Category: Intellectual Property

Copyright and the Speech Right: Are They in Conflict?

It remains a popular talking point among copyright skeptics to say that copyright limits free speech.  When this refrain was played a little over a week ago on Twitter by ReCreate’s Joshua Lamel, I responded that those who keep saying it are “hair-splitting to the point of pedantry.”  Lamel replied with the assertion that everyone agrees with this trope—all copyright scholars across the spectrum of views, the ACLU, and the American Framers.  Responding to that allegation in order, there are definitely copyright scholars (I know some personally) who do not subscribe to the copyright-limits-speech premise; it is not worth anyone’s time to excavate what the ACLU allegedly thinks about this topic; and the Framers said nothing of the kind.

In fact, the Constitution’s authors leave behind a record so thin on the subject of intellectual property that one can hardly support any generalization beyond the clear, if broad, intent of the “IP clause” in Article I.  More specifically, it is absurd to engage in a 21st century debate about the relationship between copyright and the speech right by alluding to what the Framers allegedly thought during the Constitutional Convention—five years before the Bill of Rights was even ratified.  

What the Framers mostly thought during those tense, sweaty days in Philadelphia was “Holy shit, I hope this works,” meaning the Republic itself.  That many of those men also dreamed that the new nation might one day produce great authors and inventors is evident in the record, but the contours of copyright law, especially as we know them today, would only come to exist in a future the Founding Fathers could not possibly imagine.  This does not overlook the fact that the speech and press rights in particular were ratified with a clear understanding that our fragile democracy requires a literate, informed, and engaged electorate; and this fundamental principle certainly implicates a need to access works of authorship. 

But if we are going to talk about copyright and free speech, it is only sensible to have that discussion in context to the current law (the 1976 Copyright Act) and to contemporary speech rights doctrine, which is far more liberal than the Framers could have foreseen—or many would have thought prudent.  It took lot of time and struggle, well into the 20thcentury, for the rights enumerated in the First Amendment to apply to all Americans; and it is worth noting that, for instance, long before a woman could avail herself of those rights as a full citizen, she could own copyrights in works of authorship.  So, perhaps copyright and speech are more historically intertwined than the critics like to portray.  

The copyright-limits-speech theme persists because we generally agree that any limit on speech is bad, and thanks largely to the existence of internet platforms, many people subscribe to a very expansive definition of speech.  It is only in the last two years that many have begun to see the folly in defining all online conduct as a form of speech, let alone protected speech.  And while that is a very big topic on its own, it is necessary to consider, whenever someone identifies a limit on speech, exactly how expansively he or she defines speech.  With that in mind, what does copyright actually protect?

The copyright act vests three general types of rights in the author:  the right to make copies of a work; the right to make derivative works based on an original work; and four different means by which works can be made available to the public. 

§106(1) – The Reproduction Right

The right to copy, known generally as the “reproduction” right, is the oldest protection under copyright; and in order to argue that restricting verbatim copying of a whole work is a limit on free speech, one must embrace a concept of speech so broad that it encompasses plagiarism or outright piracy.  In what example could such conduct be considered speech, let alone protected or meaningful speech?  If I were to type out the entirety of Toni Morrison’s The Bluest Eye and put my name on it, you can bet that “copyright infringer” would be the least of the pejoratives I would justifiably be called.  

Long before the existence of modern copyright law, we have a cultural tradition of recognizing an ethical code which demands that a speaker either present some measure of originality in his speech; or that he make a limited use, with attribution, of the works of a prior speaker.  If breaking this rule can get a student kicked out of college without abridging speech rights, how does granting authors the right of “reproduction” chill those rights?  In this context, copying is cheating, and cheating is not speech.

Alternatively, if I were to print 10,000 bootleg copies of Morrison’s novel and sell them out of my car, this could only be an exercise in speech if the State were to ban the book and systematically destroy other copies?  There are those who say that unlicensed copying (piracy) expands access to works, and that this is a form of expanding the purpose of speech.  But in addition to the fact that the speech right does not extend to a right of free access to all content, this circular reasoning also presumes the existence of works without vesting copyright in authors in the first place.  

