The Copyright Clause and the First Amendment foster creativity and freedom of expression. Ideally, these two parts of the Constitution work hand in hand to ensure greater artistic, technological and scientific advancement. But oftentimes, particularly in the age of the Internet, copyright and the First Amendment collide.
The Copyright Clause — Article I, Section 8, Clause 8 of the Constitution — reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The First Amendment, the first 45 words of the Bill of Rights, provides that “Congress shall make no law … abridging the freedom of speech.” The question becomes how to balance these two legal areas.
Some inherent degree of tension exists between the First Amendment and copyright. Copyright allows creators of expressive conduct to control the flow of certain information and expression, while the First Amendment ensures the free flow of information and expression.
One purpose of copyright law is to provide protection for the creator of an expressive work. The main purpose of the First Amendment is to ensure public access to information. Copyright protection reduces access to some information by limiting the extent to which it can be copied by others. “By allowing the removal of certain speech from the marketplace of ideas, however, copyright appears to fly in the face of the goals of the First Amendment,” 1 Stephen Fraser has written. Georgetown law professor Julie Cohen explains that “intellectual property protection, and particularly copyright protection, is a form of censorship.” 2
Copyright creates property rights for the creators of certain works. This is why copyright, along with patent and trademark law, is labeled under the rubric of intellectual property. If a person copies another’s work without permission, that person has trespassed on the creator’s property, or copyrighted expression. This is called copyright infringement. If a person directly copies another’s expression, that person has committed direct copyright infringement. If a person or company enables others to commit copyright infringement, they have committed contributory or vicarious infringement.
Copyright exists to increase knowledge. It does so by providing creators with an economic incentive to produce work. Copyright protects “original works of authorship fixed in any tangible medium of expression.” It protects books, artwork, sculptures, paintings, musical compositions and many other forms. The U.S. Supreme Court has written: “It should not be forgotten that the Framers intended copyright itself to be an engine of free expression.” 3
The theory is that if people could freely copy anyone else’s work without paying for it, there would be no incentive for the creation of new material. Why take your time to create a product if you will receive no reward?
However, the law also recognizes that if copyright law is too rigid, then there will be a dramatic reduction in the public’s access to information. Copyright law attempts to resolve this dilemma to a degree by distinguishing between expression and ideas.
Balanced protection: idea/expression dichotomy, and fair use
Copyright law does not protect the ideas, facts, methods of operation or scientific principles contained in the author’s expression. These are considered part of the public domain. Otherwise, society could never build on prior work.
Copyright law cannot limit the dissemination of facts and ideas, but it can limit copying of an author’s particular expressive way of explaining facts and ideas. This so-called “idea/expression dichotomy” leads to a situation where ideas and facts remain in the public domain, while creators’ particular expressions of those ideas are protected by copyright.
Many courts and legal commentators believe that the idea/expression distinction serves to protect a copyright holder’s interest in her intellectual property and the public’s First Amendment interests. 4
But copyright also provides other protection for free-speech interests besides the idea/expression distinction. Copyright also provides for some built-in protection for First Amendment interests through what is called the fair-use privilege.
Our legal system balances copyright and the First Amendment by a safety-valve concept known as “fair use.” In 1845, Justice Joseph Story of the Massachusetts Supreme Court recognized that there needed to be some version of fair use in part because all new work to some extent borrows from previous work:
“In truth, in literature, in science and in art, there are, and can be, few, if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art, borrows, and must necessarily borrow, and use much which was well known and used before.” 5
Fair use became an important part of the common, or judge-made, law. The Copyright Act of 1976 incorporated, or codified, the common-law concept of fair use. Section 107 of the 1976 copyright law begins with a preamble: “The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” For example, a book reviewer could quote portions of a book in writing her review without committing copyright infringement. The book reviewer’s quotations would qualify as fair use.
Copyright law lists four nonexclusive factors as especially relevant in determining fair use:
The first factor requires a court to determine the purpose of the new work. If a new work has a commercial purpose, that generally leans against a finding of fair use. However, just because a work has a commercial purpose does not mean that the work is not protected by fair use. Parodies are a good example. Many parodies have been accorded a fair-use privilege even though they were created for commercial profit.
The second factor asks a court to examine the “nature of the copyrighted work.” Generally, works of fiction tend to receive more protection under this factor than works of nonfiction. The third factor asks how much the new work takes from the copyrighted material. Usually the more material taken, the less likelihood that the copying is considered “fair use.”
