e-books and shouldn’t ignore their potential. But the fact remains that a new system that makes it easier for an author to spread her work makes it easier for every author to spread her work — bringing us back to square one in the amount of time and effort needed to build an audience.

Google Books and the Rule of Law— Howard Knopf pens this op-ed about the broader rule of law and international law implications of the Google Books project. “The Google Books project has frequently been likened to a reincarnation of the Library of Alexandria in a digital, fireproof format—because it could include virtually all the world’s important books in an instantly accessible database. However, what has been shown to be technically achievable and widely praised is far from clearly legally viable. There is considerable concern from those who care about core values in copyright and international law, and indeed the rule of law itself. Nobody is above the law—not even Google. Class actions were never intended to usurp legislation and treaties.”

GAO Still Stonewalling on Sources for “Stealing is Good” Report — Chris Castle documents his efforts requesting information from the Government Accountability Office regarding the unnamed experts who advanced the idea of positive effects of piracy in last year’s report on “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.”

Cheezburger Networks of sites suck — A very short blog post from photographer Terry Border at Bent Objects, but a great excuse for me to point people to his work. Border uses everyday objects to create whimsical scenes — circus peanuts performing in a circus, for example. Here, he complains about the popular image aggregator sites which misappropriate photos from the web, routinely without regard to attributing the original authors. Says Border, “I’ve heard a couple of comments that blame the submitters to their sites, and not Cheezburger themselves. Well, who put together the way their sites work? They can try to wash their hands of wrong-doing, but it’s their system, and they know the end result will be lots of anonymous images thrown into the furnace of their giant money making machine.” Hm, sounds familiar.

Finally, from the academic world, I recommend the following:

Copyright, Complexity and Cultural Diversity (via Legal Theory Blog) — In this forthcoming Chapter, available at SSRN, Michal Shur-Ofry-

“challenges the prevailing view pertaining to the connection between broad copyright protection and lack of cultural diversity. Prominent scholarship in the field of copyright links the lack of diversity in cultural consumption to the broad copyright protection afforded to cultural works. Copyright, so goes the argument, constitutes a major basis for the activities of mass media corporations, which flood our cultural sphere with formulaic cultural products, whose sole purpose is to appeal to the taste of the masses. The limitation of copyright, so the argument proceeds, would diminish the cultural domination of mass media products, and promote audience exposure to ‘other’, more diverse works.

“The Chapter questions the importance attributed to copyright law in this context. Based on complexity and network theory dealing with the evolution of popularity and the self organization of complex systems, it illuminates the fact that the inclination towards popular cultural works is an intrinsic phenomenon of social networks, and does not depend upon copyright protection. It continues to analyze recent ‘long tail’ data, which indicates that positive changes in the degree of cultural diversity occur even under a broad copyright regime. In light of these observations, the Chapter attempts to offer a broader perspective on diverse cultural consumption, relying on socio-cultural research. This literature indicates that cultural diversity is a complex and multi-faceted issue. The non-linear nature also implies that the level of diversity cannot be easily calibrated by changing the scope of copyright protection. Rather, the attempt to promote diverse cultural consumption must address a series of difficult questions which are outside the scope of copyright law.”

How Copyright Expands the Freedom of Expression

By , April 28, 2011.

Ishkur’s Guide to Electronic Music has long recognized by fans of electronic music for its comprehensive and irreverent descriptions of the numerous and protean sub-genres of the musical form. Kenneth John Taylor, the author of Ishkur’s Guide, makes this observation about Miami bass:

Every few years, like clockwork, a Miami Bass track will come out of nowhere and get REALLY big on the Top40 charts. It happened with Tag Team’s “Whoomp there it is”. It happened with 69 Boyz’ “Tootsee Roll”. And it happened (unfortunately) again with Baha Men’s “Who Let the Dogs Out.” For such a fun genre, I’m still trying to figure out why this happens with only a select few songs, and not all of them. Like, for instance, why did Tag Team’s “Whoomp! There it is” make it big and not 95 South’s “Woot! There it is”, when they are practically the same song?

One of the Miami bass groups that did get really big on the charts was 2 Live Crew — the group had seven studio albums that entered the Billboard 200 during the 80’s and 90’s. Sometimes called the “godfathers” of Miami bass, 1John Leland, Singles column, Spin Magazine, pg 76 (February 1989). the Crew was also notorious for writing lyrics that, to say the least, would make a sailor blush.

In 1989, the group released their third album, As Nasty as They Want to Be. At the same time, a “sanitized” version of the album, As Clean as They Want to Be, was released. 2I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows. In a curious stroke of circumstance, both of these albums resulted in the band going to court, but for entirely different reasons.

Prurient Interests and Parody

As Nasty as They Want to Be was almost immediately criticized for its objectionable lyrics. Several record store employees in various parts of the country were even arrested for selling the album to minors. 2 Live Crew fought back in Broward County, Florida, in response to actions taken by the Sheriff’s Department to discourage sale of the album.

