[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.

In my paper I attached the following footnote to the quoted sentence above:

Copyright laws may be motivated by a general interest, but they do restrict speech on the basis of content, albeit without reference to a particular viewpoint or subject matter. See Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 971 (10th Cir. 1996) (“Intellectual property, unlike real estate, includes the words, images, and sounds that we use to communicate, and ‘we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.’” (quoting Cohen v. California, 403 U.S. 15, 26 (1971)); DAVID LANGE & H. JEFFERSON POWELL, NO LAW: INTELLECTUAL PROPERTY IN THE IMAGE OF AN ABSOLUTE FIRST AMENDMENT 372-73 (2009) (“Defining content is at the center of [copyright]…. Copyright, which subsists only in expression, can never be merely content neutral ….”); Lemley & Volokh, supra note 91, at 165–66 (“Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please. If your speech copies ours, and if the copyright uses our ‘expression,’ not merely our ideas or facts that we have uncovered, the speech can be enjoined and punished, civilly and sometimes criminally.”). [links here to Cardtoons, Lange & Powell, and Lemley & Volokh.]

The crux of Hart’s argument is that people like me (and Powell, Lange, Volokh, and Lemley) are using “content” incorrectly in the First Amendment context. This is not pedantic. As Hart notes, the word “content” carries a lot of weight in the First Amendment realm. Finding a restriction to be content-based invites strict scrutiny, from which few restrictions survive.

Hart (and Prof. Greenberg, whom Hart cites) seem to be defining “content-based” as efforts made to suppress ideas instead of means. Copyright is not “content-based,” the argument goes, because ideas are not monopolized under copyright, and copyright makes no effort to preference certain ideas over others. Copyright addresses means. You can say what you want, you just can’t use protected expression to do so – we all know the quote from Eldred about using “other people’s speeches.” And they’re not alone in arguing this. The esteemed Chemerinski Treatise also suggests that “content-based” restrictions can be broken down into either (a) viewpoint-based or (b) subject-matter based, and those that are neither are content-neutral. Copyright is clearly neither.

This is an incomplete view of content-based restrictions. I’ll freely admit that the Court is frustratingly inconsistent when using “content” and “viewpoint” in its opinions. But, as Volokh notes, the Court has articulated a series of different tests to determine whether a law or action is content-based, and only some of these speak to the “idea” or viewpoint/subject matter conveyed. Others define content-based restrictions as any attempt to regulate the words used in expression. Obscenity, for example, is a viewpoint-neutral-and-yet-content-based discrimination, albeit one we tolerate. (One could strain to argue that obscenity is subject-matter based, but we are now casting quite broad nets around subject matter. A “subject” embracing all forms of prurient, offensive speech is a broad subject indeed.) Bans on profanity are similarly content based, while viewpoint and subject matter neutral. Requiring news organizations to omit names of rape victims or juvenile defendants does not put those subjects off the table, nor does it control any given viewpoint. And yet, all of these have been dealt with under strict scrutiny as content-based restrictions (though, in fairness, not always declared as such in the opinions that apply them).

The “idea/means” distinction is relevant, but only as a question of viewpoint discrimination. Regulation of ideas is regulation of viewpoint. While we do tolerate some forms of content-based restriction on speech, we practically never do so when the discrimination is done on the basis of viewpoint. This is the lesson of RAV v. St. Paul and Perry Education Association v. Perry Local Educators’ Association. Viewpoint discrimination deserves the strict scrutiny it receives, but it is not the only speech restriction to receive strict scrutiny.

The policies of the First Amendment similarly favor drawing “content-based” restrictions broadly, as the Court has. The concerns around government regulation of speech go beyond controlling content as a proxy for controlling viewpoint, a concern raised by Hart vis-à-vis Turner. The worry about undue interference in the marketplace of ideas is not our only concern in First Amendment law. There is a fundamental autonomy to speech that we identify and respect. We are all repulsed by the thought of someone telling us “you can’t say/print/post that,” whatever “that” is. We do not want to have to worry, or self-censor, or feel in any way restrained in our speech. (Imagine, for example, a law prohibiting the use of “filler words” in public discourse. Clearly not viewpoint or subject matter based, and yet certainly likely to receive strict scrutiny.) The right to unencumbered expression is a natural right recognized by the First Amendment, limited by our law only in areas where we have another overriding concern. And thus any regulation of speech that depends on regulating the exact words used should invite strict scrutiny, be it embraced in a viewpoint judgment or not.

But here’s the thing that may distinguish me from others that take this position: I’m okay with copyright existing as a content-based discrimination. I firmly believe that the First Amendment was not designed to trump the Article I power of Congress to provide limited-time exclusivity to writings.  I maintain that copyright (done well) is still an incredibly valuable tool for the creation and dissemination of culture. I agree with Hart when he argues that copyright is the engine of free expression. And I agree with Hart when he claims that copyright’s own “built in free speech safeguards” account for copyright’s First Amendment analysis. This is a perfectly accurate statement of the Court’s approach, at least in our post-Eldred pre-Golan world. (And I’m inclined to believe that this Court will only undercut the First Amendment role when it takes up Golan next term.)

