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on “The Unfinished Constitution” Washington Crossing PA October 14, 2011 David G. Post I want to cover a lot of ground tonight, and I want to make some connections that might be new to you. I want to focus on two parts of our Constitution, one familiar, one not-sofamiliar. The familiar one is the provision prohibiting Congress from making any law "abridging the freedom of speech or of the press" – the First Amendment. The not-so-familiar one is the provision granting to Congress the power “to promote the Progress of Science" by "securing to Authors the exclusive Right to their Writings" – the so-called "Copyright Clause" of Article I Sec. 8. The interplay between these two provisions – one a grant of power to the government, the other a prohibition on government’s use of power – is complicated, fascinating, and even profound. To begin with, there is, and always must be, tension between them. It’s built in, as it were. Copyright law restricts free expression – indeed, that is the very point of copyright law. That’s its job. Copyright works by giving Authors certain exclusive rights – monopoly rights – to their expression, and it allows them to restrict the speech of others where that speech conflicts with those exclusive rights. I cannot reproduce today’s New York Times and distribute it to my friends or put it on my Facebook page – copyright restricts my freedom to speak. I cannot walk into a bar at Washington Crossing and sing my version of Bob Dylan’s Like a Rolling Stone (though I have a terrific cover version of the song . . .) – copyright restricts my freedom to speak. I cannot take the final scene from the Harry Potter motion picture and insert it into the video I’m making on the occasion of my parents’ 50th anniversary – copyright restricts my freedom to speak. I cannot translate Jonathan Franzen’s Freedom into Italian – copyright restricts my freedom to speak. If I do any of these things (without the permission of the
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copyright holder), I’m subject to legal sanction. That’s how copyright works – by restricting expression. In fact, the Copyright Act specifically authorizes the seizure and destruction of books, DVDs, and the like – one of the very few places in our law that does so. US marshals can (and do) take books and throw them into the incinerator. Now, they only do so, mind you, on court order, after due process; I’m not suggesting that we live in some sort of barbaric, book-burning society. Not at all. But the fact remains that our copyright law permits the destruction, in certain circumstances, of books and newspapers and CDs and DVDs and . . . , and there is an obvious tension between such law and the freedom of speech protected by the 1st Amendment. At the same time, of course, copyright law also encourages speech, and the production and dissemination of expressive communications – music and sculpture and news reporting and movies and all the rest. It is and was intended to be, as the Supreme Court put it recently, one of “the engines of free expression . . . by establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Like I said – it’s complicated. I want to look tonight a little more closely at that tension between copyright and free expression, As I said, it is a tension inherent in the very notion of copyright law; so it’s always been there, ever since we’ve had copyright law – and because one of the very first bills enacted by the very first Congress in 1791 was a Copyright Act, we’ve had copyright for a long time. It’s only recently, however – I’d say the last 20 years or so – that we’ve begun to look carefully at this tension, and to consider and to worry about its broader implications. This is due largely to the rise of the Internet and related digital technologies, which has moved copyright law from the outer periphery of the legal universe (and the outer periphery of our culture) to the very center of both. We all now have the ability at our fingertips to make millions of copies, at virtually no cost, of pretty much anything we can get onto our computers – songs, movies, software, articles, photographs, etc. – and to distribute those copies to
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millions of people around the globe – again, at virtually no cost. Pretty much all of that (whether you know it or not) is copyright-protected information; that’s just the way copyright law works these days. Somebody owns the copyright in just about everything you have on your computer, and just about everything you find on the Internet. The scope and shape of copyright law thus has a very significant and substantial impact on the shape of the Net – on what you can find there, how you can get it, etc. And as the Internet has become a more important feature of our world, so too has copyright law become a more important feature of our legal world. For those of you in my generation, I would venture to bet that copyright law never came up during your breakfast table conversations with your family when you were growing up (unless your parents happened to be in the publishing or the entertainment business); but I bet your kids talk about copyright law – about file-sharing, remixing videos, and all the rest – maybe a lot. Maybe they’ve even heard about the Pirate Party – a political party in Sweden that has just gotten enough votes to be represented in the Swedish Parliament, and whose platform, basically, is: No More Copyright. In pre-Internet analog days, this tension and conflict between copyright and free speech was an interesting but fairly insignificant question; today it has taken center stage. As it happens, no one had more interesting or influential things to say about both of these subjects – copyright and the freedom of speech – than Thomas Jefferson. [Having just written a book about Jefferson and spent 12 years or so immersed in his work, I find that’s often true; there’s an astonishing range of things – from meteorology to linguistics to gardening to cryptology to paleontology and many others – which turn out, when you start to look closely at them, to have Jefferson’s fingerprints all over them.] On the one hand, Jefferson was our first great free expression and First Amendment absolutist. Freedom of expression was a central tenet – really, the central tenet – of Jefferson’s creed. To preserve the freedom of the human mind & freedom of expression and the press, he wrote, every spirit should be ready to devote itself to martyrdom; for as long as we may
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think as we will, and speak as we think, the condition of mankind will proceed in improvement. . . . Diffusion of knowledge among the people is the only sure foundation that can be devised for the preservation of freedom and happiness. And then, his now-famous words: Were I faced with a choice between a government without newspapers, and newspapers without government, I would not hesitate for a moment to take the latter.”
