I argued in yesterday’s post that copyright burdens speech. Not all who posted comments agreed, but assuming I’m correct (and I’m not the only one to make that claim; others, including Eugene Volokh, have made similar arguments), what, if anything, should be done about it?
Sometimes the law burdens speech for very good reason, such good reason that we favor the law over the speaker. The obvious, regularly noted example is forbidding falsely crying “fire” in a crowded theater. Laws against defamation, false advertising, misleading securities filings, and incitement to immediate violence are others, as are prohibitions on using sound trucks in a residential neighborhood and blasting music above a certain decibel level at an outdoor rock concert.
Moreover, even if we do not believe that the burden on speech is justified (I realize, of course, that “we” is artificial since people often don’t agree – see the comments to my last post!), that does not necessarily mean that the First Amendment as currently interpreted forbids the speech burden. The First Amendment provides that “Congress shall make no law … abridging freedom of speech.” But First Amendment doctrine is highly complex and First Amendment protections far more qualified than the amendment’s sweeping, absolute language suggests.
For that reason, I distinguish in my book between First Amendment doctrine and free speech policy. For example, I think First Amendment doctrine provides that Congress may not abolish the fair use defense because that would constitute an unconstitutional abridgement of speech. But free speech policy – or First Amendment “values” -- might go further. In order for copyright law to best promote First Amendment values, including the value of expressive diversity, courts should interpret fair use broadly and Congress should limit copyright holders’ exclusive rights to prevent them from using copyright as a vertical restraint to suppress competition from new media. Courts and Congress should do that even if the First Amendment does not require it.
Courts have recognized that copyright can abridge speech, but they have almost never actually imposed First Amendment limitations on copyright. In Eldred v. Ashcroft, the Supreme Court held that when “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” In so holding, the Court strongly suggested that the idea/expression dichotomy and fair use doctrine are critical free speech safeguards within copyright law, that without them, copyright would run afoul of the First Amendment.
As I argue in Copyright's Paradox, I think the Eldred decision is very poorly reasoned and perpetuates copyright’s anomalous treatment in First Amendment doctrine. After all, other legal regimes, including defamation, right to privacy, trademark, the right of publicity, and others, have built-in protections for speech, but courts have nevertheless constitutionalized them, imposing First Amendment constraints to make certain that they don’t unduly burden speech. First Amendment limits are especially warranted in copyright given that the idea/expression dichotomy and fair use doctrine are notoriously arbitrary and indeterminate. At the very least, the First Amendment should be applied to make sure that copyright’s internal free speech safeguards actually do their job.
Last September, the 10th Circuit Court of Appeals held that Congress’ restoration to copyright of certain works already in the public domain alters the traditional contours of copyright protection and thus must be subject to First Amendment scrutiny. The Court reasoned that the idea/expression dichotomy and fair use are inadequate free speech safeguards vis-à-vis removing works from the public domain. It remanded the case to the district court to determine whether the Restoration Act is a content-based or content-neutral speech restriction, and thus whether strict scrutiny or some form of intermediate scrutiny should apply.
Whether the Copyright Act is a content-based or content-neutral speech restriction under First Amendment doctrine is a complex question, which I have previously debated with Eugene. (I think it’s content-neutral.) But whichever the courts determine, it is clear that Copyright Act amendments that alter copyright’s traditional contours should be held to run afoul of the First Amendment when copyright’s internal free speech safeguards provide inadequate protection. As I argue in my book, the anticircumvention provisions of the Digital Millennium Copyright Act, which the legislative history refers to “paracopyright,” should be ripe for First Amendment challenge.
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I look forward to sharing ideas with my fellow posters. God bless everyone
Fair use could be defined as the doctrine that allows the Copyright Clause to survive complete nullification by the First Amendment.
Under this interpretation, if an author has published a work, then prohibiting others from duplicating and distributing that work does not infringe significantly upon freedom of speech because the work in question is already being made available to the public. However, works such as parodies, criticisms, etc may not be prohibited because they are works that are not made available to the public by the act of publication by the author. The public gains nothing by allowing me to pirate Michael Jackson's "Beat It", but the public benefits by allowing Weird Al Yankovic to record and distribute the parody song "Eat It."
