The Volokh Conspiracy

The Supreme Court has granted cert in Kirtsaeng v John Wiley, another of the series of rather baffling cases involving interpretation of the scope of copyright’s “importation right.”  It’s a rather wonderful example of how baroque the structure of copyright law has become, as well as the ways in which interpretation of some very arcane and obscure statutory formulations can have rather significant effects on the conduct of those subject to the law.

The statutory provisions at issue are these: First, sec 602(a) of the Copyright Act says that:

Importation into the United States, without the authority of the owner of copyright under this title, of copies . . .  of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies [of the work] [subject to certain exceptions not relevant here].

So if you buy 1000 copies of a copyright-protected work in Singapore and attempt to bring them into the United States, even if those copies are being sold with the authority of the copyright holder, you need an additional authorization from the copyright holder for the importation; without that authorization, you will be violating the copyright holder’s exclusive right to distribute copies of the work.

So far so good.  There is, however,  a well-established defense to a claim of unauthorized distribution:  the so-called “first sale doctrine.”  The first sale doctrine says that “notwithstanding the [copyright holder's exclusive distribution right,] the owner of a particular copy . . .  lawfully made under this title, . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”  That would seem to mean that if those 1000 copies were “lawfully made” under the Copyright Act, I can’t be liable for violating the copyright owner’s distribution rights when I bring them into the US.

It’s a bit of a conundrum.  Several years ago the Court resolved part of it: In Quality King v. L’Anza, the Court said:  the first sale defense is available against a claim of unlawful importation, at least if the copies that were involved were made in the US (and therefore “lawfully made under this title”).  Justice Ginsburg, concurring, noted that a different result  might be warranted if the copies themselves were made overseas — in that case, it’s not so clear that they’re being made “lawfully under this title” (because it’s not so clear that the Copyright Act has extraterritorial effect, and therefore one could argue that a copy actually made in Singapore was not lawfully made “under this title”), and if they’re not “lawfully made under this title” the first sale defense would not apply to them.

Life, of course, imitates concurring opinions, and soon after the Quality King case was handed down the 9th Circuit decided a case presenting these other facts — Omega v. Costco, where the copyrighted works (the Omega logo imprinted on each of their watches) were made overseas, purchased from an authorized overseas distributor, and then imported into the US by Costco.  [The economics of this should be clear:  Costco can buy Omega watches in the Philippines, perfectly lawfully, at a price that is low enough that even with the additional costs of transporting them into the US, they can be sold at a price cheaper than authorized US Omega distributors charge for the same watches].  The 9th Circuit took Ginsburg’s suggestion, and held that the Omega watches, because they had been manufactured overseas, were not lawfully made under the Copyright Act, and therefore the first sale doctrine would not protect Costco’s sales.  The Supreme Court heard that case, and split 4-4 (Justice Kagan recusing herself).

Now, in Wiley, the issue returns to the Court; the 2d Circuit followed the 9th Circuit lead, and the Court took the opportunity to take on the issue once again – this time, hopefully, with an odd number of Justices . . .

It’s one of the gnarliest statutory issues around – take a look at the opinion in the link in the first paragraph if you are interested.  When I teach these cases in my Copyright class, students generally emerge from the discussion dazed and confused, further demonstration that our Copyright Act is becoming more like the Tax Code every day.  But there’s a lot riding on the outcome.  Suppose you are, say, a book publisher (or a watch manufacturer, or anyone who sells items with some copyrighted material on or in them).  You want to price discriminate in the global marketplace – you know that you can sell your items at a higher price in the US than in Turkey, or in Argentina.  You want to maintain the ability to discriminate, and you are careful when you parcel out geographic territories to your distributors.  You don’t want to see the Costco’s of the world undercutting your carefully wrought scheme, through the use of this “gray market” overseas.

The competing interpretations have significant implications for your ability to keep the scheme intact.  Under the Omega v Costco/Wiley rule, you can prevent the importation of your items, but only if you manufacture them abroad.  Under the opposite view, the copyright holder gets one bite at the apple, worldwide: once you obtain compensation for the “first sale” of the copy, wherever you started and wherever the sale takes place, you can no longer control its distribution.

There are not many examples in copyright law where the two big copyright circuits (the 2d and the 9th) agree but the Supremes go in a different direction – but I hope this becomes one of them.  For complicated reasons, I think that the 2d and 9th Circuits’ reading is incorrect,  on purely textual grounds.  But putting that aside, I think the opposing view (the the first sale doctrine applies regardless of where an item is manufactured) is surely  preferable as a matter of policy.  The Omega/Wiley rule is a substantial incentive to outsource manufacturing activities overseas — which is a most peculiar policy for the US to have (and to hide away in the Copyright Act, of all places).

[Update - some factual errors about the decisions in the cases mentioned have been corrected in the above - thanks to Steven Horowitz for alerting me to the problems]

Here is what, to me, is the most extraordinary thing about the recent flap over publication of Gunter Grass’ poem “What Must Be Said,” in which he excoriates the Israelis and depicting their undeclared nuclear program (and not Iran’s) as a threat to world peace.  Grass is of course entitled to have, and to publish, whatever views he holds about Mideast politics and world peace.  But really — wouldn’t you think that someone who was exposed, in 2006, as having been wartime member of the Waffen SS (and having lied about the matter for some 50 years) — and we’re not talking about attendance at some Hitler Youth picnic as a 9 year old, we’re talking about membership in the most vicious arm of the most vicious regime in human history — would have the good grace to spare us his views on this particlar matter?  What kind of egomaniac would think people do (and should) give a shit about what he thinks, when they shouldn’t (and, I hope, don’t).