The first object of government is to leave open to all the avenues to truth, and freedom of expression and freedom of the press are the most effectual means for doing that. The United States, he wrote, will demonstrate to the world the falsehood that freedom of [speech, and] freedom of the press are incompatible with orderly government. And it was Jefferson’s election in 1800 that enshrined these principles into our government and our law – at a time when that was by no means foreordained. Adams and the Federalists, you may recall, during John Adams’s first (and, thankfully, only) term as President, enacted the most extraordinary restriction on the freedom of speech the United States had ever seen or ever was to see. The Sedition Act of 1798 made it a federal crime, punishable by 2 years in prison, to criticize the government — to “write or utter or publish,” any “malicious writings against the government of the United States, or either House of Congress, or the President,” or anything that would “bring them into disrepute.” Dozens of U.S. newspaper editors and pamphleteers had been rounded up and tossed in jail under its terms. The Sedition Act would have destroyed the United States before the United States had even had the chance to really become the United States. The election of 1800 was very much a national referendum on the Sedition Act, and Jefferson prevailed; and his very first act, upon being sworn in as President, was to sign the bill repealing it. Protecting the freedom of expression was a task of the very highest order, in Jefferson’s view, because freedom of expression was a natural right, belonging to all. It is not given to us by law, nor is it derived from law. It is just in the “nature” of things, part of the way the world is constructed, derived not from the laws of Man but “the laws of Nature and of Nature’s God”: if you bring two human beings together, they will think, and they will attempt to communicate
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with one another about what they are thinking. They’ll do that without any law to help them. Humans communicate with one another not because the law enables them to do so; they communicate with one another because—well, because that’s the kind of beings we are, and that is what is in our nature. Law’s job is not to enable that communication, but to protect it when it does occur. Copyright, though, is different. Copyright is what Jefferson called – and I believe he was the first person to point this out and make this distinction -- “social law.” Copyright does not derive from the nature of things, from the way the world is, or is constructed, because it is in the nature of things that ideas move freely from one person to another. As he memorably put it in an 1813 letter that has become one of the foundational documents for intellectual property law in the US: If nature has made any one thing less susceptible than all others of exclusive property, it is the “idea.” That ideas should freely spread from one to another over the globe seems to have been particularly and benevolently designed by nature. Ideas are like the air we breathe – incapable of confinement or of exclusive appropriation, and expansible over all space. The only way to keep an idea to yourself is to . . . well, to keep it to yourself. The moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Once it gets loose, it is like the air we breathe, expansible over all space, incapable of confinement. And, like fire, ideas don’t get “used up” as more people use them: The peculiar character of ideas is that no one possesses an idea the less because others possess more; he who receives an idea from me receives instruction himself without lessening mine, just as he who lights his candle at mine receives light without darkening me. Copyright, in other words, doesn’t come from the laws of nature, it comes from the laws of man. It is not, like freedom of expression, antecedent to the law, but entirely dependent on it.
