« New Music | Main | Obama Administration Gets Its CFIUS Sea Legs -- And Firstgold Gets a Veto Threat »

Dec 17, 2009


OK, I think we're getting to the nub of the issue. I agree with you that copyright law has been squared with the first amendment on the theory that it encourages creative, valuable speech while also allowing fairly free communication of the uncopyrightable facts and ideas in the copyrighted speech.

My point is that this analysis occurs at Olympian heights. The courts don't look at particular copyrighted speech to decide whether it's really creative or valuable before deciding that it is protected by copyright. If it meets the requirements of copyright law, it is protected without regard to its actual value (with a bit of room to expand fair use for really trivial speech, as you -- perhaps optimistically -- pointed out). Similarly, the courts don't deny copyright enforcement to plaintiffs with bad motives -- people who sue under copyright not to protect their valuable speech but to spite their divorced spouse or business partner or to make it harder to disseminate embarrassing materials. Imagine that a famous politician is discovered to have written a truly vile pornographic novel in his youth. The media can report that it has "steamy, explicit sex scenes that degrade women." But the politician is probably safe if he can prevent the dissemination of the actual text, which would allow his constituents to understand just how gratuitous, nasty, and gross his sexual imagination is. Despite his obvious motivation, I have no doubt that he could obtain copyright damages for the posting of the full text of the book, even if it were posted by NOW to justify a recall campaign.

So it would be an astonishing thing for the courts to secondguess a law giving copyright protection to classified documents on the ground that the government was trying to make it harder to disseminate the classified facts in those documents. The only justification I can see for taking such a view would be the notion that the federal government is somehow obligated by the first amendment to deny copyright for its own documents. Which for reasons given earlier I don't think is tenable. In other words, the fact that Congress hopes to make it harder to disseminate classified facts doesn't have to pass judicial muster under Harper & Row because no particular provision, no particular work, and no particular plaintiff is required to meet the Harper & Row test on its own.

A law unconnected to copyright would fall into a different category. It would have to be justified without reference to the vast bulk of copyright law and its value in spurring more good speech. That's why it makes a difference that the measure would build upon copyright law rather than create a freestanding right to sue to prevent the release of classified information? When Congress tinkers with the edges of copyright law, it has not been required to justify each adjustment under the first amendment. When Congress adopted the Berne Convention, it extended copyright even to works that have no (c) sign or other claim of copyright. The first amendment consequences were profound, dramatically shrinking the way we could express ourselves about other people's writings. Yet no one thinks that the first amendment required some special justification for that shrinkage, or some special showing that the new power given to unpublished authors would not be abused. From Olympus, it's all just copyright -- sort of like Michigan in the famous New Yorker poster view of the country.

Two more installments:

Interesting, but it’s hard to see how any law giving the federal government a copyright, especially against a backdrop of two centuries (I think) of denying such copyright, could be justified as an incentive to create expression (the Harper & Row rationale), especially given the substantial restrictions on speech that it would produce. The abolition of formalities can certainly be justified as an incentive to create expression. Even term extension, especially against a backdrop of such practices in the past, was so justified, albeit clumsily, by the government. But the granting of copyright to the federal government seems so transparently unrelated to the incentives-to-create rationale that forms the basis of Harper & Row’s recognition of the copyright extension that it’s hard for me to see it as being justifiable under that rationale.

I'll take that challenge. Which incentive is more likely to work in
the real world:

1. "As an incentive to create new works, let's give monopolies to
people who are so uninterested in having a monopoly that they can't
even be bothered to put a (c) on their works."

2. "As an incentive to create new government documents, let's assure the government that the classified parts of the new documents won't be disseminated irresponsibly around the Internet."

I don't think the "can't even be bothered" people are the justification for the no-notice-needed rule. Rather, (1) since notice isn't required in foreign countries, foreign publishers are less likely to be aware of American notice rules, and (2) there had been, by the 1980s, lots of cases in which even American authors and publishers screwed up and failed to put a notice (or the right notice) on the work, so the copyright was forfeited. One can argue for or against the no-notice-needed rule, but it's not chiefly about protecting uninterested authors.

But as to the government documents, I don't think the incentive argument works. It's pretty clear, for instance, that the TSA would create manuals for its people even without copyright protection -- it's impossible for the federal government to function without creating such materials.

One can imagine a narrow set of documents -- chiefly instructions from one government official to another, or perhaps to a couple of people -- for which a guarantee of non-republication would provide some incentive to write down the materials (since otherwise though materials could be communicated orally). But for that work, the guarantee would have to be precisely what copyright law isn't, and can't be: A guarantee that even *facts and ideas* contained in the documents couldn't be redistributed, and that excerpts of the documents (of the sort generally allowed by fair use) couldn't be redistributed either. And if the question is, "Can providing copyright protection, with the concomitant speech restrictions, for federal government documents be justified on the theory that an appreciable number of such documents wouldn't be created without such protection, but would be created if wholesale commercial copying were barred, wholesale noncommercial copying might be barred, and reports on the facts within the documents as well as communication of excerpts from the documents were allowed?," I think the answer is "no."