And then — really, the unmitigated chutzpah! — he asks [as if we care]:

“Why do I wait until now/aged and with my last drop of ink/to say that a nuclear-armed Israel/ puts at risk an already fragile world peace?”

[Warum sage ich jetzt erst/gealtert und mit letzter Tinte:/Die Atommacht Israel gefährdet/den ohnehin brüchigen Weltfrieden?]

His answer: because “it must be said” (Weil gesagt werden muß), and because “tomorrow might be too late” (was schon morgen zu spät sein könnte), and because he won’t be deterred any more by the “familiar charge of ‘anti-semitism’”  [das Verdikt "Antisemitismus" ist geläufig]

It would be hilarious if it weren’t so pathetic and awful.  Can you imagine Grass sitting around at home and thinking:  “The world needs to hear what I have to say about Israel!  I must speak!  I can’t be held back anymore just because people might think that I, a former member of the Waffen SS, might be anti-Semitic!!”  ["And perhaps I'll wait until right before Easter -- a holiday sadly connected to some of the most brutal anti-Semitic activities over the past 2000 years -- to publish the poem!  That'll be a nice touch!"]

It was the great songwriter-satirist Tom Lehrer, I believe, who said:  Satire was no longer possible after Henry Kissinger had been awarded the Nobel Peace Prize. I know now what he meant.

The Second Circuit has finally released its long-awaited decision in the appeal of the Viacom v. Youtube lawsuit, about which I’ve blogged a great deal [starting here, here, here, and here]  over the past couple of years.  Viacom “won” — in that they got the reversal of the district court’s comprehensive judgment in YouTube’s favor — but notwithstanding the considerable hand-wringing already underway about how terrible a result this is, I’m here to tell you:  It ain’t so bad.  In fact, I think it’s a pretty sensible opinion that clarifies the law surrounding service provider immunity in some very helpful ways and, most importantly, does no significant damage at all to the underlying immunity principles that have been so profoundly important for the development of the Net over the past decade.

Here are some of the key points.   [my emphasis throughout] [My apologies if you're unfamiliar with the basic layout of the case -- see the above links for the basic background]

1. “[A] finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief.”

That’s good — Viacom and allies had argued that the 512 immunities don’t cover any claims for contributory infringement, vicarious infringement, or inducement of infringement.  It was an odd theory, and the court shoots it down, correctly, in no uncertain terms.
2.  “[T]he ‘right and ability to control’ infringing activity under § 512(c)(1)(B) requires something more than the ability to remove or block access to materials posted on a service provider’s website.”

That’s good, too.  The statute says a service provider is not immune from claims if it has the “right and ability to control” the infringing conduct (and derives a “financial benefit” from the infringements).  Viacom advanced a plausible argument that, because YouTube (and virtually all content-hosting sites, including the Volokh conspiracy) can throw people off the site if they violate the terms of service, or because they have the technical capability to delete individual postings, that that constitutes a “right and ability to control” the infringements.  This interpretation would have gutted the 512 protections and, again, the court strikes it down.

3.  The court makes it clear that “the basic operation of § 512(c) requires knowledge or awareness of specific infringing activity.”

This is a really important holding, and a really good one.  The battle over service provider copyright infringement liability (including this lawsuit) has always been focused on one central question:  Given that everyone with a brain in his/her head knows that there’s infringing material out there, who has the duty to uncover it?  And when does that duty arise?

Ever since the Napster decision back in 2001 (another decision that most people, incorrectly, viewed as a big win for the content providers), courts have consistently held:  the burden is squarely on the copyright holders, not the service providers.  If copyright holders identify specific infringing files (and give the service provider notice of where those files are located), the service provider “retains safe-harbor protection if it ‘acts expeditiously to remove, or disable access to, the material.’ ”   But the service provider – even if it has “generalized knowledge” that there’s infringing content on its site — need not take any affirmative steps to find that material and remove it without notice from the copyright holders.

The court reaffims this in no uncertain terms.

“[A service] provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it ‘acts expeditiously to remove, or disable access to, the material.’  Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove.”

This is a strong affirmation of what I regard as the key component to the whole 512 safe-harbor:  the “knowledge” that disqualifies a service provider from the safe-harbor is knowledge that file X, residing on the service at specific location Y, is infringing; and the service provider has no duty to monitor to find those files.  (“ DMCA  safe  harbor  protection
cannot be conditioned on affirmative monitoring by a service provider.”)

So what did Viacom get out of all this?  The court reverses and remands for the district court to consider 2 things:  First, taking Viacom’s factual allegations as true (because the district court had granted summary judgment for YouTube), there’s evidence in the record that YouTube had, at least with respect to some specifically identified postings, “actual knowledge” that those were infringing.  And second, the court articulates a “willful blindness” exception to the safe-harbor:  if YouTube’s lack of “actual knowledge” of “specific infringing files” was due to their own acts of “willful blindness” — a “deliberate effort to avoid [obtaining] guilty knowledge” — they can’t assert the immunity.