§106(2) – The Derivative Works Right

It does seem, at least anecdotally, that many examples cited by those who believe that copyright limits speech tend to implicate the derivative works right.  I suppose one is free to opine that the author should not be granted the exclusive right to license spin-offs, sequels, translations, merchandise, etc., but I doubt this view would be popular as a matter of fairness, and guarantee it would vary dramatically according to circumstance.  Suppose, for instance, that White Supremacist Dude tried to publish a sequel to the aforementioned The Bluest Eye … 

Many reasonable people would be quite justifiably outraged if a court held that WSD’s speech right to publish a story about the great-granddaughter of Cholly Breedlove supersedes the right of the Morrison estate to prohibit this derivative work.  Yes, I am being provocative on purpose by including the element of race, but only to emphasize the original point that to call this prohibition a limit on White Dude’s speech right would almost certainly be an exercise in pedantry.  

Yes, as a quibbling matter, some amount of WSD’s speech would be proscribed; but what would in fact be limited by copyright would be his ability to both capitalize upon, and revise, the speech of Toni Morrison.  To come to the opposite conclusion would potentially amount to coerced speech if Morrison’s estate were forced to tolerate a use of her inventions in a form anathema to their meaning or purpose.  And copyright still cannot stop WSD from his right to evangelize racism by way of criticizing Morrison’s literature, if he were so inclined.

But what about thoughtful, respectful, or meaningful derivatives that may not be licensed?  In fact, there was a real litigation involving a kind of reverse example of the one I just invented.  When the case settled in 2002, Alice Randall’s novel Wind Done Gone was advancing a pretty solid claim as a parodic fair use—rather than an infringing derivative work—of Gone With the Wind.  In Randall’s favor was the fact that she commented upon Mitchell’s too-idyllic portrayal of slavery in her famous, mythmaking story.  So, limits like fair use, which are baked into the copyright law, do promote the progress of creative expression and free speech.

In response to the generalization that copyright limits speech, I would counter that copyright law often helps to separate the meaningful speaker from the lazy, crass opportunist or plagiarist.  The important point here is that such distinctions are always nuanced and can only be considered on a case-by-case basis.  For instance, one consideration in Randall’s favor is the historic setting of Gone With the Wind and the cultural influence of that particuar book as a kind of revisionist history, despite its being a work of fiction.  All of those factors would not be present in my hypothetical derivative work of The Bluest Eye.  

§106(3)(4)(5)(6) Making Works Available

The individual statutes here relate to the mechanisms by which different types of work can be made available.  I will not enumerate all four, but for instance, a stage play can be distributed in book form (§106(3)), and it can be performed on stage or as filmed public performance (§106(4)).  This bundle of rights can be thought of as the wholesale end of copyright, protecting the author’s right to enter into agreements to make her work available through various channels.

How protecting the exclusivity of those distribution channels is a limit on speech rights is a mystery.  Few reasonable people would support the idea, for example, that if a teleplay author licenses her series exclusively to Netflix that this infringes the speech rights of other parties who might want to perform the show via their platforms or networks.  Show me an accused infringer of making available rights, and I’ll show you a vested interest looking to exploit a work without paying for it—not someone exercising the speech right.

‘twas ever thus.  In the days leading up to the 1909 Copyright Act, the newspaper publishers tried (and failed) to argue before Congress that they should not have to pay to publish photographs, despite the fact that photographic works were protected by copyright.  Users of resources, especially commercial users, would rather not pay for materials if they can avoid it.  Today, it will be some tech company vying to exploit music, video, images, books, etc. without paying license fees, often cobbling together some convoluted legal defense to bob and weave through the copyright statutes; but those particulars aside, these users are no more speakers than a guy selling a trunk load of stolen whiskey is a distiller.  

If you saw the movie Yesterday, you’ll know that the tension for the protagonist hinges on the fact that, although he can get away with performing Beatles songs as though they are his own expressions, he feels like a thief.  In other words, even if we remove the copyright component, the ethical underpinnings of its boundaries remain.  And so does the speech right.

