Free Speech & Copyright: First Amendment Implications of Copyright Law, Study Guides, Projects, Research of Health sciences

Download Free Speech & Copyright: First Amendment Implications of Copyright Law and more Study Guides, Projects, Research Health sciences in PDF only on Docsity! VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 1 FREE SPEECH: THE FIRST AMENDMENT AND DISTRIBUTIVE VALUES IN COPYRIGHT MOLLY S. VAN HOUWELING * Despite recurring academic warnings that copyright may unjustifiably restrict expression,1 the Supreme Court has repeatedly held, and recently reaffirmed,2 that the Copyright Act’s “built-in free speech safeguards are generally adequate to address” any First Amendment concerns.3 So long as Congress does not “alter[] the traditional contours of copyright protection,” courts need not subject copyright to First Amendment scrutiny.4 Copyright, by this logic, is consistent with the First Amendment so long as it retains those free speech safeguards that are constitutionally required. What, then, is constitutionally required? The Court has identified several safeguards within the Copyright Act, including fair use and the idea/expression distinction, whose removal or impairment might trigger First Amendment scrutiny.5 But even these features of the Act may include elements of congressional grace as well as constitutional imperative.6 In order to determine whether recent and proposed changes * Assistant Professor of Law, University of Michigan Law School. Thanks to Jonathan Zittrain for comments on an earlier draft. 1 See, e.g., C. Edwin Baker, First Amendment Limits on Copyright, 55 VANDERBILT L. REV. 891 (2002); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1, 69-86 (2001); Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 YALE L.J. 5, 53-60 (2002); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A. L. REV. 1180 (1970); Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970); see generally Diane Leenheer Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 Wm. & Mary L. Rev. 665 (1992) (addressing property rights in information, including copyright, more generally); Michael Birnhack, “The Copyright Law and Free Speech Affair: Making Up and Breaking Up,” 43 IDEA 233 (2003) (reviewing literature). But see Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 B.C. L. REV. 1, 3-4 (2000) (arguing that copyright is generally constitutional and that “the principles supporting copyright are applicable to other areas of the law”). 2 Eldred v. Ashcroft, 123 S.Ct. 769 (2003). 3 Eldred, 123 S.Ct. at 789. 4 Id. at 790. 5 Id. at 788-89. 6 See generally Eugene Volokh, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart , and Bartnicki, ___ HOUS. L. RE V. ___ (forthcoming 2003) (draft at 18, available at http://www.law.ucla.edu/faculty/bios/volokh/frame.html). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 2 to copyright law alter the traditional contours of copyright in a way that causes a First Amendment problem, we need to understand what specific characteristics of the Act are mandatory. Or, to put it another way, what are the potential First Amendment problems with copyright that must be guarded against? Some courts and commentators who have focused on the tension between copyright and the First Amendment argue that the dangerous feature of copyright is that it gives copyright holders veto power over some expressive reuses of their works.7 Not only can a copyright holder demand a fee in exchange for permission to, say, make a movie based on her novel; she can deny permission altogether. Lawrence Lessig and others argue that copyright should be limited to ensure that expressive reuses of a copyrighted work can be made even if the copyright holder objects outright; they worry less about the fact that getting permission often costs money. Lessig thus advocates “[c]ompensation without control,” 8 much as Melville Nimmer did decades ago when he argued that certain uses of news photographs should be permitted under a compulsory licensing regime.9 According to Lessig such regimes produce freedom—as in “free speech,” not “free beer.”10 Other commentators evince more concern with the expenses borne by users of copyrighted works.11 But almost none of them explore the First Amendment jurisprudence addressing the constitutional implications of regulations that, like copyright, make speech expensive and thus disadvantage poorly-financed speakers and listeners.12 Special 7 E.g., LAWRENCE LESSIG, THE FUTURE OF IDEAS 12 (2001); Willian F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 CARDOZO ARTS & EN T. L.J. 667, 688-89 (1993); see generally Niva Elkin-Koren, It’s All About Control: Rethinking Copyright in the New Information Landscape, in THE COMMODIFICATION OF INFORMATION 79 (Niva Elkin-Koren & Neil Weinstock Netanel, eds., 2002). 8 Lessig, supra n. 7, at 12, 201; see generally James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 L. & CONTEMP . PROBS. 33, 62- 63 (2003) (contrasting “freedom from the will of another” with “freedom from the background constraints of the economic system”). 9 Nimmer, supra n. 1, at 1199-1200. 10 Lessig, supra n. 7, at 12 (quoting Richard Stallman, founder of the Free Software Foundation, who uses this terminology to describe the freedom associated with the free software movement, Free Software Foundation, http:// www.gnu.ai.mit.edu/philosophy/free-sw.html). 11 E.g., Boyle, supra n. 8, at n. 145; Pamela Samuelson, Copyright, Commodification, and Censorship: Past as Prologue—But to What Future?, in THE COMMODIFICATION OF INFORMATION 63, 71 (Niva Elkin-Koren & Neil Weinstock Netanel, eds., 2002); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 295, 381 (1996); Negativland, Two Relationships to a Cultural Public Domain, 66 LAW & CONTEMP . PROBS. 239, 257-58 (2003); Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 CASE W. RES. L. REV. 673, 699, 701 (2003). 