We’ll see how that last one plays out.  The devil, as always, is in the details.  An overly-expansive definition of what constitutes “willful blindness” could lead to trouble – but I am pretty optimistic that courts will be able to define it in such a way that it disqualifies only truly egregious conduct (and that service providers will, as a consequence, be less likely to engage in egregious conduct) while placing a high enough bar in the way of those trying to prove the egregiousness of the conduct that it only gets the really bad actors and leaves the vast majority of service providers unaffected.

In an op-ed in Monday’s NY Times, Richard Clarke, former Special Advisor on Cyber-security to President Bush, raised alarm bells about “foreign hackers, particularly from China, [who] penetrate American firms’ computers and steal huge amounts of valuable data and intellectual property.”  Neither Congress nor the Obama Administration, in Clarke’s view, is doing enough to halt this “continuing, rampant cybertheft,” which amounts to  “the greatest transfer of wealth in history.”  He goes on:

Because it is fearful that government monitoring would be seen as a cover for illegal snooping and a violation of citizens’ privacy, the Obama administration has not even attempted to develop a proposal for spotting and stopping vast industrial espionage. . . . But by failing to act, Washington is effectively fulfilling China’s research requirements while helping to put Americans out of work. Mr. Obama must confront the cyberthreat, and he does not even need any new authority from Congress to do so.  Under Customs authority, the Department of Homeland Security could inspect what enters and exits the United States in cyberspace.

[emphasis added]

Really!? And how, exactly, do you propose that they do that?! [Extra credit: Why does the NY Times persist in printing nonsense like this?]  Inspect what enters and exits the US in cyberspace?? This is the guy who was the “cyber-czar” for 3 years?

It doesn’t work like that — does Clarke really not get it?  There’s a single global network that has a (virtually) infinite number of entry points.  There are no ships coming into the harbor that you can board and inspect.  There’s no place where you can station your border guards to check stuff coming “in to the United States” or moving “out of the United States.”  Oh — and we actually like it that way; that’s one of the very important things that makes the Net such an astonishing place.  You want to open up and inspect every packet that lands on the desktop of anyone located within US borders?  Is that what you’ve got in mind?  If that’s your proposal (and I can’t for the life of me imagine what else you might have in mind to accomplish this bizarre and absurd task) — No, thank you. [Extra Credit #3:   of the innumerable constitutional and statutory provisions such a plan would violate, choose 3 and discuss]

Just wanted to let any VC readers who might be interested in studying in Rome this summer about our Temple Law program – I’m particularly excited about this summer’s program, as I’m going to be teaching a new course of “Rome, the Roman Republic, and the Constitution” and I think it’s going to be really quite interesting.  [I know the flyer says that the deadline has passed, but I think they're still accepting applications ...]

I noticed, as I was waiting in line at the security checkpoint at the San Francisco airport waiting to board a flight back east, that there was a “Priority Line” for “uniformed crewmembers” and “First and Business Class customers.”  Excuse me, but what the f*** is up with that?  I have no problem with the idea that people with greater resources can purchases conveniences in the marketplace (like a First or Business Class ticket).  But the airport security checkpoint is a government service manned by government employees.  Though we all recognize that people with greater resources sometimes/often get higher and better service from the government – the police patrols in the rich part of town tend to be better than those in the poor part of town.  But we regard this as a flaw in the system, not something to be actively promoted.  Government services should be distributed equally to all – it’s an aspirational principle perhaps often honored only in the breach, but to see it so crassly ignored strikes me as an outrage.

[** from Wallace Stevens, NY Law School Class of '03, The Man With the Blue Guitar -- though the original reads "for a moment final", a nice example of how much meaning can change when substituting the definite for the indefinite article]

The folks over at Justia’s Verdict asked me to give them a piece summarizing the whole SOPA debate and for some reflections of a “now that the dust has settled a bit, what was that all about?” variety.  So I did.  The original is published here: http://verdict.justia.com/2012/02/13/sopa-and-the-future-of-internet-governance.  By virtue of Justia’s rather enlightened publication agreement, I can reprint/republish/reuse my piece to my heart’s content, provided I acknowledge and link to their initial posting – which I’ve done.  So here it is.  Those of you who have read my earlier postings on the subject will see familiar things in here – but I think I keep finding more reasons to be alarmed by what the Congress was about to do, and that they speak to some very large issues in connection with our ability, going forward, to bring “law” to the Net.
SOPA and the Future of Internet Governance

So what was all that fuss about?   SOPA, PIPA, Internet Blackout Day, front page stories in newspapers all across the country, 8 million or so emails pouring into the White House, 2 million #sopa tweets, 10 million signatures added to online petitions opposing the bills, . . . followed, of course, by the announcement that these various legislative proposals for combating online infringement1 had been taken off the table “for further study.”

1.  Although SOPA (the “Stop Online Piracy Act”) was only one of the bills advancing through Congress to deal with online infringement – others include PIPA (“Protect IP Act”), COICA (“Combating Online Infringement and Counterfeits Act”), and the incredibly-acronymed E-Parasite Act – ” Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation” – I will use “SOPA” as the generic descriptor of the class throughout this article.

As Larry Downes noted in Forbes, “Internet users have revolted before in the face of earlier efforts to regulate their activities, but never on this scale or with this kind of momentum.”

