Recognizing Infringement as an Unprotected Category of Speech: A Response to Terry Hart’s “The Free Speech Critique of Copyright Mistake”

Terry Hart over at the excellent blog Copyhype recently posted a critique of an argument I made in my recent paper on free speech and domain name forfeiture, wherein he wrote:

[S]ome critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech. A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.” (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws. But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content? [Footnotes and hyperlink omitted.]

I stand behind those words, but I certainly do not mean to suggest that copyright-regulates-content-and-is-therefore-unconstitutional. There are those that go that far; I’m not one of them. Hart’s critique, however, takes an impermissibly narrow view of content-based restriction under the First Amendment. Copyright is a content based restriction of speech as First Amendment law traditionally defines that term, but, I argue, should be viewed as one of the classic, time immemorial exceptions to the traditional prohibition of content-based restrictions. (Or, more to the point, traditional copyright infringement should be. Copyright is no talisman, as Eldred makes clear.) It is not the substantive unconstitutionality of copyright that concerns me. It is the lack of the procedural safeguards that are typically in place when adjudicating the illegality of speech based on the content thereof.

New Hampshire Supreme Court applies free speech rights to online newsgathering

It’s a good day for the First Amendment – or, in this case, the New Hampshire constitutional analogue.

The New Hampshire Supreme Court issued an opinion this morning (PDF) vacating, reversing, and remanding the case of Mortgage Specialists Inc. v. Implode-Explode Heavy Industries, Inc. I worked on an amicus brief in this case with the Citizen Media Law Project and the Reporter’s Committee for Freedom of the Press, advocating for this outcome.

The case surrounds the Mortgage Lender Implode-O-Meter, a website dedicated to chronicling the collapse of the mortgage industry with insider reporting and primary sources (a bit like a Gawker or Smoking Gun for mortgage lenders). In 2008 the website obtained a confidential filing submitted by The Mortgage Specialists, Inc. (“MSI”) to the New Hampshire Banking Department. The chart contained detailed information on lending activity, and was submitted pursuant to an investigation on MSI’s lending activity. After the website posted this material, an anonymous commentator made statements which MSI interpreted as libelous of the company and its president. MSI responded to this publication by filing a complaint in New Hampshire court. Without discussing the First Amendment issues at stake, a New Hampshire Superior Court ordered that the Loan Chart be removed from the website, the source of the Chart be disclosed, and the identity of the anonymous commentator be revealed for possible libel charges.

As I noted in two earlier pieces, the CMLP and RCFP argued that this order violated both state and federal constitutions, as well as a the New Hampshire common law reporters’ privilege. (The amicus brief is here as a PDF.) We argued that the injunction removing content from a website works a prior restraint on speech, as even those who could have accessed the information prior to the court order would no longer be able to do so. As a prior restraint, the court had to demonstrate a government interest of the highest order to overcome the free speech issue at stake. Cases like the famed Pentagon Papers Case demonstrate just how high this burden is. We further argued, even assuming this is not a prior restraint, the government cannot punish this speech consistent with the United States Supreme Court case of Bartnicki v. Vopper and the First Circuit’s Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind words.)

The New Hampshire Supreme Court echoed these concerns in their opinion this morning. The court rejected MSI’s argument that the website was not entitled to a reporter’s privilege, noting that “[t]he fact that Implode operates a website makes it no less a member of the press.” In addressing the alleged crime committed by the source of the Chart, the court adopted the disclosure requirements of the First Circuit case Bruno & Stillman v. Globe Newspaper Co: MSI must demonstrate that the information sought is critical to their claim, cannot be obtained from other sources, and persuade the court that their interest in obtaining the information outweighs Implode-O-Meter’s interest in confidentiality.

Turning to the anonymous commentator’s allegedly libelous comments, the court adopted the test of the New Jersey Superior Court of Appeals in Dendrite International, Inc. v. Does, requiring a plaintiff to render efforts to inform the anonymous commentator, identify the particular allegedly libelous speech, make out a prima facie case for libel, and persuade the court on a balance of the equities.

For me, the most exciting part of this opinion is the Court’s approach to the prior restraint question. After a lengthy section discussing the extreme disfavor of prior restraints on publication, the court said the following:

Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.

Once this was found to be a prior restraint, the Court seemed to have no problem dismissing the interest here as far below that needed to issue an injunction. The court accordingly reversed on the injunction and remanded to consider the qualified reporter’s privilege and the Dendrite test for anonymous commentators.

Finding a reporters’ privilege for online journalists is wonderful news (especially in light of the question coming up in the whole Gizmodo/iPhone situation), but I think the real gold here is in the Court’s approach to prior restraint. The Court adopts congruent but discrete reasoning compared to the CMLP/RCFP amicus brief. Our brief focused a good deal on the constitutional right to make the same speech as that which is enjoined: even those who previously read the content could no longer access that information, so for purposes of public debate it’s as if the speech was never there. The court seems to focus on how the injunction impacts future speech: the injunction prevents new commentary and discussion surrounding the same information. These are complimentary arguments, but embrace an interesting nuance to the prior restraint question. Either way, the First Amendment risk of removing content from the Internet is brought into sharp focus, and receives appropriately high protection. Here’s hoping other states follow New Hampshire’s lead in this area.