12 The one exception of which I am aware is Alan Garfield, who treats addresses this jurisprudence briefly in his article on the conflict between copyright and the First VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 5 For example, the recent wave of scholarship has been prompted in part by Suntrust Bank v. Houghton Mifflin Co .,19 in which the holder of the copyright to Gone With the Wind attempted to enjoin publication of The Wind Done Gone—a novel that “appropriates numerous characters, settings, and plot twists”20 from Gone With the Wind and transforms them “in service of a general attack on”21 the earlier novel. The new work also includes many features absent from the original, including explicit references to homosexuality and biracial characters.22 In vacating a preliminary injunction for the copyright holder on the basis of fair use, the Eleventh Circuit explained that “First Amendment privileges are preserved [in part] through the doctrine of fair use”23 and concluded that “the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law.”24 The concurring opinion agreed, and also stressed that the copyright holder had refused to license derivative works that included references to “miscegenation and homosexuality.”25 This refusal was critical to Judge Marcus, because “‘Copyright law is not designed to stifle critics. . . . [The law] should not . . . afford [copyright holders] windfall damages for the publication of the sorts of works that they themselves would never publish.”26 talents. . . . Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy.” Rosemont, 366 F.2d at 309 (citations and internal quotation marks omitted). The concurring opinion went on to claim that Hughes waged the copyright battle “not with a desire to protect the value of the original writing but to suppress the Random House biography because Hughes wished to prevent its publication.” Rosemont, 366 F.2d at 313 (Lumbard, C.J., concurring). Although the opinion is not explicit on this point, the circumstances suggest that Hughes would not have been willing to license use of the excerpts even for a fee. Time involved an outright refusal to license. Time had acquired the copyright in the Zapruder film of the assassination of President Kennedy. The publishing company refused to license images from the film for use in the defendant’s book about the assassination. Time, 293 F.Supp. at 137-38. On the way to finding that use of the images in the book constituted fair use, the court stressed the “public interest in having the fullest information available on the murder of President Kennedy.” Time, 293 F.Supp. at 146. 19 268 F.3d 1257 (11th Cir. 2001). For recent commentary focusing on the case, see, e.g., Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 LAW & CONTEMP . PROBS. 173, 173, 195-96, 199-200 (2003); Netanel, supra n. 1, at 2, 81-85; Rubenfeld, supra n. 1, at 3, 8-9, 20, 54. 20 Suntrust, 268 F.3d at 1267. 21 Suntrust, 268 F.3d at 1270. 22 Suntrust, 268 F.3d at 1270. 23 Suntrust, 268 F.3d at 1264. 24 Suntrust, 168 F.3d at 1277. 25 Suntrust, 168 F.3d at 1282 (Marcus, J., concurring 26 Suntrust, 268 F.3d at 1283. VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 6 This is the clearest type of case in which a limitation on copyright may be constitutionally required: without fair use the defendant would be forbidden from expressing herself in the way she chooses, and the public would be deprived of her speech. Commentators interested in the conflict between copyright and the First Amendment have focused on this type of case and seem widely to agree that copyright should sometimes yield to works—like parodies27—that reuse copyrighted expression in ways that the copyright holder is unlikely to license voluntarily.28 My focus is different, as the next section explains. II. The Under-Examined Conflict: Copyright Makes Speech More Expensive Sometimes copyright has the effect of forbidding speech outright; I am interested in those cases in which copyright merely makes speech more expensive. Copyright holders often transfer their exclusive rights, or grant non-exclusive licenses, in exchange for money. Those who want to speak by copying, performing, displaying, distributing or making a derivative work based upon a copyrighted work need only pay the copyright holder’s asking price. Their speech is not forbidden; it’s just more expensive than it would be in the absence of copyright. This is one of the widely-acknowledged costs of the incentive-based copyright system: it increases the cost of creativity for authors who make derivative works based on copyrighted works, and it raises the cost of consumption for purchasers of copyrighted works.29 Copyright thus makes some speech more expensive for speakers and for listeners. Some commentators have dismissed the notion that this expense raises a constitutional concern. Richard Posner, for example, argues that “as we do not suppose that writers should be allowed to steal paper and pencils in order to reduce the cost of satire, neither is there a compelling reason to subsidize social criticism by allowing writers to use 27 The seminal parody case is of course Campbell v. Acuff-Rose Music., Inc., 510 U.S. 569 (1994), 28 This consensus includes commentators who are generally quite skeptical about copyright exceptions. See, e.g., Richard A. Posner, When is Parody Fair Use, 21 J.LEGAL STUD. 67, 71-73 (1992) (arguing that parodies that “use[] the parodied work as a target rather than as a weapon” should be excused, because there is “an obstruction [to the market] when the parodied work is a target of the parodist’s criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work”). A few seem skeptical of fair use even under these circumstances, however. See, e.g., Tom Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine, 76 N.C. L. REV. 557, 594 (1998) (characterizing fair use exception for uses the copyright holder refuses to license as favoring “public access over sound economics”). 29 See generally William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 17 J. LEGAL STUD. 325, 328, 332 (1988). