Copyright and Censorship

By , January 25, 2011.

On January 19, 2011, members of New York City’s theater community and human rights supporters gathered to mark the one month anniversary of Belarus’ contested presidential election. The election was widely condemned as fraudulent, accompanied by the arrests of many peaceful protesters in Belarus with thousands more beaten.

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Members of the Belarus Free Theatre joined the gathering, having recently wrapped up a show in the City. In Europe’s last dictatorship, the Belarus Free Theatre is illegal. Shows are held in secret, with theater members and audiences subject to arrest. The members are barred from attending state universities or working in state employment. When the Belarus Free Theatre left for New York, they did so in the middle of the night, hidden in car trunks in order to avoid detection by the government. Once in the US, they heard news of their homes being ransacked, and their children being declared orphans — the government considering them “dead to the state.” The members fear arrest once they return to Belarus. 1For more on Belarus and the Belarus Free Theatre, see Zone of Silence; Why Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest.

Their crime? Performing theater.

That’s censorship.

Enforcing copyright law — whether through DMCA takedown notices, domain  name seizures, etc — is not in the same league. Yet, copyright critics almost reflexively apply the label of “censorship” to any attempt at better protecting the rights of creators.

I’ve written about free speech and copyright several times in the past: noting the sometimes shaky relationship between artistic expression, the first amendment, and copyright; discussing the chilling effect of copyright infringement and the oft-forgotten speech interests of creators; and examining first amendment arguments against COICA and domain name seizures.

Today, I want to put a bookend on these previous discussions of free speech and copyright by looking at some of the broader issues in the debate.

On Censorship

The “copyright as censorship” comparison permeates much of the discussion surrounding free speech and copyright. It’s often noted that early copyright law grew out of press licensing statutes that were passed to both protect proprietary rights of book publishers and allow governments to control seditious publications. The dual purpose of copyright law at the time is probably more coincidental than anything; France, for example, had no copyright law at that time, yet still maintained censorship over the press. 2Visit Voltaire: Voltaire Bio. Nevertheless, copyright law today is completely divorced from any sort of government control over content. If copyright is censorship, it hardly resembles the type of censorship the Belarus Free Theatre faces.

Supreme Court Justice John Marshall Harlan II described what he calls the “typical censorship situation” and its associated dangers in a 1964 dissent:

In the typical censorship situation material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower and the danger that protected expression will be repressed is less.

…

There are built-in elements in any system of licensing or censorship, the tendency of which is to encourage restrictions of expression. The State is not compelled to make an initial decision to pursue a course of action, since the original burden is on the citizen to bring a piece of writing before it. The censor is a part of the executive structure, and there is at least some danger that he will develop an institutionalized bias in favor of censorship because of his particular responsibility. In a criminal proceeding, however, the burden is on the State to act, the decision-maker belongs to an independent branch of the government, and neither a judge nor a juror has any personal interest in active censorship.

…

One danger of a censorship system is that the public may never be aware of what an administrative agent refuses to permit to be published or distributed. A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines. 3Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964).

Thankfully, this “typical censorship situation” is largely an anachronism in the US today. It is worth noting some of Harlan’s points about what makes administrative censorship so dangerous to free expression, especially an institutionalized bias in favor of active censorship. Also notable is the distinction between executive censor and criminal proceeding — with less danger of restrictions on expression under the latter. This danger is attenuated further when we’re in a civil proceeding between two private parties, as most copyright infringement cases are.

However, what Harlan doesn’t talk about in this particular passage is the sine qua non of censorship: restricting expression because of disagreement over its content. Government censorship is typically targeted at suppressing politically dissident speech, or obscene and other “inappropriate” speech. This is where copyright as censorship arguments falter. It’s illogical to say that enforcement of piracy is based on a disagreement about the content — a copyright owner agrees completely with the content. 4Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.” Cases of creative or transformative infringement do sometimes present issues where a copyright owner sues to stop a subsequent use she disagrees with, but as we’ll see, the doctrine of fair use provides a safeguard against censorship.

Prior Restraints

Closely related to censorship is the idea of “prior restraints.” In the First Amendment realm, prior restraints — suppression of speech before a final judicial determination that it is unprotected speech — are considered worse than punishment after speech has been made. 5Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.” Courts consequently take a deeply skeptical look at any type of law or regulation that resembles a prior restraint. This includes preliminary injunctions in civil lawsuits because they are granted only on the basis that speech is likely to be unprotected.

Yet courts routinely award preliminary injunctions in copyright infringement cases. The Supreme Court has even gone so far as to say that “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” 6New York Times v. US, 403 US 713, White concurrence n.1 (1971).

What is it that makes courts treat copyright cases differently than other speech cases? The following excerpt provides a hint:

Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts. But in the words of New York’s Chief Judge Fuld:

“The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.”

Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value. 7Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985).

First Amendment Opportunism

Before delving into the issue of the First Amendment and copyright, I want to take a quick look at the issue of “First Amendment opportunism.” 8A term coined by Frederick Schauer in First Amendment Opportunism. Free speech is one of the foundations of a democratic society. Censorship, the kind the Belarus Free Theatre faces, is ugly. As we’ll see, the question of whether copyright law adequately accounts for free speech is increasingly being asked, as well it should. But coloring the debate by alleging censorship — comparing the removal of a dancing baby video from a corporate video site to violent suppression of political dissidents — is a damaging use of hyperbole. It both minimizes the horrors of true censorship and paints opponents as evil rather than wrong.

At the same time, such language is merely an outgrowth of First Amendment opportunism in the copyright realm. What do I mean by this?

In some ways, the First Amendment is the “won’t somebody think of the children” of the legal world.

First Amendment scholar Frederick Schauer explains, “[T]he First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority. The individual or group gaining the support of the First Amendment often believes, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also appears to strike fear in the hearts of many who do not want to be seen as being against it.” Schauer calls this “First Amendment magnetism” and says it “leads strategic actors to gravitate to it as easily as politicians gravitate to the flag, motherhood, and apple pie.”

The magnetic force of the First Amendment generates two distinct phenomena. First, actors in the public arena (defined here to exclude the courts) are likely to rely on the First Amendment in pressing their causes, in the often-justified expectation that doing so will disproportionately, compared to relying on other dimensions of the law, attract allies, generate favorable attention by the press, and arouse the sympathies of other public actors. Second, lawyers representing clients with claims and causes not necessarily lying within the First Amendment’s core or traditional concerns will add First Amendment arguments and claims to their core claims, or will modify their core claims to connect them with First Amendment arguments, all in the hope that doing so will increase the probability of their success. 9Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).

