More People Recognizing Copyright’s ‘Free Speech Problem’

For many years now, we’ve written about the fact that copyright law and the First Amendment are actually in quite a lot of conflict. After all, copyright is regularly used to stifle speech, and the First Amendment isn’t supposed to allow for the barring of speech. Over the years, legal experts have been increasingly starting to realize this. A few years back, we wrote about a paper wondering why copyright law doesn’t require a showing of harm, as should be required under the First Amendment. We’ve also pointed out that the more that you explore the fact that copyright and the First Amendment seem to be in conflict, the more you recognize how screwed up copyright law has been. I’m even aware of two whole books that both focus on this problem: Neil Netanel’s Copyright’s Paradox and David Lange & H. Jefferson Powell’s No Law (as in “Congress shall make no law…”).

But, for whatever reason, copyright system supporters always seem to wave off this issue as if it’s some kook theory, unwilling to confront the stark reality that copyright law has a serious First Amendment problem. And, no, the argument that “well the two coexisted for over 200 years” doesn’t cut it, because copyright was very, very different for the first 200 years of its existence in the US. Nor does the claim that copyright law is some sort of magic exception to the First Amendment because the Copyright Clause in the Constitution “came first.” That sounds good… until you remember that the First Amendment is called that because it’s an amendment and you remember that it’s the later part that should take precedent.

Hopefully, though, more people are beginning to recognize this issue. Law Professor John Tehranian (who has written a wonderful book on copyright excesses himself, called Infringement Nation) has an excellent article at legal trade publication The Recorder detailing the simple fact that Copyright Law Has a Free Speech Problem. It starts with a perfectly clear example of this, where two celebrities sought to punish a news tabloid for publishing proof that they had married by buying up the copyright to the photographic evidence of their wedding, and then suing for copyright infringement:

First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs-not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya’s activities protected under the fair-use doctrine, the U.S. Court of Appeals Ninth Circuit ultimately reversed and, in a 2012 published decision, deemed Maya liable for infringement.

We wrote about this case when it was ruled upon, noting the ridiculousness of the ruling at the time. As Tehranian notes, this is just one of many examples of copyright now being used to stifle First Amendment protected free expression:

By fetishizing property interests in copyright works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets.

And, no, he notes, this is not just one case. It’s happening all over.

In recent years, creationists have used the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists. Abortion-rights activists have brought infringement litigation to enjoin speech by pro-life forces (Northland Family Planning Clinic v. Center for Bio-Ethical Reform, 2012). Military personnel have ginned up copyright claims to suppress photographs documenting human-rights abuses (Four Navy SEALs v. Associated Press, 2005). And a prominent political talk show host has sued to prevent unauthorized reproductions of his broadcasts in order to suppress criticism of his hate-filled rants (Savage v. CAIR, 2009).

Tehranian — rightly — slams the federal judiciary for allowing this to happen, and basically ignoring the First Amendment issues, usually with the wave of a hand about how fair use solves all the problems. But, as he notes, that leaves many in the unfortunate (and nearly impossible) situation of not being able to rely on the First Amendment to protect free speech, but to try to force it directly into copyright law itself.

Because of this issue, he offers a potential solution, saying that we need a NY Times v. Sullivan for copyright. We have, of course, discussed that case many times in the past — most recently in the context of Donald Trump’s apparent ignorance of its existence or meaning. But it’s the seminal case that made defamation law “okay” under the First Amendment, by strongly favoring free expression (around public figures) by limiting defamation to cases of “actual malice.”

Courts have had no problem with imposing carefully circumscribed First Amendment limitations on tort liability in a variety of scenarios. In New York Times v. Sullivan (1964), the Supreme Court famously held that defamation claims brought by public officials should be subject to a critical First Amendment check: a showing that the defendant acted with actual malice by either intentionally disregarding the truth or acting with reckless indifference towards it. The Supreme Court has subsequently extended the holding of New York Times to all manner of defamation, false light (Time v. Hill, 1967), intentional infliction of emotional distress (Hustler v. Falwell, 1988) and invasion of privacy (Cox v. Cohn, 1975) cases involving public figures or matters of public concern.

These doctrinal innovations have a common goal: preventing the courts themselves from being used by private individuals to effectively suppress speech on matters of public concern. However, the courts have left a gaping exception: copyright law. The adoption of a New York Times v. Sullivan-like check on censorious copyright claims-ones that pertain to matters of public concern where the plaintiff seeks to vindicate interests outside of the established market for the licensing of its copyrighted works-could serve as an important step towards combatting censorious infringement litigation.

This is an interesting solution and one that would be interesting to see if some lawyers decided to pursue. The tricky part, of course, would be finding the right test case with the right factual circumstances. One hopes that at least some copyright and First Amendment lawyers are out there seeking the right case on this front.

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DailyDirt: Actually Getting People Into Space…

There are only a handful of vehicles that have launched people into space (or even just provided shelter) for space-faring people. A few more ships and space stations would be nice to see, and there are a few in various stages development (unfunded proposals, ahem). If you’re interested in people (not just robots) exploring outer space, here are just a few links on some of the ships that might transport more folks to at least the edge of space.

After you’ve finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

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DailyDirt: What Will The Robot Economy Look Like?

Algorithms have already quietly crept into nearly every part of our lives, helping us to search the internet and connect with friends and to find matching personalities for dates. Soon, we’ll have cars that drive us — and some old Yakov Smirnoff jokes won’t make any sense. But how will people adapt to a ‘robot economy’ where everything is done by robots — and we can’t even play games without knowing that the computers are just letting us win?