I think we need to recognize what the Court has avoided saying overtly but has acted if true since Harper & Row and Eldred – copyright infringement is categorically unprotected by the First Amendment, just like obscenity or defamation or fighting words, provided that the test for infringement includes the defenses for the idea/expression dichotomy and fair use, and does not otherwise alter the “traditional contours of copyright.” The devil is very much in the details here, and I know Hart and I will likely disagree on when Congress goes too far (I’m sure we already do with respect to Golan). But substantively, crying First Amendment will not save the average copyright infringer, nor should it.

But this does not mean that the First Amendment has no role to play in the copyright context. As an unprotected category of speech, it is still subject to the procedural protections that govern all speech regulation. Because another concern guides our First Amendment jurisprudence: the fear of overeager or premature action by the government in the name permissible speech regulation. As I detail fairly extensively in my article above, when adjudication of legality depends entirely on the exact words used and their meaning, courts wait to make sure that the speech meets one of the proscribable categories before they take it out of circulation. Our doctrine has created procedural protections to make sure that lawful, legal speech is not retrained or punished in the name of getting unlawful, proscribable speech (like infringing speech). The law does not require full adjudication, as Freedman v. Maryland shows, but it requires a neutral party to make that determination before speech is enjoined. This is the central problem I identify with Operation In Our Sites: no serious effort is made by any neutral party to determine the legality of speech before websites find their domains seized.

We should not pretend that copyright doesn’t regulate content. It surely does. It does so in the same way that attempts to prohibit public profanity, flipping off a police officer, or using “target” iconography all tried to do. But that does not make it unconstitutional. It only means that we should be aware that enforcement of copyright inherently punishes speech for the words chosen, and approach the subject with the same caution we use in other proscribable speech categories.

I’ll start with some background. Scholarship around music sampling is as diverse as it is endless, but I think there a few key points on which we all agree. First, sampling remains an important ingredient in modern music. Much of the literature focuses on the De La Soul and Public Enemy era of sampling, but music today still uses the technique extensively. According to Ultimate Chart, the top three artists right now are Katy Perry, Rihanna, and the Black Eyed Peas. All three are known to sample. Second, the jurisprudence around sampling — with circuit courts dividing on their interpretations of copyright — has created an atmosphere of legal uncertainty. It is virtually impossible to state with any confidence whether a given unauthorized use is permitted or infringing. Third, the industry’s response to the increased desire to license samples is incoherent and burdensome, creating overwhelming administrative costs and often resulting in situations where the would-be sampler is forced to surrender more than 100% of her income, especially when creating “mashup” music.

Two other arguments are necessary to accept as a predicate to agreeing to a compulsory sampling license. The first is that we as a society want people to sample music. As a cultural matter, sampling allows us to democratize our existing art, using fragments of our shared culture as building blocks to create new and powerful forms of music. DiCola and McLeod have provided many great arguments to back this up, so I will not repeat them here, other than to add that the benefits of sampling relate back to the sampled artist, too. As anecdotal evidence, consider the Imogen Heap album Speak for Yourself. After its initial fame in 2005, it was selling a few hundred copies a week in mid-2009. Then Jason Derülo sampled Heap’s “Hide & Seek” in his “Whatcha Say.” Derülo’s song peaked the Billboard charts in November 2009, and at the same time sales for Speak for Yourself spiked up as well, selling roughly 1000 copies per week from August 2009 through January 2010. (This is all based on Soundscan data I just pulled.) It’s safe to assume people liked Derülio’s (extremely prominent) sample, sought out the original accordingly, and Heap made money not only on the sampling license, but on sales of the original based on the subsequent fame.

Second, I would submit that most artists would like their work to be sampled, provided they are paid some reasonable form of compensation for the use. There are obvious exceptions to this — Prince and the Beatles chief among them. But artists tend to enjoy seeing and hearing their music take on new forms of life, provided respect is paid to the original. Again, DiCola and McLeod provide great evidence in their book. One omnibus exception to this is when a sample is used to suggest that the sampled artist is endorsing something that they would not want to be associated with. (Imagine a Tom Waits sample in a song licensed in a potato chip commercial, to analogize to a famous incident.) But there are ways to avoid that problem, as detailed below.

With these assumptions the argument for a compulsory license becomes clear. People like to sample because sampling sells, and we want to encourage people to sample because sampling adds value to our culture. The current law leaves ambiguity as to unauthorized sampling’s legality, so rational artists will try and obtain licenses. But the current licensing system is rife with market failure. Many artists have no idea who to ask for a license, and thus are deterred from the start. Still others will send in a request, but lack the prominence to become a priority for a licensor, and will never hear a yes. (This is especially dangerous for the longevity of our culture, as it means sampling will become a technique of the rich. Young artists will hear their heroes sample but will lack the means to do so themselves. We will lose the natural churn of artists that keeps music healthy and vibrant.) And even if an artist is lucky enough to get a negotiation started, the prevailing rates for sampling often create situations where the artist is forced to give up more than 100% of projected income. Rational artists will never sample. A compulsory license would remove the administrative hurdles and allow artists of all sizes to sample, while generating revenue for sampled artists they would not otherwise receive. Sampling songs can become like covering songs — everyone can do it, and everyone benefits. And, just like covers, a private-side body like the HFA could step in and become the de facto clearing house for sampling, allowing the government to set the terms of the license while not dealing with the everyday transactions.