I realize that this interpretation leaves no room for certain aspects of modern copyright such as copyright on characters, but it seems in tune with the Framers intents and consistant with the first copyright act, and it leads to the attractive notion that if fair use were to be eliminated, then the Copyright Clause itself would be nullified. I'd appreciate any comments.
For an example see http://volokh.com/posts/chain_1210871784.shtml
Article I, Section 8 of the Constitution expressly gives Congress the authority to enact copyright laws --
So it can't be argued that copyright laws are per se unconstitutional. But of course there needs to be a balance between freedom of expression and copyright protection. Also, the USA's copyright laws need to be coordinated with the copyright laws of other countries.
jms said (5.15.2008 10:40pm) --
You should never say that -- it greatly increases the chances that those who are legally trained will ignore you or scoff at you.
Yes, many works that borrow from other works are themselves highly creative works that are worthy of copyright protection. It is widely thought that the Dr. Seuss Enterprises v. Penguin Books USA, Inc.109 F.3d 1394 (9th Cir. 1997) decision went too far in restricting the fair use principle. In that decision, the 9th circuit arbitrarily ruled that the borrowing work must mock the original work in order to be considered a "parody" and also ruled that The Cat NOT in the Hat ! book did not mock the Dr. Seuss books and therefore was not legally a "parody" and therefore was not eligible for fair-use protection. I discuss the parody v. satire issue here, here, here, and here on my blog. I discuss other fair use issues in articles under the post label Yoko Ono lawsuit on my blog (this post label is also in the sidebar on my blog's home page).
However, 17 USC §304 allows copyrights to be held by the author's heirs -- widows/widowers, children, next of kin, and even the author's executors. Though the Constitution does not clearly prohibit heirs from holding copyrights, it is doubtful that the Founders envisioned copyright terms of up to 95 years and even longer.
One of the talking points of the copyright industry (RIAA, MPAA, etc) is that "fair use is not a right -- it's a defense."
The theory I'm floating is that fair use should not be thought of this way. Instead, fair use should be considered the embodiment of the First Amendment with respect to the copyright clause. Thus, any copyright regime that either does not incorporate Fair Use, or has technologically eliminated it (with anti-circumvention measures that do not incorporate fair use exceptions) should be considered Constutitionally suspect.
Though the Constitution does not clearly prohibit heirs from holding copyrights, it is doubtful that the Founders envisioned copyright terms of up to 95 years and even longer.
In the 1790 copyright act, the 14 year copyright extension was only available to living authors. If the author had died, the heirs were not allowed to renew the copyright. I take this as evidence that the framers intended "to authors" to mean just that -- not "to authors or the estate of authors" -- and that the right to renew (or right of extension) expired upon the death of the author. Reviving this doctrine would solve most of the problems with modern copyright term extension.
I'm of the opinion that anyone who brings a lawsuit under copyright law with the intention of silencing critics should basically be stoned to death in the public square, or at least forced to pay attorneys fees and substantial punitive damages. Unfortunately, rather than enacting such a law, the DMCA has made it easier for these people by allowing them to have the critical material removed from search engines and web servers simply by writing to the companies hosting the material and alleging that it is in violation of a copyright.
On a separate note, I don't see how extending copyrights beyond the death of the creator is really in violation of Art I, Sec 8 of the Constitution. The idea behind granting Congress this power is to provide a mechanism for subsidizing creative works. How large the subsidy should be is not a matter of Constitutional interpretation, but rather a policy question involving weighing the amount of effort that should be put towards creative activities versus the social costs of not allowing works to go into the public domain.
Limiting copyrights to the life of the author is just an arbitrary means of deciding how large these subsidies should be. It is possible that the correct balance is the life of the author, but it certainly can be longer or shorter. It is also worth considering that, if a copyright is based on the life of the author, you are subsidizing young and healthy people to a greater extent than old or sick people. This may be a correct policy, but is by no means a priori a good idea.
There problem that I see with the way that Congress has dealt with copyright length is that they have been retroactively extending it to works that have already been produced. Since these works have already been created, this cannot be justified on the grounds that you are incentivising people to create these works. At this point, you are merely giving a windfall to the current copyright holders and this would seem to fall outside the explicit goal of the grant of power in Art I, Sec. 8. The only way I can think of this as possibly being justified under Art I, Sec. 8 is under the theory that the possibility of a future increase in copyright duration increases the value of current copyrights. I believe that this is a pretty tenuous basis though, since an extension passed today in no way ensures, and in certain ways discourages a future extension.
