“What property could be more emphatically a man’s own than his literary works?”

I’ve been poring over several older treatises on copyright law, and one in particular has resonated with me: The Law of Copyright in Works of Literature and Art, by Walter Arthur Copinger. Published in 1870, Copinger’s work has been described by one modern scholar as a “landmark treatise on the law of copyright, establishing a body of work that still has great relevance for professionals and academics today.” And thanks to Google Books, the entire text of this now-public domain masterpiece is freely available.

Like me, Copinger unabashedly subscribes to the natural rights theory of copyright law, following in the footsteps of seventeenth- and eighteenth-century greats such as Locke, Mansfield, and Blackstone. In his treatise, Copinger situates the foundation of copyright law upon the natural law mode of acquisition of occupancy:

The right of an author to the productions of his mental exertions may be classed among the species of property by occupancy; being founded on labour and invention.

Consistent with this natural law vision, Copinger posits “that every man has the right at common law to the first publication of his own manuscript.” And upon publication, he continues, “no more passes to the public than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains.” Importantly, though, Copinger notes that the “property in the composition does not pass; for those things which only peculiarly and appropriately are [the author's], must remain his till he agrees or consents to part with them by compact or donation.” And according to Copinger, “[n]o man could possibly have a right to make a profit by the publication of the works of another, without the author’s consent,” since that “would be converting to one’s own emolument the fruits of another’s labour.”

Copinger takes issue with the suggestion that copyright is not property:

What property could be more emphatically a man’s own than his literary works? Is the property in any article or substance accruing to him by reason of his own mechanical labour denied him? Is the labour of his mind less arduous, less worthy of the protection of the law?

And, echoing a dispute that still persists to this day, Copinger presents the copyright-as-property debate:

When the right could not be combatted on the ground of common sense or simple reason, the lawyers were forced to fly to what Lord Coke styles “summa ratio,” or the legal reason, and they contended that from the very nature of literary productions no property in them could exist. For, said they, to claim a property in anything it is necessary that it should have certain qualities; it should be of a corporeal substance, be capable of occupancy or possession, it should have distinguishable proprietary marks, and be a subject of sole and exclusive enjoyment. Now, none of these indispensable characteristics were possessed by a literary production.

To this it was replied, that such definition of property was too narrow and confined; (for the rules attending property must ever keep pace with its increase and expansibility, and must be adapted to every particular condition;) that a distinguishable existence in the thing claimed as property, and an actual value in such thing to the true owner, are its essentials; and that the best rule of reason and justice seemed to be, to assign to everything capable of possession a legal and determinate owner.

Thus, in Copinger’s view, those who claim that copyright is not property simply have an attenuated understanding of the concept of property. I think this certainly is true, even to this day. And as Copinger points out, once an idea has been fixed in a tangible expression, it is no longer “in the mind alone,” and it readily becomes the subject of proprietary acquisition:

When however any material has embodied those ideas, then the ideas, through that corporeity, can be recognised as a species of property by the common law. The claim is not to ideas, but to the order of words, and this order has a marked identity and a permanent endurance.

Copinger’s position on copyright term is particularly interesting—and it’s remarkably similar to my own. On the one hand, he praises the “best endeavours” and “most eloquent strains” of “Mr. Serjeant Talfourd,” who successfully sought the extension of copyright protection past an author’s lifetime with the following argument:

There is something peculiarly unjust in bounding the term of an author’s property by his natural life, if he should survive so short a period as twenty-eight years. It denies to age and experience the probable reward it permits to youth—to youth, sufficiently full of hope and joys to slight its promises. It gives a bounty to haste, and informs the laborious student, who would wear away his strength to complete some work which ‘the world will not willingly let die.’ that the more of his life he devotes to its perfection, the more limited shall be his interest in its fruits.

It stops the progress of remuneration at the moment it is most needed; and when the benignity of nature would extract from her last calamity a means of support and comfort to the survivors—at the moment when his name is invested with the solemn interest of the grave—when his eccentricities or frailties excite a smile or a shrug no longer—when the last seal is set upon his earthly course, and his works assume their place among the classics of his country—your law declares that his works shall become your property, and you requite him by seizing the patrimony of his children.

And then, in the passage that resonates with me the most, Copinger explains why he does not support a perpetual copyright term—even though he’s a natural rights theorist. Instead, he argues that such a perpetual term would ultimately impede progress:

Many have agitated for the establishment of a perpetual copyright, together with a bestowal upon authors of the exclusive power of abridging, dramatizing, and metamorphosing their own works at will, turning prose into poetry, romances into plays, and vice versa. The claim of authors resulting from the principles of natural right involves the perpetual duration of the property. But in order that such property should be of value, it is necessary that society should interfere actively for its protection. It may either interfere by the enactment of penalties, which, in order to be effectual, must be severe; or it may interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favour of an exclusive right, further than it finds such a course beneficial to its own interests, in the broadest sense of the term.

It is argued, however, that the concessionary allowance of a perpetuity in copyright would encourage publication, and tend greatly to the promotion and furtherance of science and literature. But, admitting that learning and science should be encouraged, that everything tending or conducible to the advancement of knowledge, and consequently to the happiness of the community, should be favoured and tenderly cherished by the legislature, and that the labour of every individual should be properly recompensed, it does not follow that the same or a similar end might not be obtained by different or less objectionable means.

If the individual is a gainer by the existence of copyright, society is a loser. The absurdity of the assertion that authors are alone inclined to make known their works from the specific benefit arising from an absolute perpetual monopoly, is manifest. What a studied indignity to those who have devoted their lives to the advancement of every science that adorns the annals of literature! Ambition cannot be deemed a cipher; benevolence will ever exist in the heart of man, and they at least act as powerfully by way of conducives to the communication of knowledge between man and man, as avaricious or mercenary motives.

A perpetuity in copyright would have the effect of impeding the progress of literature and science, and among other serious inconveniences we will mention one. The text of an author, after two or three generations, if the property be retained so long by his descendants, would belong to so many claimants, that endless disputes would arise as to the right to publish, which in all probability might prevent the publication altogether. . . . Though we could not, therefore, uphold a perpetual copyright, believing that its existence would by no means tend to the spread or encouragement of literature, we would willingly offer our support to the extension of the period during which literary copyright is at present protected.