All of this has been argued before, but this is the point at which the scholarship largely stops. I want to see if we can’t push the ball forward a little bit here. Here are my eight guiding points for a compulsory license:

1. A compulsory license need not be all things for all artists. A statutory license can sit atop of whatever else the industry adopts to address sampling. If people want to work around the license, fine. If they think what they are doing is “fair use” and proceed without one, fine. If the industry decides to grant a gratis license for noncommercial works, fine. Nothing here would replace those efforts. This is tailored to artists that want to sample and are willing to pay, but lack the means to negotiate a license directly or would be significantly disadvantaged by doing so. Keeping it narrow also helps keep it simple. Lawyers have a nasty habit of overthinking things like this. We want to take lawyers out of the loop here, and give artists something they can handle themselves.

2. The uses of samples should be transformative. Sampling serves its cultural purpose when it uses existing material as “building blocks” to create new and different forms of music. The compulsory sampling license should be used for this purpose. This should not become a shortcut for people to “sample” an entire song and thus become empowered to sell and license of the original music. Congress contemplated and rejected a statutory license for wholesale copying of sound recordings when it first extended copyright to sound recordings. I see no reason to rethink that decision. The biggest issue here, of course, is how transformative is “transformative.” I propose adopting a substitute goods analysis for this:  if a typical consumer would buy the sampling song in lieu of buying the original, then it is not transformative. If not, it is. Note this is in lieu of buying the original, not just because they like the Jason Derülo over the Imogen Heap. The thought of the purchaser should be “I would buy the Imogen Heap song, but this is close enough.” (This approach bears some resemblance to Judge Posner’s method of analyzing fair use.) A transformativeness test replaces the need for a length-limit approach, but sampling length still can be significant, for reasons stated below.

3. Use percentages, not penny rates. A fatal flaw of many of the existing compulsory sampling license proposals is that they try too hard to mold sampling into the framework the law has adopted for covering music. This is inappropriate and anachronistic. Sampling and covering are very different animals, and what’s good for one may not be good for the other. Furthermore, musicians today are forced to diversify their income related to their sound recordings — selling recordings sometimes, giving recordings away at other times, and using licensing, touring, and special merchandising as supplemental sources of income. So instead of making artists surrender pennies they may not be receiving from the buyers of their music, the law should set a license based on a percentage royalty from income attributable to the sampling song, and broaden the percentage base to cover sync licenses and other alternative sources of income. (Relatedly, a compulsory license should allow for derivative works based on the sampling song, provided compensation is paid to the sampled song’s rightsholders based on how much of the sample is used in the derivative.)

4. Calculate the percentage based on the length of the sample used. The only way to make an effective and usable license for sampling is to calculate the royalty rates on objective characteristics. A logical objective characteristic would be the length of the work sampled.  I know that some will suggest that some consideration should be made based on how the sample is used in the secondary work. I’m not opposed to this per se, but trying to classify uses of samples  (“looping” versus “standalone,” “altered” versus “unaltered”) falls apart in practice, and, again, the license should be as simple as possible. I also know that many artists and scholars strain to find ways to quantify the qualitative “heart” of different samples. (My friend and sensei Dave Herlihy often speaks of the James Brown “heh!” as an example of a sample that is quantitatively short but qualitatively significant.) I recognize that not all samples are created equal, but relying on objective characteristics will allow subjective excellence to win out in the market. Subjectively great samples will be used more often. After all, artists generally sample things because they are qualitatively significant or interesting. The James Brown “heh!,” the Amen break, Atomic Dog, and Funky Drummer will see increased instances of sampling, which improves the sampled artist’s overall income.

5. Leave enough for the sampling artist, but match royalty levels to the current market rates as closely as possible. The point of this license is to shift sampling from a property regime to a liability regime, not to undercut the compensation levels existing for publishers and sound recording companies. As Terry Fisher notes, compulsory licenses are blunt and destructive instruments, and should be used in the least intrusive way possible. This fear of undue intrusion often circulates discussions of a compulsory sampling license: a big fear for rightsholders is that sampling revenues will drop down to the revenues expected for covering music. We should avoid this. The percentages currently used for sampling should be used, to the extent one can extrapolate those and put them on a duration-of-sample gradient. But no matter what, at no time should the total cost of sampling exceed 100% of income, or even 90 or 80%. The license should preserve the economic incentive to create; something must be left for the artist.