David McGowan has attributed much of the growing trend in constitutionalizing copyright to this First Amendment magnetism. He notes:

Many copyright scholars object to the way Congress deals with their subject. With good reason, they feel Congress wields a copyright ratchet: terms get longer, and the scope of rights gets wider, but never the reverse. The rare exception occurs when publishers ask Congress to shore up fair use rights to make it easier for authors to get information they need to produce works. On this account, Congress is simply a tool rich media conglomerates use to soak consumers, who are rationally ignorant of the shameless fleecing their “representatives” give them.

It’s no fun beating one’s head against a wall. So if the representative branches sell out, at least by academic standards, their power to do harm must be limited. Two things are needed: a non-representative forum, to limit the power of producer wealth, and a law that trumps Congress’s Article I power to grant exclusive rights to authors. The First Amendment seems like just the thing. Like copyright, it deals with expression, which makes almost any argument facially plausible. More importantly, in a conflict with Congress’s Article I power, the First Amendment trumps. 10David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004).

This isn’t to say that First Amendment magnetism is the same as naked opportunism, though it’s worth noting that this opportunistic use of free speech shows its head in practice. In 1879, one writer observed that “the ever active demagogue has been able to frame a cry of “free books for free men.” It is wonderful what an amount of things “free” men are entitled to have free. Free books, free and unlimited currency, free support from the State, etc., are supposed to have some connection with free speech, freedom of religion, and free trade, and therefore to be proper and valid cries. 11Book Notices, 391 Yale Literary Journal 287 (April 1879). Courts have called out alleged infringers for “hiding behind the first amendment.” 12Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972). Even free speech critics have made note of a naked First Amendment opportunism. L. Ray Patterson notes that courts have consistently rejected First Amendment defenses in infringement actions but states that “in general, these cases were sound in rejecting the free speech defense as being the last refuge of an infringing scoundrel.” 13Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987).

What we’re talking about here is an opportunism in the nonpejorative sense. Recognizing the existence of this First Amendment magnetism is important when discussing copyright law. The issue is not one of copyright versus free speech, no matter how often it is framed as greedy creators against defenders of the First Amendment.

With that in mind, let’s take a look at the brief history of copyright and the First Amendment.

Copyright and the First Amendment: A Brief History

The US Constitution, which grants Congress the power to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” was completed September 17, 1787. It officially went into effect March 4, 1789. The first federal copyright law, the Copyright Act of 1790, was signed by President Washington on May 31, 1790. The First Amendment was adopted December 15, 1791.

For nearly 200 years, the relationship between the first amendment and copyright law received little if any attention from courts or scholars. This is not entirely surprising if you consider the fact that first amendment free speech jurisprudence as a whole has only emerged within the past hundred years. 14See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999.

This changed in 1969 when Melville Nimmer asked Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press? 15Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969). Two more articles, by Paul Goldstein and Lionel Sobel followed shortly afterward — with Sobel’s article presciently asking about a “gathering storm” between copyright and the first amendment. 16Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971). Over the next several decades, the clouds slowly gathered with occasional articles on the subject. 17Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996). With the enactment of the Copyright Term Extension Act and the Digital Millennium Copyright Act in the late 90s, the storm clouds finally broke; the relationship between copyright and free speech grabbed a lot of attention from scholars. 18See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). Taken as a whole, the academic literature has shown an increased effort at “constitutionalizing” copyright, offering a “free speech critique” of copyright. 19A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).

But despite all this academic attention toward a conflict between copyright and free speech, courts have consistently rejected separate First Amendment defenses in copyright infringement cases. On its face, this point understandably creates confusion; it’s easy to think that copyright is thus corrosive to free speech values. That’s not the case though.

As it turns out, copyright itself incorporates many of the same speech values that the First Amendment does.

Copyright’s Free Speech Values

The Supreme Court has on several occasions described copyright as the “engine of free expression.” By providing incentives to invest in creating and disseminating works, copyright drives new expression and ideas into the public sphere, benefiting everyone. Copyright infringement, especially wholesale piracy, short-circuits these incentives, creating a chilling effect on the creation of new works. Creators also have a continuing speech interest in their works, which copyright helps protect.

Copyright and the First Amendment thus serve many of the same values, just in different ways. They coexist rather than contradict. Lon Sobel explains this coexistence by demonstrating that the two operate in different spheres of influence:

The purpose of the first amendment is to guarantee freedom of expression. As Thomas I. Emerson had indicated, freedom of expression is necessary 1) to assure individual self-fulfillment, 2) to attain the truth, 3) to secure participation by the members of society in social and political decision making, and 4) to maintain a balance between stability and change in society.

Clearly none of these reasons for free expression is violated by the Copyright Act.

Individual self-fulfillment requires that man be free to express the beliefs and opinions he has formed in the process of developing his mind. As Emerson explained, expression is in fact an integral part in the development of ideas. “Hence suppression of … expression is an affront to the dignity of man.”

However, the expression of the beliefs and opinions of another, using the exact words the other used, is not any part of the development of one’s own ideas. True, “‘A dwarf standing on the shoulders of a giant can see farther than the giant himself.'” But any consideration of the ideas of another which is thoughtful enough to provoke new ideas in the mind of the reader, should also be thoughtful enough to enable the reader to restate his own new ideas. Thus, the Copyright Act prohibition of word-for-word copying of another can hardly be thought of as “an affront to the dignity” of the one who would have otherwise copied. The Copyright Act is merely an impediment to the one who would reap where he has not sown.

The attainment of truth depends upon free expression because no person or group can possess all knowledge. Truth is distilled from the volatile mixture of opposing opinions. But the expression of an opinion already expressed by another — in the same words used by that other — adds nothing to the search for truth. It is merely the repetition of an opinion that was already available from its original source. Nor is it an answer to allege that the infringer may be supplying customers the copyright holder was unable to supply. It is freshman economics that supply — to the extent it is variable — will increase to meet the demand.

Since the ascertainment of truth depends upon the consideration of every relevant fact and opinion, it is important that all members of society participate in social and political decision-making. Freedom of expression is necessary in order for people to participate truthfully and fully. Moreover, since, as the Declaration of Independence states, governments derive “their just powers from the consent of the governed,” the governed must have the freedom to express their consent — or lack of it. However, what is important in this regard is the participation of one’s self in the decision-making processes. The man who has expressed and copyrighted his own views has already contributed those views. The government is not further assisted by one who merely parrots that which has already been said. Therefore, copyright laws do not impede any useful participation in the decision-making processes.

[…]

In the sum and substance, the first amendment was designed to encourage and protect the communication of diverse ideas. Copyright laws, protecting as they do only particular expressions, do not conflict with any of the first amendment’s purposes. 20Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971).

Copyright’s Internal Handling of Free Speech

If copyright law and the First Amendment coexist, does that mean they never contradict? Of course not. But courts’ handling of First Amendment issues in copyright cases differs from its handling of First Amendment issues in other types of cases.

