To Argue That 'Copyright And The First Amendment Coexisted For 200 Years' Is To Ignore Reality

Free Speech

from the not-today's-copyright dept

Some guy trying to sell his book about how copyright infringement is all a big, bad plot of big, bad companies has a silly and ill-informed article trying to tarnish Aaron Swartz’s reputation by making statements about what he believed and what he fought for that have little basis in reality. The article is chock full of confused statements, most of which aren’t worth addressing (though, I will note that it is absolutely hilarious that he says that copyright “enabled” Bob Dylan — given Dylan’s famous penchant for blatantly copying of lyrics, melodies and even photographs and claiming them completely as his own).

I do, however, wish to call out one ridiculously misleading claim, which I’ve seen repeated all too often by copyright maximalists, whenever anyone points out where copyright law and the First Amendment conflict:

First Amendment and copyright have co-existed—without terrible controversy—since the founding of the republic. Our Founding Fathers included a copyright clause in the Constitution (Article I, Section 8, clause 8), and in 1790 approved the first federal copyright law—before the Bill of Rights was even adopted. There are free-speech exceptions to copyright, such as Fair Use provisions, but Swartz’s idea that the Supreme Court had some obvious “blind spot” was quite wrong. As described by the Supreme Court, copyright “is the engine of free expression.”

The idea that the two coexisted for over 200 years is an exaggeration bordering on an outright falsehood. The original Copyright Act of 1790 applied only to “maps, charts and books” and specifically covered “printing, reprinting, publishing and vending.” Oh yeah, and you had to register the work. And the copyright only lasted for 14 years, renewable for another 14 years, if the copyright holder chose to do so. Oh, and we shouldn’t forget that it really was only a violation if you printed the entire work. You could copy large segments of the work. So, basically, copyright covered a very small number of works, in very limited ways, for a fairly limited period of time. And, it’s probably also worth noting that, at that time, the most successful US publishers weren’t printing books by Americans, but rather books from English authors, which were considered public domain under US law.

Compare that to today. Since 1978, copyright in the US now applies to everything new and creative the instant it is in fixed form. That means pretty much everything, from that email you just sent your boss to the lovey-dovey note you direct messaged your significant other on Facebook, is technically covered by copyright. No registration necessary. It covers way more that maps, charts and books. It goes way beyond just printing, reprinting, publishing and vending (all ostensibly commercial activity) to any form of reproduction, distribution, performance or creation of derivative works. And it no longer just applies to the entire work, but also to tiny snippets of the work, with the marginal and extremely limited exceptions put forth by fair use — which the courts have (incorrectly, mind you) stated is merely a “defense” rather than a “right.” Oh, and it lasts the life of the author, plus another seventy years. And, yes, it covers foreign works as well.

These two things are not the same. At all.

Then, combine today’s copyright with the massive technological change that is personal computing, mobile devices and the internet, which has created a massive amount of personal communications in digital “fixed” form (thus making much of it copyrightable) and we are talking about two situations that are not even remotely comparable. For most of the history of copyright law, there were very few circumstances under which it would interfere with basic expression and communication. Yet, with the 1976 Copyright Act and the rise of the modern internet / connected device era, nearly all basic communications are now covered by copyright. To suggest that there is no inherent conflict between copyright and the First Amendment today is to be willfully ignorant of reality.

Finally, Swartz was absolutely correct that the Supreme Court has a massive “blind spot” on this issue. It’s glaring because the Supreme Court has refused, through multiple cases, to understand the differences described above — even to the point of suggesting that “the traditional contours” of copyright law have not changed that much over time. If you’d like to read an unfortunately sobering, but incredibly detailed, analysis of the Supreme Court’s blind spot on this issue, I highly recommend reading chapter 4 of No Law: Intellectual Property in the Image of an Absolute First Amendment. The authors of the book, David Lange and Jefferson Powell walk through, step by step, every mistake made by Justice Ginsburg in her ruling in the Eldred case, which directly takes on this particular issue. Here is just a brief snippet, though it goes really deep:

Justice Ginsburg’s treatment of the plaintiff’s threshold claim, that the Court should apply some sort of heightened scrutiny, is nothing less than bizarre. Unless she (and the other members of the majority) failed to see the Act as having any cognizable impact on any constitutionally protected expression at all, a student of the First Amendment cases would expect that the Court’s initial response would be to determine which level or form of heightened scrutiny was appropriate, and then apply the proper scrutiny. The opinion takes a different approach, however — one that appears essentially indifferent as to the reasoning the Court customarily uses in deciding First Amendment claims. Despite acknowledging (a bit later on in the opinion) the plaintiffs’ reliance on a case, Turner Broadcasting Systems, Inc. v. FCC, which did employ intermediate level scrutiny, Ginsburg restates their argument as a “plea for imposition of uncommonly strict scrutiny” to the Act, implying (incorrectly) that there is something “uncommonly strict” about the use of intermediate scrutiny in reviewing content-neutral laws. (We presume she was not, more simply but even more strangely, mischaracterizing, as “strict scrutiny” in the doctrinal sense, the plaintiffs argument that Turner — thus, intermediate scrutiny — was the appropriate mode of analysis. If we are wrong about this, it would reenforce, in a different way, the air of inattention that hangs over the First Amendment discussion in Eldred.)

Having set up, however inaccurately, the threshold inquiry into the proper level of scrutiny, Justice Ginsburg then immediately drops the issue. Instead, she continues with a number of observations amounting to asserations, each apparently meant to undermine the need for any sort of judicial scrutiny of the Act.

It then goes on to discuss each of these assertions, and break down, very specifically, how they make little, if any sense. There are five assertions in all, but a few more snippets hopefully give you a sense of the issues. In discussing Ginsburg’s suggestion that, since copyright law and the First Amendment both came at about the same time and involved the same people, there was no conflict, they point out that merely putting two laws in place at the same time does not automatically solve the issues:

Nor can mere chronological proximity take the place of actual evidence in making claims about the Founders’ views. The infamous Sedition Act of 1798 was enacted “close in time” to the First Amendment’s adoption, but it has long been settled that the Sedition Act, rather than bein a valuable early interpretation of the First Amendment, was a violation of the amendment. As the Court observed many years ago, “[a]lthough the Sedition Act was never tested in this court, the attack upon its validity carried the day in the court of history.” In other words, the founding generation, or many members of it, were capable of making a mistake about the implications and application of the First Amendment and, in the case of the Sedition Act, actually did so, even after a full debate on the constitutional issues. In the First Amendment context, it is clear that the “free speech principles” that the Founders constitutionalized cannot be narrowly defined in terms of the Founders’ practices.

Later, they rip to shreds the argument that the courts must defer to Congress on this, combined with the idea that fair use acts as a proper valve to “protect” the First Amendment. The problem there, they note, is that here’s the Supreme Court basically saying, “it’s not us, it’s all on Congress,” when the system itself specifically relies on the courts to determine the contours of fair use.

The opinion does not acknowledge, however, that the case law to which it refers also reveals a central attribute of the fair use doctrine, which is that it entrusts the decision about what counts as fair use (and thus may be included in expression) not to the individual (which is the norm ordained by the First Amendment), but to the courts.

No matter how you slice it, the Supreme Court has a very clear “blind spot” to the areas where the First Amendment conflicts with copyright law, and part of that is a complete failure to acknowledge that the two have not actually “co-existed” for centuries, but that a massive change and expansion to copyright law, mixed with the fact that nearly all communications these days are covered by copyright, has created a very real problem — the problem that Aaron Swartz kept trying to highlight, and which folks like the author of the column seek to ignore.

Filed Under: copyright, first amendment, free speech, supreme court