It’s refreshing to see my own beliefs reflected in such robust terms almost a century-and-a-half ago. While the natural rights vision of copyright law is certainly less popular today, especially in academia, it’s comforting to know that one of the leading treatises of the late nineteenth-century wholeheartedly adopts views so similar to my own.

Applying Aereo: Aereo’s Time-Shifted Transmissions

This is the third post in my “Applying Aereo” series. In the first post, I walked through the Supreme Court’s holding that Aereo performs publicly with its near-simultaneous transmissions. In the second post, I applied that holding to the public performance issue in the Fox v. Dish litigation over Dish’s Hopper with Sling. In this third post, I’ll look at Aereo’s argument as to why its time-shifted transmissions are not public performances, and I’ll explain why I think Aereo gets it wrong on the merits. While the Supreme Court did not address these time-shifted transmissions directly, I think they are nevertheless clearly infringing under the Court’s rationale.

Aereo’s service offers both near-simultaneous transmissions of broadcasts (its “Watch Now” function) as well as time-shifted transmissions from recordings of broadcasts (its “Record” function), but it’s only the former that the Supreme Court looked at in its Aereo decision since the plaintiffs did not challenge the latter. As Justice Scalia noted in his dissent, which I discussed in my last post, this leaves a very big issue on the table:

Today’s decision addresses the legality of Aereo’s “watch” function, which provides nearly contemporaneous access to live broadcasts. On remand, one of the first questions the lower courts will face is whether Aereo’s “record” function, which allows subscribers to save a program while it is airing and watch it later, infringes the Networks’ public-performance right.

Scalia’s crystal ball was correct. In fact, Aereo filed an emergency memorandum raising that very question on the same day that the Second Circuit remanded the case to the district court. In the memorandum, which for procedural reasons the district court struck from the record the next day, Aereo makes the conclusory claim that the “Supreme Court’s decision recognizes that Aereo’s time-shifted ‘Record’ function does not violate Plaintiffs’ public performance rights.” No explanation of how this is so was offered.

Two weeks later, the plaintiffs filed a memorandum requesting that the court preliminary enjoin Aereo “from streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Programming over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America.” In the memorandum, the plaintiffs take issue with Aereo’s notion that its time-shifted transmissions are not public performances: “Aereo’s suggestion that it can operate without infringing as long as it delays retransmissions so they are not made simultaneously with the original broadcast reflects a serious misunderstanding of Aereo III and the law.” (“Aereo III” refers to the Supreme Court’s opinion.)

The plaintiffs primarily focus on the “different times” language in the Transmit Clause to argue that simply delaying the transmissions doesn’t transform them into private performances:

The Supreme Court’s interpretation of the Transmit Clause makes clear that Aereo’s retransmissions of the same programs to its subscribers are public performances, regardless of whether the retransmissions are made at the “same time” or at “different times.” 134 S. Ct. at 2509-10. Specifically, the Supreme Court held that Aereo publicly performs Plaintiffs’ copyrighted programs when it retransmits their contemporaneously perceptible images and sounds to its subscribers over the Internet. Id. at 2509. And it made clear that Aereo’s retransmissions are a public performance even if they do not occur simultaneously with the broadcast or with each other[.]

The plaintiffs also argue that these time-shifted transmissions involve content to which the user has no “prior relationship,” thus making them public performances:

[T]he Supreme Court has held that Aereo cannot, in the first instance, lawfully retransmit the programming that would be recorded. Thus, while the Aereo III opinion expressly reserves the issue of remote storage DVRs and cloud-storage services in other circumstances, 134 S. Ct. at 2511, this does not assist Aereo. As the Supreme Court held, Aereo’s subscribers’ copies are not lawfully acquired; instead, they are received from Aereo’s unlicensed and infringing service: “Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. . . . [A]n entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to ‘the public,’ whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.” Id. at 2510.

In its opposition brief filed last week, Aereo counters that the analysis for the near-simultaneous transmissions with its “Watch Now” function is different than the analysis for the time-shifted transmissions with its “Record” function: “Plaintiffs’ request is at odds with Aereo III, which identified two different analyses—one for simultaneous, cable-like retransmission, and another for time-shifted playback of user stored copies like Cablevision.” In its opinion, the “Supreme Court was careful to avoid overturning Cablevision, which is still the controlling law in this Circuit” and which “remains good law.” And under Cablevision, it contends, its time-shifted transmissions are private performances:

In addition, under Aereo III, the question of whether an entity performs to the “public” turns in part on the relationship of the user to that which is transmitted. See Aereo III, 134 S. Ct. at 2502 (“This is relevant because when an entity performs to a set of people, whether they constitute ‘the public’ often depends upon their relationship to the underlying work.”). . . . [W]hen Aereo users play back programs they previously recorded, they do so just as users of the Cablevision RS-DVR do. Id. at 2510. An Aereo subscriber who has made a time-shifted recording of a television program broadcast over the public airwaves on Aereo’s servers is the “possessor” of that copy to the same degree as the Cablevision RS-DVR user.

So who’s right? While I think both sides make good points, rather notably, Aereo says nothing about the plaintiffs’ “different times” argument. As the plaintiffs point out, by its own terms, the Transmit Clause applies “whether the members of the public capable of receiving the performance . . . receive it . . . at the same time or at different times.” So the fact that the transmissions occur at “different times” doesn’t take them out of the Clause’s reach. Moreover, based on this “different times” language, the Supreme Court explicitly rejected Aereo’s suggestion that each individual transmission should be considered independently:

The text of the Clause effectuates Congress’ intent. Aereo’s argument to the contrary relies on the premise that “to transmit … a performance” means to make a single transmission. But the Clause suggests that an entity may transmit a performance through multiple, discrete transmissions. That is because one can “transmit” or “communicate” something through a set of actions. Thus one can transmit a message to one’s friends, irrespective of whether one sends separate identical e-mails to each friend or a single e-mail to all at once. *** By the same principle, an entity may transmit a performance through one or several transmissions, where the performance is of the same work.

