The Flea Market and the Public Square – Giving the First Amendment a Say in Copyright

-- MislavMataija - 11 May 2009

File-sharing cases are based on the 1984 Sony test: does the "device", i.e. network, have substantial non-infringing uses? If not, the operator is usually held liable for the actions of its users. This secondary liability test raises serious concerns not only for the copyright regime, but for freedom of expression in a networked world.

Firstly, the Sony test was developed with something entirely different in mind. Once its VCRs were sold, Sony had nothing to do with what its users were doing. Therefore the inquiry could be restricted to whether the VCR had "substantial non-infringing uses".

The test fits uneasily even with file-sharing services, much less with search engines and social networking sites. First of all, it is based on a world of physical objects and places. An important assumption of the Sony safe harbor is that, once you own a thing (a VCR and a TV), you should be able to use it as you like. But to share files on an online network is to step out of the private domain as a place of secrecy and property. The normal instincts that lead courts to find fair use or exempt Sony-like "gatekeepers" do not apply.

The flea market

As a consequence of the uneasy analogy with Sony, in the eyes of courts, file sharing is most like selling pirated CDs on a flea market (Fonovisa). As a user of the network, you rented a stall and are peddling your wares; the network operator is or should be able to police your actions, from which he is profiting, even if indirectly.

Thus, in Aimster, even though encryption made it impossible to see who was sharing what, liability was still found. Encryption amounted to "willful blindness". Extending that logic, since encrypted communication could potentially consist of copyrighted works, anyone who runs some kind of encrypted network could be liable. It is almost impossible to draw any technology-based distinctions between what will or will not escape liability.

Of course, a common sense approach destroys these nuances. We all know what Aimster, Grokster and BitTorrent? are really about. There are many other ways to share Project Gutenberg copies of Shakespeare or a Charlie Chaplin movie, so why put up with the other 99% of users who only use it to swap copyrighted stuff? The judges had a pretty good idea of what is being done with the software, and then found a legal theory enabling them to shut it down while keeping as true as possible to precedent. This was the cleverness of Grokster. Without overruling Sony or declaring it inapplicable to file sharing, Justice Souter's opinion found liability on the grounds that Grokster "induced" infringement because it was advertised as a Napster substitute, published newsletters with links to pirated content etc.

File sharing providers can attempt a narrow defense. They can point out some socially acceptable use for their network, or at least try to avoid using names like Pirate Bay or posing as freedom fighters. But neither is likely to get them very far, as long as their networks are being substantially used in the same way. Thus, the only bulletproof practice is content filtering.

The Public Square

There are several ways to object to the courts' "common-sense" approach. First, you might attack the heart of the matter and say that there should be a freedom to copy, read, watch, listen and learn, and that it is illegitimate to block any non-commercial sharing of copyrighted materials. While a legitimate position, this would probably not get you very far under current law.

The second thing you might be worried about is spillover: if courts are too quick to find file sharing systems liable, there is really no limit to the type of communication that can be blocked. After all, there is no real difference between Google and PirateBay, except for the fact that Google reacts to take-down notices.

Finally, you might be troubled about the free speech ramifications of content filtering and take-down notices as the only sure-fire escape from liability, bothered by the very idea of courts judging which communication networks are legitimate, or by the prospect of forced removal of measures protecting the anonymity of users. Is any kind of online communication subject to a DMCA-like deference to copyright owners, duty of disclosure and cooperation? How does that square with McIntyre's protection of anonymous speech?

If there is to be a legal solution, it has to be based on the First Amendment rather than on the Copyright Clause. This would involve recognizing a right to communicate freely and anonymously, and exempting those that provide the necessary infrastructure from liability. The analogy has to shift from a flea market to a public square. A technology that allows anonymous assembly and speech should be protected by the First Amendment. Perhaps this protection need not be absolute, but it has to be recognized.

Copyright and Free Speech

Currently, copyright law seems deeply hostile to those concerns. It has collapsed into a kind of industrial policy, a territory to be apportioned among content industries, distributors and ISPs. In the short run, some of those conflicts can be leveraged for the benefit of users, but industry deals will ultimately prevail and make their way into the Copyright Act. On the constitutional level, things are no better. The Court's argument in Eldred is a nice summary: copyright is actually meant to protect free speech (the 18th century idea of shielding purveyors of unpopular thought), and the statute provides for fair use anyway, so clearly copyright as such does not give rise to First Amendment problems.

If this is how far the free speech idea can take you under current law, clearly the notion that public benefit trumps individual rewards in copyright (US v Paramount at 158) is open to question. Or is it that "public benefit" does not mean anything other than the protection of publishers' incentives?

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