Lessig Blog Archives

From the comments in the previous post:

jh asks: “yep re opt in v opt out, but also now covers use/access v copy/distribute,also now covers resale of information where it didnt before, second hand books offline. now used against users of information, was more traditionally about competing publications. What are the contours specifically?”

A hard question, potentially, though I don’t think it would be much trouble in practice. The test is “traditional contours of copyright protection” and Eldred itself illuminated the test. There the Court found that Congress had always extended existing terms when it had extended future terms. That constituted a “traditional contour.” So too with these — Congress has made different judgments about scope over copyright’s history. I would think all these were continuous with those. In my view, the test is discontinuity about some significant aspect of copyright’s tradition. Difference in kind, not degree — though of course that line is not self-executing.

Paul Campbell notes: “The Appelants’ brief link failed – 404”

Yea, sorry, the briefing in this case is so old, that a bunch of links were broken (and a bunch of the facts were embarrassingly out of date: e.g., we reported with pride that there were 5,000,000 blogs online. I cringed when I read that. The number now is probably 10x that).

I’ve been a strong supporter of not breaking up the 9th Circuit, having been convinced by Judge Kozinski that it would be a mistake. But the experience of this argument has not confirmed that judgment for me. Our case was fully briefed in April, 2005. Argument was set 19 months later. And unlike the other courts I’ve seen, these judges seemed overwhelmed with work. In the 10th Circuit (and DC Circuit for that matter), it felt as if the court had all the time in the world to understand the case being argued, and to prepare for the argument. In the 9th, it felt as I’m sure it too often feels to my own students with me: sure, I’m hear to talk and listen, but it’s obvious to everyone that I’m overwhelmed. Early in the morning, lawyers lingered as the red light came on. By the end of the morning, “your time is up” came before the light turned red.

Here’s almost the final version of the opening brief. I don’t have the final version on my machine, but I’ll get the link fixed.

Also fixed over the weekend was the original site where people had submitted stories about how the orphan problem affected them. They are a great read. This was long before the copyright office’s own orphan work proceeding. My favorite are the (repeated) examples of people who can’t get old photos of loved ones copied, for memorials or funerals, because of the policy of Kinkos and others not to copy professional photos without clearance from the copyright owner — even if the photo is 50 years old.

Our point was that this “burden” created by the opt-out system was never considered by Congress, and burdens substantially more speech than necessary to advance the government’s legitimate aim. The latter point we could argue about. The former is undeniable — as the burden is only realized with the emergence of the Net, and all the changes in law we changes that predate the Net.

anon writes: “So … How did it go today? What kind of questions did the court ask?”

It’s not in my nature ever to feel happy about an argument, but the questions were interesting. The panel was Chief Judge Schroeder, Judge Farris (who famously had worked with the researchers to produce the evidence the Supreme Court relied upon in Brown v. Board of Education to show the harm segregation had caused), and Judge Rawlinson (who, because of a family emergency, appeared via video).

Judge Schroeder asked the questions. She seemed focused on understanding how this case was different from Eldred. My reaction to that question felt much like it feels to have someone say your children look the same — to you, they couldn’t be more different, but to others, of course they look the same.

As I tried to explain, the differences are two — both the substance of the statute challenged, and the rule under which it was challenged.

Substance: In Eldred, we challenged the extension of existing terms — a practice the Court found to be “traditional,” in the sense that Congress had always extended existing terms when extending future terms. That tradition meant, the Supreme Court held, we didn’t get any heightened review of the change. (It was, in other words, within “the traditional contours of copyright protection.”) If Congress had always done it, then no punk law professor was going to question it now.

In Kahle, we are challenging the shift from an opt-in to an opt-out copyright regime — perhaps the most fundamental change in the history of copyright law, not supported by a tradition, but instead a radical change from a 186 year old tradition.

Rule: Eldred was the first case to challenge a copyright statute on the basis of the First Amendment. We therefore had very little precedent to rely upon, and thus simply asserted that as a regulation of speech, any copyright statute must be tested under the First Amendment.

In Kahle, we actually had some precedent to rely upon: Eldred. As explained before, while the Court rejected our request that copyright laws generally be subject to ordinary First Amendment review, it also rejected the government’s request that they be deemed to be “categorically immune” from First Amendment scrutiny. Instead, the trigger for First Amendment review of a copyright statute is now, under Eldred, whether Congress has changed a “traditional contour of copyright protection.”

We argued the change from an opt-in to an opt-out regime was such a change — it is traditional (186 year old tradition), and if anything is a defining contour of copyright, this was. The government argued that the only traditional contours were the “traditional First Amendment safeguards” identified by the Court before — “fair use” and the “idea/expression” dichotomy.