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 7 copyrighted materials without compensating the copyright holder.”30 Others have similarly warned against limiting copyright in order to “subsidize” poorly financed users of copyrighted expression.31 The Supreme Court has itself suggested that whatever tension there is between intellectual property rights and the First Amendment springs from attempts to enjoin speech, not from mere demands for payment. In Zacchini v. Scripps-Howard Broadcasting Co.,32 the Court rejected a First Amendment defense to a right of public ity action against a television station that broadcast video footage of the plaintiff- petitioner’s human cannonball act. The Court stressed that Zacchini “simply wants to be paid.” 33 “An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply sought compensation for the broadcast in the form of damages.”34 This demand for compensation—backed up by state law—appears to have no First Amendment consequences. But some commentators express concern about the monetary expenses associated with copyright, and with the distributional consequences of those expenses. William Fisher has made the most forceful normative case, arguing that “the law should be adjusted to equalize consumers’ access to works of the intellect.”35 More recently, Robert Merges has suggested that copyright should be limited by fair use in order to serve distributive goals.36 To date, though, the participants in this debate have not focused on the rich body of First Amendment 30 Posner, supra n. 28, at 73 (rejecting the argument that “freedom of expression will be curtailed if the creation of parodies is burdened by the costs of transacting with and paying royalties to copyright holders”). 31 See, e.g., Linda J. Lacey, Of Bread and Roses and Copyrights , 1989 DUKE L. J. 1532, 1559 (1989) (“If you do not believe that life-sustaining commodities—food, housing and clothing—should be provided for free if necessary, then you will be hard put to explain why intellectual property is so much more valuable than those other commodities as to justify an exception to marketplace rules.); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Precedessors, 82 COLUM. L. REV. 1600, 1632 (1982) (arguing that “courts should . . . take care that they do not tax copyright owners to subsidize impecunious but meritorious users under the guise of maximizing value”). Cf. Alex Kozinski & Christopher Newman, What’s So Fair About Fair Use?, 46 J. COPYRIGHT SOC’Y U.S.A. 514, 524-27 (1999) (arguing that copyright holders should share in the profits generated by parodies). 32 433 U.S. 562 (1977). 33 Zacchini, 433 U.S at 578. 34 Zacchini, 433 U.S. at 573-74. 35 William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659, 1774 (1988). 36 Robert P. Merges, The End of Friction? Property Rights and Contract in the ‘Newtonian’ World of On-Line Commerce, 12 BERK . TECH . L.J. 115, 116, 133-36 (1997). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 10 ability to gauge whether particular speech is especially worthy or worthless.44 There is one area, however, in which willingness to pay seems an especially bad measure of the value of speech: where the speech is expensive and the would-be speaker or listener is poor. Of course, government action that makes speech expensive can dissuade both rich and poor from speaking or receiving speech. But poor speakers and listeners may be more likely to be dissuaded even when the speech is very important to them—they simply do not have the money.45 Accordingly, although First Amendment jurisprudence is often inattentive to the expense associated with speech, it is sensitive to the special concerns of poorly-financed speakers and listeners who can so easily be silenced by expense.46 Many types of laws make speech too expensive for poorly financed speakers and listeners. Some laws require speakers to pay a permit fee to the government with no exception for the indigent. Some laws outlaw or limit especially inexpensive modes of speech—handing out leaflets, for example. Some laws allocate property in a way that forces would-be speakers to bargain with property owners for permission to speak, or else to acquire their own speech-facilitating property. Some laws thus disadvantage poorly-financed speakers; other laws disadvantage poorly-financed listeners. In all of these contexts, courts have sometimes shown a special First Amendment-based solicitude for poorly-financed speakers and listeners. 44 See generally Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 467 (1996) (“The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas—or, even more commonly, from self interest.”); Volokh, Cheap supra n. 41, at 1847 (1995) (“[I]t might . . . be too dangerous to let the government intervene when it thinks it has found "market failure," or an inability to counterspeak . . . .”). 45 See generally Herbert Hovenkamp, The Limits of Preference-Based Legal Policy, 89 NW. U.L. REV. 4, 30-31 (1994) (explaining a concept of value based on “how much better off people might feel if they had something, even if they cannot not afford to pay for it”); David Goldberger, A Reconsideration of Cox v. New Hampshire: Can Demonstrators Be Required to Pay the Costs of Using America’s Public Forums?, 62 TEXAS L. REV. 403, 437 (1983) (“A wealthy speaker may regard a charge as insignificant, while a poor speaker may regard the same charge as onerous.”). 46 See generally Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U.PA. L. REV. 119, 122-23 (2001); Michael C. Dorf, Incidental Burdens on Fundamental Rights , 109 HARV. L. REV. 1175, 1210 n. 150 (1996) (“We might choose to ignore all incidental burdens that operate through a private actor’s indigence. Although such an approach would be broadly consistent with the Supreme Court’s unwillingness to recognize positive rights, . . . the Court has recognized that the impact of a law on ‘the poorly financed causes of little people’ is a relevant consideration in free speech analysis.”). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 11 Poorly-financed speakers and fee requirements. The government can make speech expensive by requiring that speakers pay a fee to speak. Courts sometimes worry about the effect of such fees on poor speakers. In Murdock v. Pennsylvania, the Supreme Court invalidated a license fee applied to distribution of religious literature by Jehovah’s Witnesses.47 Justice Douglas’ majority opinion stressed that “[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.”48 The Murdock Court distinguished Cox v. New Hampshire,49 in which the Court had upheld a permit fee, noting that “the fee [at issue in Murdock] is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors.”50 In another First Amendment context, the Supreme Court invalidated a statute requiring payment of a filing fee in order to be placed on the ballot for congressional, state, and county offices.51 Faced with an indigent candidate’s challenge to the statute on First Amendment and Equal Protection grounds, the Lubin v. Panish Court held that “in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay.”52 Some lower courts read Murdock and Lubin to insist that speech permit fees be no more than “nominal,” or that they include an indigence exception, in order to preserve speech opportunities for poorly-financed speakers. In Central Florida Nuclear Freeze Campaign v. Walsh,53 for example, the Eleventh Circuit invalidated an ordinance requiring that demonstrators pay for additional police protection in order to receive a demonstration permit. The court cited Murdock for the proposition that “[a]n ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment.”54 The court went on to explain that: 47 319 U.S. 105 (1943); see also Follett v. Town of McCormick, 321 U.S. 573 (1944); Jones v. Opelika, 319 U.S. 103 (1943). 48 Murdock , 319 U.S. at 111; see generally Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257 (1985); Goldberger, supra n. Error! Bookmark not defined.; Blasi, supra n. 43. 49 312 U.S. 569 (1941). 50 Murdock , 319 U.S. at 116. 51 Lubin v. Panish, 415 U.S. 709 (1974); see also Bullock v. Carter, 405 U.S. 134 (1972). 52 Lubin, 415 U.S. at 718. 53 774 F.2d 1515 (1985). 54 Central Florida Nuclear, 774 F.2d at 1523. VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 12 indigent persons who wish to exercise their First Amendment rights of speech and assembly and as a consequence of the added costs of police protection, are unable to pay such costs, are denied an equal opportunity to be heard. . . . [T]here is no provision in the ordinance which exempts those persons from paying the costs for additional police protection who are unable to pay. The granting of a license permit on the basis of the ability of persons wishing to use public streets and parks to demonstrate, to pay an unfixed fee for police protection, without providing for an alternative means of exercising First Amendment rights, is unconstitutional.55 Other courts of appeals read the case law more narrowly to insist that permit fees be no greater than necessary to defray legitimate expenses, but not to limit fees to a “nominal” amount or to require an indigence exception. 56 The Supreme Court granted certiorari to resolve the split in Forsythe v. Nationalist Movement,57 then decided the case on different grounds, leaving the validity of large fees without indigence exceptions unclear.58 But the logic of Murdock , with its concern with those speakers who cannot afford “to pay their own way,” suggests that the prospect that a large permit fee could preclude speech by poorly- financed speakers is a First Amendment problem. Poorly-financed speakers and cheap speech avenues. The issue of expensive speech also arises when poorly-financed speakers challenge regulations that restrict relatively affordable methods of communication. In Martin v. City of Struthers, one of the first of these cases to reach the Supreme Court, the Court invalidated an ordinance banning residential handbilling and observed that “[d]oor to door 55 Central Florida Nuclear, 774 F.2d at 1523-24. 56 E.g., Stonewall Union v. City of Columbus, 931 F.2d 1130, 1136-37 (6th Cir. 1991). 57 505 U.S. 123, 128-29 & n. 8 (1992). 58 The Court invalidated the permit scheme in Forsythe not because the fee was more than nominal (as the court of appeals had held), but because the scheme granted the administrator unbridled discretion to set the fee and because the fee could vary based on the expected cost of dealing with counter-demonstrators, a determination that the Court held was impermissibly content-based. Forsythe, 505 U.S. at 132-136. The Court said that even a nominal fee could not survive these deficiencies, and went on in dicta to suggest that fees that are more than nominal might nonetheless be constitutional. Forsythe, 505 U.S., at 136-37. This dicta has emboldened those courts that insist that significant permit fees are acceptable even if they do not accommodate those who cannot afford to pay. See, e.g., Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d 1107, 1110-11 (6th Cir. 1997); Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 17 Cal. Rptr. 2d 861, 873-75 (Cal. Ct. App. 1993); Sauk County v. Gumz, 2003 WL 21707085 (Wis. Ct. App. Jul. 24, 2003); see generally Kevin Francis O’Neil, Disentangling the Law of Public Protest, 45 LOY. L. RE V. 411 (1999). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 15 liberty of expression is that otherwise one’s right to speak would depend upon one’s ability to purchase property rights from private parties.65 The public forum doctrine limits the government’s rights, as property owner, to object to speech on certain types of public property—notably streets and parks.66 As Balkin notes, the economic power of private property owners could also limit speech opportunities for the poor. But, in part because of the public forum doctrine, private property is often adjacent to public property (sidewalks, for example) that is open to poorly-financed speakers.67 So it may be rare that the veto power of private property ownership leaves poor speakers without speech outlets—at least where real property situated in a typical public/private mix is concerned.68 65 J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 400 (1990); see also Tribe, supra n. 61, at 998 (explaining that “[t]he public forum doctrine is an important recognition that it is not enough for government to refrain from invading certain areas of liberty. The state may, even at some cost to the public fisc, have to provide at least a minimally adequate opportunity for the exercise of certain freedoms.”); Sullivan, supra n. 39, at 960 (explaining that “the First Amendment is currently held to compel some implicit subsidies. For example, public forum doctrine in effect requires taxpayers to absorb the cost of cleaning up litter and furnishing the policy officers necessary for orderly rallies and parades in the public streets and parks. And cases that reject the heckler’s veto as a ground for silencing controversial speakers in effect require taxpayers to absorb the cost of the thin blue line that separates the race-baiter from the surrounding angry mob.”); Farber, supra n. 96, at 571-76 (1991). But see Nimmer, supra n. 1, at 1203 (“The first amendment guarantees the right to speak; it does not offer a government subsidy for the speaker . . . .”). 