The Transmit Clause must permit this interpretation, for it provides that one may transmit a performance to the public “whether the members of the public capable of receiving the performance … receive it … at the same time or at different times.” § 101. Were the words “to transmit … a performance” limited to a single act of communication, members of the public could not receive the performance communicated “at different times.” Therefore, in light of the purpose and text of the Clause, we conclude that when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes.

Thus, it doesn’t matter how many transmissions Aereo makes, nor does it matter whether the transmissions occur “at the same time or at different times.” This means that Aereo cannot escape liability through the simple expedient of staggering its transmissions. And the fact that Aereo doesn’t even attempt to rebut the plaintiffs’ “different times” argument speaks volumes.

Turning to Aereo’s main counterargument, I think Aereo is certainly correct to argue that its “Record” function is noninfringing under the Second Circuit’s reasoning in Cablevision. But the problem with this argument is that Cablevision most certainly does not “remain[] good law.” The reasoning of the Cablevision court as to why the performances enabled with Cablevision’s remote DVR were private turned on the fact that each transmission arose from a personal copy and could only be received by an individual user. The Supreme Court in Aereo explicitly rejected this approach to the Transmit Clause:

We do not see how the fact that Aereo transmits via personal copies of programs could make a difference. The Act applies to transmissions “by means of any device or process.” Ibid. And retransmitting a television program using user-specific copies is a “process” of transmitting a performance. A “cop[y]” of a work is simply a “material objec[t] … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated.” Ibid. So whether Aereo transmits from the same or separate copies, it performs the same work; it shows the same images and makes audible the same sounds. Therefore, when Aereo streams the same television program to multiple subscribers, it “transmit[s] … a performance” to all of them.

Under the Court’s logic, the Transmit Clause’s “different times” language means that multiple transmissions are not to be disaggregated as the Second Circuit and Aereo believe they should be. Instead, as Aereo itself points out, “the question of whether an entity performs to the ‘public’ turns in part on the relationship of the user to that which is transmitted.” Aereo contends that “consumers have the right to record copyrighted programs for the purpose of time-shifting” under Sony. While it’s no doubt true that the Supreme Court in Sony found certain reproductions for time-shifting purposes to be fair uses, that doesn’t mean that the Transmit Clause doesn’t reach Aereo’s time-shifted transmissions. Sony only focused on the reproduction right, not the public performance right, and the Court there never mentioned the Transmit Clause.

Aereo’s argument that its users have acquired a possessory interest in the content under Sony is clever, but ultimately, it’s unpersuasive. Aereo wants to lump its time-shifted transmissions together with those that may occur with a remote cloud storage service. The difference, though, is that the reproductions enabled by Aereo’s service are just part of the “device or process” that Aereo uses to publicly perform. And, as already noted, the Supreme Court stated that it does “not see how the fact that Aereo transmits via personal copies of programs could make a difference.” In the Court’s opinion, the “behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens” doesn’t matter. Nor should it. Furthermore, I agree with the plaintiffs that these copies are “not lawfully acquired,” since Aereo has no privilege to supply its users with the content in the first place.

The plaintiffs’ memorandum in reply to Aereo’s opposition brief is due today, and the district court has agreed to Aereo’s request for oral argument on the plaintiffs’ motion for a preliminary injunction. That hearing will be held on October 15th. It will be interesting to see how the court responds to Aereo’s argument that the plaintiffs cannot now request an injunction over its time-shifted transmissions since they originally only sought to enjoin its near-simultaneous ones. Equally interesting is the issue of whether the plaintiffs have demonstrated irreparable harm. I don’t have an opinion either way on these other issues, but I do think that the plaintiffs are certainly correct to claim that Aereo’s “Record” function directly infringes their public performance rights under the Supreme Court’s holding in Aereo.

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

On Scalia’s Aereo Dissent

Associate Justice Antonin Scalia is not happy with the Supreme Court’s holding that Aereo performs, as he makes clear in his acerbic dissent in Aereo. Scalia mocks the Court’s “test-free, ad hoc, case-by-case evaluation,” and he claims that the Court “disregard[s] widely accepted rules for service-provider liability and adopt[s] in their place an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come.” In his opinion, the “clear” answer is this: “Because Aereo does not select the programs viewed by its users, it does not perform.” This “straightforward, bright-line test of volitional conduct directed at the copyrighted work,” Scalia continues, is “settled jurisprudence.” But is Scalia’s “bright-line test” really so “clear”? In this post, I’ll explain why I think it’s not.

Scalia helpfully “boils down” the Court’s deduction as to why Aereo performs:

(1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts; (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs.

One important nuance missing from Scalia’s syllogism is how “Congress amended the Act” to reach cable systems. Congress didn’t just add Section 111, which provides a statutory licensing scheme for secondary transmissions by cable systems. It also added the Transmit Clause to Section 101, which broadly defines what it means to “perform . . . a work publicly.” And while Scalia looks at Section 106(4), which grants an author the exclusive right “to perform the copyrighted work publicly,” he says not one word about the Transmit Clause. For a textualist such as Scalia, this is truly remarkable. Whether Aereo performs publicly is governed exclusively by the Transmit Clause, yet Scalia completely fails to engage its text or even to acknowledge its existence. Moreover, Scalia cites no case law whatsoever applying the Transmit Clause in a public performance case. These omissions are stunning.

Scalia instead focuses on precedent relating to the reproduction right, and he argues that, with a performance-by-transmission, only the party that makes the final selection of the particular content to be transmitted directly causes that performance to occur. This suffers from many flaws, not the least of which is that the reproduction right case law Scalia cites doesn’t translate well to the public performance right. The reproduction right case law looks at what happens after the content has already been supplied to the user, while the focus with the public performance right is how the content is supplied to the user in the first place. And while the reproduction right analysis may be indifferent to whether the service provider selects and supplies the content to be copied, the liability of the service provider with the public performance right, by contrast, turns on it.