HJC is Right to Want Internet Safe Harbors Out of USMCA

Remember the Trans Pacific Partnership?  The twelve-nation trade agreement that became an eleven-nation trade agreement when the U.S. pulled out?   As a general opinion, I will propose that when both a Bernie Sanders and a Donald Trump want to thrash a Fair Trade Agreement (FTA), it’s a pretty good indication that diametrically opposing ideologies have come to the same naïve conclusion.  Whether one’s anti-globalism is steeped in anti-corporatism or ultra-nationalism matters very little when the self-defeating result is not the abandonment of the world’s largest trade deal, but a decision that the United States will not have a seat at the table.  

But the reason I’m trotting out that diplomatic fiasco in this post is to remind readers why “digital rights” groups like the EFF, PublicKnowledge, ReCreate Coalition, et al campaigned so energetically against the TPP:  because they said it would “entrench” the status quo of copyright law, particularly the duration of copyright terms.  “One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations,” began a typical EFF blog post in 2017,  “is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years.” While this post presents the urgency of six new countries adding 20 years to their copyright terms, I do not believe the duration of copyright in Brunei was the focus of the organization’s agenda.

Regardless of how one feels about term length, it was profoundly disingenuous to imply in that post, and others, that the USTR was working at the behest of major rightsholders to entrench the life-plus-70-year standard through an FTA. Further, in my view, this post was written to suggest that, if the U.S. did not ratify TPP, we just might to roll back our terms to life-plus-50 years. But that regime was already a global standard when the U.S. joined the Berne Treaty a century after it was first created; and the increase from 50 years to 70 in 1996 was the result of the U.S. matching its terms to those adopted by the new European Union.  So, there was never any logic to the implication that by withdrawing from the Pacific trade deal, this would have loosened the bolts on U.S. copyright policies, which are based largely on the history of Euro/American trade in copyrightable works.

With that preamble in mind, be prepared for much wailing and gnashing of teeth from the “digital rights” groups if the U.S. Trade Representative concedes to a request by the House Judiciary Committee to remove language from the USMCA (new NAFTA) mirroring the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA).  

Also referred to as Section 512, these are the provisions under which internet service providers (ISPs) are held immune from liability for hosting copyright infringing material that is uploaded by users; and safe harbor language has been echoed in FTAs since passage of the DMCA in 1998.  Why the change in doctrine?  In its September 17 letter to the USTR, the Committee stated …

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015.  Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate.  Without taking a position on that debate in this letter, we find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing.”  

Quite simply, the DMCA has been under review for several years because it is not exactly working as intended.  In fact, neither of the two internet liability shields—neither Section 512 nor Section 230—has resulted in platform operators taking adequate voluntary action to mitigate harm on their platforms.  To the contrary, absolute immunity for web platforms fostered a culture of smug, self-important rationales for irresponsibility.  

Until major Silicon Valley executives had to start answering questions about data breaches and trust violations, they were the self-proclaimed  “fast movers and thing breakers,” insisting that if we all want progress (see innovation), we gotta let them break a few eggs, right?  Except those eggs were privacy; civil liberties; personal safety; decency; the rights of authors and inventors to protect the fruits of their labor; other labor rights while we’re at it; and the foundations of democracy itself.  Small price to pay for Facebook and YouTube, I guess.

In contrast to the ginned-up fears of “entrenching” century-old copyright regimes in trade agreements, the “digital rights” groups will no-doubt recommend entrenching law through FTAs with a much shorter and dodgier pedigree.  It took less than 20 years after passage of the DMCA to recognize that ISPs will use their liability shields to avoid taking adequate voluntary measures to mitigate harmful or illegal conduct on their platforms.

The logical conclusion many constituencies are now coming to with regard to internet service providers—and this is hardly a revelation—is that tech corporations, like any other, will avoid incurring costs, either direct or opportunity, unless the potential liability will be even more expensive.  The House Judiciary Committee is right to put the brakes on safe harbor provisions in FTAs in order avoid calcifying demonstrably flawed policy.  