To understand why, we need to first look a little closer at how courts deal with free speech arguments in general. One District Court provides a little background:

Courts often have spoken of certain categories of expression as “not within the area of constitutionally protected speech” … But such judicial statements in fact are not literally true. All modes of expression are covered by the First Amendment in the sense that the constitutionality of their “regulation must be determined by reference to First Amendment doctrine and analysis.” Regulation of different categories of expression, however, is subject to varying levels of judicial scrutiny. Thus, to say that a particular form of expression is “protected” by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment. 21Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000).

In one sense, all laws or regulations impact free speech to some extent. “[E]very civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,” said the Supreme Court in Arcara v. Cloud Books. 22478 US 697, 706 (1986). “One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim. Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders.”

Frederick Schauer points out an important distinction between the “coverage” and the “protection” of the First Amendment. He notes:

Like any legal rule, the First Amendment is not infinitely applicable. Though many cases involve the First Amendment, many more do not. Thus, the acts, events, behaviors, and restrictions not encompassed by the First Amendment at all, that remain wholly untouched by the First Amendment, are the ones we will describe as not being covered by the First Amendment. It is not that the speech (or anything else) is not protected by the First Amendment. Rather, it is that the entire event does not present a First Amendment issue at all, and the government’s action is consequently measured against no First Amendment standard whatsoever. The First Amendment simply does not show up.

When the First Amendment does show up, the full arsenal of First Amendment rules, principles, maxims, standards, canons, distinctions, presumptions, tools, factors, and three-part tests becomes available to determine whether the particular speech will actually wind up being protected. 23The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).

What sets copyright apart from other “speech” cases — obscenity, libel, “fighting words,” etc. — is that both the coverage and the protection of the First Amendment are handled internally rather than through the panoply of “rules, principles, maxims, standards,” and so on. The two major “built-in free speech safeguards” in copyright law are the idea-expression dichotomy and fair use.

Copyright protection doesn’t cover ideas, only the expression of those ideas. This distinction between ideas and expression has been called a “definitional balance” between free speech and copyright interests — a line between what is covered by the first amendment and what is not. Copyright provides an incentive to create and disseminate expression. By extension, the ideas expressed are also disseminated, benefiting the public. But protection ends where expression ends, and anyone is free to use the ideas in any given work. In a sense, the first amendment protects this “marketplace of ideas” but doesn’t extend to a “right to copy.” 24See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” Or, as one court bluntly put it:

We do not find any denial of freedom of expression to the “tape pirate”. What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance. 25US v. Bodin, 375 F.Supp 1265).

The fair use doctrine recognizes that some uses of copyrighted expression without the permission of the copyright owner are beneficial. Prior to the infusion of First Amendment rhetoric into the copyright realm, fair use was seen as an important component in furthering copyright’s constitutional purpose:

There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very “Progress of Science and useful Arts” that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had gone before him.The scholar, like the ordinary user, of course could be left to bargain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference between the scholar and the ordinary user. When the ordinary user decides that the owner’s price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar’s work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author’s expense — to permit the second author to make limited use of the first author’s work for the public good. 26Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973).

At the same time, fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright. 27For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978). The rationale is much the same. The only difference is a shift in framing the purpose of fair use as upholding first amendment values rather than progress of the useful arts and sciences values.

Think of it this way. the idea-expression distinction sets the boundaries of what is covered by the First Amendment. The question is not whether using another’s expression is “protected” or “unprotected” but rather whether it falls within the First Amendment’s scope at all. Even then, we have long recognized that some uses of expression should be allowed, and that’s where fair use kicks in. Fair use balances the free speech interests of the public and subsequent creator against those of the original creator.

Both these doctrines adequately address first amendment concerns within copyright law. The free speech critique of copyright essentially argues that courts should address these concerns a second time in a separate analysis. But to date, courts have found no need to ask the same question twice.

References

References
↑1 For more on Belarus and the Belarus Free Theatre, see Zone of Silence; Why Belarus Free Theatre deserves a standing ovation; and Police ‘threatened to rape’ Belarus Free Theatre director after election protest.
↑2 Visit Voltaire: Voltaire Bio.
↑3 Harlan dissent, Quantity of Copies of Books v. Kansas, 378 US 205, 222-24 (1964).
↑4 Schnapper v. Foley, 667 F.2d 102 (DC Cir 1981), discusses the hypothetical situation of the government using copyright as a pretext for actual censorship. The court said, “Underlying the appellants’ First Amendment assault on the copyright obtained for ‘Equal Justice Under Law’ is their professed concern that the Government may one day attempt to use the copyright law as an instrument of censorship … We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship … We are unaware, however, of any effort on the part of the United States Government to throttle free expression through use of the copyright laws, and we are not inclined to hypothesize such an effort nor to hand down a decision invalidating an act of Congress on that hypothetical basis … We are confident that should the day come when the Government denies someone access to a work produced at its direction on the basis of a copyright, and if the doctrine of fair use and the distinction between an idea and its expression fail to vindicate adequately that person’s interests — although we have no reason to believe that they would — the courts of the United States would on the basis of facts, not hypotheses, consider afresh the First Amendment interests implicated thereby.”
↑5 Blackstone defined freedom of the press as freedom solely from prior restraints, “not in freedom from censure for criminal matter when published.”
↑6 New York Times v. US, 403 US 713, White concurrence n.1 (1971).
↑7 Harper & Row v. Nation Enterprises, 471 US 539, 559-60 (1985).
↑8 A term coined by Frederick Schauer in First Amendment Opportunism.
↑9 Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).
↑10 David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U. Pitt. L. Rev. 281 (2004).
↑11 Book Notices, 391 Yale Literary Journal 287 (April 1879).
↑12 Sid & Marty Krofft Television v. McDonald’s, 562 F.2d 1157, 1170-71 (9th Cir 1977), referring to Duchess Music Corp. v. Stern, 458 F.2d 1305, 1310-11 (9 Cir. 1972); United States v. Bodin, 375 F.Supp. 1265, 1267-68 (W.D.Okl.1974);McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971) and Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972).
↑13 Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 36 n.110 (1987).
↑14 See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000); but cf. David M. Rabban, Free Speech in its Forgotten Years, Cambridge Univ. Press 1999.
↑15 Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969).
↑16 Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971).
↑17 Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review 665 (1992); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996).
↑18 See, for example: Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Copyright Cases, 48 Duke L.J. 147 (1998); Neil Weinstock Netanel, Asserting Copyright’s Democratic Principles in the Global Arena, 51 Vanderbilt Law Review 217 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vanderbilt Law Review 1879 (2000); Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2000); Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833 (2000); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001); C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright Extension Act Is Unconstitutional, 36 Loyola Law Review 83 (2002); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP. PROBS. 173 (2003); Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003); William W. Van Alstyne, Reconciling What the First Amendment Forbids with What the Copyright Clause Permits: A Summary Explanation and Review, 66 LAW & CONTEMP. PROBS. 225 (2003); Eugene Volokh, Essay, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 HOUS. L. REV. 697 (2003); Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004); Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272 (2004); Rebecca Tushnet, Essay, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535 (2004); Timothy Wu, Copyright’s Communications Policy, 103 MICH. L. REV. 278 (2004); Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the “Digital Millennium”, 89 MINN. L. REV. 1318 (2005); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010).
↑19 A phrase used by David McGowan in Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).
↑20 Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43, 71-74 (1971).
↑21 Universal City Studios v. Reimerdes, 111 F.Supp.2d 294, 326 (SDNY 2000).
↑22 478 US 697, 706 (1986).
↑23 The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harvard Law Review 1765 (2004).
↑24 See Eldred v. Ashcroft, 537 US 186, 221 (2003): “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”
↑25 US v. Bodin, 375 F.Supp 1265).
↑26 Sony Corp v. Universal City Studios, 464 US 417, 477-78 (1984); see also Williams & Wilkins v. US, 487 F.2d 1345, 1352-53 (Ct of Claims 1973).
↑27 For example: Nihon Keizai Shimbum v. Comline Business Data, 166 F.3d 65 (2nd Cir. 1999); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978).