Making things worse, Scalia has a strange notion that there’s only one performance when the content is transmitted from the service provider to the user who then subsequently receives and renders the content on a device:

When a subscriber selects a program, Aereo’s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that file’s contents to the subscriber via the Internet—at which point the subscriber’s laptop, tablet, or other device displays the broadcast just as an ordinary television would. The result of that process fits the statutory definition of a performance to a tee: The subscriber’s device ‘show[s]’ the broadcast’s ‘images’ and ‘make[s] the sounds accompanying’ the broadcast ‘audible.’ § 101. The only question is whether those performances are the product of Aereo’s volitional conduct.

The proper view is that the transmission from the service provider to the user is one performance, and if the user happens to render that transmission on a device, that’s a second performance. With Aereo, we don’t care about this second performance-by-rendition on the user’s device, and it matters not whether the user privately performs the content, makes a copy of it, or distributes it publicly after he has received it. What we care about is the first performance, that is, the performance-by-transmission that supplies the user with the content in the first place. We want to know who directly causes this performance. While we may hold the user directly liable for whatever acts he engages in once he’s received the content, Scalia fails to recognize that the question in Aereo is who is responsible for supplying that content to the user in the first instance.

Scalia’s analysis starts on the right foot: “The Networks’ claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. See 3 W. Patry, Copyright § 9:5.50 (2013).” There’s hardly anything remarkable about the volitional conduct test. All it stands for is the obvious notion that, while copyright infringement is a strict liability tort, the defendant can’t be directly liable unless he causes the copying. As William Patry notes in the treatise entry cited by Scalia, the “requirement of volitional conduct . . . serves to ensure that there is a causal connection between the conduct in question and the person alleged to have violated the copyright owners’ Section 106 rights.” In other words, volitional conduct just means “causation,” in the tort-law sense of the word.

Scalia believes there’s a general bright-line rule under the volitional conduct test that turns on who selects the content: “In sum, Aereo does not ‘perform’ for the sole and simple reason that it does not make the choice of content.” Scalia claims this rule for the public performance right comes from three federal appellate opinions applying the volitional conduct test to the reproduction right, namely, CoStar, Cablevision, and Dish. This trilogy of cases, in turn, traces back to the famous pre-DMCA Netcom decision, where the district court said: “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”

The CoStar court cites Netcom and adopts its holding:

But to establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.

As in Netcom, the CoStar court simply says that supplying the machine is not enough—there has to be “something more” such that the defendant’s conduct is “sufficiently close and causal” to the copying. And as with Netcom, the content at issue in CoStar is selected and supplied by the user, not by the service provider. Netcom and CoStar are indeed analogous to a copy shop because the user selects and supplies his own content to be copied on the machine, supplied by the service provider, that he operates. But that’s not what’s happening in the other two cases in Scalia’s trilogy, namely, Cablevision and Dish, where the service provider initially selects and the supplies the content from which the user subsequently makes his selection of what is to be copied.

The Second Circuit in Cablevision notes that Cablevision does more than simply supply a machine:

The district court also emphasized Cablevision’s “unfettered discretion in selecting the programming that it would make available for recording.” . . . This conduct is indeed more proximate to the creation of illegal copying than, say, operating an ISP or opening a copy shop, where all copied content was supplied by the customers themselves or other third parties.

Applying a newly-improvised standard, the Cablevision court holds that there is not enough volitional conduct on Cablevision’s part such that it is directly causing the copies to be made: “Nonetheless, we do not think it sufficiently proximate to the copying to displace the customer as the person who ‘makes’ the copies when determining liability under the Copyright Act.” The Ninth Circuit follows suit in Dish, finding that even though the service provider “decides how long copies are available for viewing,” “maintains the authority to modify the start and end times” of the recording, and does not allow the user to “stop a copy from being made once the recording has started,” it “does not mean that the system operator, rather than the user, cause[s] copies to be made.” But in neither case is it true that the service provider engages in no “volitional conduct directed at the copyrighted work,” as Scalia contends. In both cases, the content is first selected and supplied by the service provider.

These cases cited by Scalia—well, at least Cablevision and Dish—certainly do stand for the proposition that, by merely pushing a button, the user is the only party that directly causes the copy to be made—even if the service provider does everything else, such as design, build, and supply the machine that copies nothing other than the specific content it supplies. I don’t think this makes much sense, but I also don’t think it matters here: This who-pushes-the-button variation of the volitional conduct test only applies to the reproduction right. In fact, the Cablevision court explicitly warns that its test for the reproduction right “does not dictate a parallel conclusion” for the public performance right since the “rights vary in significant ways.” Strangely, Scalia cites neither this warning nor any of the Second Circuit’s lengthy discussion of the public performance right.

After his diversion through the reproduction right case law, Scalia himself curiously acknowledges that the public performance right operates differently. Scalia reasons that video-on-demand services and cable systems both perform because the signals that stand “ready to emerge” from the user’s device are the result of the service provider’s “affirmative, volitional steps to put them there.” One difference between them, of course, is that cable systems transmit the content before the user makes a selection, whereas there’s no transmission with video-on-demand services until after the user selects the content to be transmitted. But Scalia thinks that both types of services directly perform since there’s sufficient volitional conduct with each—and this is despite the fact that with both it’s the user who pushes the button. Thus, unlike with the reproduction right, who directly causes the performance to occur is not determined by who pushes the button.

Instead, Scalia confirms that, unlike with the reproduction right case law he cites, direct liability under the public performance right turns on the service provider’s actions vis-à-vis the particular content being transmitted. And while “cable systems started out essentially as dumb pipes that routed signals from point A to point B,” Scalia assures, that’s not the case today as cable systems now “deliberately select[] and import[] distant signals” such that they are “curators of content—more akin to video-on-demand services than copy shops.” Under Scalia’s view, even though cable systems don’t know which particular content those “distant signals” may contain, there is sufficient “volitional conduct directed at the copyrighted work[s]” being transmitted such that they publicly perform—just like video-on-demand services that do choose the particular content made available to the public.

Scalia thinks there’s a difference between cable systems that capture “the full range of broadcast signals” and ones that capture only certain signals. “So far as the record reveals,” he reasons, Aereo aligns with the former. But as the copyright gurus at Truth on the Market argue, Aereo doesn’t provide all of the broadcasts in a given area:

Aereo does not offer all the ATSC broadcasts transmitted over-the-air in the cities where the service is available. In New York, for example, Aereo claims to offer 16 channels (and several virtual sub-channels), but it doesn’t claim to offer such channels as WMBQ-CD, WDVB-CD, WNYZ-LP, or WASA-LD—all of which are broadcast over-the-air throughout central New York, according to AntennaWeb.