The EFF Thinks People Are Too Stupid to Understand the CASE Act

As the copyright small claims provision, the CASE Act, continues to acquire congressional sponsors—96 House Members and 14 Senators to date—the EFF is amping up the scare-tactics with blunt messages asking the average internet user if they could afford a $30,000 fine for copyright infringement.  Clearly, the EFF expects this strategy to work because they think people are not smart enough to understand a fairly simple new law.

Facts matter.  Not just the facts about how the CASE Act would function, which anyone is free to read rather than take my word, or the EFF’s word, about it. But more specifically, facts matter in a small claim tribunal the same way they matter in a case brought to an Article III court when considering a claim of copyright infringement.  What the EFF is doing, though, is citing the maximum possible damage award that may be incurred by the most egregious possible infringer in a small claim case, and then using that data to scare folks into thinking that if one engages in “normal online activity,” they could be on the hook for thirty large.  

First, second, and third, the Copyright Claims Board (CCB) is a VOLUNTARY dispute resolution venue.  But EFF is concerned that people are not clever enough to opt out of a tribunal for which they would receive two notices that a rightsholder has filed a claim. Hoping to obfuscate the voluntary nature of the CCB, one of the EFF’s latest tweets reads, “The CASE Act would create a complex and obscure system that big players could get out of and small players could be left owing huge sums of money.”

I don’t know, but it seems more than a little insulting that the EFF thinks the average citizen cannot figure out a “complex” and “obscure” system that will begin something like this:

1) You receive a notice of a complaint in the mail from the CCB.  

a) If you think the complaint might have merit—because yeah, you did sorta use that photo in an online ad without permission—you may wish to opt for resolution at the CCB.  Check the box.

Or

b) If you think the complaint does not have merit, or you want to insist upon adjudication in a federal court, you can opt out. Check the box. 

If that system is really too complex for the ordinary user, shouldn’t we limit that user’s access to the internet before he hurts himself or others?

Meanwhile, the EFF is not clear who it means by “big players,” but people who have valid claims against big players may not bother with a small claim against “big” defendants.  The reason the EFF mentions “big players” in this context is to balance their equation with bullshit of equal weight on the other side, alluding to the “small players left owing huge sums.”  The purpose here is to make the reader’s mind run amok with visions of a copyright owner filing a claim against you because your kids are sharing memes or sound clips on TikTok or whatever.  So, EFF thinks people do not have the basic common sense to follow this logic …

The number of claims that a copyright owner may bring to the CCB in a given year may be limited by the USCO; and for sure, the financial and time resources of the copyright owners are limited.  Remember, these are middle-class creators with bills to pay and demands on their schedules just like you and I—the same so-called “small players” the EFF is supposedly defending.  These are small-business creators, who do not have thousands of dollars and dozens of hours to burn on wasteful claims against non-infringing or non-harmful uses.  

So, just like you and I would do, this class of creators will use their limited resources to take enforcement action against the infringements doing the greatest harm, where the facts are most clearly their side, and where the alleged infringer has the means to pay an appropriate damage award.  This is not the “normal internet user” the EFF is referring to.


But EVEN IF some copyright owner did file a claim, for whatever reason, against an “ordinary user,” who uploaded some material to social media (for example), then I refer you to the earlier rule that facts matter.  The CCB is not there to rubber-stamp claims for $30,000 payouts.  It is there to consider all claims and defenses by both sides, and any damage awards—if awards are warranted—will be commensurate with the nature of the use and potential harm done.  

That range will include decisions that the rightsholder has no claim or that the claim warrants a low-value award; but the CCB will discourage claimants from filing claims against the kind of “users” the EFF is trying to frighten.  Trillions of uploads and shares occur online every day.  No copyright owner or agency of the USCO has the resources, let alone desire, to take enforcement action against the kind of uses EFF is implying in its scary campaign. 

But the EFF doesn’t think you can handle all those “complex” details.  They prefer to paint a frightening narrative in which you might think you need a law degree and two years of practice to understand the provisions of the CASE Act. You don’t.  And for users of works who should be considering copyright, this post explains why not infringing is also not very difficult.