The ensuing case made its way to the 11th Circuit Court of Appeals, which had to determine whether the album was considered “obscene” under the test laid out by the Supreme Court in Miller v. California. 3413 US 15 (1973). Under the Miller test, obscenity is determined by asking “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In Luke Records v. Navarro, noting that this was “apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition,” the 11th Circuit concluded that, since there was no evidence presented that the work lacked “serious artistic value,” the album was not obscene. 4960 F.3d 134 (1992).

Just eight days after the 11th Circuit’s decision in Luke Records was handed down, 2 Live Crew’s lawyers were in front of the 6th Circuit for oral arguments in a separate case.

Along with cleaned-up versions of songs, As Clean as They Want to Be included the song “Pretty Woman”, not present on As Nasty as They Want to Be. The song was a raunchy take on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” Music publisher Acuff-Rose Music had denied 2 Live Crew a license to parody the song; 2 Live Crew recorded and released it anyway, and Acuff-Rose sued for copyright infringement.

The 6th Circuit reversed the District Court’s holding that 2 Live Crew’s version of the song was a fair use, 5Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992). and the decision was appealed to the Supreme Court. In one of copyright’s seminal decisions, the Supreme Court reversed the 6th Circuit and held that 2 Live Crew’s parody was a fair use, despite its commercial nature and the amount of expression borrowed from the original. 6Campbell v. Acuff-Rose Music, 510 US 569 (1994).

As the Court pointed out in Campbell, fair use often serves the same function of copyright protection itself — to promote the progress of the useful arts. Twenty years earlier, a different court had noted that “the development of ‘fair use’ has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection ‘To promote the Progress of Science and the useful Arts.'” 7Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973). This promotion of the progress, said the Court in Campbell, is “generally furthered by the creation of transformative works” — works that include parody, which “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”

Had either case gone the other way, we would have had some interesting results. 2 Live Crew’s music could have been found to be both lacking “serious literary, artistic, political, or scientific value” yet promoting the progress of the useful arts, or vice versa.

Content Industries’ Defense of Free Speech

While 2 Live Crew’s coinciding legal battles involving free expression and copyright are interesting trivia, they lead me to a broader point about connections between the two issues. Copyright is sometimes criticized as stifling creativity — yet 2 Live Crew’s success at the Supreme Court shows otherwise. And if we dig deeper into the Crew’s obscenity case, we can begin to see, perhaps, that copyright law even played some part in the favorable outcome for the group there.

In the past decade or so, there has been increasing academic interest in the relationship between the First Amendment and copyright law. 8I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17. Additionally, as content industries look for more effective methods of addressing online piracy, critics have ratcheted up their attempts to equate copyright protection with censorship. 9See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.

But what’s often ignored is the contributions of content industries to the protection and expansion of first amendment rights.

Artistic expression, political dissidence, and religious heterodoxy form a sort of free speech triumvirate that has been the target of content regulation most frequently by most societies throughout history. I previously discussed the proclivity for regulating creativity in Artistic Expression, the First Amendment, and Copyright. As the RIAA states, “The history of our nation’s music is also a history of those who would censor that creative expression, afraid of what it explores and exposes.” For a closer look at how pop music in particular has been targeted, check out The History of Banned Rock ‘n’ Roll by blogger Nikkieg23, which includes such anecdotes as this one from 1955: “Police in Bridgeport, Connecticut cancel a dance at the Ritz ballroom featuring Fats Domino. Authorities say the cancellation is because they discovered that ‘rock and roll dances might be featured'”.

2 Live Crew’s brush with obscenity resulted in a flood of academic attention. 10See Deflem’s article linked above. But the tension between ‘obscene’ music and the law had been increasing for some time before the 11th Circuit’s decision.

In 1985, the Parents Music Resource Center (PMRC) was formed to confront what was seen as a problem with pop music lyrics that were sexually suggestive or glorified violence. The Center’s founding members included several wives of politicians, including Tipper Gore, so it was able to quickly gain traction in Washington. Its goal was to pressure the music industry into taking a number of steps to prevent children from being exposed to explicit music, though some of the Center’s husbands wanted the government to step in.

Senator Hollings, whose wife was affiliated with the PMRC, said at a Senate Committee hearing on Contents of Music and the Lyrics of Records, “I will be looking from the Senator’s standpoint, not just to bring pressures to try to see if there is some constitutional provisions to tax, but an approach that can be used by the Congress to limit this outrageous filth, suggestive violence, suicide, and everything else in the Lord’s world that you would not think of. Certainly the writers and framers of our first amendment never perhaps heard this music in their time, never considered the broadcast airwaves and certainly that being piped into people’s homes willy nilly over the air.”

The RIAA strenuously opposed the PMRC’s efforts. It did agree to place warning labels on records with explicit content after initially resisting the idea, but refused the other steps suggested by the Center, seeing them as an affront to its members’ expressive integrity. In a letter to the PMRC, the RIAA said, “the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts”.