Moreover, it’s hard to see how this distinction matters: No matter how many signals Aereo provides, it takes the same “affirmative, volitional steps” to have the signals “ready to emerge” on the user’s device. And it makes little sense to say that a service which provides more signals somehow has less volitional conduct when it retransmits them. Furthermore, Section 111, which Scalia also conspicuously fails to consider, belies his argument that passive services do not publicly perform. For example, Section 111(a)(1) exempts “the relaying, by the management of a hotel, apartment house, or similar establishment, of signals transmitted by a broadcast station . . . to the private lodgings of guests or residents of such establishment.” If such passive relays were not public performances, there’d be no need for the exemption in the first place. And as the House Report to the 1976 Copyright Act clarifies, “any act by which” a performance “is transmitted, repeated, or made to recur would itself be a performance.” “Any act” includes acts both active and passive.

Needless to say, I don’t find Scalia’s dissent very persuasive. If anything, Scalia’s own standard strikes me as being “improvised” since it comes from the reproduction right case law that looks at what the user does with the content after it’s already been acquired. And why a textualist such as Scalia fails to address the Transmit Clause or even Section 111 is anyone’s guess. But the main problem with Scalia’s dissent, in my opinion, is that Scalia fails to recognize that whether Aereo performs has nothing to do with what the user does with the content once it’s been received. Like the public distribution and public display rights, the public performance right looks at the means by which the content is supplied to the user in the first place. It’s this performance-by-transmission by which the user is supplied the content that’s at issue, and this has nothing to do with the user’s subsequent performance-by-rendition, should there even be one.

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

Applying Aereo: Dish’s Hopper with Sling

This is the second post in my “Applying Aereo” series. In the first post, I walked through the Supreme Court’s reasoning step-by-step. In this second installment, I’ll apply the holding of Aereo to Dish’s Hopper with Sling, and I’ll explain why I think Fox should lose on its new public performance claim against Dish. While some skeptics have complained that Aereo offers no guidance for courts to apply with other fact patterns, I think the Court’s holding can be applied here to show that the place-shifted performances enabled by Dish’s Hopper with Sling are private, not public. Rather than jeopardizing innovation, it seems to me that Aereo offers the type of relatively simple-to-apply bright-line rule that can foster it.

On July 7th, Fox and Dish returned to the Ninth Circuit for yet another round of oral argument in their ongoing copyright and contract battle. The parties had been there once before, with Fox losing its appeal of its denied preliminary injunction motion last year. In that first appeal, Fox challenged two features of Dish’s first-generation Hopper set-top DVR, namely, PrimeTime Anytime, which let subscribers record the prime-time lineup of the four major broadcasters, and AutoHop, which let subscribers watch those recordings back commercial-free. The Ninth Circuit agreed with the district court that Dish should not be enjoined since Fox was not likely to succeed on the merits of its reproduction right claims.

Early last year, Dish came out with its second-generation Hopper set-top DVR, Hopper with Sling, and a companion application, Dish Anywhere. The app lets subscribers stream live and recorded content from their personal Hopper with Sling DVRs to their mobile devices via the internet. Fox added a claim for this new place-shifting feature and sought to have it preliminarily enjoined. The district court denied the motion, bypassing the likelihood of success analysis in finding that Fox had failed to demonstrate irreparable harm—even if its success on the merits were presumed. The brunt of Fox’s second appeal thus concerned whether the district court applied the correct irreparable harm standard.

Even though the district court skipped over the merits of Fox’s new public performance claim, Fox and Dish nevertheless both argued it before the Ninth Circuit in the second appeal. Given that the district court didn’t consider these arguments in the first instance, it’s no surprise that the Ninth Circuit didn’t address them in its memorandum issued early last week. Fox has now lost this second appeal: The circuit panel agrees with Dish that the district court didn’t abuse its discretion in finding that Fox had failed to establish likely irreparable harm. Cross-motions for summary judgment on Fox’s new public performance claim are expected in the district court next month, so the battle over Dish’s Hopper with Sling is far from over.

The crux of Fox’s argument is that Dish itself performs since it causes the transmission to occur when content is streamed from a subscriber’s personal Hopper with Sling to a mobile device. Dish responds that it’s the subscriber who performs here, and it argues that even if Dish itself performs, the performance is private. Fox fires back that Dish “does all of the work”:

It sends the TV signals and copyrighted programs to the set top box (which it leases to the subscriber), converts them to a new format, creates a secure connection between the user’s set top box and their remote computer or device, and delivers the content to the consumer via the Internet so that it can be viewed on the Dish Anywhere website or mobile app.

After the Supreme Court issued its opinion in Aereo, both Fox and Dish filed letters with the Ninth Circuit Clerk of Court pursuant to FRAP 28(j) claiming that the Supreme Court’s interpretation of the public performance right supports their views. Fox’s letter to the Clerk contends:

[T]he Supreme Court rejected Aereo’s argument . . . that a performance is not “public” under the Copyright Act if each subscriber watches a unique, one-to-one stream of the program. Instead, the Court adopted Fox’s argument that the Copyright Act’s definition of public performance broadly encompasses any device or process that transmits Fox’s programming to the public, even if each person receives it at different times or different places.

While Dish’s letter to the Clerk responds:

[T]he Court’s decision relied upon the fact that Aereo “transmits to large numbers of paying subscribers who lack any prior relationship to the works.” . . . But the Court made absolutely clear that the Transmit Clause “does not extend” to a subscriber’s receipt of content she already owns or possesses. . . . “In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside a family and its social circle.” . . . That is a direct reference to Sling.

These Aereo claims were reiterated by Fox and Dish during oral argument before the Ninth Circuit earlier this month (audio available here). In one interesting exchange, Circuit Judge Marsha Berzon scoffed at Fox’s lawyer’s suggestion that Dish’s Hopper with Sling was just like Aereo: “No, that’s completely different technology.” While judicial resolution of the merits of Fox’s new public performance claim will have to wait for another day, there’s no reason why we can’t look at how things stack up in light of Aereo.