(While I worked with a number of folks on the brief, the opinions of this post and blog in general are mine and mine alone.)

US DoJ approves Live Nation / Ticketmaster Merger

Wired has the scoop.  While this is not dispositive should someone eventually sue under a civil antitrust theory, it means the government won’t block the action directly.

The modified agreement – requiring the licensing of Ticketmaster’s software to AEG and some other “suitable company” for five years – rings a little hollow to me.  Reservations aside, I do hold out hope for the clause strictly prohibiting the retaliation against venues choosing to use another ticketing service or promoter when booking a Live Nation artist.

But there’s an underlying vertical integration concern that seems unanswered by Wired’s piece. After all, Live Nation presently owns about a hundred venues throughout the United States, and holds management arrangements with dozens more.  If the settlement is structured so that venues are left with the choices as the “consumer” in this market, and LN/TM owns the venue, can we really expect the venue to not use their own ticketing agents and concert promoters?  How are promoters expected to compete for venue business with other promoters when the other promoters own the actual venues?

The FTC and DoJ will have to watch this settlement like two hawks to keep the collusion practices out of the business.  I’ll be sure to post a link should I uncover it in my research. I believe it will be published for an open comment period in the Federal Register.

Update: After reading the DoJ press release I was pleased to find the following information:

The settlement also sets up firewalls that protect confidential and valuable competitor data by preventing the merged firm from using information gleaned from its ticketing business in its day-to-day operations of its promotions or artist management business.

That is the principal concern I had with the settlement, as I expressed here.  I know we do this in other industries, but I’m still wary of a practice that allows a conglomerate to conduct both sides of an exchange and rely on ethics and a settlement alone to keep them from using their combined information to an unfair advantage.

Update 2 (1/26): The Future of Music Coalition points to an excellent opinion in the LA Times from yesterday, which adds this about the provisions guarding competitor promoters and ticketing companies:

Those provisions will only be effective, however, if they’re well enforced. There’s no structural protection. Consequently, the reaction to the deal from opponents of the deal was muted praise. John D. Breyault of the National Consumers League, part of the TicketDisaster.org coalition that opposed the merger, said his group would have been happier had the Justice Department sought to block the deal. “The conditions that they have imposed on this merger are not insignificant,” he added, “if DOJ is committed to strong and enduring enforcement of the consent decree.”

The piece also adds a quote from Seth Hurwitz, owner of DC’s beloved 9:30 Club, which is worth posting here:

It seems the DOJ has created a healthier atmosphere for venues to explore other ticketing providers. However, unless any promoter is free to use any ticketing company they wish, at any venue, at any time, then nothing has been solved. In America, no one should be forced to do business with a company. If one ticketing company has a lock on an arena for instance, I could still be forced to have my competitor sell my tickets, which is an issue for a host of reasons including they can gather all my financial information and my customers’ information. We’re waiting to see how the DOJ will address this. The DOJ’s intent to spur competition is there, but it must be backed up with genuine mechanics to ensure independent promoters can try to compete on a level playing field.

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

• Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
• Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
• Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
• On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
• My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
• For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
• On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
• My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of glennbeckrapedandmurderedayounggirlin1990.com against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
• Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
• And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

The Beatles, in digital form:

Last June I wrote about the rumors of the Beatles – one of the only major bands to still refuse to release their catalog online – coming into the digital world.

In October I wrote that it was my current neighbors, Cambridge’s own Harmonix, that brought down the beast.

Today, the honorable Mr. Carleton Atwater posted up a trailer for game (scheduled for release 09/09/09):

How weird is it to see a video of the Beatles on YouTube, without fear of seeing the “Video removed due to copyright claim from Capitol Records” screen a few hours later? For more on the details of the game, head on over to Pitchfork.

Sotomayor on Copyright Law

As a followup to Monday’s post, head over to the blog Ex(c)lusive Rights to see an impressive list of all of the copyright/soft-IP decisions Judge Sotomayor did while working the Second Circuit and the S.D.N.Y. As Gizmodo puts it, Sotomayor knows stuff about computers. Many thanks attorney Shourin Sen for putting this list together (and promising to update it as more are found).

This might have been my weekend reading material, if my weekend wasn’t already so busy reuniting with my old production/promotion company to help produce one more festival. See you all when I come back.

Quick update: /. says Last.fm did in fact give up users to the RIAA (but they didn’t want to)

Update 6/3 - As that “grain of salt” warning suggested, Ars Technica posted on Monday 6/1 that that last.fm denies this in the clearest terms possible:

As a result, Last.fm’s Russ Garrett has issued a strongly worded denial on Last.fm’s forums. “That particular data is controlled tightly inside Last.fm and is only stored for a short period of time. Any request for such data would have to be approved by myself first. The suggestion that CBS’s ops team provided this data is just not possible—Last.fm operates as a separate entity and their operations staff do not have access to our system,” Garrett said. “It really seems like someone is trying to slander us here.” In another post, Garrett clarified that Last.fm has never given data linking IPs to scrobbles to any third party or to CBS, for that matter.