Domain Name Seizures Don’t Violate First Amendment

By , January 17, 2011.

Earlier this month, Techdirt posted a rebuttal to my article on last November’s domain name seizures. If you recall, the warrant and affidavit for the seizure of five domain names as part of the US government’s Operation in Our Sites 2.0 made its way online. Techdirt initially pointed out what it saw as errors in the warrant and affidavit in a series of posts. I responded by noting that whatever errors are in the warrant and affidavit are largely irrelevant. Seizure warrants must only show probable cause that the property in question was used to facilitate the commission of a crime — not prove it.

Techdirt followed up:

[T]he biggest flaw in Hart’s argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required … In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause.

Fair enough. Let’s pay some attention to whether these seizures violate the First Amendment.

We’re talking here about “prior restraints”. The doctrine can be summed up as “speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment”, 1Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). though the simplicity of that statement belies the complexities and nuances of the doctrine that courts have wrestled with as they’ve applied it.

In the US, prior restraints on speech are considered worse than punishments given after speech is made. Courts are especially suspicious of prior restraints; but at the same time, they recognize that simply labeling something a “prior restraint” does little. As the Supreme Court explained in Kingsley Books v. Brown:

The phrase “prior restraint” is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: “What is needed,” writes Professor Paul A. Freund, “is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.” 2354 US 436, 441-42 (1957).

In this case, we’re talking here about whether the seizure — the initial taking of the property into governmental custody to initiate forfeiture proceedings — is an impermissible prior restraint. Whether the ultimate forfeiture of these domain names violates the First Amendment is a completely separate question; though, for purposes of this article, I’m assuming that they would not. Forfeiture after a final judicial determination generally doesn’t raise First Amendment issues, even if it results in some blocking of protected speech. 3See, eg, Arcara v. Cloud Books, 478 US 697 (“Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises”); 511 Detroit Street v. Kelley, 807 F.2d 1293 (6th Circ. 1986) (“We refuse to hold that a statute threatening fines that could impair the operation of a business is an impermissible prior restraint on expression, even where that business also involves dissemination of protected materials. The fact that a person does some business disseminating protected materials cannot immunize that person from large fines that may be imposed for violation of criminal law”); A&M Records v. Napster, 114 F.Supp.2d 896 (ND Ca 2000) (“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.'”); US v. Pryba, 674 F.Supp. 1504 (ED Va 1987) (“The First Amendment cannot be a shield for criminal activity … The forfeiture remedy, properly construed and applied, does not impermissibly restrain further dissemination of speech”).

The argument that these domain name seizures violate the First Amendment comes down to timing: does the First Amendment require a hearing before the domain name is seized, or are the procedures available after a seizure occurs — the Rule 41(g) motion, the actual forfeiture proceedings, etc — adequate? 4Techdirt, then, is not quite correct in asserting that the domain name seizures have occurred with no adversarial hearing. As I pointed out earlier, the forfeiture complaint for the first round of domain name seizures was filed in court last month, providing for a hearing.

The answer to that question is actually not an easy one to answer. As far as I know, no court has heard a First Amendment challenge to the seizure of a domain name as property used in the facilitation of a crime in order to be forfeited. 5In CDT v. Pappert, 337 F.Supp.2d 606, a District Court struck down a state law requiring ISP’s to block access to web sites providing child pornography because it was overbroad for First Amendment purposes. But while the process used to block access to the sites was sometimes similar to the procedure used by ICE to seize these domain names, the similarities end there: (1) the state law involved obscenity rather than copyright infringement,  (2) ISP’s frequently blocked entire IP addresses rather than single domains, resulting in the blocking of thousands of unrelated and innocent web sites since multiple web sites can share the same IP address, and (3) the law provided no meaningful notice or hearing to owners of sites that had been blocked. CDT is simply not applicable to these seizures.

As I see it, we’re actually dealing with three separate questions here.

  1. Are the domain names that have been seized considered “expressive content” such that a higher bar than seizure of ordinary property is required?
  2. Are the seizures predicated on presumptively protected speech — the allegedly infringing works disseminated on the sites — so that, in effect, they are akin to seizing expressive content and thus require the same higher bar?
  3. Is there a high enough burden caused by the seizures on the other expressive content on these web sites — message boards, blog posts, etc — making these seizures an impermissible prior restraint?

I’ll take a look at each of these questions in turn.

The Expressive Content of Domain Names

As Techdirt correctly points out, the seizure of expressive works differs from the seizure of other types of property. From Constitution of the United States, Analysis and Interpretation:

Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases. Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures … Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity.

The Supreme Court has struck down several large-scale seizures of allegedly obscene materials, which are presumptively protected by the First Amendment — Marcus v. Search Warrant, 367 US 717 (1961); Quantity of Copies of Books v. Kansas, 378 US 205 (1964); Fort Wayne Books v. Indiana, 489 US 46 (1989). Of these, though, only Quantity of Copies of Books explicitly held that a hearing was required before the seizure. 6Some courts and commentators have stated that Fort Wayne does as well. However, I would argue, as at least one other court has, that Fort Wayne does not, in fact, state such a rule. The rule the Court did state is far more elusive: “while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” A Missouri District Court, however, explains that rather than a lack of pre-seizure hearing, theFort Wayne seizure was improper because “it was premised upon the fact that ‘the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect.’ Since there had been no preseizure hearing to establish probable cause on the issue of obscenity, the Court reasoned that probable cause to believe a RICO violation had occurred was inadequate to remove allegedly obscene books or films from circulation.” BAP v. McCulloch, 994 F.Supp. 1131, ED Mo. 1998.