In my last Aereo post, I went through the Supreme Court majority’s reasoning step-by-step, and it was a fairly lengthy post. However, the test from Aereo can be reformulated much more succinctly: (1) whether the defendant performs, and (2) whether the defendant performs publicly. As to the first element, the Court held that a defendant performs if its service is functionally equivalent to a cable system. As to second element, the Court laid down a bright-line rule:

[A]n entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.

This key passage establishes a relatively simple test for distinguishing public and private performances. The Court says that even if the service is performing, that performance is private so long as the subscriber has a “prior relationship” to the content. This is a version of the “who supplies the content” test that I have been advocating as the proper way to distinguish infringers from noninfringers in this context (see here, here, here, and here). When a service supplies content to a subscriber in the first instance, the performance is public. And when the subscriber has a “prior relationship” to the content, the performance is private. Aereo teaches that it’s not enough that the defendant transmits to members of the public; the relationship of the members of the public to the content being transmitted has to be taken into account as well.

Applying Aereo to Dish’s Hopper with Sling, I think the first element, i.e., whether Dish performs, is debatable. I’m sympathetic to Fox’s argument that Dish performs when content is streamed from a subscriber’s personal Hopper with Sling to a mobile device, but I’m also sympathetic to Dish’s argument that here it’s the subscriber who performs. I think the correct answer is that it’s both Dish and the subscriber who perform in this scenario, but, for whatever reason, the courts like to say it’s one party or the other. Given the Ninth Circuit’s resolution of the reproduction right claims in the first appeal, I think it will eventually side with Dish on this element. While I’m not convinced this is the right result, I don’t think it really matters in this case: If the performance is private, it’s noninfringing no matter who causes it.

Turning to the second element, i.e., whether Dish performs publicly, Fox is correct that “the Supreme Court rejected Aereo’s argument . . . that a performance is not ‘public’ under the Copyright Act if each subscriber watches a unique, one-to-one stream of the program.” But Dish is also correct that “the Court made absolutely clear that the Transmit Clause ‘does not extend’ to a subscriber’s receipt of content she already owns or possesses,” and the problem for Fox is that this is what counts here. If each transmission from a subscriber’s personal Hopper with Sling to a mobile device involves content to which the subscriber has a “prior relationship,” then under Aereo, each performance is private. Thus, we can apply Aereo’s bright-line rule to deduce whether the performance is public or private—even if we don’t know the identity of the performer.

Assuming Dish performs, how do we determine whether it “transmits a performance to individuals in their capacities as owners or possessors” or whether it “transmits to large numbers of paying subscribers who lack any prior relationship to the works”? The Supreme Court didn’t exactly spell out the contours of what constitutes this “prior relationship,” but it did tell us that Aereo’s subscribers didn’t have it. The Court also provided an analogy which clues us in on the distinction it’s making:

When, for example, a valet parking attendant returns cars to their drivers, we would not say that the parking service provides cars “to the public.” We would say that it provides the cars to their owners. We would say that a car dealership, on the other hand, does provide cars to the public, for it sells cars to individuals who lack a pre-existing relationship to the cars.

In the Court’s opinion, Aereo is like a “car dealership” since it “does provide cars to the public” who have no “pre-existing relationship to the cars.” To me, this indicates that the Court is concerned about the specific car being provided by the dealership. If I happen to already own one certain make and model car, the car dealership is still providing me with a car to which I have no “pre-existing relationship” when I later buy from it a second car of the same make and model. Applying that analogy, it’s not just any “prior relationship” to the content that the Court is concerned with. The question is whether the subscriber has a “prior relationship” to the particular content being transmitted by the particular defendant service.

A quick example illustrates this distinction: Say I purchase a DVD of “Frozen.” I then have a “relationship” to the content on the DVD, but this doesn’t mean I have a “prior relationship” to the content that’s transmitted when I later stream the movie from my cable company’s on-demand service. The on-demand performance offered by my cable company is public whether I own the DVD or not. While I may have a “prior relationship” to the movie since I already own the DVD, I don’t have a “prior relationship” to the particular ones-and-zeroes being transmitted from my cable company. My cable company is analogous to a “car dealership” since it’s selling me content to which I have no “pre-existing relationship.” Contrast this with a Dropbox-like cloud storage service. If I upload the content from my DVD to the cloud, I then do have a “prior relationship” to the content when I stream it back later. The cloud storage service in this scenario acts like a “valet parking attendant,” not a “car dealership.”

Turning back to Dish’s Hopper with Sling, Dish’s core satellite service is functionally equivalent to a cable system. When Dish transmits to its subscribers via satellite, it “transmits to large numbers of paying subscribers who lack any prior relationship to the works” being transmitted. These satellite transmissions are thus public performances, and they are the means by which Dish supplies content to its subscribers in the first instance. With this part of Dish’s service, Dish is like a “car dealership.” But a subsequent transmission from a subscriber’s personal Hopper with Sling to a mobile device is a separate performance, and it occurs only after the subscriber has obtained a “prior relationship” to the particular content being transmitted. With this part of Dish’s service, Dish is like a “valet parking attendant,” and the performance is therefore private. Even if Dish is presumed to be causing this later performance, it’s nonetheless noninfringing since Dish “transmits a performance to individuals in their capacities as owners or possessors,” i.e., it transmits content to which the subscriber has a “prior relationship.”

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

The Prior Restraint Issue in Garcia v. Google

The Ninth Circuit’s amended opinion in Garcia v. Google is now out, and the majority is sticking to its guns in granting Garcia preliminary injunctive relief against Google for its alleged copyright infringement. The facts are somewhat strange: Garcia had a minor part in a film, and she claims that she, and not the filmmaker, holds a protectable copyright right in her performance. Once the film appeared on YouTube, Garcia sent Google eight different DMCA takedown notices to have it removed. After Google failed to act on her requests, Garcia filed suit in the district court seeking injunctive relief against Google.

