November 14, 2006  ·  Lessig

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the briefing in this case is so old, that a bunch of links were broken (and a bunch of the facts were embarrassingly out of date: e.g., we reported with pride that there were 5,000,000 blogs online.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.

  • areader

    re: the number of blogs.

    Technorati says it’s “Currently tracking 59.9 million blogs”.

  • anon

    I’m rooting for you. Any guesses when a ruling might be reached?

    “Were the property system we call “copyright” more efficient — if you could easily know who owned what”

    Aye, that’s the crux of the matter to me. With the opt-out system, there’s no complete registry of copyright ‘deeds’. How does one obey the law and avoid trespassing, when one can’t find the property lines?

  • r alexison

    In my opinion the court seemed of course astute but somewhat at sea, which made the 10 minutes seem like insufficient time to clearly communicate the importance of case. They asked for background info which only arrived at the end. I’m not a lawyer nor highly versed on the case, so perhaps I missed some subtleties but I thought the questions were indicative of some grasping about what the issues were. There were common questions like why this was a judicial rather than legislative issue. A judge asked the plaintiffs to boil the issue down to one sentence, but then seemed still somewhat unclear at the end of the exchange. A judge asked the defense who was affected by the case and my memory is that he shrugged and said something like ‘the plaintiffs?’.

    I really don’t understand why none of the stories, for instance about the photos, or the university libraries full of information that are inaccessible, and there are so many more examples, weren’t quickly aired. Perhaps this omission from both sides was due to time constraints, tradition arguing constitutional law, or strategy. In another venue someone in the audience would have surely raised their hand to offer an answer.

    While, the issues can be simply boiled down in 10 minutes– opt in vs. opt out, a clear change in the contours of the law, etc., compared to other cases there didn’t seem to be real engagement between the judges and the lawyers around the real issues. This seemed like partly a time issue, partly an understanding issue. As well, compared to the plaintiffs, the defense seemed to be phoning it in — maybe his style, an affect, an off day, perhaps he truly thought it was a done deal, but the liveliness came only from the plaintiff side. Good work there though.

  • rodander

    Regarding the First Amendment argument you raise, do you address the express authorization given in Article I for “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”?

    It would seem to me that this Article I clause would argue against necessarily applying First Amendment tests to any and all copyright statutes, especially those in which Congress establishes the manner in which copyright vests. In other words, the Copyright Act is not like other statutes that may implicate the First Amendment. At best, it seems that this may raise competing explicit Constitutional provisions.

    (But I’m not a copyright lawyer, so be gentle if I am missing something obvious.)

  • jh

    hope Willem is well soon

  • Mike

    “as the burden is only realized with the emergence of the Net”

    Perhaps it might be useful to differentiate between email and the web.

    I think you could show some change in the way people communicate that now is burdened by opt-in (in that regard then I think the emergence of desktop publishing and the common place of digital “cut-and paste” might be more precise).

    In the “old” days, when you wrote a letter and you wanted to include some other media like a news clipping or photo you included the physical piece of paper- so you had to buy multiple copies from the copy owner.

    To use today’s medium of communication you NEED a digital copy- to make a copy you NEED the rights.

    So whereas in the past if I wanted to send prof Lessig a copy of an old text- I would have to send him the physical text (and the right traveled with the text).

    Now however the ONLY way I communicate with most people is electronically- so I need digital copies- so I need to obtain the copyright. Even if I just want to send one copy, I still need the rights. So it’s not a case where “I want to publish to millions of people on the net” but rather “I can’t do something I used to be able to do”

    True the “old” method still exists, but there is certainly enough “digital divide” data to indicate where digital communications is now a necessity, and communications that rely on “hard copies” are severely disadvantaged.