This doesn’t really change my analysis below as to whether they could do such things without violating the Privacy Policy for the website, but it certainly should allow last.fm users to breath a sigh of relief.

Original post below…

All of this is done with anonymous sources, so take it with a grain of salt, but /. contributor “suraj.sun” says TechCrunch, the party responsible for breaking the Last.fm-gives-up-users-to-the-RIAA story in February, now has released another story claiming additional sources have confirmed that Last.fm data was leaked to the RIAA, by way of parent company CBS:

Here’s what we believe happened: CBS requested user data from Last.fm, including user name and IP address. CBS wanted the data to comply with a RIAA request but told Last.fm the data was going to be used for “internal use only.” It was only after the data was sent to CBS that Last.fm discovered the real reason for the request. Last.fm staffers were outraged, say our sources, but the data had already been sent to the RIAA.

I documented the initial leak back in February, and I noted how impractical it would be to try and base an infringement claim on Last.fm data. It seems TorrentFreak agrees with that conclusion. I still am very skeptical that this happened, but given what we’ve seen from the RIAA over the past few months I’m more inclined to believe the RIAA would try this, as part of their “kitchen-sink” strategy for litigation.

TechCrunch also argues in the link above that such disclosure would violate Last.fm’s own Privacy Policy. I assume the part they mean is…

Certain third party individuals or organisations may have access to your personal information (excluding your email contact information) via Last.fm’s API and webservices or as a result of agreements between Last.fm and its preferred partners. (However, you should be aware that if you provide your e-mail contact information and/or username directly to any such third parties, they may use your information for their own purposes.) Such partners may use such information for their own purposes, which may be either commercial or non-commercial in nature and which may include targeted advertising or direct marketing. These third parties may be based in the United Kingdom or elsewhere (including outside of the EEA). [Emphasis added; British spellings in original]

…paired with this:

We believe in privacy and therefore will take all reasonable measures to ensure that your personally identifiable information remains private. However, in the event that we are required to disclose personally identifiable information by a court, the police or other law enforcement bodies for their investigations, regulation or other governmental authority we will make such a disclosure without being in violation of this Policy.

Assumedly, TechCrunch is arguing that Last.fm lists mandatory disclosure to “a court, the police, or other law enforcement bodies” at the exclusion of other interested third parties (to wit, the RIAA). As Last.fm promises not to give up your “email contact information,” this would mean a personally identifying disclosure to someone who is not a court or the police would be off limits acording to the Privacy Policy. However, you also see this clause…

We collect data regarding the users of Last.fm, including: (i) The Internet Protocol (IP) address of the user’s computer. This may or may not be associated with a particular Internet Service Provider (ISP); (ii) The referring URL, if any; (iii) The browser software identification (i.e. the brand and version of your browser software).

… and it makes no mention as to whether or not the IP address is part of the “personal information” which Last.fm makes available to third parties. So, by disclosing the IP address and not the email, CBS/Last.fm could still give up info to the RIAA and not violate the Policy.

(When I posted about this a couple months ago I also got into a quasi-fight with one Jonty Wareing of Last.fm, who thought I was doubting his existence. Jonty? You still read this? Want to comment on this story?)

DC’s fog advice: “add_protective_actions_here.”

On Monday I poked a little fun at a direct message I received from Boston Police via Twitter. Not to be outdone, DC’s emergency information network AlertDC sent the following warning via email today:

I’m not sure how bad the fog is in DC (apparently it merits a “WARNING”), but I’ll be sure to take_appropriate_actions_vis_à_vis_this_fog_situation when I head out today.

RIAA Update: the lawsuits haven’t stopped

Late last December I wrote about the supposed suspension of the RIAA’s mass-lawsuit campaign against filesharers, as reported by the Wall Street Journal. There I noted (care of Recording Industry vs. The People) that several new lawsuits were filed immediately after the announcement. At the time this fact was dismissed by the Association, claiming these complaints were already headed down the pipeline, and therefore not new in the way they meant when speaking with the WSJ. I met that argument with a healthy dose of skepticism, and today it seems my doubts were validated.

It is two and a half months later, and RIAAv.TP reports that at least one new case has appeared in courts as recently as two days ago. Techdirt is jumping on this claiming the WSJ announcement was nothing but a “huge PR campaign.” Could it be that the ISP-filtering tactic proposed by the RIAA was so soundly rejected by the tel-coms that they decided to revert back? Was this all PR? Didn’t we already establish the lawsuits were a gigantic waste of money?

I’m trying very hard to give the RIAA the benefit of my (substantial) doubts, but it’s getting increasingly harder to do so.

NYPD Officer involved in the Critical Mass YouTube incident dismissed

Last summer I wrote a piece about this video (after Jared got things started), depicting a NYPD officer checking a rider during a Critical Mass ride:

TheWashCycle reports today that the officer in this incident has been dismissed from the NYPD, after being suspended while facing charges of making false statements.

One naturally wonders how the outcome would differ if this video didn’t exist. One also wonders how many stories like these will come out of the RNC protests.