The district court denied that relief, finding that Garcia was unlikely to succeed on the merits of her copyright claim against Google. Garcia then turned to the Ninth Circuit, and in a divided opinion, that court has reversed. In the majority’s opinion, Garcia is likely to succeed on the merits of her copyright claim. In fact, the majority finds that all four preliminary injunction factors favor Garcia, and as such, it leaves in place its order from this past February: “Google, Inc. shall take down all copies of [the film] from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of [the film] to those platforms.”

The case has drawn so much attention that the Ninth Circuit created a webpage devoted to it. The appellate court even made a public request for amicus briefs, which it has added to that page. One of the arguments being made by Google and its amici is that the Ninth Circuit’s injunctive order against Google constitutes a prior restraint in violation of the First Amendment. The Ninth Circuit, in its amended opinion, brushes off this claim with little explanation. In this post, I’ll explain why I think the Ninth Circuit gets it right on the prior restraint issue.

Prior restraint is one of the more confusing—and confused—First Amendment doctrines. The origin of the doctrine is simple enough: Under English licensing schemes, publication of printed materials required the prior approval of a censor. Such schemes eventually fell out of favor, and the press became free to publish without first obtaining permission. As Blackstone noted in his Commentaries:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.

Thus, even though there was no prior restraint on what the press could publish, the press could nevertheless face subsequent punishment if it published something illegal. This represents the classic dichotomy between prior restraint and subsequent punishment, and it rests on the principle that it’s better to punish people after they’ve spoken than it is to prevent them from speaking in the first place. The notion that freedom of the press equates to freedom from prior restraint was baked right into the First Amendment. That’s what freedom of the press means.

The prior restraint doctrine has evolved quite a bit since Blackstone’s time, and the distinction between prior restraint and subsequent punishment has been rendered all but unrecognizable. Nevertheless, the doctrine still plays an important role in First Amendment analysis. True to its roots, the prior restraint doctrine is concerned with censorship of protected speech. It is not a substantive doctrine for determining whether certain speech is protected by the First Amendment; it instead focuses on the adequacy of any procedures used to restrain speech—even speech that may ultimately be unprotected. The doctrine is invoked in several different contexts, but the common denominator is that prior restraint ferrets out and condemns the unbridled discretion of a censor.

For example, the classic prior restraint is a licensing scheme, where the censor decides whether certain materials can be published in the first place. The Supreme Court has endorsed such a scheme, despite acknowledging that “the censor’s business is to censor,” so long as “it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” The constitutionality of the scheme turns on whether the safeguards employed adequately constrain the censor’s discretion to restrain speech, and the Court finds it important that a restrained speaker has access to swift recourse in the courts so that a neutral party can double-check the censor’s work for error.

The prior restraint doctrine is also invoked in the context of a pretrial seizure of expressive materials. As with a licensing scheme, the issue here is whether the censor’s discretion is adequately constrained by the procedural safeguards employed. When the line between protected and unprotected speech is difficult to discern, such as with obscenity, the Supreme Court permits a pretrial seizure so long as “rigorous procedural safeguards,” such as a prior adversarial hearing, are employed before the seizure takes place. When circumstances dictate, the unbridled discretion of the agent-in-the-field is replaced by the neutral decisionmaking authority of the court, and the censor’s work is again double-checked by a neutral party.

Prior restraint also comes up quite often in the context of an injunction, as we have here in Garcia v. Google. With an injunction, the court itself is the censor, enforcing its speech restraint via its power of contempt. As with the prior restraint doctrine generally, the issue is whether the procedures employed adequately protect against the discretion of the censor. But the fact that the censor is the court changes things a bit. With a licensing scheme or pretrial seizure, the concern is that an agent of the executive branch will have too much discretion in separating protected from unprotected speech. We turn to a court to double-check the censor’s work because we trust its discretion, circumscribed, as it is, both substantively and procedurally.

The concern with an injunction, the Supreme Court has explained, is this:

The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.

Thus, with an injunction, the question becomes whether the court has made an “adequate determination” that the speech at issue is unprotected. Once this has happened, the speech can be enjoined without violating the First Amendment as an unconstitutional prior restraint. But how does this standard apply in a copyright case? As Professors Mark Lemley and Eugene Volokh have noted, when it comes to copyright claims, “preliminary injunctions are granted pretty much as a matter of course.” I think this makes sense, because, at least with wholesale copying, there is very little doubt that the defendant’s speech is unprotected by the First Amendment. To see why this is so requires a bit of unpacking.

When speech infringes a copyright right, that speech is unprotected by the First Amendment. Despite forbidding laws “abridging the freedom of speech,” the First Amendment is not abridged by the copyright laws that grant authors exclusive rights to their works. The Supreme Court has held that copyright rights and the First Amendment are balanced at the definitional level through two doctrines internal to copyright law, namely, the idea/expression dichotomy and fair use. I wrote about this substantive First Amendment analysis of copyright rights in two prior posts (here and here). The idea is simply that, as a matter of law, these two doctrines provide sufficient breathing space for the competing First Amendment values.

When the speech at issue is wholesale copying—by which I mean copying that would be “consumptive infringement,” as Terry Hart has called it, of entire copyrighted works—the court can very easily rule out the two doctrines that internally balance copyright rights with the First Amendment. This is so because a defendant that has engaged in such wholesale copying will usually have no colorable defense based on the idea/expression dichotomy or fair use doctrines. The defendant might have another defense that excuses the copying, such as a license, but then it’s the license that protects the copying—not the First Amendment. If a court enjoins speech that ultimately proves protected only by a license, then it cannot be a prior restraint since the doctrine applies only to constitutionally-protected speech. The licensed speech is simply not protected by the First Amendment—that’s why the licensee needs the license in the first place.

I think the hardest thing for people to keep separated is the fact that the First Amendment interests at issue in a copyright case depend on who the speaker is. For example, if I write a book about copyright law, my speech is fully protected by the First Amendment. If you come along and distribute copies of my book over the internet without my permission, your wholesale-copying-as-speech doesn’t get my full First Amendment protections. The problem for you is that it’s my speech that’s at issue—speech in which I hold a property right to exclude you from speaking. To be sure, your wholesale copying of my speech is to some extent also your speech, but your speech has to stand on its own two feet. And unless you can demonstrate that your wholesale copying of my speech is excused under the idea/expression dichotomy or fair use doctrines, your speech is not protected by the First Amendment.