66 See generally Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45- 46 (1983); Hague v. C.I.O., 307 U.S. 496, 515-16 (1939); Kathleen M. Sullivan, Discrimination, Distribution, and City Regulation of Speech, 25 HASTINGS CONST. L.Q. 209, 210 (1998) (“Speakers have a prescriptive easement of access to some kinds of public property, which serve as a place of last resort for people without significant private resources to speak. Those who cannot command the airwaves, the cable network or the Internet may still stand on a soapbox on a street corner or hand out crudely-lettered leaflets to passersby. Thus public spaces provide some ultimate distributional floor ensuring that poorly financed causes may be heard.”); Geoffrey R. Stone, Fora Americana, Speech in Public Places , 1974 S.CT. REV. 233. 67 See generally Goldberger, supra n. 51, at 429 (“Streets, sidewalks, and parks are ubiquitous in American towns and cities; easy access to them assures a continuous flow of ideas at a large enough number of locations to maintain an informed citizenry. Even if all other access routes to information were closed down, even if the mass media refused to disseminate certain ideas, and even if speakers seeking to communicate unpopular ideas were excluded from all private property, ideas could still make their way to listeners via streets, sidealkw, and partks.”); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 559 (1941) (articulating need for public forums in light of likelihood that private property owners will refuse access to unpopular speakers). 68 Cf. Tribe, supra n. 41, at 197 (arguing that “rapid social and technological changes . . . have increasingly shifted the channels of public communication into private control”); Balkin, supra n. 65, at 407 (noting that “[a]s new technologies of communication outstripped older forms in terms of effectiveness, there was greater and greater significance to the difference between access to traditional forms of communication (available under public forum law) and access to new forms that could only be purchased VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 16 Where there is no available public forum property, however, strict private property rules can disadvantage poorly-financed speakers. The Court recognized this in Marsh v. Alabama , where it overturned the trespass conviction of a Jehovah’s Witness who distributed her religious literature on the sidewalks of a company-owned town that forbade the leafletting.69 The Court relied on earlier cases like Martin and Murdock to insist that the trespass law yield to ensure some means of communicating with the community regardless of the property status of the town.70 Poorly-financed listeners. The First Amendment protects speech recipients, as well as speakers;71 and in a few cases the Court has expressed concern with preserving access to speech for poorly-financed listeners. In Marsh v. Alabama the Court articulated the interests not only of the pamphleteer, but also of the workers who lived in the company town: Many people in the United States live in company- owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments from private sources. . . . For each private newspaper, or television or radio station, there was not a corresponding government-owned forum open to all on a first come, first served basis.”); Noah D. Zatz, Note, Sidewalks in Cyberspace: Making Space for Public Forums in the Electronic Environment, 12 HARV. J. L. & TECH . 149, 151-52 (1998) (“Paradigmatic public forums perform their function in our constitutional order not so much because of what happens inside them as because of what happens outside, or more precisely, alongside them. As trips to the clothing store, doctor's office, motor vehicle administration, or community center increasingly shift from the physical environment of our cities and towns to the electronic environment of cyberspace, we must create ‘the places in between’ that enable ordinary citizens to engage one another as they move between the places where they conduct their affairs. In particular, we must preserve the ability to contest what transpires in non-public places by ensuring communicative access to individuals as they enter stores, workplaces, government buildings, or family planning clinics. In short, we need sidewalks in cyberspace.”). 69 326 U.S. 501 (1946); see also Thornhill v. Alabama, 310 U.S. 88 (1940) (invalidating a ban on “picketing” and “loitering” that “embraces nearly every practicable, effective means whereby those interested—including the employees directly affected—may enlighten the public on the nature and causes of a labor dispute”); Petersen v. Talisman Sugar Corp., 478 F.2d 73, 82 (declaring First Amendment right of access to labor camp where there were no alternative avenues for communicating with the workers who lived there). 70 Marsh, 326 U.S. at 504-05 & n. 1. 71 See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Council, 425 U.S. 748, 757 (1976). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 17 than there is for curtailing these freedoms with respect to any other citizen.72 The Court is concerned here with ensuring that the workers receive information even though they do not own the property on which they live, just as it was concerned in cases like Martin with speakers who cannot afford expensive speech outlets.73 In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court again considered the ability of the poor to receive important information. Regarding First Amendment protection for pharmacy advertisements, the Court weighed the consumers’ right to receive the information as well as the advertisers’ right to communicate it, and paid special attention to poor consumers: As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Appellees’ case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent.74 Finally, the Court has shown its solicitude for poorly-financed listeners by protecting free broadcast television. The Court has stressed the value of this medium on several occasions, recently suggesting that its maintenance “promotes values central to the First Amendment.”75 Recent developments. Despite the forceful rhetoric of cases like Murdock , Martin, and Marsh, the claims of poorly-financed speakers were rejected so often in recent decades that some commentators questioned whether the special interests of the poor were relevant to contemporary First Amendment analysis.76 Although the Court 72 Marsh, 326 U.S. at 508-09. 