JB

Most people, I suspect, are going to be interested in the Copyright Clause issues in Eldred v. Ashcroft. However, because I'm a First Amendment scholar, I want to focus particularly on the first amendment arguments the Supreme Court made. They appear in Section III of the Eldred opinion, and to my mind, they are just as important as the rest of the opinion, because the Court couldn't affirm the D.C. Circuit without addressing the First Amendment question.

I’m a big fan of Ruth Bader Ginsburg, who has fought the good fight countless times, but in this case I think she has done a terrible job of discussing the First Amendment values at stake in copyright law. The discussion in Eldred is very short and it’s wholly inadequate. My guess is that the Court was so focused on the copyright clause question that it gave short shrift to the First Amendment issues. (Indeed, as I recall, Ted Olsen wasn’t even asked a question about the plaintiff’s First Amendment argument). That’s a shame. As Justice Breyer points out in his dissent, to decide this case correctly, you have to understand how copyright law interacts with first amendment values, and, in particular how copyright law contributes to the creation of a robust, diverse sphere of public discourse about art, politics, and public issues. If you make copyright too strong, you shrink the public sphere and damage public discussion. That's just what the Court has allowed Congress to do in this badly reasoned and terribly shortsighted opinion.

In fact, I think that the First Amendment claims in Eldred v. Ashcroft were in some ways stronger than the copyright claims. The Court obviously disagrees. But in the process, it has created some very bad law in the first amendment area, effectively insulating a whole host of copyright expansions from first amendment scrutiny.

Ginsburg argues that there is no conflict between free speech and copyright terms because the“copyright scheme ... incorporates its own speech-protective purposes and safeguards.” She begins by noting that “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

This argument proves both too much and too little. It proves too much because the First Amendment was ratified at a time when lots of laws against libel, blasphemy, and indecency (judged by 1791 standards) were thought to be consistent with the First Amendment. Indeed, Congress passed the Alien and Sedition Acts only seven years later. If Ginsburg’s argument is correct, most of contemporary First Amendment law is wrong. The argument proves too little because the length of the copyright monopoly at the time of the Founding was much much shorter than it is today, and the modern doctrines that have expanded the scope of copyright protection did not exist in the 1790's. The fact that some degree of copyright monopoly was thought compatible with the First Amendment does not demonstrate that any degree of monopoly, no matter how large or extensive, would have been thought compatible.

Following this makeweight argument, she gets to the real point, arguing that the idea/expression distinction and fair use are “built-in First Amendment accommodations” that are adequate to preserve first amendment values.

The problem with this argument is that the scope of fair use has been greatly contracted by years of judicial rulings and legislation like the Digital Millenium Copyright Act (DMCA). The expansion of derivative rights and the proliferation of new forms of copyright protection have shrunk the built-in first amendment protections Ginsburg speaks about. The idea/expression distinction also has proved to be highly manipulable and a shaky source of protection for free speech.

What Ginsburg overlooks is that the limitation of copyright terms is also a central and important built-in feature of copyright law that protects free speech values. The legal brouhaha over Alice Randall’s “Wind Done Gone” would never have occurred but for the length of the copyright protections for “Gone With the Wind” and the ever- expanding doctrines of derivative rights that give copyright holders control over derivative works. One can protect free speech values either through fair use, the idea/expression distinction or limited terms. To that extent, Ginsburg is surely correct. But the problem is that in the past half century, all three of these protections have been steadily contracting. The reason is not difficult to understand: Media organizations have been able to make more and more money through distribution of media products and have therefore influenced courts and legislatures to ramp up property protections in order to maximize their profits, without regard for the long-term effects on public discourse. It’s a classic public choice story, in which concentrated economic interests are better able to obtain rent seeking legal rules than diffuse interests among the general public.

Normally, rent-seeking in ordinary social and economic legislation doesn’t violate the Constitution. But laws shrinking the public domain and expanding IP protection affect free speech values, for the obvious reason that copyright gives people a state enforced right to stop other people from speaking in ways they object to. Hence there is a Carolene Products problem: Ordinary processes of democratic legislation are likely to lead to increased propertization and a smaller and smaller public domain, and this tendency is unlikely to be repealed through ordinary legislative processes. Hence a more searching scrutiny is called for to protect 1st amendment values.