What happened?  How did it happen?  And does it matter?

I’m not sure anyone can say – yet – exactly what happened or how it happened.  But whatever it was – a spontaneous, grassroots outpouring of opposition to an attack on Internet freedom of expression?  A bunch of information junkies who’ve gotten hooked on free music and free movies sticking it to the Man?  A plot by the giant technology companies to show Washington who’s the boss? – I’m here to tell you:  It matters, and it matters a great deal.

It matters because the Internet matters – if the events of the Arab Spring didn’t finally persuade everyone of that, I can’t imagine what would or will – and because SOPA would have done serious damage to the technical infrastructure that allows the Internet to do the remarkable things that it does.  [More on that in a moment]

And it matters – even more — because the law enforcement regime that SOPA would have put into place reflects an approach to the problems of “Internet law” and “Internet governance” that is outmoded, unworkable, and unjust.

SOPA’s objective was straightforward:  to reduce or eliminate access to websites operating outside of U.S. borders and “dedicated to infringing activities” – e.g., offshore websites offering copyrighted music or movies for download, or selling counterfeit Omega watches, all without authorization from the rights holders.  It’s a worthwhile objective; nobody can deny that there are an enormous number of such sites, that many of them make a great deal of money by trampling on the legitimate rights of copyright and trademark owners, and that the consequent damage to those rights holders is substantial.

This problem of offshore infringement arises from two very basic characteristics of the global network.  First and most obviously, digital information can be reproduced at nearly zero cost, and with nearly 100% accuracy, making it a simple matter to do something that was for all intents and purposes impossible a mere twenty or thirty years ago:  producing, say, 100,000 copies of the motion picture “Avatar” while on coffee break, and with a lower outlay of funds than is required for your cappuccino.

Second, physical location in realspace no longer bears any relationship whatsoever to accessibility or to proximity.  In realspace – the world of atoms and tangible matter – it’s harder to do business in London if you’re in Lima than it is if you’re in Liverpool, and it’s harder to cause harm in Seattle from Seoul than from Spokane. But in the world of bits, that’s just not true anymore; web servers in all of those cities are effectively “equidistant” from one another, as “close to,” and as accessible to, a user anywhere on the global network as the server down the street.

That’s the good news.  The bad news is that our realspace legal infrastructure is, just as one would expect it to be, built for the world of atoms.  (How could it have been otherwise?)  Our realspace legal system reflects this fundamental feature of the world within which it was designed to operate:  physical location and physical proximity are indispensable components of many inquiries central to the way law operates, e.g., determining “jurisdiction,” or “citizenship,” or the “locus” of a contract or a tort, or dozens of other questions.  The “distance” between actors matters, in that realspace legal world; the more physically distant the relevant actors the more difficult it is, generally speaking, to enforce one’s law on them.

The disconnect between these two worlds – one in which physically distant actors can have a very substantial impact (good or bad) upon you or your property, and one in which it is difficult to bring law to bear upon them – is at the heart of the problem on which SOPA trains its sights.

It’s a profoundly difficult problem.  Some of us saw it coming, twenty years ago.  An enormous amount of creative and innovative thinking is going to be required if we are to solve it in a sensible way.  SOPA does reflect some creative and innovative thinking; indeed, it embodies a radical new plan for the way that law enforcement will proceed on the Net.  But the new plan is deeply flawed, and would set us on precisely the wrong course for dealing with this difficult challenge.

A few words, first, about how SOPA works.  SOPA targets the activities of “foreign infringing websites,” but it doesn’t impose any sanctions on the offending websites, on the servers on which those websites are hosted, or even on the operators of those websites.  Instead, SOPA imposes its sanctions on the domain names used by those websites.  It authorizes courts to “seize” the domain names used by the offending sites via actions in rem, actions against “property” (i.e., the domain name) and not the persons owning or using the property, thereby avoiding the messy problem of trying to assert personal jurisdiction over the foreign actors or the foreign servers.  Judges could then issue orders to any U.S. Internet Service Provider – a category that includes hundreds of thousands of entities, from giants like Comcast, Verizon, and AT&T to any business or educational institution that offers Internet access to users – requiring the removal of the offending websites’ domain names from the ISP’s “routing tables,” the databases of Internet domain names and Internet addresses used by all ISPs to get messages from one place to another over the Net.

This is not the place, nor do I have the time or space, to explain how those routing tables, or Internet message routing more generally, work.2  Every day, the Internet accomplishes an astonishing feat, many hundreds of billions of times over:  it takes an address on a message (like the URL that you type into your web browser, or the email address you put into the appropriate field of an email message), and, from among the seven or eight hundred million machines out on there on the Internet, it finds the right one to deliver it to.  All in about a second or two.  It is a truly incredible (and largely invisible and unappreciated) feat of engineering, a finely-tuned system (to put it mildly) comprising, among other things, hundreds of thousands of copies of these routing table databases circulating around the Internet from ISP to ISP at all times.

2.  If you’re interested, see chapter 10 (“Governing Cyberspace II: Names”) of my book In Search of Jefferson’s Moose: Notes on the State of Cyberspace for a detailed account.

All of that complicated engineering is premised on one fundamental principle:  universal addressing.  The routing tables are the same wherever you are; that’s why there’s only one Internet, and it looks the same whether you access it from Brazil or from Boston or from Belarus.