Thus, I think the prior restraint doctrine is rather simple to apply when it comes to wholesale copying: Unless the defendant has some colorable defense under the idea/expression dichotomy or fair use doctrines, the court can enjoin the allegedly-infringing speech without the risk of restraining constitutionally-protected speech. That speech may turn out to be noninfringing (such as when the defendant can prove a license), but without either of these two First Amendment-grounded defenses, the speech isn’t constitutionally protected. The prior restraint doctrine is concerned with restraining speech that may ultimately turn out to be protected by the First Amendment, not with speech that is constitutionally unprotected yet potentially noninfringing.

But what about when it’s not wholesale copying? What if, to borrow Terry Hart’s terms again, the alleged infringement is “creative,” not “consumptive”? Or, put another way, what if the defendant does have a colorable defense based on the idea/expression dichotomy or fair use doctrines? Here, the situation is obviously different, and it’s possible that constitutionally-protected speech will be restrained. Yet, unlike with a licensing scheme or pretrial seizure, we’re not concerned about agents of the executive branch having too much discretion in separating protected from unprotected speech. The censor is the court, the neutral decisionmaker we entrust to make these difficult decisions.

When the issue is wholesale copying, the court can rule out prior restraint by simply looking to whether the defendant has raised either of the two First Amendment-grounded defenses. The court would then apply that initial merits determination to the rest of the four-factor preliminary injunction test, perhaps granting the injunction if the balance of equities tip in that direction. The same is true when it’s creative copying, only now there’s a chance the court will find that the defendant is likely to succeed on the merits of a First Amendment-grounded defense. Enjoining speech that is likely to be protected by the First Amendment is a prior restraint, and unless some exception based on the balance of equities applies, the injunction is unconstitutional. On the other hand, if the court finds that the defendant isn’t likely to succeed on a First Amendment-grounded defense, then it’s not a prior restraint since no constitutionally-protected speech is likely to be enjoined.

Take, for example, the Suntrust case, where the Eleventh Circuit vacated a preliminary injunction issued by the district court against an alleged infringer who argued a colorable fair use defense. The appellate court found that the alleged infringer was likely to succeed on the merits of her fair use defense, and as such, “the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to [the alleged infringer’s] ideas or viewpoint in the form of expression that she chose.” Having found that the use was likely fair, and thus protected by the First Amendment, the Eleventh Circuit struck down the preliminary injunction as a prior restraint.

So where does that leave us with Garcia v. Google? The prior restraint argument has been briefed at length by both of the parties and several amici. Google vigorously argues that enjoining it from providing the film on its platforms violates its own First Amendment rights. Think about this for a minute. Normally, Google would not be arguing that the user-generated content available on its platforms is its own speech. It would instead point to Section 230 or the DMCA to disavow its role as the speaker. But I think it’s true that Google is the speaker when it publicly performs works uploaded to its platforms by its users, so I’m glad to see it acknowledge its role as the speaker of the content here.

In its first motion for a stay, Google argues that the Ninth Circuit’s injunction “infringes on Google’s First Amendment rights because it prevents Google from exhibiting the Film on its websites.” This, Google argues, “is a clear infringement on Google’s First Amendment expression, given that the Supreme Court ‘has long held’ that movies ‘are protected expression.’” Google goes ever farther in its second motion for a stay, arguing that the risk of restraining constitutionally-protected speech here means that “only a particularly strong showing of likely success” can justify the injunction. While the Ninth Circuit did find Garcia likely to succeed on the merits, it nevertheless admitted that the point was “fairly debatable,” and Google claims this measurement of likely success is insufficient under Ninth Circuit prior restraint precedent.

Google makes the same arguments in its supplemental brief and in its petition for rehearing en banc. But all of Google’s hand-waving about its First Amendment rights misses the point. There is no doubt that the film is protected speech, and there is no doubt that enjoining Google will restrain speech that is protected. But that doesn’t mean it’s a prior restraint. Since this is a copyright claim, we have to keep track of whose speech it is—and it isn’t Google’s. While the film is undoubtedly protected speech, those full First Amendment protections belong to the copyright owner, not Google. Whether the owner is Garcia or the filmmaker doesn’t matter, because either way the question to be decided is whether the First Amendment protects Google’s copying of someone else’s copyrighted speech.

Google is arguing the wrong analytical track when it claims that the Ninth Circuit should have found a “strong showing of likely success” instead of the likely-yet-fairly-debatable amount of success it ultimately settled upon. That distinction would make a difference if Garcia were seeking an injunction against the filmmaker, since there the issue of the identity of the true author—i.e., the party with the full First Amendment protections—would be germane. If Garcia weren’t likely to succeed on the merits against the filmmaker, then enjoining the filmmaker’s speech, which would then be likely protected by the First Amendment, would be a prior restraint. But that’s not the case here, and there is no doubt that Google is not the author. Google’s prior restraint argument instead is properly analyzed as with any other instance of wholesale copying: The speech can only be protected by the First Amendment if Google has a colorable defense based on the idea/expression dichotomy or fair use doctrines.

Google, quite naturally, offers no such defense for its wholesale copying, and this has not gone unnoticed by the Ninth Circuit. The appellate court’s entire rebuttal to Google’s prior restraint argument is this:

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). “First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” Golan v. Holder, 132 S. Ct. 873, 890 (2012) (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings.

Thus, the Ninth Circuit comes to the same conclusion—albeit in a much more direct fashion—as I do: Since the issue is Google’s use of someone else’s copyrighted speech, Google’s own speech is not protected by the First Amendment unless it can claim a defense based on the idea/expression dichotomy or fair use doctrines. And since Google has never argued that either of these doctrines excuses its copying, the court can enjoin Google’s speech without the risk of restraining constitutionally-protected speech. By failing to establish that it has even the possibility of First Amendment protection for its wholesale copying of someone else’s copyrighted speech, Google has guaranteed that the injunction against it cannot possibly be a prior restraint. Of course, nothing is stopping Google from spreading whatever messages it pleases, and the marketplace of ideas likewise continues to thrive none the lesser.

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.