Finally, the courts will ask whether the new work has harmed the commercial value of the copyrighted expression. If the new work has harmed the market for the older work, a court will be less likely to find fair use.
Harper & Row Publishers, Inc. v. Nation Enterprises
The Supreme Court most directly confronted the balance between copyright and the First Amendment in discussing fair use in Harper & Row Publishers, Inc. v. Nation Enterprises.
The Supreme Court examined the fair-use defense in this case. Shortly after leaving the White House, former President Gerald R. Ford contracted with publisher Harper & Row in 1977 to publish his unwritten memoirs.
Two years later, Harper & Row contracted with Time magazine for “first serial rights” or the exclusive right to print prepublication excerpts from the copyright holders. However, that year the Nation magazine acquired a copy of former President Gerald R. Ford’s unpublished manuscript, A Time to Heal: The Autobiography of Gerald R. Ford.
Using the manuscript, the Nation published a short piece titled “The Ford Memoirs — Behind the Nixon Pardon.” The article quoted 300 words from the memoirs. The Nation published its article before Time had published anything. As a result of the article, Time canceled its contract with Harper & Row.
Harper & Row then sued Nation Enterprises for copyright infringement. TheNation argued that its use qualified as “fair use” under the Copyright Act of 1976. The magazine also contended that its copying of portions of the memoirs was essential to its news reporting about the upcoming book.
A federal trial judge agreed with Harper & Row and awarded them damages. The 2nd U.S. Circuit Court of Appeals reversed this ruling in a 2-1 vote, finding that the Nation’s use of quotations from the memoirs was protected by the fair-use privilege. Harper & Row then appealed to the U.S. Supreme Court.
The high court voted 7-2 in favor of Harper & Row, writing that “we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright.”
The Nation had argued that it had used the memoirs in a news-reporting capacity that was thus a fair use. The Supreme Court reasoned that the key question is not whether something is news, but “whether a claim of newsreporting is a valid fair use defense to an infringement of copyrightable expression.”
Applying its fair-use analysis, the Supreme Court majority focused heavily on the “effect on the market” factor. “Rarely will a case of copyright infringement present such clear-cut evidence of actual damage,” the high court wrote. “In sum, the traditional doctrine of fair use, as embodied in the Copyright Act, does not sanction the use made by The Nation of these copyrighted materials.”
“We agree with the Court of Appeals that copyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.”
Parody: testing the fair-use doctrine
Perhaps no form of expression provides a greater test case for the vitality of the fair-use doctrine than the parody. Parodies present difficult copyright cases because a parody by its nature copies material from a previous work.
Courts ask whether a new work adds something new, or transforms, the prior work. In other words, the courts determine whether the parody is transformative. The U.S. Supreme Court has written that these types of transformative works lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” 6
2 Live Crew
In Campbell v. Acuff-Rose Music, Inc., the U.S. Supreme Court examined the bawdy rap group 2 Live Crew parody of Roy Orbison’s famous “Oh, Pretty Woman” song with its new version by the same title.
In 1964 Roy Orbison and William Dees wrote the famous rock ballad “Oh, Pretty Woman.” Acuff-Rose Music, Inc. registered a copyright for the song. Twenty-five years later, the leader of 2 Live Crew, Luther Campbell, wrote a parody that contained vulgar language and satirized Orbison’s original song.
Acuff-Rose sued Campbell and his record company for copyright infringement. The publishing company contended that Campbell had not made fair use of Orbison’s song. They pointed out that Campbell’s version used the original work for commercial purposes and that he had taken too much of the original work.
Campbell countered that his parody was fair use. The U.S. Supreme Court took the case to determine whether 2 Live Crew’s commercial parody was indeed a fair use.
The Court recognized that “parody has an obvious claim to transformative value” 7 and that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” 8
The Supreme Court ruled that a lower federal appeals court had “inflated the significance” of the commercial nature of 2 Live Crew’s song. “The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character,” the Court wrote. 9
The Court reasoned that the copyright statute’s listed examples of fair use — news reporting, comment, criticism, teaching, etc. — are generally carried out for profit. Law professor Bruce Rogow, who argued the case for Luther Campbell before the Supreme Court, says “the case stands for the principle that there must be breathing room for artists to create new works.” 10
The Wind Done Gone
More recently, a federal court of appeals determined that Alice Randall’s parody of Margaret Mitchell’s Gone With the Wind — The Wind Done Gone — qualified as a transformative work entitled to fair-use protection. Randall critiqued Mitchell’s view of the Old South by examining life through the eyes of her character Cynara — the daughter of Scarlett O’Hara’s father and Mammy.