The real problem with the government’s position — a point I really tried to make clear again and again — was that it was precisely the same position the DC Circuit had adopted in Eldred, and which the Supreme Court in Eldred explicitly rejected. Put differently, if the only “traditional contours of copyright protection” are the idea/expression dichotomy and “fair use,” then the Supreme Court’s rule in Eldred would be exactly the same as the DC Circuit’s rule in Eldred. And only problem with that interpretation is that the Eldred court explicitly said the DC Circuit’s rule was wrong: “We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375.” So if the DC Circuit “spoke too broadly” it is hard to understand how the Supreme Court’s rule could be the very same as the rule the Supreme Court rejected.

I do have one regret about the argument. That is that I didn’t have the chance to respond to the government’s criticism of our saying the District Court decided the question of whether the change from an opt-in to an opt-out regime was a change in a “traditional contour of copyright protection” on the basis of “intuition.” The District Court had held formalities were “mere formalities” and could never rise to the level of a change in a traditional contour.

The government suggested we were being disrespectful in referring to the judgment as grounded in intuition. But that’s precisely what it was based upon. She permitted us no opportunity to introduce evidence about the significance of the change. She decided the matter on a motion to dismiss.

I fear the same intuition is not limited to the lower courts. We were complaining about “orphan works” and the problem orphan works creates. It’s easy to imagine this is an isolated problem. But think, for example, about the Google Book Search case (or watch my preso about it here). Of the 18,000,000 books Google wanted to scan, 16% are in the public domain. 9% are in copyright and in print. And 75% are in copyright, but not in print. Now while that 75% is not technically “orphaned,” for purposes of the Google Book Search Project it is effectively orphaned. If Google must secure permission for the 75% even simply to enable search, the project is a bust. For because these books are out of print, it is practically impossible to track down the current owners of these copyrights.

Were the property system we call “copyright” more efficient — if you could easily know who owned what — then many of the problems the Internet creates (read: many of the opportunities the Internet creates) would be lessened. Or so we would try to demonstrate if ever a Court permitted us to offer evidence about the burden on speech of a 1976 regime in the 21st century.

We’ll see. I’m flying back to Berlin to return to my sabbatical, and to a sick boy. Willem hasn’t yet adjusted to the cold of beautiful Berlin, and no spouse should have to adjust to suffering a sick child alone.

The 9th Circuit heard arguments today in our case Kahle v. Gonzales.

This case was filed after Eldred v. Ashcroft was decided. It is built upon the rule Eldred articulated.

If you remember, in Eldred, we raised a First Amendment challenge to Congress’ extension of existing copyright terms. Our argument was: “this is a regulation of speech; apply ordinary First Amendment review to the statute.”

The government argued the other extreme — no First Amendment review of a copyright statute. It argued the Court should affirm the DC Circuit’s rule that copyrights were “categorically immune from challenges under the First Amendment.”

The Court adopted neither position. It refused to apply ordinary First Amendment review to a copyright statute. But it also refused to exempt copyright statutes from First Amendment review. Instead, as the Court wrote:

To the extent such assertions [assertions where someone claims a right to “make other peoples’ speeches”] 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.” 239 F.3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

This is a kind of tradition-triggered standard: So long as Congress stays within the “traditional contours of copyright protection,” then further First Amendment review is unnecessary. But if Congress changes a “traditional contour of copyright protection,” then the “built-in free speech safeguards” may not be sufficient.

We alleged a change in perhaps the most fundamental “traditional contour” of copyright protection — the shift from the opt-in system that copyright was from 1790=1976 to the opt-out system that copyright has become in the period since.

I hadn’t seen this piece when it came out in July. The Value of the Public Domain by Rufus Pollock is an excellent analysis of how one might quantify the value of the public domain. It nicely introduces what otherwise strikes many as counter intuitive. Highly recommended.

After reading Pollock’s piece, for example, it is much easier to see the fallacy in any public policy argument that tries to suggest there is an economic harm from failing to extend the term of an existing copyright. The key is the distinction between social value and individual value.

E.g., imagine a society that every year randomly selected 100 people, and sent them a check for $1m. The $100m needed to fund this program is raised each year by a tax on everyone within the society. Then some enterprising politician says: Hey, this is a waste of resources. Let’s stop this program. While it’s simple to see why such a change would be “Armageddon” for those in the $1m club, it would take lots of hand-waiving to argue (convincingly at least) that the change would be harmful to society.

Or remember how Macaulay (1841) put it (nicely reproduced in full by Eric Flint):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.

Me too. Absolutely. Taxes are awful, but necessary. Let’s have them where necessary, but only when necessary. And so why not have them to extend the term of an existing copyright? BECAUSE THIS IS A TAX THAT CANNOT “INCREASE THE BOUNTY.” The work is already produced. No matter what we do today, Elvis is not going to produce any more recordings in 1957. So it is a tax that benefits some plainly (those who get almost twice the term they originally bargained for), but benefits society not at all. I.e., a very bad tax.

Josh Silver has a very disturbing post on The Huffington Post about this memo. If you click through, you’ll see a memo from ABC listing companies that want their ads pulled from any station that carries Air America content.