The Court has also upheld as constitutional the seizure of a limited number of copies of materials to preserve as evidence — Heller v. New York, 413 US 483 (1973); New York v. PJ Video, 475 US 868 (1986). These seizures didn’t require a prior hearing, only a prompt adversary hearing. 7Another case I’ve seen mentioned is Bantam Books v. Sullivan, 372 US 58 (1963). I don’t believe the case is applicable here; what’s more, it says little about the issue of the timing of hearings for prior restraint, saying only that prior restraints are tolerated when the judicial determination is “almost immediate.”

So how do we fit the domain name seizures within these cases?

We don’t.

All of the above cases involve the seizure of an expressive work because of the content. Whether the seizure is for the purpose of evidence or forfeiture, the fact remains that what was seized was seized because of the message it conveyed — most often, that message being allegedly obscene.

But with the domain names at issue, the seizures were not based on the content of the domain name itself. The web sites could be called “torrent-finder.com”, “xyyzzx.com” or even “piracy-harms-creators.com” — the name itself is irrelevant. Instead, these seizures were made because the domain  names are allegedly property 8As to the question of whether or not domain names can be considered property used to facilitate a crime for purposes of 18 USC § 2323, the answer is most likely yes. The 9th Circuit has used a three-part test to determine if something is property: (1) “There must be must be an interest capable of precise definition”, (2) “it must be capable of exclusive possession or control”, (3) “the putative owner must have established a legitimate claim to exclusivity”. (Kremen v. Cohen, 337 F.3d 1024). The court concluded that “domain names satisfy each criterion.” In addition, courts have ordered the forfeiture of domain names as part of criminal copyright infringement sentences — see, eg, here and here. Under 18 USC § 2323, the definitions for property subject to criminal forfeiture and civil forfeiture are the same. used to facilitate the commission of a crime (copyright infringement). 9As to the question of whether linking to infringing material can be considered facilitating the commission of copyright infringement, the answer again is likely yes. See Eugene Volokh, Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), citing “Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (holding that the publisher of a link to an infringing site may be contributorily liable for the infringement that the link facilitates); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293-96 (D. Utah 1999) (enjoining defendants from ‘post[ing] on defendants’ website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff’s copyright’); 17 U.S.C. § 512(d) (2000) (providing a safe harbor from damages liability to people who link or refer to infringing material, but only if they didn’t know it was infringing); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455-58 (2d Cir. 2001) (enjoining publication of links to a page containing material that violated the Digital Millennium Copyright Act)”.

Domain names themselves can contain expressive content, though admittedly not much. Whether or not the First Amendment is implicated in any sort of regulation that targets domain names is all about context: domain names are not automatically entitled to or excluded from First Amendment protections. “The appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.” 10Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Circ. 2005) quoting Name.Space v. Network Solutions, 202 F.3d 573 (2nd Circ. 2000).

Perhaps the area where the First Amendment comes into play with domain names most often involves so-called “gripe sites.” The Anticybersquatting Consumer Protection Act (ACPA) allows for the forfeiture of domain names similar to a trademark owner’s mark when they were registered in bad faith — ie, for the sole purpose of selling the domain name to the trademark owner. But here, just as with obscene books, it’s the content of the domain name itself at issue. ACPA gives way to the First Amendment when the domain name is used to express an opinion rather than as a trademark.

The cases above just don’t apply here. The domain names seized are not like books — ICE didn’t target them because it disagreed with what the site owner called the site. Even if a court recognizes a specific domain name as containing an expressive element, it is unlikely to prohibit its seizure under these circumstances. 11For a similar First Amendment analysis, check out Aaron Burstein, Stopping Internet-Based Tobacco Sales, 16 Health Matrix 279 (2006) which concludes that domain name seizure is a permissible commercial speech regulation.

Seizure as Pretext

Our analysis doesn’t stop here. It could be argued that the seizure of these domain names is predicated on their role in copyright infringement. If the seizures were, for example, predicated on allegedly being obscene or libelous, they might be impermissible prior restraints. That is, until there is a final judicial determination that the content of the sites is obscene or libelous, the content is assumed to be protected speech, so any attempt to block it before such a determination is not allowed by the First Amendment.

This argument can be quickly dismissed. Copyright infringement is simply not treated the same as obscenity or libel for First Amendment purposes. One example of this is that preliminary injunctions are routinely granted in copyright infringement cases while they are routinely denied in libel or obscenity cases due to the risk of prior restraint. While many have argued that copyright law should be subjected to heightened First Amendment scrutiny, the fact remains that courts have yet to accept this argument. 12See Eldred v. Ashcroft, 537 US 186 (2003): “The First Amendment securely protects the freedom to make— or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.” “Or, we add, to copy, or enable the copying of, other people’s music,” In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).

But even among those who question the traditional treatment of copyright and the First Amendment, a distinction is made between creative and consumptive infringement. Mark Lemley and Eugene Volokh, who argue that preliminary injunctions in copyright cases are unconstitutional, don’t believe their argument reaches to “piracy and other ‘easy’ cases.” As they explain:

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

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

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement … courts can, pursuant to the Copyright Act’s authorization, preliminarily enjoin speech that clearly falls within the “copyright exception” without violating the First Amendment. So long as there’s a reliable determination on the merits that the speech does fall within the exception–rather than just a finding that the speech might fall within the exception–courts may act even based on only a tentative determination of other, constitutionally irrelevant, factors related to the copyright claim. This may inadvertently lead to temporary suppression of speech that ultimately proves to be noninfringing, but it won’t lead to temporary suppression of speech that is constitutionally protected. (Emphasis added) 13Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).

In other words, what Lemley and Volokh are saying, and what courts have implied over the years, is that the type of wholesale copying of a work present on the sites whose domain names were seized — as opposed to copying that falls within the bounds of fair use or is somehow transformative in nature — is not free speech within the First Amendment. It may be authorized by the copyright owner, but it is not protected by the Constitution.

We can think of seizures as cousins of preliminary injunctions — both deprive the alleged infringer of something before a full determination on the  merits. If preliminary injunctions in copyright cases — especially ones involving piracy or consumptive infringement — aren’t prior restraints, than neither are seizures.

Incidental Burdens

The final argument is that seizing these domain names impacts the expressive content on web sites unrelated to infringing works — forum and blog posts, articles, public domain works being shared, etc. There’s no question that seizing a domain name has some impact on whatever content exists on a web site. The question is whether this impact violates the First Amendment.

The challenge here is that one could argue that just about every law or regulation impacts free speech. Being thrown in prison limits your ability to speak to the public; a fine reduces the amount of money you have to spend on disseminating your message. 14See Arcara v. Cloud Books, 478 US 697, 706 (1986).