73 Cf. Vasquez v. Housing Authority of the City of El Paso, 271 F.3d 198 (2001) (rehg pending) (holding that application of trespassing regulations to bar door-to-door campaigning in public housing development violated tenant’s First Amendment right to receive political information). 74 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976). 75 Turner Broadcasting Sys. v. F.C.C., 512 U.S. 622, 663 (1994). 76 See, e.g., Tribe, supra n. 41, at 197-99; Kreimer, supra n. 46, at n. 17; Lee, supra n. 61, at 765 (1986); see also Minneapolis Star & Tribune Co. v. Minnasota Comm’r of Revenue, 460 U.S. 575, 586 n. 9 (1983) (describing Martin as “substantially undercut” by VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 20 minors.” Although in Ashcroft v. American Civil Liberties Union92 the Supreme Court disagreed with the Third Circuit’s conclusion that application of a community standard necessarily violated the First Amendment, five justices expressed discomfort with the notion that Internet speakers should be forced to develop or adopt technology to locate their audience geographically. Their objection seems to be that complying with the requirement would be expensive if not impossible, and that this is especially problematic where the medium regulated is otherwise relatively cheap. For example, Justice Kennedy, joined by Justices Souter and Ginsburg, observed that “it is easy and cheap to reach a worldwide audience on the Internet, but expensive if not impossible to reach a geographic subset.”93 They distinguished the challenged Internet regulation from similar regulations of obscenity distributed over the phone or in the mail;94 in those contexts the Court treated the expense of determining where a recipient was located as an acceptable cost of doing business using a technology with nation-wide reach. For example, regarding the commercial dial-a-porn operator Sable Communications, the Court said: “While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages.”95 But where the medium at issue, be it pamphlet or 92 535 U.S. 564 (2002). 93 Ashcroft, 535 U.S. at 595 (Kennedy, J., concurring in the judgment); see also id. at 587 (O’Connor, J., concurring in part and concurring in the judgment) (“I agree with Justice Kennedy that, given Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask, and would potentially suppress an inordinate amount of expression.”); id. at 590 (Breyer, J., concurring in part and concurring in the judgment) (“To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.”); id. at 605 (Stevens, J., dissenting) (“COPA . . . covers a medium in which speech cannot be segregated to avoid communities where it is likely to be considered harmful to minors. The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once. The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted.”). Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia), took the contrary view that “[i]f a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.” Id. at 583 (Thomas, J.). Cf. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 125-26 (1989); Hamling v. United States, 418 U.S. 87, 106 (1974). 94 Ashcroft, 535 U.S. at 587 (O’Connor, J., concurring in part and concurring in the judgment); id. at 590-91 (Breyer, J., concurring in part and concurring in the judgment); id. at 594-96 (Kennedy, J., concurring in the judgment; id. at 606 (Stevens, J., disseinting). 95 Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 125 (1989). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 21 electronic mail, is unusually affordable even for poor speakers, the Court is less willing to expose speakers to expense. Together, Watchtower and these recent Internet cases reaffirm the Court’s earlier solicitude for poorly financed speakers, and its related skepticism about laws that make otherwise inexpensive speech expensive. This solicitude recognizes that poor speakers’ and listeners’ unwillingness to pay a high price for their speech activities does not mean that their speech (or consumption of speech) is not desirable in terms of producing well-being for themselves and others,96 in terms of maximizing the diversity of messages,97 and in terms of preserving each individual’s autonomy as a speaker, listener, and participant in society.98 I do not mean merely that poor people’s speech might produce positive externalities; that is true of course for the speech of both rich and poor. What is special about poor people is that their willingness to pay for speech may simply be limited by their finances (and by the high marginal utility of the money they do have)—even where the speech would be very important to them. It makes sense, then, that legal regimes that make speech more expensive—even regimes that merely facilitate private property owernship 99—must sometimes yield if they make it too difficult for poorly-financed speakers or listeners to participate in the speech marketplace, as the First Amendment cases surveyed above suggest. IV. Copyright Makes Exceptions for the Poor Copyright makes speech expensive by design. Were it not for the restrictions imposed by copyright, authors would compete with unauthorized copiers. The price for copies of creative works would be driven toward marginal cost—the cost of making the copy. Because an author’s costs include not just the cost of copying but also the initial investment in creating the work, revenues equal to marginal cost are unlikely to be sufficient to incentivize further creativity—so goes the 96 See generally Daniel A. Farber, Commentary, Free Speech Without Romance: Public Choice and the First Amendment, 105 HARV. L. RE V. 554, 558-60 (describing positive externalities associated with speech and asserting that “the disparity between the private and social value . . . is greater for speech than for typical consumer goods”) (1991). 