Neil,
How does that statement of the Supreme Court say that the court did not impose "First Amendment limitations on copyright" in the Eldred v. Ashcroft decision? Doesn't that statement implicitly say that the court considered those "traditional contours of copyright protection" to fall within First Amendment limitations, especially in consideration of the phrase "further First Amendment scrutiny"?
Also, IMO Eldred v. Ashcroft's ruling that the Sonny Bono (Mickey Mouse) Copyright Term Extension Act is constitutional is wrong. That Act retroactively extended the lengths of the copyright terms of existing copyrights. That's an unconstitutional ex post facto law. People's actions, decisions, and plans were based on expected expiration dates of copyrights -- for example, the purchase price paid for a copyright is likely to depend on the expected expiration date. If Congress has the authority to retroactively lengthen copyright terms, then Congress also has the authority to retroactively shorten them -- how would the copyright holders like it if Congress retroactively shortened copyright terms?
I agree. There is a conflict between copyright protection and freedom of expression and Congress and the courts should strive to strike a reasonable balance between the two. It is apparent that Congress and the courts have been siding excessively with the copyright holders -- e.g., the Sonny Bono Copyright Term Extension Act, Dr. Seuss Enterprises v. Penguin Books USA, Inc.109 F.3d 1394 (9th Cir. 1997) (discussed in my comment of 5.16.2008 6:29am). Another example -- there have been complaints that making documentary films is difficult because of the demands of copyright holders.
I think this is likely an accurate assessment. The nature of art and literature, based on roots in an oral culture is to associate and synthesize in a free manner, with culture a shared property of the tribe. The concept of individuals owning elements of culture, and the practice of remembering attributions to sources, disrupts the associative, synthetic nature of thought that underlies good art, in which boundaries become hazy, refocused, and reshapened in new directions. The Rev. Martin Luther King Jr. was accused of being a plagiarist because in his sermons he said things that were said by others before. But the truth is no great preacher or storyteller or art could exist in an environment in which the great symbols and metaphors of the culture are considered privately own and the boundaries of their expression are minutely watched by lawyers.
Lawyers can protect what has already been created. But they can't create a think. Creating new things requires risking, stressing, disolving, and putting in play what one has. If the culture is so overprotective as to inhibit this process -- or if it regards it as immoral or a violation of others rights -- it can snuff the life right out of the golden goose.
Second, the first amendment came AFTER Article I, Section 8. It would have been very easy to modify copyright under this same clause had there ever been a hint of any actual conflict between the two ideas. I believe for the same reasons above, it's clear that the founders' didn't see a conflict: copyright doesn't stop you from speaking.
Third, copyright clearly does not impose burden of free speech when the use is fair. The issue of making "fair use" a right (as suggested above) rather than a defense is clear: you don't even GET to the analysis of fair use until you've established a copyright and an infringement.
What I do think is clear is that copyright lawsuits CAN be used for that purpose. Scientology is a good example of this: claim copyright to silence speech. I think the cure for this is something along the lines of a strong enforceable misuse doctrine and should be available in any SLAPP-like situation.
I don't see what you are saying here. That "claim of infringement," if upheld, prevents you from "stealing" (as you call it) others' works.
Maybe the Founders didn't see the conflict, or if they did, they decided to leave it to Congress and the courts to resolve it. The Constitution along with the Bill of Rights is a big document and it is possible that the Founders did not notice some conflicts. The Founders were not all-wise, all-knowing, and all-foreseeing -- for example, they failed to write the Constitution in a way that would have prevented the Civil War.
Also, the mere fact that the first amendment was adopted AFTER the copyright/patent clause of Article 1, Section 8 was adopted does not mean that the first amendment implicitly repealed that clause where the amendment and the clause are in conflict. In Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936), the Supreme Court said,
mmm says,
You are begging the question. By the very definition of "fair use," a copyright does not burden freedom of speech when a court determines that a borrowing from a copyrighted work is fair use.