We need some way to sort out when a law that isn’t aimed at speech but has an incidental impact on speech runs afoul of the First Amendment and when it doesn’t. The Supreme Court has provided one way to sort this out: when the conduct that a generally applicable law is aimed at contains an expressive element, then the application of that law in that case must take the First Amendment into consideration, otherwise, the First Amendment doesn’t apply.

In US v. O’Brien, the defendant was charged with destroying his Selective Service registration certificate during a protest. The Court noted that while the law prohibiting mutilation of such cards was aimed at nonexpressive conduct, in this case the burning of the card was done to express an opinion. The Court then provided a test, still followed today, to determine if the First Amendment was violated in situations like this. That test provides that, when conduct prohibited by law contains an expressive element, the First Amendment is not violated if the law in question (1) “is within the constitutional power of the Government”, (2) “furthers an important or substantial government interest”, (3) “the governmental interest is unrelated to the suppression of free expression”, and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 15391 US 367, 377 (1968). Ultimately, O’Brien’s conviction was upheld under this test.

If O’Brien applies to these domain name seizures, there is a chance they are not allowed under the First Amendment. The seizures almost certainly satisfy the first three prongs of the test: copyright is specifically authorized in the constitution, 16US Const. Art 1 § 8. protecting copyrighted works from online piracy furthers an important government interest, 17See, for example, the 2010 Joint Strategic Plan on Intellectual Property Enforcement: “Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that.” and the seizures are certainly not aimed at suppressing whatever is being said on these web sites’ forums. That leaves the fourth prong, and while I can see making an argument that seizing the domain name of a web site places too great a burden on free speech, I’m inclined to think it doesn’t. The expressive content is still available online, it can be accessed by IP address, and getting a new domain name for the site is a nominal process (something many of the site owners did). 18I also don’t think the burden these seizures place on the site visitor’s right to access the content on these sites violates the First Amendment, in line with Supreme Court rulings like Kleindienst v. Mandel, 408 US 753 (1972).

However, it’s more likely that O’Brien doesn’t apply here. The Court in Arcara v. Cloud Books held that O’Brien only applies “where it was conduct with a significant expressive element that drew the legal remedy in the first place.” When the conduct a law targets lacks an expressive element, then the First Amendment doesn’t apply, even though the law effectively blocks incidental, protected expression.

The conduct targeted here is copyright infringement, not posting in message boards. The unauthorized distribution of copyrighted works is not protected by the First Amendment. These web sites were not involved in any sort of expressive activity through such copyright infringement. Since the seizure of their domain names was aimed at preventing this conduct, Arcara controls, and the First Amendment is not implicated. 19See Sequoia Books v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) for a court applying Arcara to a case involving forfeiture.

Conclusion

The effectiveness of these seizures remains to be seen. This story indicates that in some cases, they do seem to have had some disruptive effect. And if Congress passes a new version of the Combating Online Infringement and Counterfeits Act, this method of addressing online piracy will become even more effective.

Regardless of their ultimate effectiveness, the fact remains that reducing online piracy requires innovative approaches. Seizing domain names of sites dedicated to piracy is one such novel approach — one that does not damage freedom of speech.

The Supreme Court has said in the past:

It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice. See Tigner v. Texas, 310 U. S. 141, 148. If New York chooses to subject persons who disseminate obscene “literature” to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that “Liberty of speech, and of the press, is also not an absolute right,” 283 U. S., at 708, it likewise made clear that “the protection even as to previous restraint is not absolutely unlimited.” 20Kingsley Books v. Brown, 354 US 436 (1957).

References

References
↑1 Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
↑2 354 US 436, 441-42 (1957).
↑3 See, eg, Arcara v. Cloud Books, 478 US 697 (“Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises”); 511 Detroit Street v. Kelley, 807 F.2d 1293 (6th Circ. 1986) (“We refuse to hold that a statute threatening fines that could impair the operation of a business is an impermissible prior restraint on expression, even where that business also involves dissemination of protected materials. The fact that a person does some business disseminating protected materials cannot immunize that person from large fines that may be imposed for violation of criminal law”); A&M Records v. Napster, 114 F.Supp.2d 896 (ND Ca 2000) (“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.'”); US v. Pryba, 674 F.Supp. 1504 (ED Va 1987) (“The First Amendment cannot be a shield for criminal activity … The forfeiture remedy, properly construed and applied, does not impermissibly restrain further dissemination of speech”).
↑4 Techdirt, then, is not quite correct in asserting that the domain name seizures have occurred with no adversarial hearing. As I pointed out earlier, the forfeiture complaint for the first round of domain name seizures was filed in court last month, providing for a hearing.
↑5 In CDT v. Pappert, 337 F.Supp.2d 606, a District Court struck down a state law requiring ISP’s to block access to web sites providing child pornography because it was overbroad for First Amendment purposes. But while the process used to block access to the sites was sometimes similar to the procedure used by ICE to seize these domain names, the similarities end there: (1) the state law involved obscenity rather than copyright infringement,  (2) ISP’s frequently blocked entire IP addresses rather than single domains, resulting in the blocking of thousands of unrelated and innocent web sites since multiple web sites can share the same IP address, and (3) the law provided no meaningful notice or hearing to owners of sites that had been blocked. CDT is simply not applicable to these seizures.
↑6 Some courts and commentators have stated that Fort Wayne does as well. However, I would argue, as at least one other court has, that Fort Wayne does not, in fact, state such a rule. The rule the Court did state is far more elusive: “while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” A Missouri District Court, however, explains that rather than a lack of pre-seizure hearing, theFort Wayne seizure was improper because “it was premised upon the fact that ‘the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect.’ Since there had been no preseizure hearing to establish probable cause on the issue of obscenity, the Court reasoned that probable cause to believe a RICO violation had occurred was inadequate to remove allegedly obscene books or films from circulation.” BAP v. McCulloch, 994 F.Supp. 1131, ED Mo. 1998.
↑7 Another case I’ve seen mentioned is Bantam Books v. Sullivan, 372 US 58 (1963). I don’t believe the case is applicable here; what’s more, it says little about the issue of the timing of hearings for prior restraint, saying only that prior restraints are tolerated when the judicial determination is “almost immediate.”
↑8 As to the question of whether or not domain names can be considered property used to facilitate a crime for purposes of 18 USC § 2323, the answer is most likely yes. The 9th Circuit has used a three-part test to determine if something is property: (1) “There must be must be an interest capable of precise definition”, (2) “it must be capable of exclusive possession or control”, (3) “the putative owner must have established a legitimate claim to exclusivity”. (Kremen v. Cohen, 337 F.3d 1024). The court concluded that “domain names satisfy each criterion.” In addition, courts have ordered the forfeiture of domain names as part of criminal copyright infringement sentences — see, eg, here and here. Under 18 USC § 2323, the definitions for property subject to criminal forfeiture and civil forfeiture are the same.
↑9 As to the question of whether linking to infringing material can be considered facilitating the commission of copyright infringement, the answer again is likely yes. See Eugene Volokh, Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), citing “Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (holding that the publisher of a link to an infringing site may be contributorily liable for the infringement that the link facilitates); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293-96 (D. Utah 1999) (enjoining defendants from ‘post[ing] on defendants’ website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff’s copyright’); 17 U.S.C. § 512(d) (2000) (providing a safe harbor from damages liability to people who link or refer to infringing material, but only if they didn’t know it was infringing); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455-58 (2d Cir. 2001) (enjoining publication of links to a page containing material that violated the Digital Millennium Copyright Act)”.
↑10 Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Circ. 2005) quoting Name.Space v. Network Solutions, 202 F.3d 573 (2nd Circ. 2000).
↑11 For a similar First Amendment analysis, check out Aaron Burstein, Stopping Internet-Based Tobacco Sales, 16 Health Matrix 279 (2006) which concludes that domain name seizure is a permissible commercial speech regulation.
↑12 See Eldred v. Ashcroft, 537 US 186 (2003): “The First Amendment securely protects the freedom to make— or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.” “Or, we add, to copy, or enable the copying of, other people’s music,” In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).
↑13 Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
↑14 See Arcara v. Cloud Books, 478 US 697, 706 (1986).
↑15 391 US 367, 377 (1968).
↑16 US Const. Art 1 § 8.
↑17 See, for example, the 2010 Joint Strategic Plan on Intellectual Property Enforcement: “Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that.”
↑18 I also don’t think the burden these seizures place on the site visitor’s right to access the content on these sites violates the First Amendment, in line with Supreme Court rulings like Kleindienst v. Mandel, 408 US 753 (1972).
↑19 See Sequoia Books v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) for a court applying Arcara to a case involving forfeiture.
↑20 Kingsley Books v. Brown, 354 US 436 (1957).