Splendid ideas, I have been wondering how to start writing my speech which is due in next month, thanks for that complete resource. I will be looking forward for more interesting things.

So, Eugene, we may have flogged this horse to a standstill, but let me try to sum up my view and take one last run at persuading you.

First, I think the court has basically treated copyright as an acceptable first amendment compromise, and it's done so at the grossest possible level -- treating all of copyright as though it were Michigan as seen from Fifth Avenue -- instead of requiring that each adjustment to the scope of the doctrine be justified by showing that the incentive to speech outweighs the lost speech arising from the monopoly. If so, surely tinkering with the government copyright doctrine is a modest change akin to a little landscaping in suburban Dearborn.

Second, if we're going to get into the business of weighing incentives versus lost speech, as I suspect you'll still want to do, I simply can't see how the Berne Convention meets the test. You pose the case of foreigners who don't know US law and who fail to protect their rights by making the proper marks on the page when they publish. Fine, let's take them. By definition, they are authors who are not much influenced by the value of publishing in the United States. If they were, they would take the modest steps necessary to understand the rules. And, after they'd been burned once, they'd be sure to learn the rules. So the first time they wrote something they weren't incentivized at all by the prospect of a US monopoly. And by the time they could be disincentivized by the lack of such a monopoly, they'll have learned the rules and will be incentivized by the prospect of earnings from their properly marked second work. So, really, it seems to me nearly impossible to justify abolition of marking on an "incentives outweigh restrictions" analysis -- unless the Court steps back from the field so far that Berne just looks like a little lumbering in the Upper Peninsula.

I won't belabor the bureaucratic incentives that I think clearly will encourage more writing down of policies if they aren't leaked in bulk. I realize that can be argued either way. My main point is that I don't think adjustments in copyright doctrine have ever been subjected to such a demanding and granular review. And if we're going to start on that project, Berne would be the right place.

Over to you for the last word.

And here's Eugene's last word on the subject, at least for now.

Stewart: Sorry for the delay getting back to you on this. A few thoughts:

(1) It seems to me hardly a modest change to start using copyright as an Official Secrets Act -- both a purpose that's very different from the one the Court has validated, and an effect that's quite different from the one the Court has validated.

(2) It also seems to me quite different to extend the Copyright Act with an eye towards protecting creative expression, and to extend it specifically in order to try to block the distribution of facts.

(3) Whatever might be the merits of removing the notice requirement, a copyright-without-notice regime has the same readily apparent purpose as the copyright-with-notice regime -- it aims to encourage creative expression by protecting creative expression, rather than to prevent dissemination of dangerous facts.

The clearest departure from this intention is retroactive extension of copyright. But even Ashcroft, flawed as it was, premised the upholding of the extension on "unbroken congressional practice." "Such consistent congressional practice is entitled to 'very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive.'" Here unbroken practice -- "the traditional contours of copyright protection," see below -- is to the contrary. The Court also stressed that "copyright gives the holder no monopoly on any knowledge. A reader of an author's writing may make full use of any fact or idea she acquires from her reading." And it reaffirmed the importance of the distinction between protecting creative expression, in order to promote the production of creative expression, and protecting facts:

"As Harper & Row observed: '[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.'

"In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U.S.C. § 102(b) provides: 'In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.' As we said in Harper & Row, this 'idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.

"Second, the 'fair use' defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances....

"The CTEA itself supplements these traditional First Amendment safeguards. First, it allows libraries, archives, and similar institutions to 'reproduce' and 'distribute, display, or perform in facsimile or digital form" copies of certain published works 'during the last 20 years of any term of copyright ... for purposes of preservation, scholarship, or research' if the work is not already being exploited commercially and further copies are unavailable at a reasonable price. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities....

"The CTEA ... protects authors' original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas.... We recognize that the D. C. Circuit spoke too broadly when it declared copyrights 'categorically immune from challenges under the First Amendment.' But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."

(4) An attempt to prevent the distribution of government-reported facts -- even engrafted as a new development in copyright law -- thus strikes me as very different for First Amendment purposes from an attempt to limit the distribution of creative expression aimed at promoting the creation of such creative expression, an attempt that either simply redefines the procedural requirements for protection or follows longstanding Congressional practice related to the protection of creative expression.

Hope you had a Merry Christmas, and best wishes for a happy new year!

The comments to this entry are closed.