97 See, e.g., Karst, supra n. 61, at 40-41 (“Even assuming the correctness of Meikeljohn’s limited view of the equality principle—that what is important is ‘that everything worth saying shall be said’—it must be recognized that the content of the messages carried by leafleters and pickets is apt to differ significantly from the content of the daily press and the broadcast media.”). 98 See., e.g., Sullivan, supra n. 39, at 963 (“Whether the exchange of ideas is valued for its connection to truth, self-government, or individual autonomy, the point in each setting is that speech is valuable independent of people’s willingness to pay for it.”). 99 See discussion of Marsh v. Alabama, supra. VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 22 logic behind copyright, anyway.100 By prohibiting most unauthorized copying, copyright allows at least some authors (those who produce works for which there are not perfect non-infringing substitutes) to price copies of their works, and permission to exercise their exclusive rights, above marginal cost. Artificially expensive speech is what drives this incentive-based regime, and yet the courts have never questioned the basic consistency of copyright-created expense and the First Amendment. The prices of copyrighted works and licenses are just a cost of doing business, and for many speakers and listeners the expense does not preclude valuable speech. But what about poorly-financed speakers and listeners who want to use copyrighted works but cannot afford the supracompetitive prices, and for whom ability to pay is especially unlikely to accurately reflect the importance of communicating? Can copyright be consistent with the First Amendment if it makes speech impossible for them? As it happens, the copyright regime—like the First Amendment jurisprudence just surveyed—makes allowances that facilitate access by poor speakers and listeners without undermining the collection of supracompetitive prices from those who can afford to pay.101 The key allowances fall into four main categories: the first sale doctrine, the fair use doctrine, specialized statutory exemptions, and underenforcement. The first sale doctrine. The first sale doctrine is now codified in 17 U.S.C. § 109, which provides that, notwithstanding the copyright holder’s exclusive right of distribution, “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” So if you buy a book, for example, you may in turn sell it, give it away, lend it to a friend, etc. The first sale doctrine has traditionally served to facilitate affordable access to copyrighted works without undermining copyright’s incentive system.102 Most notably, the doctrine enables lending libraries, 100 See generally Landes & Posner, supra n. 29, at 326-28; Fisher, supra n. 35, at 1700 (1988). For a skeptical view, see Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281 (1970). 101 See Merges, supra n. 36, at 135 (“While the basic economic theory of intellectual property is most often pitched in terms of allocative efficiency, a strong redistributive element remains in the law.”). 102 For a more comprehensive analysis of the doctrine, including its impact on affordability, see R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. RE V. 577 (2003); see also JESSICA LITMAN, DIGITAL COPYRIGHT 81 (2001); Jessica Litman, Reforming Information Law in Copyright’s Image, 22 U. DAYTON L. REV. 587, 608 (1997). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 25 copyright.”113 It directs judges to consider several non-exclusive factors to determine “whether the use made of a work in any particular case is a fair”: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 114 The “commercial” character of a use, a consideration under the first fair use factor, can be a rough gauge of the user’s ability to pay115—or vice versa. A commercial user of a copyrighted work is more likely than a non-commercial user to generate revenue from the use that could go to pay for permission to use the work.116 Flipping this logic around, the Supreme Court suggested in Harper & Row Publishers v. Nation Enterprises that a user’s ability to pay qualifies his use as commercial: “The crux of the . . . distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”117 Some users exploit a work without paying when they otherwise would have paid for the work; others exploit a work without paying when they otherwise would have done without. Only the former category “stands to profit from exploitation of the material without paying the customary price,” because only those users would have paid the customary price in 113 17 U.S.C. § 107. 114 17 U.S.C. § 107. 115 See Gordon, supra n. 31, at 1631 (“Where the defendant does not seek to earn profits, it may be argued that his willingness and ability to pay for the copyrighted resources he uses will not provide an accurate measure of the public interest served by his use.”); see generally Tushnet, supra n. 1, at 70-74 (2000) (suggesting that noncommercial speakers have few resources and are easily suppressed, and that “commercial” should be understood as narrowly in the fair use context as it is in the First Amendment context). On the other hand, poorly-financed speakers may need to sell their messages (in the form of simple t-shirts, for example) to defray their costs. See, e.g., Ayres v. City of Chicago, 125 F.3d 1010, 1017 (7th Cir. 1997). 116 See generally Gordon, supra n. 31, at 1631. 