The consequences of court intervention ordering the selective removal of entries from these routing databases are potentially severe and possibly catastrophic.  Don’t take my word for it; people who know a great deal more about these engineering matters than I do have warned about this in no uncertain terms.  In their words, SOPA’s manipulation of the domain name system (DNS) would:

(a) be “evaded easily” and would “likely prove ineffective at reducing online infringement”;

(b) “threaten the security and stability” of the Internet, “harming efforts that rely on DNS data to detect and mitigate security threats and improve network performance” and “posing significant risk of collateral damage”; and

(c)  “weaken important efforts now underway to improve Internet security [by] enshrining and institutionalizing the very network manipulation that [such security measures] must fight in order to prevent cyberattacks and other malevolent behavior on the global Internet, thereby exposing networks and users to increased security and privacy risks.”3

3.  Crocker, Dagon, Kaminsky, McPherson, and Vixie, “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill.”  Several of the authors were instrumental in the current design of the DNS, and continue to operate critical portions of the DNS infrastructure.

The Obama Administration, finally, got this message.  As Internet Blackout Day approached, the White House announced that it was reconsidering its support for SOPA, in part because . . .

. . . proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.”

But the damage SOPA would impose on the Internet goes beyond this (though this is serious enough), extending beyond the Internet’s technical infrastructure and deep into its legal infrastructure.

Two of its provisions are especially troubling.  First, SOPA authorizes issuance of these domain-name-removal orders after nothing more than summary ex parte proceedings, proceedings in which only the prosecutor and the judge, and not the individual(s) responsible for the websites’ activities, are present.

What this means is that some Korean, or Brazilian, or Russian website operator wakes up one morning to discover that her domain has been “seized” by the US government, and that ISPs are now removing it from the routing tables and making it, literally, invisible across the Net.  Her website is still up and running – it’s just that fewer and fewer people can reach it.  She can challenge the seizure (once she finds out what happened) — perhaps on the grounds that her website is not “dedicated to infringing activities” at all, perhaps on the grounds that under Korean, or Brazilian, or Russian law her actions are entirely lawful, or perhaps on the grounds that the prosecutor just got it wrong, as prosecutors sometimes do – but she’ll have to come to the United States, and get legal representation, to do so.  (And if she does that, in a little added bit of nastiness, SOPA provides that she will then be deemed to have subjected herself to the personal jurisdiction of the US courts).

Second, SOPA authorizes a kind of “vigilante enforcement”: copyright or trademark holders, acting entirely on their own without the intervention even of a prosecutor or a judge, would be able simply to provide written notice to banks, credit card companies, Internet search engines, or Internet advertisers regarding the allegedly infringing conduct of the foreign websites, and the recipients of the notice will then have five days to cease doing any business with the offending website or risk losing an immunity from suit for damages caused by the website’s continuing operation.

“A guy walks into a bank.  He asks to see the branch manager.  He says: “You know Farmer Jones, whose place is just down the road from mine?  He’s been dumping pig shit in my pond, and spoiling it for my livestock.  He’s a nasty SOB.  STOP DOING BUSINESS WITH HIM.  FREEZE HIS ACCOUNT.”

In our realspace legal world, the bank will (and should) refuse.  “We’re sorry, but we can’t just take your word for it,” it will say; “Bring us a court order and we’ll comply, but we’re not just going to deny Farmer Jones access to our services just because you think he’s acting illegally.”

More to the point, in our realspace legal world, the law surely does not and cannot compel the bank to comply with the demand, or offer it a reward for doing so – precisely what SOPA would do.  One of the very small number of truly fundamental principles undergirding our legal system, and the Rule of Law itself, enshrined (twice!) in our Constitution, is that you may not deprive anyone (like Farmer Jones) of life, liberty, or property without due process of law:  a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding in which he gets to present his side of the story, in a forum that can lawfully assert jurisdiction over him and/or his property.

What is most disturbing about SOPA is not just that it would run roughshod over this principle, though it would, and that is disturbing enough; what is most disturbing about SOPA are the justifications proffered by its proponents for doing so.  I’m not aware of any SOPA supporter who argues that SOPA actually does provide foreign website operators with a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding and in a forum that can lawfully assert jurisdiction over him and/or his property before depriving them of their ability to communicate with millions of Internet users in the United States.  Instead, they argue that the full panoply of procedures comporting with due process isn’t required when courts “seize property” (like a domain name) that is located “inside” the United States borders.  And they argue that, in any event, SOPA doesn’t violate the due process rights of foreign website owners because as foreign nationals standing outside of U.S. borders, they don’t have due process rights.

To be fair, it’s not an entirely indefensible position; indeed, there’s precedent to the effect that, as the Supreme Court put it,  “[a]liens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.”4  To SOPA proponents, the proper analogy here is  to the Customs Service.  SOPA, they say, simply prevents persons operating outside the United States from entering into our territory and bringing unlawful material – contraband movies and handbags – with them.  Customs agents board and search ships at the U.S. borders all the time, and if they find 100,000 copies of the Avatar DVD in the hold, they seize those copies and bring them before a magistrate, who orders their disposal and destruction (with or without the ship owner present).  Nobody complains about due process (or, for that matter, about the ship owner’s First Amendment rights) when this happens.  “Why, then,” they ask, “is everyone so exercised about SOPA?”