6. Distribute royalties SoundExchange-style, with shares for featured artists, non-featured artists, the sound recording copyright owner, and the composition copyright owner. The performance rights organization SoundExchange is responsible for collecting and distributing royalties earned by sound recordings transmitted digitally. They’ve developed a metric of royalty distribution where a percentage goes to the sound recording copyright owner (usually the band’s record company), a percentage goes to the featured artists (the “band”), and a percentage is set aside for non-featured artists (session musicians and the like) that had a part to play in the recording. All of these people, as well as the composer of the underlying song, are instrumental in making a great sample. All should be compensated. The percentage shares should mirror market practice, but I want to make sure the Clyde Stubblefields of the world get paid too. An outstanding question here is whether all artists on the song or just those that are represented in the sample should be compensated. I’m not sure how to handle this quite yet.

7. Give credit. A sampling license should contain a waiveable right of credit for use of the sample. This increases the “findability” of the original recordings, allowing for those records to be purchased and thus boost the sampled artist’s sales, and in a small way acknowledges the moral right of attribution, which American law doesn’t formally recognize but artists still seem to care a great deal about. Good samples should encourage music discovery, and the system should do all it can to foster that discovery.  (And I know some artists take sample obscurity as a point of pride and deliberately hide samples. That’s fine. Just don’t use this license.)

8. Preserve a cause of action for right of publicity to guard against false endorsement. Every discussion of a compulsory sampling system always raises the hypothetical sampling use in a Republican campaign ad, or crass commercial use, or use in the context of Panzerfaust Records release. That is, of course, a legitimate concern for artists, but not an insoluble issue. The law already recognizes a remedy for false endorsement in the form of the right of publicity cause of action. Bette Midler and Tom Waits have both successfully defended against “sound-alike” recordings being used to falsely suggest endorsement of products. Admittedly, the law used by Waits and Midler is presently confined to the context of advertising, is based on state common laws, and is only actionable with a large degree of fame in the original artist. But the right could be expanded to cover the concerns above, provided certain First Amendment safeguards are in place (the sorts of safeguards already recognized in the doctrine of fair use). And what’s more, people already recognize that covers of songs often are done without the consent of the original songwriter and don’t hold the cover’s faults against the original. There’s no reason to believe that people couldn’t figure that out for sampling as well.

Those are my thoughts. Please tell me how and where I am wrong in the comments below.

I’ve spent a great deal of time considering the First Amendment implications of leaking confidential sources on the Internet. A lot of this analysis comes from the two amicus briefs I worked on while at the Berkman Center’s Cyberlaw Clinic, both dealing with websites that disclosed confidential information.  (And to that end I owe thanks to the Clinic and the CMLP for helping me develop this analysis over two summers.)  There are three discrete sub-doctrines of First Amendment law that inform my conclusion here, but I believe that, at least under the facts as they are currently understood, Assange and Wikileaks could not be punished in the United States for their actions.

Background: Free Speech vs. Free Press, and Protection for Aliens

Before diving into this, there’s two odd rumors out there that need clearing up.

First, there seem to be many out there that think that Wikileaks is not protected because they are not “journalists” or a “news” organization.  True, Julian Assange is not Sy Hersh and Wikileaks is not the New York Times, but that doesn’t mean he is not entitled to First Amendment protection.  To the extent that the press gets constitutional protections as an institution, it is only above and beyond the standard right to speak and disseminate information to which all are entitled.  And it is this general right, and not the special protections of the press, that will save Assange from an Espionage Act prosecution.

Constitutional protections afforded only to the “press” appear limited to certain specific tax provisions (Minneapolis Star v. Minn. Comm’n of Revenue), and (maybe) the right for reporters to protect their sources from judicial discovery in some cases (Branzburg v. Hayes).  The Supreme Court has consistently held that the press does not get other special protections, such as exemptions from antitrust laws (Associated Press v. United States), labor laws (Associated Press v. NLRB), or the laws of contract (Cohen v. Cowles Media).  It’s possible that these commentators are confusing the First Amendment with state laws that do protect “news organizations” above others from time to time, but no such distinction is found in the Constitution.  Indeed, there are scholars that suggest that the Framers intended “press” and “speech” to be used interchangeably.

Second, there are those who would suggest that because Assange is Australian the United States could punish him in a way that would not be permissible if done to an American.  I have never seen a case that suggests that the government can criminally punish a noncitizen speaker in a circumstance where they couldn’t punish a similarly situated citizen.  Professor Volokh has a nice summary of the law on point, but one can generally state that, absent a few specific considerations related to immigration and deportation, the government cannot criminally punish the speech of a noncitizen if it could not do so for a citizen.  (Citizens United could be contorted to state that the protections for campaign contributions weigh less for foreign contributors, but that is only in dicta and in this strange world of money-as-speech.)  Even if the government could punish Assange under some sort of citizens-only theory, the right to speak protects both the speaker and the recipient of information (Bd. of Educ. v. Pico, PG&E Co. v. Pub. Utils. Comm’n, Va. State Bd. of Pharm. v. Va. Citizens Consumer Council).  Thus, it is both the rights of Wikileaks to disseminate and our collective right to receive what Wikileaks is disseminating that dictates application of the First Amendment here.

With these two points aside, we can turn to the substance of protection.