Speech Interests of Creators

By , December 21, 2010.

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

References

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

The Chilling Effect of Copyright Infringement

By , December 10, 2010.

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

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

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

Free Speech Rights of Copyright Owners

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

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

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

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

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

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

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

The Chilling Effect of Online Piracy

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

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

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

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

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

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

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

Freelance photographer Seth Resnick adds his perspective:

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

Disputing the Chilling Effect of Online Piracy

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

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

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

Parting Thoughts

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

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

References

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

Feds Seize Domain Names

By , December 06, 2010.

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

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

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

Seizure vs. Forfeiture

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

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

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

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

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

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

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

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

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

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

Seizure and Due Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Seizure and the First Amendment

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

References

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

COICA: First Amendment

By , November 29, 2010.

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

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

Prior Restraint

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

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

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

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

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

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

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

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

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

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

As the court in CDT v. Pappert explains:

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

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

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

Overbreadth

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

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

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

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

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

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

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

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

References

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

Artistic Expression, the First Amendment, and Copyright

By , September 24, 2010.

The First Amendment is perhaps the most famous part of the Constitution. Defending People’s blogger Mark Bennett ran a tally of how many times each article and amendment (of the ten included in the Bill of Rights) in the Constitution was specifically mentioned in the week leading up to Constitution Day; the First Amendment was mentioned by bloggers nearly as many times as all others combined. In the words of the Oxford Companion to the Supreme Court of the United States, the Amendment “reflects vital attributes of the American character,” “is the cornerstone of the nation’s liberty,” and “is known and cherished by virtually all citizens.”

It may come as a surprise then, that very few cases concerning the First Amendment arose in the first hundred or so years of its existence. It wasn’t until after World War I that the Supreme Court began to develop many of the free speech doctrines we see today. 1The Oxford Companion cites Justices Holmes’ and Brandeis’ dissent in Abrams v. United States (1919) as sowing the “kernels of modern free speech doctrine.”

What does this have to do with copyright? Well, if you take a closer look, you can see an inherent tension between the First Amendment and copyight law. The First Amendment prevents the government from restricting freedom of speech; copyright restricts the ability of a person to “speak” using the words of another. 2I use the terms ‘speak’ and ‘words’ here in a very broad sense, as copyright protection extends to subject matter beyond the written word.

Like the development of modern free speech doctrines, this recognition of a conflict between the First Amendment and copyright law is a relatively recent phenomenon. It wasn’t until about the 1960s when the idea began to receive attention from legal scholars. 3See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971) (predicting a “coming clash between ‘free speech and press’ principles and copyright clause exclusive-rights principles.” It wasn’t until 1985 that the “kernels” of the modern doctrines addressing the tension between the First Amendment and copyright law were sown by the Supreme Court, in Harper & Row v. Nation Enterprises. In 2003, in Eldred v. Ashcroft, the Court fleshed out the current state of the law concerning the relationship between the First Amendment and copyright.

Simply put, the Court said, First Amendment concerns are adequately addressed by “copyright’s built-in free speech safeguards.” It noted two of those safeguards: the “idea/expression dichotomy” and the doctrine of fair use. It also suggested that there are supplemental safeguards, like copyright law’s exceptions for libraries and archives.

Criticisms of this approach began in earnest after Harper & Row and multiplied in the wake of Eldred. 4See footnote 2 of Alan Garfield, The Case for First Amendment Limits on Copyright Law, for a sampling of several dozen books and articles exploring the subject. The overall theme is that copyright’s safeguards are not, in fact, adequate to address First Amendment concerns – specifically in cases of what I label “creative infringement.” 5One such example of the relevance of this distinction regarding the First Amendment and copyright is provided by Mark Lemley and Eugene Volokh, who agree that “there’s no First Amendment problem” for preliminary injunctions in “piracy and other ‘easy’ cases” of copyright infringement. Freedom of Speech and Injunctions in Intellectual Property Cases (1998). But free speech concerns have also been raised in cases of “consumptive infringement” – albeit on issues outside the scope of copyright law. ((See the EFF’s amicus brief in Achte-Nuente v. Does for one such example.

But something is missing in the discussion about copyright and the First Amendment. For all the attention given to the First Amendment concerns of alleged infringers, there is scant attention devoted to the First Amendment concerns of infringees – artists and creators.

Artistic Expression and the First Amendment

Part of this lack of attention stems from how the subject matter of copyright – artistic expression – is viewed. As constitutional scholar Sheldon Nahmod states, “Artistic expression has been assigned a derivative and second-class status in the views of many first amendment thinkers, the Supreme Court, and other courts.” 6Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime and the First Amendment, Wisconsin Law Review (1987). Much First Amendment scholarship focuses on protection of political speech, with other forms of speech – like artistic expression or commercial speech – relegated to the margins of the discussion.