4.   United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).

To which the answer is:  we’re exercised about SOPA because, as I said earlier, it is outmoded, unworkable, and unjust.  The Customs Service analogy doesn’t work; there are no ships, and there are no borders, no “French” or “Brazilian” or “American” parts of the Internet, but a single global network.  We can, if we wish, impose borders onto the network, through legislative enactments like SOPA, thereby creating an “American” portion of the Internet, and we can let the Brazilians create a “Brazilian” portion of the Internet, and the Australians an Australian portion, and so on; but why would we want to do that?  Why would we want the Internet to look like the map of the world in 1950 or 1975, when its power derives precisely from the fact that it is a single global network, accessible to, and allowing communication among, all of the world’s peoples?

It is unworkable, because the network architecture virtually guarantees that evasion will be widespread and rather simple to accomplish; tools that allow websites to instantaneously alter their domain names and redirect traffic to the new sites without any special action on a user’s part are already widely available, and will surely become more so if this approach becomes commonplace.  SOPA will not stamp out copyright infringement on the Internet; it probably won’t even make much of a dent in copyright infringement.  If there are 50,000 pirate websites out there and SOPA somehow managed to close half of them down, that still leaves you with 25,000 badguys.  And in the world of bits – where information is infinitely reproducible at virtually no cost – 25,000 bad guys can do just as much damage to your intellectual property as 50,000 bad guys.

And it is unjust.  Perhaps we are not required to provide due process to those residing outside our borders, but that hardly means that we shouldn’t do so.  The Constitution of the United States, remember, doesn’t bestow the right to due process upon us; it says that the government won’t take away the due process rights we all already have by virtue of the fact that we are human beings.  That, I suggest, is the principle on which we should begin building a truly just legal regime for our new global place.

Copyrighted works are important, culturally and economically, and they are worth protecting.  They are not, however, sacred objects that we should protect at any cost.  The damage SOPA would do is immense, and its benefits would be negligible.  RIP, and may it not, as I suspect it will, rise from its grave to haunt us any time soon.

For those of you who might be in and around Philadelphia this coming Tuesday (Jan. 31), I’ll be debating with Justin Hughes of Cardozo Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA). More details about the event can be found here and here. It should be an interesting event; Justin and I have very, very different views about these bills — he was a consultant, I believe, to the House Committee that drew them up, and I think they’re the Devil’s handiwork — and I think there will be both heat and light shed on the issues (both of which are required of a good debate). Plus, I think this is an issue that cuts through a very interesting line through what might roughly be called the political “right” — between the property rights conservatives and the free-speech libertarians — so there are interesting meta-issues on display. We’re expecting a good crowd — there’s nothing like a day-long Wikipedia blackout to get folks interested in online copyright matters — and it should be a lively affair.

Well, that was interesting!

Wednesday’s day of protest marks, I believe, a profoundly important turning-point in the history of the Net and of its place in human society. Several months ago, in one of my many periodic rants about the dreadful, unconstitutional, and repellant features of the intellectual property laws introduced into this session of Congress (SOPA and Protect-IP), I wrote:

The IP bills that Congress now has before it . . . are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I co-authored (with Mark Lemley and Dave Levine) a “Law Professors’ Letter of Opposition,” and I’ve blogged about it a number of times before (as have others), . But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, although I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

What’s most gratifying about the events of the last couple of days — and I assume that you don’t need me to point you to the Wikipedia blackout, the Google petition, etc. etc., and the avalanche of media coverage this generated — is not just that these awful bills now stand a much, much lower chance of passage than they did a week ago (though that’s very gratifying). (Chris Dodd, head of the MPAA and one of the prime backers of the bills, is quoted in today’s NY Times as being ready to sit down with the tech companies and talk about the best ways to fight online piracy – a sure sign that the copyright maximalists have pretty much raised the white flag, at least temporarily, in this battle).

And it’s gratifying, too, on a personal level, to have participated, in even a small way, in bringing these events to pass. I do think that our Law Profs’ Letter, released early in the game, helped draw attention to the issues involved and to galvanize the opposition; there were 60,000 or so downloads from scribd.com, a good deal more than I’m accustomed to, and our op-Eds at the Stanford Law Review and Huffington Post got lots of play as well.

But that’s not the most gratifying thing about these events, either. The most gratifying thing, to me, is that we helped push the Net to an inflection point that is, in a way, its only hope of survival. The Internet is a much more fragile thing than most people believe it to be, and if it is to thrive it will need a kind of civic engagement that we haven’t had – until now. About a year and a half ago I gave a keynote talk at a conference at Michigan State on “The Challenge(s) of Cyberlaw,” and I said the following:

Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I’ve put it somewhere in probably half the things I’ve ever published. Fuller wrote, at the end of a discussion of the future of international law:

“[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this. . . .”

What did he mean? And what does it have to do with what we’re doing? The tree can “realize its own capacity for perfection,” but only when “all concerned genuinely want it to grow properly,” and our task is “to make them want this.” ???

What it means, to me, is this: Our task, as lawyers and law professors and “experts” on these difficult questions, is not really to solve the many problems bedeviling “Internet law.” Rather, our task is to help others to think about those problems, and to galvanize them into doing so, to make want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made.