1. Prior Restraint

The First Amendment, above all else, protects against laws which restrain speech before the speech is made.  The Supreme Court has consistently held that prior restraint on speech will virtually never be tolerated.  This was most famously articulated in the Pentagon Papers Case (a frequent guest in discussions of this nature).  There, the United States attempted to stop the New York Times from releasing the Pentagon Papers, a classified military study of the Vietnam War.  In the per curiam decision, the Supreme Court vacated an injunction against publication, stating that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” (Quoting Bantam Books, Inc. v. Sullivan.)  How heavy is that “heavy presumption?”  In short, quite heavy.  National security interests in an ongoing war weren’t enough to overcome it (Pentagon Papers).  It was not overcome when disclosure threatened to impact a criminal defendant’s right to a fair trial (Nebraska Press Ass’n v. Stuart).  Indeed, a naked prior restraint never been found permissible by the Supreme Court, absent some other factor which undermined First Amendment protection.

When might a prior restraint be allowed?  The oft-cited speculative language of Near v. Minnesota proposes such a case.  There, Justice Hughes suggested that the “sailing dates of transports or the number and location of troops” – i.e. present dangers of life and limb in the context of war – might rise to that level.  Professor Chemerinsky in his esteemed treatise on constitutional law suggests that the government could stop the press from reporting that we broke the Enigma Cipher in World War II.  We almost saw another close case in 1979, when the instructions for making a hydrogen bomb were going to be published in Progressive Magazine, but the United States dropped its criminal case before it reached federal appellate court. So we don’t know for sure, but we know it is this caliber of danger – the present location of troops, the disclosure of a secret that directly changed the outcome of the Second Word War, or the instructions for making the most powerful bomb in human history – that might allow for prior restraint.

But, of course, Wikileaks was not restrained from publishing before they had a chance to do so.  The cables got out there.  So why does the prior restraint doctrine matter?  I would argue that the principles of prior restraint are equally applicable to Wikileaks and thus warrant the same extreme judicial caution.  Content posted on the Internet stands in a unique state of constant republication.  Any order which commanded the removal of content from the Internet would prevent all from accessing the documents unless they had the foresight to download them, even those that had viewed them previously.  This has the effect of taking the information out of the public’s mind, as it is nearly impossible to engage in dialogue around information if that information can no longer be cited.  Had the Pentagon Papers come out today the Times would surely publish them online, and I believe the Supreme Court would find ordering the web takedown of that information equally repugnant to the First Amendment.  Indeed, the New Hampshire Supreme Court in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. found exactly that, vacating an order which restrained a website from posting formerly-posted material as equally offensive to free speech as prior restraint, and subject to the same scrutiny.

2. Heightened Protection of Speech After Publication

The Supreme Court has consistently defended those that seek to disseminate true facts on a matter of public concern, even after sensitive information is published.  While the Court has been quite careful to not articulate a categorical rule,  there is a general principle that comes from a series of cases that if a source “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”  (Smith v. Daily Mail Publ’g Co.)  Under this holding the Supreme Court has shielded speakers from civil damages under anti-wiretapping laws (Barnicki v. Vopper), criminal prosecution for publishing the name of a juvenile offender (Daily Mail), and punishment from disclosure of confidential information related to a judicial disciplinary proceeding (Cox Broad. Corp. v. Cohn).

And so the question we had in prior restraint we ask again for subsequent punishment: What is a state interest “of the highest order?”  Once again, it’s unclear.  Certainly if the speech is adjudicated to be in one of the unprotected classes of speech (obscenity, imminent incitement of crime, “fighting words,” etc.) it can be punished, but that presupposes that the speaker is not simply disclosing facts on matters of public concern, as all of those classes would permit such disclosure absent some other bad act.  The Court has seemingly held that some level of personal privacy could be a state interest of the highest order, but not when that information is published after being obtained from public records (Florida Star v. B.J.F.).  Even when personal privacy or due process of law is at stake, the court has found in favor of the speaker when the remedy sought was not narrowly tailored to the specific state interest.

Turning to government secrets, we have seen a few cases that impose a duty not to disclose truthful information when placed in a confidential relationship by virtue of a government position (such as a CIA Agent, in Snepp v. United States, or a federal judge in United States v. Aguilar, or the ranking member of the House Ethics Committee in the D.C. Circuit opinion Boehner v. McDermott).  But these positions of governmental authority suggest an affirmative, contractual waiver of rights, which has always been held to be binding notwithstanding free speech implications (Cowles Media).  As with prior restraint, it is hard to think of an exception that would apply here, as the Court has never found it.