Counsel for SunTrust Bank, trustee of the Mitchell estate, claimed that Randall’s work was more a sequel than a parody even though Randall inverted the meaning of Gone With the Wind. Randall’s work examines the period through the eyes of Cynara, while Gone With the Wind examined it through Scarlett O’Hara. A federal district court judge agreed with this argument, writing: “The book’s overall purpose is to create a sequel to the older work and to provide Ms. Randall’s social commentary on the ante-bellum South.”
The federal district court granted an injunction prohibiting further publication and distribution of the book. However, on May 25, 2001, a three-judge panel of the 11th U.S. Circuit Court of Appeals overturned the injunction, writing: “The entry of a preliminary injunction in this copyright case was an abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment.”
The 11th Circuit explained its earlier order in its Oct. 10 opinion in SunTrust Bank v. Houghton Mifflin Company. 11 The 11th Circuit determined that Houghton Mifflin, at least at this early stage of the litigation, had adequately shown that Randall’s book was protected as fair use.
Applying the elements of fair use, the appeals court recognized that Randall’s work was made for a commercial purpose. However, the court said that this factor was “strongly overshadowed and outweighed in view of its highly transformative use” of Gone With the Wind.
“Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War,” the appeals court wrote.
The appeals court also determined that SunTrust Bank had failed to show evidence that Randall’s book would harm the market value of Gone With the Wind’s derivative works or take away market demand for Mitchell’s book.
A concurring judge even pointed out that Randall’s book may “act as complement to, rather than a substitute for Gone With the Wind and its potential derivatives. The judge reasoned that readers of The Wind Done Gone“may want to refresh their recollections of the original.”
The 11th Circuit also reiterated that copyright law tries to preserve a balance with the First Amendment through the idea/expression dichotomy and the fair-use doctrine.
An elusive doctrine
Even though 2 Live Crew and Alice Randall (at the preliminary injunction stage) prevailed in the federal courts, both cases required extensive litigation. Courts will decide the application of the fair-use doctrine on a case-by-case basis. The concept of fair use is flexible and hard to define. “Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged,” 12 the 11th Circuit opinion said.
For this reason, Professor Jessica Litman calls fair use “a troublesome safe harbor for First Amendment rights.” 13
Stephen Fraser writes: “It is precisely because the line is unclear, whether it be idea/expression, infringement/noninfringement, or fair use, that conflicts arise and exist between copyright and the First Amendment.” 14
Courts after the Supreme Court decision in Harper & Row have determined that the fair-use defense provides ample First Amendment protections in the copyright arena. A recent federal court decision explains: “To the extent there is any tension between free speech and the protection of copyright, the Court has found it to be accommodated fully by traditional fair use doctrine, with expression prohibited by the Copyright Act and not within the fair use exception considered unprotected by the First Amendment.” 15
When most people think about censorship on the Internet, they think about the battles over pornography involving such federal laws as the Communication Decency Act and the Child Online Protection Act. Others think about the regulation of hate speech on the Internet. But some experts believe the greatest danger to free speech on the Internet comes from copyright. Julie Cohen writes that “the single most prevalent problem involving censorship on the Internet has to do with the protection of intellectual property.” 16
The Internet allows every person the ability to become a self-publisher. The cost of copying has come way down as technology has improved. “As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her intellectual property has been weakened,” 17 as Stanford law professor Lawrence Lessig has written.
Many involved in intellectual-property issues, particularly owners of content, feared (and still fear) that the Internet would lead to widespread copying. They pushed Congress to enact legislation that would restore greater control to copyright owners.
The result was a 1995 white paper, “Intellectual Property and the National Information Infrastructure.” The paper pushed for government support of so-called “copyright management” systems — or software that would allow copyright owners the power to control access and copying of their work.
This push eventually led to the adoption of the Digital Millennium Copyright Act of 1998. This federal law makes it a crime to write and sell devices or software to circumvent a copyright-management system. The law provides that “no person shall … offer to the public, provide or otherwise traffic in any technology, product, device, component, or part thereof” that is “primarily designed or produced for the purpose of circumventing” a copy-protection system.