That happens, I’d suggest, when people start to think of themselves as “citizens” of this new place, this “imagined community.” Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about other events affecting others, those with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way.

And the other thing that citizens do is they defend their place when it is threatened or under attack.

I think, in short, that our task is to somehow help people to think of themselves as “Netizens.” There – I’ve said it.

Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever).

That’s not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means).

It’s a terrible label — “netizen” — but an important concept. If people don’t really believe they have an interest in this thing that we have built, then it is doomed. The converse, alas, isn’t true — but people giving a damn about the health of the Internet is a necessary (though not sufficient) condition for it to be healthy, going forward. And that’s what the events of this past week were about. All of a sudden, millions of people (check out some of the astonishing numbers hereh) took the Net seriously as a place that needed defending, and millions more tried to figure out why those first millions were so upset and what they were upset about. It does not, by itself, solve any problems — we might still get some terrible law down the road, on this issue or any one of a number of others, that will strangle this medium. But it sets the foundation for processes that can solve those problems, and that is a very, very good thing.

From Tyler Cowen, via James Grimmelmann: Soren Riis has a really fascinating essay on the rather astonishing recent developments in the world of computer chess [Part 1, Part 2, and Part 3) focusing on the the lifetime ban, recently handed down by the organizers of the World Computer Chess Championships, issued against the author of “Rybka,” a highly successful computer chess program, on the grounds that it is using “plagiarized” code.
It’s a fascinating story in its own right, but particularly for what it says about innovation and information; here’s the key figure, showing the improvements in computer chess play in the last two decades:

What happened in the mid-2000s that led to the sudden improvement in both the overall quality of computer and the rate at which new programs became seriously competitive? Riis writes:

What happened? Starting with the release of the first open-source Fruit in mid-2004, and continuing with the release of subsequent versions of Fruit, open-source engine Stockfish, and especially the release of reverse-engineered Rybka derivatives, highly detailed recipes for building strong, modern chess engines have been in the public domain. Fledgling chess programmers as well as programming veterans have not failed to take notice and the state of the art has advanced rapidly. As a result of this spread of knowledge new programs receive a tremendous performance boost and become “fast climbers”.

There’s a great deal more in the original essay about the nature of proprietary rights and the norms and customs in this particular community – well worth reading.

In Sweden, at least – where, according to this article in PC Magazine, the government has just officially recognized the “Church of Kopimism,” whose central tenet is that “information is holy and copying is a sacrament,” and whose sacred symbols are CTRL-C and CTRL-V.

I haven’t the faintest idea, of course, what it means, in Sweden, to be officially recognized as a religion, and what consequences flow from the determination; we live in a country where, obviously, there is no government body charged with determining what is, or is not, a “religion” (though courts, equally obviously, must from time to time make such a determination when looking at Free Exercise challenges to government action, or at Religious Freedom Restoration Act claims). But I wonder how a defendant in a file-sharing copyright action might fare by raising a RFRA defense ?

And while we’re on the subject of religious nonsense, the same article informs us that “scientists in the U.K. have recently discovered that Apple technologies actually provide some people with a religious experience . . . [finding that] Apple products stimulate the same parts of the brain as religious imagery does in people of faith.”

[Thanks to V. Steinbok for the pointer]

So here’s the most interesting thing I’ve come across in 2012**. . . As anyone who reads what I write here or elsewhere knows, I am obsessed with trying to understand Internet scale. I am convinced — and it was Jefferson, interestingly enough, who convinced me — that it is simply impossible to understand any questions about Internet law and policy without considering the extraordinary and unprecedented magnitude of Internet activity. The TCP/IP network had to solve a number of very profound scaling problems before it could perform the tasks it now performs — 700,000 Google searches, 11 million IM conversations, 1 million Facebook status updates, etc. etc., every minute of every day, more content posted to YouTube every month (probably, by now, every 3 weeks or so) than the combined output of all US television networks since their inception in the 1940s, etc. — and the idea that our legal system, and the 19th and 20th century tools it contains, can somehow magically “scale up” to work well on the Net is, frankly, laughable — though I try to keep a straight face when respected colleagues and friends propound it.

It’s why the current brouhaha about the “Stop Online Piracy Act” (SOPA) (see my previous posts here and here) is so important. The regulators have started to understand scale, and the solutions they’ve come up with — law enforcement via the domain name system — is positively chilling. If that’s the best we can do, we’re in trouble.

** Actually, it’s not the most interesting thing I’ve come across in 2012; the most interesting thing I’ve come across in 2012 is here.

[and thanks to J. Lewis for the pointer]

Jefferson’s Moose, out in paperback at last! With a (pretty damned interesting) new preface by Larry Lessig. Just want Aunt Betty and Uncle Mack have been waiting for!

[Though Oxford U Press' crack marketing team has made sure that the paperback isn't available yet at Amazon -- which, in any event, is selling the hardback at a price significantly lower than the paperback edition . . . and with free shipping!]