The parental advisory labels adopted by the RIAA were inspired in part by the movie rating system which the MPAA uses.

Since practically the beginning of the movie industry, the medium was subject to censorship. By the 1920’s, encouraged in part by a Supreme Court decision that the First Amendment did not protect motion pictures, 11Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916). numerous states and local governments had censorship boards — administrative bodies whose job was to determine what individuals were allowed to see. But as the film industry grew in size and importance, it began to make moves against the outright censorship of motion pictures.

The forerunner of today’s MPAA, the Motion Pictures Producers and Distributors Association, was formed in 1922 as an industry trade and lobbying organization. It began self-regulating the content of its members, fearing that censorship might make it to the federal level. From 1930 until 1968, the Motion Picture Production Code (commonly referred to as the “Hays Code” when it began) set guidelines for film studios about what type of content was appropriate. It was eventually replaced by the movie ratings system that we’re familiar with today, a voluntary system that describes rather than proscribes the content of films.

Attitudes about the legitimacy of motion pictures as expression also changed during this time. The Supreme Court went from considering films as “spectacles”, not a “part of the press of the country”  or an “[organ] of public opinion”, as stated in Mutual Film Corporation, to having “no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment” in 1948. 12US v. Paramount Pictures, 334 US 131, 166. In 1952, the Supreme Court overturned the holding in Mutual Film Corp. and recognized that the First Amendment extends to motion pictures. 13Joseph Burstyn v. Wilson, 343 US 495. The Court declared a number of movie censorship laws unconstitutional in the years that followed. 14See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).

Today, content industry groups like the MPAA and RIAA continue to work toward protecting the free expression rights of their mediums and members. For just one example, see the MPAA’s brief, joined by other trade groups and unions, in Schwarzenegger v. Entertainment Merchants Association, currently before the Supreme Court, arguing that California’s prohibition on the sale of violent video games to minors is unconstitutional.

Copyright’s Role in Protecting Rights

It’s fair to say that creators of all stripes today in the US are more free to express themselves than in decades past. Audiences too can access a wider range of ideas because of this freedom — making their own choices of what to experience rather than having those choices made for them.

And as discussed above, industry groups and trade organizations have undoubtedly played some role in the expansion of that freedom. That they have should not come as a surprise. True, they are motivated largely by self-interest. A company engaged in producing and distributing content wants the broadest latitude of what is acceptable content in a society as possible. Government limits on that latitude, like obscenity laws, increase the risks and costs of the company — either subjecting the company to liability after publication or increasing the time and money spent on ensuring compliance before publication. But self-interest is not a bad thing, as Adam Smith pointed out over 200 years ago. 15“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776). And when self-interest coincides with expanding fundamental freedoms for everyone, that’s certainly a good thing.

It also seems evident that the expansion of these rights would not have been as quick or effective absent these groups. Groups have bigger influence than individuals on policy, especially when the interests at stake are diffuse, as is the case with freedom of speech.

Most importantly, however, is the fact that the existence of content industries, and the fact that they have been able to grow and develop to such an extent, owes a great deal to the existence of copyright. The law provides a stable rights system that has encouraged the development of industries devoted solely to the creation of content for content’s sake. The amount of investment in the creative industries would be greatly diminished absent such a system.

Copyright’s role in protecting free speech rights is just one of the values it has for society. It is just one of the reasons why, despite the challenges of the law posed by digital technology and the internet, copyright should continue to serve as the framework for producing and distributing creative works rather than be discarded or hamstrung.

It’s unlikely that James Madison had this concept in mind when he talked about the Copyright Clause of the Constitution in the Federalist Papers, but his words are just as applicable. When it comes to copyright, “The public good fully coincides … with the claims of individuals.” 16Federalist No. 43.

References

References
↑1 John Leland, Singles column, Spin Magazine, pg 76 (February 1989).
↑2 I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows.
↑3 413 US 15 (1973).
↑4 960 F.3d 134 (1992).
↑5 Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992).
↑6 Campbell v. Acuff-Rose Music, 510 US 569 (1994).
↑7 Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973).
↑8 I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17.
↑9 See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.
↑10 See Deflem’s article linked above.
↑11 Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916).
↑12 US v. Paramount Pictures, 334 US 131, 166.
↑13 Joseph Burstyn v. Wilson, 343 US 495.
↑14 See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).
↑15 “It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776).
↑16 Federalist No. 43.

Friday’s Endnotes – 02/25/11

By , February 25, 2011.

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

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

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

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

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

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

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

[…]

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

Golan v Holder

By , February 22, 2011.

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

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

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

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

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

The Beginning

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

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

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

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

The Uruguay Round Agreements Act

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

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

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

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

Golan Challenges URAA

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

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

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

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

Golan I

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

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

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

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

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

Golan II

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

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

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

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

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

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

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

Golan III

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

Golan IV

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

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

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

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

Final Thoughts

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

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

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

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

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

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

References

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