After you’ve finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

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Techdirt Reading List: GDP: A Brief But Affectionate History

We’re back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

I’m a GDP skeptic. I think it’s a ridiculous concept that is poorly measured and much more meaningless than most people realize. And, I think it can be quite damaging at times too, because we optimize for what we can measure, even if it’s not what we should be optimizing. We see this in so many areas. If there’s a number, our brains seem to turn to mush, even when people say that the numbers aren’t necessarily the most important thing (e.g., look at the way people use “patents” as a measure of how innovative society is — it’s a disease). I’m certainly not alone in being a GDP skeptic either — debates have raged on for years about it in economics and policy circles. A few years back, economists Joseph Stiglitz, Amartya Sen and Jean-Paul Fitoussi, at the request of then French President Nicolas Sarkozy, published a report which led to a book entitled Mismeasuring Our Lives; Why GDP Doesn’t Add Up, which also digs into the somewhat nutty (and in my mind, equally problematic) concept of “Gross National Happiness” as something of an alternative to GDP.

More recently, economist Diane Coyle published GDP: A Brief but Affectionate History, and the title is pretty accurate. The book is pretty short, and highly readable, and quite interesting. Coyle is somewhat less of a GDP skeptic than I am, and as you can probably guess from the “affectionate” part of the title, more willing to cut GDP some slack as a useful tool — though she seems to be coming around towards the view that it’s potentially outdated, especially as the nature of our economy has moved towards the digital world. Either way, I quite enjoyed it and learned a lot about the history of GDP and some of its more ridiculous and entertaining quirks.

For people who don’t spend much time in macroeconomic circles, or thinking about things like “just how do we measure economic output, productivity or prosperity,” many seem to think that GDP is a much more… credible and meaningful number than it is. And I highly recommend reading both books mentioned here to begin to understand why it’s a lot more problematic than it seems.

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Senators Burr And Feinstein, Once Again, Threatening New Bill To Backdoor Encryption

They’ve been promising it for months now, without ever actually doing anything, but Senators Dianne Feinstein and Richard Burr (the two top members of the Senate Intelligence Committee) now insist that they’re finally ready to release their anti-encryption bill.

Feinstein told The Hill she passed the text along earlier this week to White House chief of staff Denis McDonough.

“My hope is since I was the one that gave it to Denis McDonough, they will take a look at it and let us know what they think,” she said.

The Obama administration’s response will determine the bill’s timing, Burr added.

The introduction “depends on how fast the White House gets back to us,” he said.

Since, to date, the administration has actually indicated that it does not support such a bill, one hopes that means the introduction will continue to be “sometime around never.” Even if it is introduced, it sounds like the bill may actually have a tough time getting anywhere. As we’ve noted, recent hearings suggest that many in Congress are quite skeptical of the FBI/DOJ’s claim that it needs backdoors into encryption. Indeed, even many in the intelligence community (which you’d think would have indicated this to Burr and Feinstein) don’t seem particularly enthusiastic about this. Reliable Feinstein/Burr allies like former NSA and CIA director Michael Hayden, former Homeland Security director Michael Chertoff and former NSA director Mike McConnell have spoken out strongly against such plans.

Given all that, it’s bizarre and ridiculous that Feinstein and Burr are continuing to move forward with this plan. Hopefully, the White House educates them on the issue and tells them to toss this bill into the garbage where it belongs.

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This Week In Techdirt History: February 28th – March 5th

Five Years Ago

We saw some great stuff coming from Congress this week in 2011. Senator Ron Wyden demanded debate over the Patriot Act, Senator Chuck Schumer promoted the idea that websites should switch to HTTPS, and Rep. Zoe Lofgren challenged the IP Czar on the legality of ICE’s recent domain seizures (which the agency’s boss was struggling to defend). On the flipside, Repell Issa was making some more problematic comments to the IP Czar, while Senator Al Franken was still fighting for COICA and internet censorship.

On the side of creators and the IP industries, we saw Hollywood complaining that Oscar-winning films get downloaded more, HarperCollins trying to limit library ebook lending, Righthaven was suing a radio giant over a caption contest, Rosetta stone was calling Google “a gateway for criminals”, and the Tolkien estate was trying to block the mere mention of Tolkien’s name. To counterbalance all this, we did at least see Minecraft creator Markus Persson pushing back against the “lost sale” fallacy, and Moby calling for the reinvention (or death) of the major record labels.

Ten Years Ago

There were plenty of similar shenanigans this week in 2006. Hollywood techies were raising concerns about the industries fervent push to plug the analog hole, schools in Australia were facing a bunch of new copyright fees, we discovered just how insane Canada’s blank CD tariff situation is, photographers emerged as one of the few groups opposed to orphan works legislation, and the RIAA was still indiscriminately suing everyone (and recently started targeting satellite radio) while its boss was trying to coin the term “songlifting” to replace piracy.

Fifteen Years Ago

Five years before that, in 2001, the RIAA had similarly acquired a new target: internet service providers. Lots of people were mulling over potential business models for a legitimate Napster, with some suspecting we’d be seeing the offering very soon. Meanwhile, alternatives were everywhere, such as Gnutella (which was facing trademark threats from the makers of the popular hazelnut spread) and a curious, hacker-ish alternative called ShareSniffer (the methodology of which seemed related to a big data breach at Indiana University).

“Weblogs” were catching on; the CueCat was not. Early discussions about 3D printers were underway. Some were wondering about the future of booksellers in an Amazon world, and others were looking even further ahead to the future of books in an ebook world.

Seventy-Seven Years Ago

Online resources are not without their errors, but at least those errors tend to get rapidly found and corrected. In the world of print, an error that crept into a book could often remain there for years. Such is the case with “dord” — a “ghost word” that was mistakenly added to the Merriam-Webster dictionary in 1931 and wasn’t discovered until February 28, 1939. Merriam-Webster’s excellent Ask The Editor videos include an explanation of how exactly this happened.

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