Critics charge that the DMCA radically alters the balance of copyright law between content owners and the general public by giving too much control to copyright owners. They argue that the anti-circumvention provisions block competition and the development of new technology. 18 These commentators argue that it stifles competition, encourages copyright misuse and focuses too much on the copyright holders’ side of the bargain. 19
Many content owners claim that the Internet has led to widespread piracy of copyrightable material. For example, they cite the rise of piracy in the use of peer-to-peer software like Napster that facilitates copying of material. Many content-owners argue that the increased piracy shows us the “dark side of the Internet.” 20
But others challenge this assumption of lesser protection for copyright in the digital age. For example, Lawrence Lessig writes: ‘This is fundamentally wrong. We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg.” 21
Lessig explains that instead of worrying about too much piracy, those concerned with freedom on the Internet should ask whether “the protection is too great.”22
And Lessig asks, “Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use? Or a certain space for individual freedom?”
Several cases show how the Digital Millennium Copyright Act and new technology collide with the First Amendment.
Motion picture studios distribute their copyrighted movies for home use on digital versatile discs (DVDs). DVDs contain copies of the motion pictures in digital form. The studios protect these motion pictures from copying with a technology-protection (encryption) system called Content Scrambling System (CSS).
The motion picture companies licensed DVD manufacturers to build CSS software into their DVD players. DVD players with a CSS license unscramble, or decrypt, the material on DVDs and play them back for the viewer. Theoretically, a DVD player without the proper license and CSS technology could not play DVD movies.
A computer hacker, a 15-year-old Norwegian named Jon Johansen, developed a program that decrypts or circumvents CSS, called DeCSS. DeCSS enables people to play DVDs on their players and computers even if their players lack the licensed decryption technology.
Several Web sites posted DeCSS software to allow people to download it. This software enables users to break the CSS system and make and distribute digital copies of DVD movies.
The Motion Picture Association of America demanded that Internet service providers remove DeCSS from their servers.
Eight movie studios sued several of these Web site operators, claiming that their posting of DeCSS software violated provisions of the Digital Millennium Copyright Act. They sued Shawn Riemerdes, who owned a Web site with the domain name “dvd-copy.com,” Roman Kazan, who worked for “krackdown.com” and Eric Corley, publisher of the online magazine 2600: the Hacker Quarterly. All of the defendants distributed DeCSS software via the Internet.
The defendants argued that the DeCSS software program is a form of speech protected by the First Amendment. They argue that limiting the posting of protected speech violates their and the public’s First Amendment rights.
The defendants also argued that there was a significant purpose for creating DeCSS other than to copy DVDs encrypted with CSS. According to the defendants, DeCSS was written in order to develop a DVD player that would operate under the Linux operating system as opposed to Windows.
The federal district court said that even if Johansen created DeCSS to make a DVD that would operate on the Linux operating system, the defendants still violated the Digital Millennium Copyright Act.
Section 1201(a)(2) of the Copyright Act provides that:
“No person shall … offer to the public, provide or otherwise traffic in any technology … that —
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work [protected under the Copyright Act];
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected.”
The court explained that offering the DeCSS program was prohibited conduct under the anti-trafficking provision of the DMCA.
Defendants also argued that their posting of the DeCSS software should qualify as fair use. The judge recognized that the DMCA limits the ability to make fair use of copyrighted material. “The use of technological means of controlling access to a copyrighted work may affect the ability to make fair uses of the work,” the judge wrote. 23 “Access control measures such as CSS do involve some risk of preventing lawful as well as unlawful uses of copyrighted material. Congress, however, clearly faced up to and dealt with this question in enacting the DMCA.” 24
The judge concluded that there was no fair-use defense to the anti-trafficking provision of the DMCA.
The federal district court sided with the movie studios, analogizing the posting of DeCSS to “the publication of a bank vault combination in a national newspaper.”
The federal district court recognized that the DMCA could prohibit access to copyrighted material even if the user had a fair-use reason for using the material. The court wrote: “Technological access control measures have the capacity to prevent fair uses of copyrighted works as well as foul. Hence, there is a potential tension between the use of such access control measures and fair use.” 25
However, the court reasoned that Eric Corley and the other codefendants were not being sued for copyright infringement, but for violating the anti-trafficking provision of the DMCA. “If Congress had meant the fair use defense to apply to such actions, it would have said so,” the court reasoned. 26
The court also rejected the defendants’ First Amendment arguments, including the assertion that prohibiting the posting of computer code was a direct suppression of speech. The defendants also argued that issuing a court order to stop the posting of speech (DeCSS) would amount to an unconstitutional prior restraint on speech.
The court reasoned that the DMCA’s anti-trafficking provision furthers an important governmental interest — “the protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age.”27 The federal court also determined that the protection of copyrighted works in the digital media was unrelated to the suppression of expression.