This slighting of artistic expression in First Amendment theory is not historically unusual; many philosophic schools of thought have placed relatively little importance on the role of art in society. Some have been downright skeptical of artistic expression. Nahmod notes that, “According to Plato, the state must control art for the good of the society as a whole. Otherwise, art threatens the stability of the state.” 7Nahmod, p. 227 He adds that contemporaries of Marx, too, “are so convinced of art’s influence that they view art as an appropriate subject for state control.” 8Nahmod, p. 224

Artistic expression has been subjected to censorship in the US throughout its history, with restrictions largely aimed at sexual content. Book bans are not unheard of; the film industry has a storied past involving first local government ratings boards and, later, voluntary industry ratings systems. Industry groups play a role in protecting the slighted First Amendment rights of artists and creators. The RIAA states that part of is its mission is working to protect the “First Amendment rights of artists and music labels”; lest the more cynical readers think this is just PR lip-service, I point out the amicus brief filed just last week by the MPAA, RIAA, and other industry groups arguing that California’s recent law prohibiting the sale of violent video games to minors is unconstitutional.

But artistic expression can serve other purposes that make it, even absent any objectionable content, unworthy of more than second-class status in scholarly discussion. It can often be used as entertainment, a diversion from the drudgery of ordinary life. Here, we can draw analogies between artistic expression as entertainment and other forms of entertainment throughout history to see that this low opinion of artistic expression is not an anomaly. Sports have, at various times, been the subject of regulation or outright banning by governments. In England during the Middle Ages, soccer, bowling, golf, and other sports were the subject of bans at various times. Often, these bans reflected the idea that these sports diverted young men’s energy away from military training and were thus a threat to law and order. 9Andrew Pittman, The Interaction of Sport and Law: Where Has it Been, Where is it Now, and Where is it Going?, 2 Journal of Legal Aspects of Sport 64 (1992).

Despite its at-times uncomfortable fit within First Amendment theory and a general snubbery throughout history, artistic expression flourishes in the US. Movies and television shows created here are watched around the world. Jazz, rock and roll, and hip-hop have all arisen within the US. As a result of all of this, artistic expression in the US can sometimes find itself in an odd position. For example, in the late 80s and early 90s, several record store clerks were arrested for selling 2 Live Crew albums to minors; 10Steve Jones, Ban(ned) in the USA: Popular Music and Censorship, 15 Journal of Communication Inquiry 73 (1991). in 1994, the highest court in the US upheld that same group’s right to release a ribald, dirty parody of Roy Orbison’s Pretty Woman as fair use. 11Campbell v. Acuff-Rose Music, 510 US 569 (1994).

Artistic Expression, the First Amendment, and Copyright

Attention to artistic expression’s place within First Amendment theory remains underdeveloped. However, within discussions of copyright law, the role of artists’ First Amendment rights is practically ignored.

What do I mean by the role of artists’ First Amendment rights within copyright law? Courts that have addressed the tension between the First Amendment have, as I stated above, said that copyright law has built in safeguards to protect the First Amendment rights of those who make use of copyrighted works. But there’s another side of the coin. In Harper & Row – repeated later in Eldred – the Supreme Court declared that “the Framers intended copyright itself to be the engine of free expression.” 12471 US 558 The metaphor adopted by the court explains how copyright and the First Amendment accomplish the same goal – the dissemination of new ideas – through distinct means. Copyright pushes the dissemination – by providing an incentive to create new expression – while the First Amendment removes the obstacles in the way of that dissemination.

In many ways, the copyright incentive provides the most free method to spread new ideas. We don’t have to rely on the wealthy to fund whatever expression captures their fancy. We don’t have to rely on government to fund whatever expression it deems serves the state. Instead, we have a society where the values of artistic expression – as beauty, sublime, frivolity, or entertainment – and the value of artistic expression is determined solely by its members and the market. Patrick Ross, of the Progress and Freedom Foundation, puts it this way:

Our culture is remarkably vibrant and expressive, and is consumed around the world (even if many of those global consumers enjoy deriding our culture while consuming it). We embrace freedom of expression. We don’t burn down buildings when someone publishes a cartoon we find offensive. A bookstore can display the latest David McCullough biography beside a paperback collection of bathroom jokes. In fact, our culture seems pretty indestructible (we’ve survived the lip-synching scandals of Milli Vanilli and Ashlee Simpson, after all). While there will always be those who appoint themselves guardians and protectors of our culture, we can recognize that they aren’t truly needed. That is, they aren’t needed as long as artists retain their longstanding role in the culture. Artists, through the flexible exercise of their rights bundles, allow the culture to be enriched. No corporation can lock that culture down, and no p2p pirate can significantly erode that culture, as long as society collectively thanks its artists by respecting property rights.

But you won’t find much discussion of copyright’s role in the dissemination of new ideas when First Amendment concerns are raised in the context of copyright law. The “engine of free expression” metaphor is mentioned only in passing, ignored, or even dismissed as a “judicial sound bite.” 13Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003): 233. That’s just wrong. In any case of “creative infringement,” there are two sides to the “free expression” coin. Any discussion of free expression rights which focuses on the rights of only one side (the alleged infringer) while ignoring the other (the infringee) is incomplete.

References

References
↑1 The Oxford Companion cites Justices Holmes’ and Brandeis’ dissent in Abrams v. United States (1919) as sowing the “kernels of modern free speech doctrine.”
↑2 I use the terms ‘speak’ and ‘words’ here in a very broad sense, as copyright protection extends to subject matter beyond the written word.
↑3 See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971) (predicting a “coming clash between ‘free speech and press’ principles and copyright clause exclusive-rights principles.”
↑4 See footnote 2 of Alan Garfield, The Case for First Amendment Limits on Copyright Law, for a sampling of several dozen books and articles exploring the subject.
↑5 One such example of the relevance of this distinction regarding the First Amendment and copyright is provided by Mark Lemley and Eugene Volokh, who agree that “there’s no First Amendment problem” for preliminary injunctions in “piracy and other ‘easy’ cases” of copyright infringement. Freedom of Speech and Injunctions in Intellectual Property Cases (1998). But free speech concerns have also been raised in cases of “consumptive infringement” – albeit on issues outside the scope of copyright law. ((See the EFF’s amicus brief in Achte-Nuente v. Does for one such example.
↑6 Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime and the First Amendment, Wisconsin Law Review (1987).
↑7 Nahmod, p. 227
↑8 Nahmod, p. 224
↑9 Andrew Pittman, The Interaction of Sport and Law: Where Has it Been, Where is it Now, and Where is it Going?, 2 Journal of Legal Aspects of Sport 64 (1992).
↑10 Steve Jones, Ban(ned) in the USA: Popular Music and Censorship, 15 Journal of Communication Inquiry 73 (1991).
↑11 Campbell v. Acuff-Rose Music, 510 US 569 (1994).
↑12 471 US 558
↑13 Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003): 233.
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