  • three blind mice

    Aye, that’s the crux of the matter to me. With the opt-out system, there’s no complete registry of copyright ‘deeds’. How does one obey the law and avoid trespassing, when one can’t find the property lines?

    whilst a valid concern, one can easily obey the law and avoid trespassing by simply creating new and original works of artistic expression. you do not have to reprint Skinny Puppy T-shirts (as cool as that might be), put The Golden Phoenix and Other French Canadian Fairy Tales on your website, or re-broadcast the “infamous Star Wars television special ran only once, never went to any sort of home video format and reputedly had the master copy destroyed by George Lucas himself.”

    heh. great read indeed. it seems to us mice that most of the anecdotes of “stifled uses” illustrate just little impact the big bad copyright boogeyman has on the average person.

    it seems the crux of the matter is, as r. alexison noted, “why this was a judicial rather than legislative issue“? the answer seems obvious: commons-ists cannot win the argument in the legislative debate.

  • lessig

    rodander: Your question was asked by Chief Judge Schroeder and Justice O’Connor. True, the Constitution (1787) grants Congress the copyright power. But the First Amendment (1791) limits it. All laws by Congress that are found to have violated the 1st amendment are laws that were passed pursuant to some Congressional power.

    3bm: Sure, all Free Speech challenges get raised in Courts because legislatures are not likely to be responsive to them. That’s indeed the purpose of a Free Speech right — to force the legislature to account for speech interests in contexts in which they are unlikely to.

  • rodander

    Thanks for the response, Prof. I understand that point.

    If there were no Writings and Discoveries clause in Article I, then I can see that the mere granting of exclusive rights might be challenged under the 1st Amendment. But since there is such authorization, that seems to indicate that the granting of such exclusive rights in and of itself does not violate the 1st Amendment, because this would have rendered the Writings and Discoveries clause a nullity (and there is no history indicating that, I expect). So if such exclusive rights can exist without violating 1st Amend, it seems to me that the manner in which such rights attach generally doesn’t much matter, constitutionally.

    Given this, it would appear that Congress could have constitutionally established an “opt-out” copyright system originally, rather than an “opt-in” system. So if the first Copyright Act could have constitutionally set up an “opt-out” system, then it is hard for me to accept that changing from an “opt-in” system to an “opt-out” system is unconstitutional.

    But you’ve thought longer about this than I have, to be certain.

  • lessig

    Rodander:

    But again, this is where Eldred is so good (really!): No one would say (or should say) all copyright violates free speech. It plainly doesn’t, as at least some copyright induces speech that otherwise wouldn’t be there. But no one should say that every copyright law doesn’t violate free speech. If Congress, e.g., eliminated fair use and the idea/expression dichotomy, at least there the gov’t would concede a line has been crossed.

    So how do you know which copyright laws should be tested under the 1st Amendment? Eldred answers the question: the trigger is tradition. If a copyright law is within the “traditional contours of copyright protection,” it gets a 1st A free pass — 200+ years of history has earned it immunity from “further 1st A scrutiny.” But if a copyright law deviates from the “traditional contours of copyright protection,” then it should be tested under the 1st A, just as any law regulating speech would be tested under the 1st A.

    You say you think Congress “could have” set up an opt-out system originally. But the point is the immunity comes from what they actually did. What they “could have” done hasn’t been tested by tradition.

  • rodander

    I see your point, Prof. Thanks. (I don’t know whether I buy it, but I’ll ponder it.)

  • Lewis Hyde

    One question about “traditional contours” that is not part of the Kahle brief, and was implicitly dismissed in Eldred, nonetheless seems to me worth keeping in mind. That is the distinction between a “limited” and a “perpetual” term.

    We think that Madison wrote the copyright clause that speaks of “limited Times.” Madison also, as with everyone else in his day, thought of copyright as a monopoly privilege, and in a late essay (circa 1817) declared clearly that “Perpetual monopolies of every sort, are forbidden … by the genius of free Governments….”

    The distinction mattered then and matters now. The puzzle is: where is the line between “limited” and “perpetual”?

    Finessing that puzzle for the moment, suppose we knew where that line was and that a law were written that crossed it: at that point it seems to me that we could say that “Congress has … altered the traditional contours of copyright protection” and therefore First Amendment scrutiny is in order.