117 Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 562 (1985); cf. Melville B. Nimmer, Copyright Liability for Audio Home Recording, 68 VA. L. REV. 1505, 1523 (1982) (“The individual who engages in audio home recording may not be seeking a commercial advantage by selling the recordings, but for fair use purposes his motivation is nevertheless commercial. By engaging in audio home recording, he avoids the cost of purchasing records or prerecorded tapes.”). VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 26 the first place.118 Under this definition of “commercial,” inability to pay weighs in favor of fair use. The user’s inability to pay the market price is also relevant to the fourth factor, effect of the use upon the copyright holder’s market. Where there is no effect on the market, no incentive-oriented purpose is served by enforcing the copyright. As the Court explained in Sony: [A] use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.119 Where a user is willing and able to pay the market price for his use, then his use necessarily has some impact on the potential market for the copyrighted work. But the exercise of a copyright holder’s exclusive rights by a user who cannot afford the asking price—e.g., a child copying a friend’s electronic book because she can’t afford her own—may have no effect on the copyright holder’s market.120 Thus, fair use can operate to make copyrighted works more affordable by excusing uncompensated uses by the poor.121 But because the doctrine is so attentive to the potential effect on the copyright holder’s market, it does not appear to undermine the incentive structure that intentionally jacks up the prices of copyrighted works. Underenforcement. Although the multi-factored fair use doctrine appears to be solicitous of poorly-financed users, a copyright defendant’s inability to pay the market price for the use she made of a 118 At another point the Harper & Row Court explicitly considers ability to pay: “[T]o propose that fair use be imposed whenever the ‘social value [of dissemination] . . . outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” Harper & Row, at 559. This statement doesn’t ring true, because the social value of dissemination may be very high under circumstances when the user’s ability to pay is very low. Nonetheless, the statement suggests that a user’s ability or inability to pay is relevant to the Court’s fair use analysis. 119 Sony, 464 U.S., at 450-51; see also Recording Industry Ass'n of America, Inc. v. Diamond Multimedia Systems, Inc., 29 F.Supp.2d 624 (C.D. Cal. 1998), aff’d, 180 F.3d 1072 (9th Cir. 1999) (suggesting that private copying of copyrighted music onto portable MP3 player may be fair use). 120 Glynn Lunney has made a similar argument regarding sharing of copyrighted music: “Private sharing may . . . provide copies of the work to low reservation value consumers who could not afford an authorized copy’s market price in any event, and yet not interfere with the copyright owners’ sales to high reservation value consumers.” Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. REV. 975, 1026 (2002). 121 Note, however, that making fair use of a copyrighted work is not necessarily free—in terms of time, effort, and expense. See generally Bell, supra n. 28, at 580. VAN HOUWELING: FREE SPEECH 8/31/2003 DRAFT 27 protected work is seldom actually litigated—presumably because people who cannot afford licenses are seldom worth finding and suing.122 Instead, copyright has traditionally been enforced primarily against commercial publishers and other relatively well-financed speakers and consumers.123 So, even apart from the doctrinal limitations discussed above, copyright’s impact on poorly-financed speakers and listeners has been limited by the economics of detection and enforcement. Summary. The central purpose of copyright is incentivizing creativity, not ensuring distributive fairness.124 Copyright incentivizes creativity through the mechanism of property rights, making some uses of copyrighted works expensive.125 Nonetheless, as a practical matter the Copyright Act and the realities of its enforcement have given some special leeway to the poor. 122 See generally Lessig, supra n. 7, at 180-81; LITMAN, DIGITAL COPYRIGHT, supra n. 102, at 180; Deborah Tussey, From Fan Sites to Filesharing, 35 Ga. L. Rev. 1129 (2001); Roger D. Blair & Thomas F. Cotter, An Economic Analysis of Damages Rules in Intellectual Property, 39 WM. & M ARY L. REV. 1585, 1656-57 & nn. 253 & 258 (1998); R. Polk Wagner, Essay, Information Wants to be Free: Intellectual Property and the Mythologies of Control, 103 COLUM. L. REV. 995, 1010-12 (2003) (“As a form of price discrimination, such toleration is likely to be welfare-enhancing in the intellectual property context.”); Joseph P. Liu, Copyright Law’s Theory of the Consumer, 44 B.C. L. Rev. 397, 417 (2003); Jarayshri Srikantiah, Note, The Response of Copyright to the Enforcement Strain of Inexpensive Copying Technology, 71 N.Y.U. L. Rev. 1634, 1645- 46 (1996) (discussing economics of enforcement). 123 See generally LITMAN, DIGITAL COPYRIGHT, supra n. 102, at 167. 124 See generally Litman, Reforming Information Law, supra n. 102, at 617. 125 At the same time, copyright gives power to wealthy holders of large copyright portfolios. See generally Benkler, supra n. 19, at 181-82 (2003) (“Individuals with a commercial focus to their work and, more significantly, commercial organizations that build their business model around selling information and culture as finished goods benefit from strong protection. These rights are particularly helpful to organizations that own large inventories of existing information and cultural goods and that integrate new production with inventory management. Strong intellectual property rights are particularly harmful to organizations and individuals who produce information without intending to sell their output as a good. This includes non-profit organizations, such as universities, various public interest organizations, the government, and individuals who communicate with each other either as ‘amateurs’ or as professionals driven by internal motivations, not by a profit motive.”); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 408 (1999) (similar); Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 VAND. L. RE V. 1879, 1906 (2000) (“Firms owning large inventories of copyrighted expression are far more likely to be the unwilling or monopoly-rent -seeking licensor. Others, including in particulary non-wealthy individuals, not-for-profit entities, and critics of the licensor's expression, are far more likely to be the frustrated would-be licensee.”); Baker, supra n. 1, at 949 (“Increases in the scope of copyright protection will predictably most advantage centralized, conglomerate media enterprises and their communications, while most likely disadvantaging nonmarket- oriented participants in the communication order.”).