Corley has appealed the lower court’s ruling enjoining the online posting of DeCSS to the 2nd U.S. Circuit Court of Appeals. The defendants make many arguments on appeal, including:
A few years ago, a college freshman named Shawn Fanning developed a technology that allowed Internet users to trade MP3 music files with other music fans over the Internet. Napster allowed individuals to locate and share these MP3 files across the Net through its MusicShare software.
Many record companies sued Napster, alleging that the company facilitated widespread piracy of its copyrightable material. The record companies asked a federal judge to issue an injunction prohibiting Napster from operating until the lawsuit was resolved. The district judge sided with the record companies.
On appeal, the 9th U.S. Circuit Court of Appeals agreed in A&M Records v. Napster, Inc. 29 Napster argued that it did not commit contributory infringement because its users were not liable for direct copyright infringement. In copyright law, there can be no contributory infringement without direct infringement by another.
Napster argued that many of its consumers were fair users because they were merely space-shifting (when a customer copies songs she already owns onto a more portable media) and sampling (testing the music to decide whether to purchase it).
Napster argued that the Supreme Court decision of Sony Corp. v. Universal City Studios supported its arguments. 30 In that decision, the high court ruled that the entertainment industry could not prohibit videocassette recorders (VCRs) because VCRs were used for significant non-infringing uses.
The entertainment industry had tried to hold VCR manufacturers and retailers liable for copyright violations. The high court rejected the argument even though it noted that VCRs were used to facilitate copyright infringement. The 9th Circuit distinguished the Napster case, writing that “sufficient knowledge exists to impose contributory liability when linked to demonstrated infringing use of the Napster system.” 31 In the Sony case, there was no evidence that Sony had actual knowledge of copyright infringement. 32
While many agree that Napster facilitated copyright violations by many music fans, they believe that the federal court rulings have shown too little consideration for peer-to-peer file-sharing technology.
For example, the American Physicians and Surgeons Inc. filed a friend-of-the-court brief in support of Napster before the 9th Circuit. The group argued that the district judge’s ruling would have “a profound chilling effect on the dissemination of important therapeutic medical information over the Internet.” They pointed out that the government could cite the Napster case in order to shut down any central indexing system that somehow facilitates unlawful activity.
Lawrence Lessig argues that it is dangerous for a court to ban a technology based on its current use — even if that use leads to widespread copyright violations. He points out that under this rationale, early Internet technologies, the VCR and the Xerox machine would have been banned. 33
Others point out that other programs such as Gnutella and FreeNet that allow widespread copying but without a central server such as Napster. In fact, the entertainment industry recently filed a lawsuit against several other companies called the “next Napster,” including Grokster, that enables the sharing of music online. In their complaint, the record companies write that “the sheer magnitude of this haven for piracy is overwhelming and undeniable.”
Though the record companies have prevailed in several cases so far, it remains to be seen how they will fare in the ultimate court of public opinion — consumers. “An industry that goes to war with its customers is not an industry that will ultimately prevail,” 34 said Napster attorney David Boies. Or as Jessica Litman writes: “If forty million people refuse to obey a law, then what the law says doesn’t matter.” 35
Copyright and the First Amendment theoretically coexist to further freedom of expression and creative energies. In reality, the two operate in tension. The law attempts to reconcile this tension with the idea/expression dichotomy and the fair-use doctrine. These concepts serve to protect parodies such as Alice Randall’s recent work. The litigation over Randall’s book, however, shows the pitfalls facing those who rely on copyrighted expression.
The tension between the First Amendment and intellectual property has only escalated in the age of the Internet. The recent suits regarding the anti-circumvention provisions of the DMCA show that fair use is not even applicable. Jessica Litman warns: “Yet, the law is moving us closer to a day when reading, viewing and listening may be subject to control by copyright police.” 36
The entertainment industry has waged war against those who have developed technologies that can lead to copyright violations. To some, the industry has also waged war against technology itself and free information. 37 Many copyright experts see copyright as a balance between copyright owners and the public. Many believe that the Congress tilted the balance too far in the direction of copyright holders when it passed the DMCA.
The challenge in the 21st century will be to balance content creators’ and content owners’ rights without stifling the development of new technology and legitimate public access to information.
Hopefully, copyright can serve as “an engine of free expression,” rather than a limit on the First Amendment.
20. Comments of Keith Kupferschmid of Software Information Agency in symposium, Beyond Napster: Debating the Future of Copyright on the Internet, Panel Three: New Business Models, Regulatory Options and the Future of Copyright on the Internet, 50 Am. U.L. Rev. 425, 428 (2000).