Sunday, March 30, 2008

Neil Netanel’s Copyright’s Paradox

On December 13th, 2007, I did a post on UCLA law professor Neil Netanel’s article discussing the causes for copyright’s expansion something like a major league baseball player (pick your favorite) juiced on steroids. I noted that the article was originally intended to be part of a forthcoming book “Copyright’s Paradox.” I am happy to report Copyright’s Paradox is now published (available here, at (for the discounted price of $25.16, a definite metziah), or here at Barnes & Noble for the same price for members; non-members pay $27.96.

The book enlarges upon a theme Professor Netanel wrote about earlier in “Locating Copyright Within the First Amendment Skein,” 54 Stan. L. Rev. 1, 13-20 (2001). Copyright’s Paradox is 268 pages with endnotes, and has nine chapters:

1. A “Largely Ignored Paradox”
2. From Mein Kampf to Google
3. What is Freedom of Speech? (And How Does it Bear on Copyright?)
4. Copyright’s Ungainly Expansion
5. Is Copyright “the Engine of Free Expression?”
6. Copyright’s Free Speech Burdens
7. The Propertarian Counter-Argument
8. Copyright and the First Amendment
9. Remaking Copyright in the First Amendment’s Image

I confess that even aside from being a Google employee, the title of the second chapter made me wince, although I appreciate that the juxtaposition was intended to be jarring, given the obvious incongruity, both thematically and chronologically. The discussion of Mein Kampf refers not Hitler as a speaker, but to Alan Cranston's unauthorized and highly critical translation designed to show the evils of Hitler's book. I had known of and written about the Houghton Mifflin verus Stackpole case, but I didn’t know that Senator Cranston had, as a youth worked for the International News Service in the 1930s. Cranston was fluent in German and, after reading “Mein Kampf” tried to sound an early alarm about Hitler’s plans. Cranston had read the “official” English translation, which as Professor Netanel notes, was a “heavily edited, bowdlerized version designed to make Hitler more palatable for British and American readers.” (Thanks Houghton Mifflin!) Cranston then made his own translation which was published just before Hitler invaded Poland to begin WWII, and which contained Cranston’s own commentary, which was highly critical). Cranston’s (also abridged) version was a 32 page newspaper pamphlet which sold for 10 cents. Houghton Mifflin sued and got an injunction. This amazing story is worth the price of Professor Netanel’s book by itself, but there are many others, including an invaluable discussion about what he calls “paracopyright,” illustrated by Adobe’s effort to prevent the copying of snippets, loaning, or even playing aloud of the eBook versions of public domain stories. (page 67). Legislators in other countries contemplating new copyright laws would benefit from reading this section.

One can see in chapter 4 the source of the concern for what was spun-off as Professor Netanel's expansion article. Reading both the article and the chapter gives one a full picture of his point that copyright has expanded dramatically over time, an expansion that disturbingly has occurred fairly recently, contrary to Michael Eisner’s crypto-history. The paradox of chapter 1 and therefore of the book’s title is taken from a 1970 article by Professor Melville Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, " published in 17 UCLA L. Rev. 1180. Professor Netanel writes that at the time of the Nimmer article, “those who values creative expression happily favored both strong copyright protection and rigorous enforcement of First Amendment rights without perceiving any potential tension between the two.” Copyright’s Paradox is a persuasive effort to address that lacuna, and it is long overdue. I say overdue because the Nimmer article, in my opinion, led, no doubt inadvertently, to a backlash in the courts.

Nimmer wrote for example,:

[A] grave danger to copyright may lie in the failure to distinguish between the statutory privilege known as fair use and an emerging constitutional limitation on copyright contained in the first amendment. The scope and extent of fair use falls within the discretion of the Congress. The limitations of the first amendment are imposed upon Congress itself. Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied. The first amendment privilege, when appropriate, may be invoked despite the fact that the marketability of the copied work is thereby impaired.
17 UCLA L. Rev. at 1200-1201

The distinction is, for my tastes and apparently that of the courts, too neat. Only two years after publication of Nimmer’s article, lower courts reacted negatively to the idea of the First Amendment as a form of uber-IP law, see e.g., Walt Disney Productions v. Air Pirates, 345 F. Supp. 108, 116 (N.D. Cal. 1972), aff'd in part, rev'd in part on other grounds, 581 F.2d 751 (9th Cir. 1978); Robert Stigwood Group Ltd. v. O'Reilly, 346 F. Supp. 376, 382 (D. Conn. 1972), rev'd, 530 F.2d 1096 (2d Cir. 1976) as did the Supreme Court in 1977 in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577 n.13 (1977). Eight years later, in 1985, in Harper & Row, Publishers, Inc. v. Nation Enterprises, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) the Supreme Court put the kibosh on a separate First Amendment defense. In Eldred v. Ashcroft, 537 U.S. 186, 219–221 (2003). the Supreme Court once again rejected a First Amendment challenge. In Cohen v. Cowles Media Co., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court held broadly: “The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws.” Even Justice Brennan, a stalwart defender of the First Amendment, agreed. In New York Times Co. v. United States, 403 U.S. 713, 726 n. (1971) one year after Nimmer’s law review was published, wrote that there was no conflict between the two fields.

Of course saying there is no conflict requires one to sharply delineate the interests protected by and the reach of both fields, and it is here that Professor Netanel’s book excels where Nimmer’s article tended to confuse. Eschewing the formalistic approach to the paradox that has led to the decisions noted above, Professor Netanel (particularly in the final chapter) takes us through the way that copyright, properly limited and understood, may in conjunction with the First Amendment, again play a constructive role. He does this by focusing primarily on the values that underlie the first amendment, which he argues are not coterminous with first amendment doctrine. He argues that copyright should be informed by and tailored to further first amendment values, even beyond what the first amendment might require. His approach is at more respectful of copyright and the First Amendment than the earlier Nimmer article.

Copyright's Paradox is a major book by a major thinker, and a must read for all.


Mike Madison said...

Right after college and before starting law school, I worked as a low-paid campaign staffer for Alan Cranston during his brief run for the 1984 Democratic presidential nomination. The tale of his effort to bring Hitler's writings to a wider audience featured prominently in his campaign biography. This was partly because of its rhetorical appeal, of course, but partly because the Senator, for all of his years of service in various public offices, was enormously proud of his work.

Anonymous said...

Sounds like a very interesting book; I just ordered a copy.

What are your thoughts on the following twist:

The US is party to numerous international treaties affecting copyright (Berne, TRIPS, etc.). To what extent do these ratified, statutorily-enabled treaties supercede any arguable First Amendment defense? Cf. Missouri v. Holland.

LKB in Houston

Andrew Oh-Willeke said...

Missouri v. Holland was a statement as much about the de facto nullity of the 10th Amendment as it was about the notion that treaties could be supreme over the U.S. Constitution. Treaties can supercede state law, but generally not the U.S. Constitution (although the constitution and the treaty would be interpreted in a manner to avoid a conflict if possible).

SCOTUS has also held for a very long time (probably contrary to original intent) that any duly ratified treaty may be abrogated by any duly adopted domestic statute.

Similarly, as recently as 2008, SCOTUS has sustained a dubious presumption against treaties being self-executing and against them being enforceable through the courts.

It is clear (to me at least) that even a treaty enabling statute may not be unconstitutional.