3. Subsequent Dissemination of Unlawfully Disclosed Information

So assuming here that it was unlawful for Assange’s source to disclose these to Assange as he or she was likely in a governmental position imposing a duty not to disclose, do we let that poison Assange’s own disclosure of information?  The Supreme Court seems to suggest, at least in many cases, that we cannot.  The case on point here is Bartnicki again.  In Bartnicki a local radio personality was sued by members of a teachers union after he broadcast a surreptitiously recorded cell phone conversation between the plaintiffs.  The recording was made by an unknown third party, in violation of state and federal wiretapping laws.  The Court held that even though the source of the information obtained it unlawfully, subsequent disclosure of the tapes could not subject the broadcaster to liability, at least where the subjects disclosed were on matters of public concern and the broadcaster did not induce the unlawful behavior (the second restriction emanates from Justice Breyer’s concurring opinion).  Quoth the court, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Two subsequent Circuit Court cases have colored the Bartnicki opinion.  The first I mentioned earlier – Boehner v. McDermott – which declined to find free speech protections when, among other things, the person disclosing the unlawfully recorded information held a duty of confidentiality as ranking Democratic member of the House Ethics Committee.  But the other, Jean v. Mass. State Police, more clearly supports Wikileaks.  In Jean, the First Circuit rejected criminal punishment for a person who disclosed an unlawfully recorded video on a website, even when the source violated wiretapping laws when recording the video and the disclosing party had reason to know of that violation.  The First Circuit thus held that Bartnicki was not limited to the innocent speaker who did not know that a piece of information was disclosed to her unlawfully.  So long as the speaker was not the one that broke the law, it seems, you cannot punish the speaker.

Applying the Doctrines

With these three doctrines in mind, some general statements can be made about Wikileaks. First, one can look at Snepp, Aguilar, and Boehner and find grounds to punish Bradley Manning, as Manning assumed a confidential relationship by virtue of being in the Army (if indeed he did leak the documents as is alleged).  This can be characterized as either contractual or by virtue of a special duty-bound relationship to the government.  Manning waived some rights when becoming a member of the Army with access to confidential information, and that waiver is enforceable against him.  (Again, I’m not commenting one way or the other on the merits of what Manning did.  I’m simply predicting how the First Amendment plays out here.)

But we can see from Bartnicki (and more clearly from the First Circuit in Jean) that Manning’s unlawful act may not mean that we can find Assange liable for subsequent disclosure. Assange was not the one that breached a duty of confidentiality, Manning was.  This is admittedly a closer relationship than either Jean or Bartnicki, as the unlawful act is the disclosure itself and Assange quite certainly knew of the action’s illegality.  But if we take Bartnicki and Jean to hold that so long as the reporter is not inducing disclosure they cannot be prosecuted for a source’s bad actions, then clearly Assange is still protected.  Thus the theory for punishment of Wikileaks here cannot be tied to Manning’s bad behavior, it must be due to the harm of disclosing the information itself.

This is where characterizing the actions of the government as subsequent punishment or prior restraint could change the outcome of the case, as the latter holds a much higher protection than the former.  But based on what we know about these cables, it seems pretty certain that it does not implicate a “state interest of the highest order” as that term is understood in Daily Mail, and almost certainly fails the nearly-insurmountable standard of prior restraint from Pentagon Papers.

One can invent up a set of facts that might rise to that level.  Say the cables disclosed the identity of CIA agents operating in these countries, the battle plans in Afghanistan for the next month, or perhaps the cryptography key that allows soldiers to control Predator drones.  Based on the commentary of courts and scholars one can presume that these sorts of secrets might meet the standard.  But embarrassing details and gossip from diplomatic channels?  Hardly.  Even information related to the prosecution of the “War on Terror” and after-the-fact revelations about bad actions taken by the United States and her allies pale in comparison to the magnitude of information at risk in the Pentagon Papers.  Absent something far more more shocking and overwhelming, or something more directly tied to the life and limb of soldiers and other government agents, we simply are not there yet.

Of course, this is frontier law at its finest.  We don’t necessarily know what state interests will allow for prior restraint or subsequent punishment.  We don’t know if the Court will distinguish this case from Bartnicki, and find that Assange was just too close to the unlawful disclosure to not be held responsible.  These are once-in-a-decade cases that necessarily call our entire system of beliefs into question.  But the case law as it stands today strongly suggests that because Wikileaks did not actively induce the unlawful disclosure, and because the disclosure was over a mater of public concern, the government is almost certainly prevented from completely restraining publication of the information, and likely cannot penalize Wikileaks or Assange in any other way.

Update 8:45PM: Jonathan Zittrain, Tim Hwang, Ethan Zuckerman, Jillian York, Dan Gillmor – all Berkman folk, all very brilliant, and all with interesting perspectives on Wikileaks. All worth reading. Plus, I just learned that Media Berkman ran a special installment on Wikileaks, with these folks and more. I’m just starting it, but it sounds excellent.

Sometime over the past few days the Department of Justice seized 82 websites under civil forfeiture statutes, citing violations of trademark and copyright law.  If you go to, say, “boxedtvseries.com,” you will not see boxedtvseries.com (here’s an Archive.org capture from 2005). Instead, you see this:

The seizure, entitled “Operation in Our Sites II” (part I was a small-scale seizure over the summer), relied on power granted under civil forfeiture statutes: sections 981 and 2323 of Title 18 are cited, but really it’s all about 2323, with 981 providing the procedure.  Assuming they followed the letter of the law here, this means that someone in the Attorney General’s office filed what is tantamount to a criminal warrant, and then obtained custody and title of the goods in the name of the Attorney General and the United States.  This is shocking and surprising for a number of reasons.  This is exactly the concern raised by groups opposing the Combating Online Infringements and Counterfeits Act – that the government would be able to “blacklist” websites “dedicated to infringing activity,” and then take them off the Internet.  We also are asserting domain over the Internet itself, something which no other country has tried to do.  Big questions come up here, namely Can the United States do this as a matter of fact? Can they do this as a matter of authority?