Ginsburg, however, considers and rejects the argument that heightened or medium scrutiny should apply.

The plaintiffs argued that at the very least the Court should apply the medium scrutiny of cases like Turner Broadcasting System, Inc. v. FCC, because Turner is a case where the Court had to balance the free speech rights of broadcasters against the free speech rights of cable companies who would be forced to carry their programming. Ginsburg rejects the analogy, arguing that Turner

bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” ... The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it 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. The First Amendment securely protects the freedom to make–or decline to make–one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.

It’s certainly true that the CTEA isn’t a statute about must carry regulations. But that’s not really the point of the argument. Turner Broadcasting says that when Congress tries to limit the speech of cable companies in order to encourage a more diverse set of views in broadcasting, the Court has to apply at least some level of scrutiny to protect free speech rights, and even more if the restriction is based on viewpoint. Well, that’s what copyright is all about: restricting speech that replicates what someone else has said, uses too much of it, or produces a derivative work, in order to promote more transformative uses in the long run.

It’s just not true that copyright laws do not “burden the communication of particular facts or ideas.” Just ask Alice Randall. Just ask the folks who create fan fiction web sites. And it’s just not true that the First Amendment “bears less heavily when speakers assert the right to make other people’s speeches.” Sometimes the best way to express your point is through using the words of others, or through annotating, commenting and expanding on the words of others. During the first year anniversary of the 9-11 attacks, people read aloud the Gettysburg Address– which last time I checked was somebody else’s speech-- and they did so because they believed that it was the best way to convey what they felt at the time. The more restrictive the scope of fair use, the greater the scope of derivative works, the more ideas merge into expression, and the longer the terms of copyright, the more first amendment values are going to be strangled.

Ginsburg concludes by suggesting that

To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. 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.

There’s the rule of the case: When Congress has not “altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” But the very question to be decided is whether Congress has altered the traditional contours of copyright protection in passing the CTEA, especially given how expanded terms interact with fair use and idea/expression doctrines. Copyright law today is much more expansive in its protections than it was in 1800, or even 1976. The “traditional contours” Ginsburg speaks about have not stayed fixed, but have continually been changing in ways that benefit media organizations and limit the speech of others. Ginsburg’s facile statement neglects this point. The more that Congress and the courts contract the public domain *horizontally*– through expansion of derivative rights and contraction of fair use– the more courts need to watch out for contraction of the public domain *vertically,* through expanding the length of copyright terms. One cannot protect first amendment rights adequately unless one pays attention to the larger picture.

The best argument for why the Court shouldn’t apply first amendment scrutiny to copyright terms is that courts aren’t very good at drawing lines. If 50 years is ok, why not 70? But it’s perfectly ok for courts to say that the justifications offered for a particular piece of legislation are not sufficient. Breyer does a pretty good job of this in his dissenting opinion. And the Court has to draw lines in time, place, and manner cases all the time. For example, in Turner Broadcasting itself, the Court was faced with a statute that required must carry of certain numbers of channels. Under the medium scrutiny test of Turner, at some point, requiring cable companies to carry too many channels would violate the First Amendment, but too few would be ok from the standpoint of free speech. So the argument against judicial review is much less strong that it first appears when you actually look at what Courts actually do in first amendment cases. That is especially so when, as Breyer points out, the present discounted value of the term extension approaches the vanishing point, and the legislation looks like nothing more than a land grab for big media organizations. If the incentives for creation produced by the latest copyright extension are really that small, it’s not that difficult to conclude that the cost to freedom of expression has got to be greater.

In the Court’s eagerness to get rid of the first amendment claims in this case, it has created truly bad law that will cause problems for freedom of expression for many years to come. This is simply a disastrous opinion for free speech, and the Court should be ashamed of the shoddy job it’s done in this case.