Julian Assange is writing a book -- and expecting to make somewhere between $1 and $2 million from it. But his royalties will depend on something he claims to abhor – using government authority to control the distribution of information.
Because if a believer in the free distribution of information were to copy Assange’s book and post it on a U.S. website, Assange or his publisher could insist that the website owner take the infringing copy down immediately under threat of action in US courts. Failure to take down the book would subject the website to massive damages under the Digital Millennium Copyright Act. (This post assumes that Assange won’t do what I did with Skating on Stilts -- make the book freely downloadable under Creative Commons license -- but I’m betting that he and his publishers are too greedy to do that. Oh, sorry, I mean he needs to "recover his legal fees.")
Now you’ll have to admit that there’s some irony in this. Assange’s Wikileaks got the equivalent of a takedown notice from the US government, and he gave them the finger. In fact that conflict is what makes his book worth the royalties that he’s going to get. But now he and his publisher are going to rely on United States law to do for them exactly what he refused to do for the United States. Except this time the takedown notice will protect not lives, but Assange’s income and his publisher’s profits.
Speaking of his publisher, when it signed Assange to the book deal, Canongate Books was giddy with enthusiasm for how he was changing the world: "WikiLeaks has helped redefine our idea of investigative journalism and our understanding of how information should be disseminated,” its spokesperson said.
All righty, then. Now that Americans’ “understanding of how information should be disseminated” has been so bluntly redefined by Wikileaks, is it time to show Julian Assange and his publishers that redefinition is a two-way street? In short, why doesn’t Congress simply take away the takedown rights of Assange and his publishers? Let them live in the world he’s helping to build.
I don’t propose here to work through all of the issues that such a law would raise. I’ll leave that to the comments – and perhaps to Eugene Volokh, who has already debated a related issue with me here. But the most obvious question is whether a selective withdrawal of copyright remedies will pass constitutional muster. That analysis starts with Simon & Schuster v. Members of NY State Crime Victims Bd., 502 US 105 (1991). Fearing that the “Son of Sam” serial killer would write a book about his crimes, New York imposed a statutory escrow on royalties from books describing a criminal defendant’s crimes; the proceeds were to go to the criminal’s victims rather than the criminal. On review, the Supreme Court said, in essence, that strict scrutiny applied to the selective denial of compensation for a fundamental first amendment activity like book writing. The Court thought that preventing criminals from profiting from their crimes was a compelling state interest. But the statute was not well tailored; it would have applied to a lot of perfectly respectable books that mentioned in passing a crime committed by by the author. So the law failed the Court’s strict scrutiny.
Does that analysis make it unconstitutional to deny DMCA remedies to Assange and his publishers? I’m not convinced. For two reasons.
First, the DMCA takedown provisions are not core copyright rights. Rather, they are part of a carefully limited remedial compromise that gives online service providers protection from massive liability if they comply with takedown notices. This compromise recognizes that the online service provider is serving a first amendment purpose when it allows people to post material without undertaking lengthy copyright reviews. But to avoid those reviews, the service providers need to be protected from massive liability; that protection is available if they follow the takedown process. In short, there are first amendment interests on both sides of the line drawn by the DMCA. That’s why the right to get a quick takedown is not available if the poster of the material promptly claims not to be infringing; and why takedown notices must meet very specific format requirements to have any effect. And, most important, that’s why I question whether we should treat limits on the takedown requirement as though they were presumptive first amendment violations.
In fact, as far as I know, we don’t do that with other restrictions on copyright remedies. For example, the copyright damages remedy is quite limited unless you register your copyright in advance. Or, to take a judge-made remedial limit, copyright plaintiffs have to show that they have “clean hands,” an anti-hypocrisy doctrine that Congress might reasonably decide to apply to Assange and his publisher. Are these limits on harsh copyright remedies unconstitutional if they don’t serve a compelling interest in the narrowest possible way? I don’t see how they’d survive such a test. That way lies madness for the copyright bar. (Not that they don’t deserve it!)
Second, Congress probably wouldn’t deny Assange a takedown remedy just because it doesn’t like him. It might decide to bar takedown remedies that benefit, oh I don’t know, criminal defendants who refuse to show up for their trials, say. Or it could decide to delay the takedown remedy until a hearing to resolve any claims against the author by the United States government or other victims of the author’s torts. By the time that litigation was done, even if they won, I’m pretty sure that Assange and his publisher would have gotten a full taste of just how thoroughly their model for dissemination of information could be redefined.
As I said earlier, this isn’t a finished piece. It’s more akin to one of Mickey Kaus’s “assignment desk” posts than a full-blown legal analysis. I’d welcome thoughtful legal comments. And maybe somebody else will want to write an article on it.
Or a law.