To examine the U.S. authority in doing this would be far too much to take on right now with finals, so I’m going to focus more on the facts.  To do this requires a quick crash course on Internet architecture. Here goes:

The Internet is driven by numbers, IP addresses specifically.  If you type “204.11.50.136″ in your browser you will see the website for the blog Boing Boing.  This is Boing Boing’s web address.  Of course, we wouldn’t want to have an Internet where we needed to memorize IP addresses like phone numbers, so we developed a naming system to organize and label these addresses.  This is the Domain Name System, or DNS.  This system consists of a series of 13 “root servers,”  located throughout the globe, which tell all computers where to go to look up the addresses of sites ending in “.com,” “.net,” “.edu,” and so forth.  These root servers are redundant copies of each other, designed so that if one goes down the others can still direct traffic.  Each of these top level domains (“.net” in our example) contains another server (and backups thereof) which stores a list of every website that ends in that extension and its corresponding IP address.  This is of course a gross simplification, but when we type in “boingboing.net,” our computer looks to the root server to find the “.net” server, then goes to the “.net” server and asks where to go for “boingboing.”  That server responds “204.11.50.136,” and the connection is made.

So what does it mean to “seize” a website?  I am hunting down the civil forfeiture warrants used in Operation in Our Sites II, but it seems to that once they convinced a judge that there was probable cause to issue this forfeiture order, the government went to the DNS servers involved in translating (“resolving” in the lingo of the industry) the websites at issue, and had them change their destination to the Justice Deparment’s website, http://www.seizedservers.com/ (a website created 6 days ago, likely for this operation).  Now if you enter in “boxedtvseries.com,” instead of resolving to whatever numerical address it had before, it resolves to “74.81.170.110.”  Of course, if you happen to know what the old number is for “boxedtvseries.com” you can still type in that number and get the old website.  The Internet is deliberately decentralized in that way.  Short of actually taking the computers that host “boxedtvseries.com” – computers that could be anywhere in the globe – the best the Justice Department can do is make it so that the DNS servers no longer point there when someone types in words instead of numbers.

And this has lead to one interesting hypothesis from ComputerWorld – what happens if people no longer trust the institutionalized DNS servers?  There’s nothing in the architecture of the Internet to stop anyone from creating a new DNS server that resolves names differently than the DNS system does now, telling people where, for example, the real “boxedtvsets.com” is located.  If they were to do this outside the jurisdiction of the United States, I don’t see how civil forfeiture (or the proposed COICA bill) could stop it. And this would create all sorts of chaos for the Internet as a whole – imagine a world where typing in the same URL on two different computers would lead to pulling up two different websites.  I hope the Justice Department realizes what kind of special fire it is playing with right now by forcing DNS servers to resolve to places where sections of the public do not want them to resolve.  John Perry Barlow may have been more right than we realize: we may have a domain name mutiny if we are too reckless in enforcing the law this way.

One last thought.  The other big cyberlaw case of the day is, of course, Wikileaks and its dumps of classified government information.  One of the great ironies of our legal system is this: to stop the Wikileaks website would take a criminal prosecution establishing a violation of a state interest of the highest order, an order so strong the Supreme Court has never found it in any leak of classified information distributed by the press. (I think that’s a good thing, by the way.)  But if Julian Assange was trading in fake handbags instead of state secrets, his website could be down already though civil forfeiture.  Does that seem right to you?

Update 12/3 – apparently the copyright / First Amendment dichotomy I mentioned above was noticed by none other than Sarah Palin.

I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album.  Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license.  The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly.  Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it.  The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix.  You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage.  To the consumer it makes little difference, but to the remixer the difference is stark.

So, everyone go remix the Girl Talk album and post it on YouTube?  Well, not so fast.  All Day isn’t a lone, romantic album.  Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on.  If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings.  He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs.  (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)

The problem with using a Creative Commons license here is one of arithmetic.  Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works.  The sampled recordings aren’t under the Creative Commons license.  To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song.  Your defense is about as strong as Girl Talk’s defense.  You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument.  (There’s no indemnity clause or warranty of title in Creative Commons licenses.)

Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture.  But as a legal matter it’s little more than a gesture.  Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.

Now, will record companies sue you for remixing All Day?  Probably not, only because it’s such a complicated case to make with little economic return.  But will they send a DMCA takedown notice to YouTube over your remix?  Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.

From Brett Milano’s The Sound of Our Town:

The rise of the Middle East was one key to the amount of action [the 1990s] saw. The initial credit goes to Billy Ruane, a beloved local character who never did anything quietly. Indeed, the sight of Ruane in full glory—shirt hanging open, feet flying in all directions, drinks toppling in his wake—was often more interesting than whatever band he was watching. In early 1988 he booked himself a birthday party at T.T. the Bear’s Place in Central Square, only to wind up with more bands than the club could fit. So he arranged a second stage at the family-run Middle East restaurant next door. Danny Mydlack, a performance artist who was known to shave his own chest while playing the accordion, was the first act to appear, followed by the Blake Babies; and a fine time was had by all.