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What difference does all this make? A great deal. It does not mean that we should get rid of copyright law –it’s not an anti-copyright (or pro-copyright) notion. But it does mean that copyright law should always serve free expression, and not vice versa. It means that when these two great forces come into conflict with one another – and as I said, they do with some frequency nowadays – we know where we stand. We have our thumb on the scales on the side of free speech; we need to be vigilant and alert to the circumstances where copyright law is not serving the cause of free expression, where it is interfering with our right to speak and communicate with one another, and we need to adjust it accordingly. To put it bluntly: When we’re destroying books under the authority of copyright law, we not only need to be sure that they’re the right books; we need to be damned sure. To get a better sense, perhaps, of what this might mean, and a better sense of the complicated ways in which copyright and free expression are intertwined on the Net, I want to tell a copyright and free expression story. In the mid-90s, when the Internet was just becoming “the Internet,” this fixture in our lives, many people began to realize that copyright law could strangle the medium before it even got going. As I mentioned, just about everything on the Net is protected by copyright – I’m not talking about bootleg songs or pirated DVDs, I’m talking about everything – every email you send, every blog posting, every picture of your children and grandchildren you post on Facebook, every product review you leave at Amazon.com, every video of stupid pet tricks posted to Youtube. All of it. Hundreds of millions, probably billions and trillions, of such copyright-protected works have been making their way across the Internet since I began this talk. Copyright means that you need permission from the copyright holder when you “copy” a work that is protected by copyright. Yet the very act of transmitting every one of those files from one place to another on the Internet involves making dozens of “copies,” as the message makes its way from server to server across the Net. If the Internet Service Providers who are moving these files across the Net have to obtain the permission of the copyright holders before
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they do all this (as it appeared, in the mid-1990s, to be the case) if they’re liable for all those copies they’re making, . . . many people, by the mid 90s, started to realize that we won’t have much of an Internet if that’s the case, because nobody in their right mind would go into that business. “We understand,” the ISPs said, “that some of the stuff – maybe lots of the stuff – that we’re passing along from one user to another is infringing someone’s copyright. But we’re just standing in the middle, passing things along from user to user. Don’t hold us responsible for that – not if you want to have a robust Internet.” So in 1998, Congress did a very smart thing. [We criticize them when they screw things up (and we can do so freely, thanks in large part to Jefferson) – we should dispense praise when they get it right]. In 1998 Congress passed a law – the DMCA – giving “providers of online services” an immunity from the claims of copyright infringement based on the actions of their users. We would suspend ordinary copyright law, in other words, weaken it, in order to allow these entities to do their indispensable work in creating this robust free-speech-enhancing place. This immunity from copyright claims has been an astonishing success. It is in large part responsible for the explosion, over the last 10 years or so, in “social media” and “usergenerated content” (or “Web 2.0”) services and applications. Facebook, Myspace, Twitter, Youtube, Craigslist, Tumblr, Blogger, Flickr . . . hundreds of thousands of sites, some of which are household names around the globe, all of which share one common characteristic: they provide no “content” of their own, but rely entirely on their users, who are charged with making the site valuable and engaging and attractive for other users. Without the DMCA immunity from copyright liability, you wouldn’t get any of them. They couldn’t exist. Why not? Because without an immunity, their potential liability for their users’ infringements, at the scale at which they operate, would be astronomically large. The amount of stuff posted to YouTube every month is greater than the combined output of all US TV networks since their inception – if YouTube (or Facebook, or Craigslist, or . . .) were liable for even a tiny fraction of that, their copyright liability for a single day’s worth of uploaded content
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would be measured in the hundreds of millions or billions of dollars. Without the immunity from copyright infringement claims, allowing users to communicate and to exchange content freely with one another would be unthinkable; no rational investor would have provided financing for, say, the Facebook business plan without assurances on that score, some protection against the outsized risk. It was a brilliant stroke – a truly Jeffersonian stroke – adjusting copyright law in the interest of free expression. [Among other things, it explains why virtually all of UGC/Web 2.0 sites with global reach started in the United States – because United States law gave them this immunity from copyright liability] And the events of the past year show us just how significant a development this was. Without the DMCA immunity, there’s no Facebook, YouTube, Blogger, or Twitter; and you can make a very strong argument that without Facebook, Youtube, Blogger, or Twitter, Hosni Mubarak is still the President of Egypt. For the first time in a history stretching back over 5000 years, ordinary Egyptians were able to freely communicate with one another, thanks to Facebook, and Twitter, and YouTube, and that has, in fact, changed the world we live in. A direct line, in other words, connecting US copyright law – and a little, hidden-away provision of US copyright law, at that – and the Arab Spring uprisings. Jefferson – the Jefferson whose motto was Malo periculosam libertatem quam quietam servitutem. [I prefer the tumult of liberty to the quiet of servitude.] would be thrilled, and proud.
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