A Copyfighter’s Musings

I got a chance to read through Neil Netanel’s “Locating Copyright Within The First Amendment Skein“.  You might also want to check out the following articles: Alex Kozinski’s “What’s So Fair about Fair Use?”, which I think does a better job than Netanel at handling resolution to certain fair use disputes; and “Fair Use And Market Failure: Sony Revisited” by Glynn Lunney Jr., which deals with different ways to interpet fair use through Sony (I haven’t been able to find it except on Lexis Nexis). Also, I’ve been reading some articles discussing Napster, articulating in far clearer ways the confusion I’ve had.  I’m going to try to have a post discussing how I view that decision normatively, not just in relation to the caselaw.

In any case, here are my Netanel notes, with minor commentary:

Netanel
Tension between First Amendment and copyright – written before Eldred, so it’s not like the Court is likely to take this up. But it is an interesting normative argument.

Part 1 – Nimmer’s analysis
 “Nimmer concluded that, except with regard to certain news photographs, copyright’s idea/expression dichotomy and limited term of protection provide adequate protection for free speech values.”
 His analysis was adopted in many cases.
 But, Netanel says, things have changed in copyright since 1970.

Part 2 – What’s Changed in Copyright?
 1976 – Derivative works codified, bringing together and broadening several separate clauses.
  Court cases construe this broadly.
 Fair Use
  What’s the standard?  Market-centric view, looking towards fair use as solution to market failure due to transaction costs (see Harper-Row)? How transformative the use is (see Acuff-Rose)? Fair use as balancing the monopoly power (see Sony – for more on this and conflicting readings of Sony, see FAIR USE AND MARKET FAILURE: SONY REVISITED by Glynn Lunney Jr.)?
   (Note: the first version is the tact taken by people like Tom Bell and, I think, Stan Liebowitz when they talk about fared use rather than fair use.  If the transaction costs are no longer as large, then there’s no problem with actually pricing each fair use.)
  Where’s the burden? Fair user (see Harper-Row)
 Terms are not limited
 Paracopyright – he talks about DMCA, but he could have talked about contract law just as easily
 Media consolidation – copyright actually leading to more consolidation, less diversity of content and speakers

Part 3 – What’s Changed in First Amendment Law?
 The category approach, and the two part analysis
  Is this a regulation that requires scrutiny?
  Is it content based or neutral? Former gets strict scrutiny (compelling interest, least restrictive alternative), latter gets intermediate
 Content based – going after a particular viewpoint, speech with a particular “communicative impact”
 Content neutral – not based on those things, but rather on time, place, and manner.
  Though it’s “intermediate” that has meant many different things. Typically, follows “Under intermediate scrutiny, such regulations will be upheld if they (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.”

Part 4 – Answering Question 1: Does copyright deserve any scrutiny?
 Responding to: Copyright must be looked at separately from First Amendment
  Netanel’s strongest arguments: other IP rights, like trademark and right of publicity, have been subjected to analysis. Safety valves are failing.
 Responding to: Copyright doesn’t burden speech
  Rebuttals: Using someone else’s work is an expressive act, more than an incidental burden on it.  These acts cannot be compared to nonspeech like obscenity or malicious falsehood or others without any substantial value.  You can distinguish just copying the work from reusing it.

Part 5 – Copyright is COntent Neutral
 “But copyright law does not discriminate on the basis of the message conveyed, seek to determine which topics may be the subject of public discourse, or endeavor to temper communicative impact”
 Doesn’t present the same problems as pure censorship, and the Copyright Clause would lead us away from giving it the highest scrutiny.
 More consistent with caselaw – see Regan v. Time Inc and the Olympics v. Gay Olympics case, even with Remeirdes

Part 6 – Copyright deserves Turner scrutiny
 Typically, intermediate is pretty deferential.  Instead, we should use the subcategory from Turner which is used when “the government is effectively allocating speech entitlements”
  “The Court insisted that the government must
adequately show “that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry.” It also held that the government “bears the burden of showing that the remedy it has adopted does not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'””
  “In turn, the speaker–discriminatory content-neutral regulation at issue in the reinvigorated ‘intermediate scrutiny’ cases gives reason to suspect that government is defining and distributing speech-related entitlements at the behest of politically powerful groups who seek to garner those entitlements for their own commercial gain.” – dealing with the rent seeking of copyright.  Must take into account people not privileged in democratic process, the dispersed individuals effected by the legislation.
 Copyright Law as rent allocation
  Happening more than ever, see Sony Bono, DMCA

Part 7 – Applying Turner
 CTEA
  Talks about how courts that use Nimmer forget that even he thought term limit was central to ameliorating any constitutional conflicts.  Doesn’t incent production of new works.
 DMCA
  Netanel says that Congress didn’t have an important interest. He focuses on how it gives a right to control access, which has never been part of copyright in that sense.  I don’t buy this argument, his next is better.
  Narrow tailoring.  Other means: could have made it like the AHRA, regulating second-generation copying. Could have allowed circumvention for certain uses.
 Fair use
  Doesn’t fit here, but there are still problems – discusses Wind Done Gone trial court ruling.
  Instead, modify fair use defense.  “Such modifications would in effect be designed to employ fair use as a proxy for the Turner test, and in particular the ample alternative channels of communication prong.”  Options for doing so:
   1.  Give weight to expressive purpose, not just market-centric approach.
   2.  Put burden on copyright holder for proving defendant copied more than necessary and will adversely harm market for copyright holder’s work.
   3.  Where there is no fair use, mandate license fees, do not enjoin production.
  

Filed by Derek Slater at 4:42 pm under General news
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