Soon the downstairs bowling alley would be converted to a music venue, and the rest is history.

Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.

- In re J.J., No. D055603 (Cal. Super. Ct. Oct. 15, 2010) (quoting In re Stevens, 119 Cal .App. 4th 1228, 1235 (2004), quoting Lessig, Code and Other Laws of Cyberspace 10 (1999)).

See Eric Goldman’s blog for more.

Look closely at Dido’s album cover for “Safe Trip Home.” Spot the lawsuit?

The astronaut in that photograph is Captain Bruce McCandless II. This is him here:

(Image courtesy Wikimedia, and I’m going to go ahead and add that that Captain McCandless doesn’t endorse my blog.)

Capt. McCandless is a true hero of the NASA program, serving as CAPCOM during the Apollo 11 mission and logging more than 300 hours in space himself.  He is most famous for making the first untethered space flight in the NASA MMU.  NASA has a collection of photos from the flight, including this one:

(Courtesy NASA)

It doesn’t take too long to see how Dido took this shot and made the album cover above.  The thing is, Capt. McCandless feels as though he, the astronaut so portrayed in the photograph, is entitled to some form of remuneration (along with an injunction) by virtue of being portrayed therein.  And so, he sued.  Here’s the complaint (PDF).

It’s important to note that this is not a copyright claim.  NASA took the photograph, and under ordinary circumstances that’s enough to put the photograph in the public domain as a government work.  McCandless makes no claim to the contrary.  This is a question of personality rights.

I’m still learning about trademark and rights of publicity, so I don’t feel comfortable going into the legal weeds on this one, but I can’t help but think that all of the major personality rights cases – Waits v. Frito-Lay, Haelan Laboratories v. Topps Chewing Gum, Martin Luther King Jr. Center for Social Change v. American Heritage Products, even the often controversial Zacchini v. Scripps-Howard Broadcasting Co. – all dealt with portrayals of celebrities where you could actually tell who was being portrayed.  It was Tom Waits’s voice, the baseball players’ portraits, a sculpture of Dr. King, or a video of Zacchini, and in all of those cases it was easy to see or hear who it was.  There was no mistake about it. Until I started writing this article, I had no idea that who the astronaut was in the photograph there.  It’s just an astronaut.

And even if I did know that this is a picture from the first MMU flight, and that McCandless was the person portrayed, how can I tell that it’s him?  He’s a speck on that photograph. (I think that’s why that photograph is so powerful.)  When we talk about personality rights, we talk in reference to using someone’s name or likeness without their permission.  On Safe Trip Home you don’t know the astronauts name and you can’t see the astronaut’s face.  It is technically him, but the only way you know who this is would be if you are schooled enough to know the background significance of the picture.  I don’t even think the question fairly debatable – at best it’s a very serious uphill battle to prove it.

The complaint sees it differently:

29. The EVAtion Photograph [the photo used on Dido's album] includes the images of McCandless, and McCandless is further identified in part by distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system. NASA used such markings to visually distinguish McCandless from other crew members.

30. In the EVAtion Photograph, McCandless is further identified by and pictured with a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle missions.

With all due respect to the drafters of the complaint: really?  You really think you can see all of these things in this photograph?  Can you make out the mission patch on the chest of Capt. McCandless’s life support system?  Even if you saw it close up, would your mind go to Capt. McCandless when you saw that patch?

The complaint also notes that the photograph appeared in news media, including this piece in Time magazine, identifying Capt. McCandless.  But again, unfair use of publicity rights more or less presumes that a consumer will see the celebrity portrayed and believe the celebrity to have supported, endorsed, or otherwise lent their goodwill to the product.  To put it in the words of the California Civil Code (under which McCandless makes one of his five claims) a photograph of a celebrity must be clearly depicted so that “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”  I don’t think this should be enough:

(McCandless, zoomed in as far as the original photo will allow.)

Now, the Complaint alleges that Dido did, in fact, mention in the liner notes that the photograph depicts McCandless.  In so doing they have used his name, and thus he at least gets in the door with a personality rights claim.  But that’s inside the liner notes of the album, and thus not used to sell or advertise the product.  In short, I don’t think that should count either.

I leave more analysis to those more suited, but I do want to note in closing that the complaint embraces what I consider a wholly separate action against Getty Images for publicity claims as well as some form of breach of contract claim for a personality license Getty entered into regarding this picture.  Why Getty is allegedly commercially licensing a public domain picture, and paying McCandless for the personality rights therein, remains a complete mystery to me.

I like the this passing quote in the article:

In their battle with Research in Motion, countries like Dubai have sought leverage by threatening to block BlackBerry data from their networks. But Ms. Caproni said the F.B.I. did not support filtering the Internet in the United States.

That is, of course, unless we’re filtering the Internet to protect someone’s copyright.  And all of this makes me wonder: if we are going to filter the Internet, and order companies to open up their communications for inspection, can we at least start to find some public forum rights in communication conveyed therein?