In light of the recent controversy (to which I’ve added my voice, here on VC and elsewhere) about Congress’ flirtation, in the Stop Online Piracy Act (SOPA) and similar bills, with various Internet-killing schemes at the behest of the intellectual property lobby, here comes the development of a Firefox extension, DeSopa 1.1, designed expressly to assist users who want to access websites whose URLs have been “blacked out” by SOPA-authorized court orders:

This program is a proof of concept that SOPA will not help prevent piracy. The program, implemented as a Firefox extension, simply contacts offshore domain name resolution services to obtain the IP address for any desired website, and accesses those websites directly via IP. Similar offshore resolution services will eventually maintain their own cache of websites, without blacklisting, in order to meet the demand created by SOPA.

It’s certainly an interesting concept, and illustrates one (though only one) of the objections to SOPA’s DNS-based enforcement scheme, viz. that it will be relatively easy for anyone with even a bit of technical expertise to circumvent the SOPA orders.

While I applaud the efforts, the developer (Tamar Rizk) should be aware of one of the provisions of SOPA (available here – see p. 20 for the provision quoted below), which provides that:

To ensure compliance with orders issued under this section, the Attorney General may bring an action for injunctive relief—
. . . (ii) against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or bypassing of measures described in paragraph (2) and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service.

I’m not sure that I understand what “knowingly and willfully” means in this context, but Mr. Rizk might want to be cognizant that he might be running afoul of this provision in providing this extension.

The Op-Ed that Mark Lemley, Dave Levine, and I wrote about the egregious intellectual property bills now pending before Congress (SOPA, Protect-IP, and their ilk) was published today in the Stanford Law Review Online, and is available here for those who are interested (i.e., anyone who cares about the future of communication on the Internet).

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.

Here’s an interesting development: the ReDigi Used Digital Music Store. Application of copyright law’s “first sale doctrine” — which allows you to re-sell or give away copies that you have purchased of books, records, or other copyrighted works without the copyright holder’s permission (the doctrine that allows, for instance, used book stores or video rental stores to operate without payment of any additional royalties to the copyright holders) — to digital works has always been something of a puzzle. On the one hand, there’s a strong argument that the Copyright Act treats copies of works embodied in digital files the same way it treats copies of works embodied in print or on canvas; on the other hand, the fact that digital files are so preposterously easy to copy means that it’s awfully easy to circumvent the law by “re-selling” a digital file you’ve purchased while still retaining a copy for yourself – which is not within the protection of the first sale doctrine.

So along comes ReDigi. Their claim is that they’ll let you re-sell all that crappy music you downloaded during a drunken spree the other night — if you install their application on your computer, which will do a scan and certify that you haven’t kept any copies of the file around. [See the story in the NY Times here] Clever!! If you really have disposed of your copy of the file in question, it’s hard to see how the copyright holders can complain (though complain they will — book publishers still hate the 2d-hand bookstores . . .).

But there’s one thing I’m not clear about. Suppose I purchase a song at iTunes, stick a copy on my hard drive and a duplicate in my “locker” on the Apple iCloud server. Then, I resell the file at ReDigi — and once I delete it from my hard drive, the ReDigi application will never know that I’ve put a copy in the cloud, right? And if that’s the case, it’s really not a first-sale-doctrine-applicable transaction at all …

After many years of thinking about the problem, I’ve finally tried to distill what I know about the kinds of mistakes law students are particularly prone to make here: Exam-Taking Mistakes. It’s a handout for my Intro to IP students this semester, and it might be a little IP-specific to be terribly useful to others in other subject areas, but I think it might be of some general interest and utility. Feel free to share and redistribute —

So in response to my call for action — OK, OK, it probably would’ve happened anyway … — a large coalition of free speech and civil groups (Electronic Frontier Foundation, the Center for Democracy and Technology, Public Knowledge, Creative Commons, and others) have declared today to be “American Censorship Day” to protest the spate of bills now pending in Congress that would, as I’ve described elsewhere, set a truly dangerous precedent for US policy towards the Internet. There’s been something resembling an explosion of opposition to these bills — the conservative American Center for Law and Justice, Educause, an adhoc group of educators, a veritable Who’s Who of tech giants, including some companies you might have heard of —AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, Zynga, a group of over 100 law professors (of which I’m a part), a bipartisan group of ten Congressmen, including Republican Presidential candidate Rep. Ron Paul and Democrat Rep. Zoe Lofgren, a coalition of Research Libraries, and many, many others have taken up the call to oppose this bill. Hearings begin today, and one can only hope that all this activity on the opposition side has made Congress a little more leery than it otherwise might have been to these censorship efforts. More power to them; let’s hope we can stop this very misguided and dangerous attempt to bend the Internet — our Internet, thank you very much — to the wishes and needs of the small community of IP rights holders.

[You can sign a petition against these bills here]

[UPDATE: A coalition of over 80 international and human rights organizations has also joined the chorus against SOPA and its companion bills]

One of the obvious dangers of the Internet Age is that we’ll be so distracted by everything going on around us – lots of it interesting, complicated, and even important (not to mention all the stuff that’s idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.

The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the “E-Parasite” bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I helped draft a Law Profs Letter in Opposition, and I’ve blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are “dedicated to infringing activities.” If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy “adversary proceedings,” “due process,” or similar niceties. No need to bother with details like “is there a defense to the charge?” No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had “actual knowledge of specific infringing files” on the site in question. None of that.

It’s nice of Congress, I suppose, to provide that a neutral judge has to have seen the evidence and issued an order before sites can be eliminated; I’m sure there are plenty of folks in Congress and the US Attorney’s Office who would like to eliminate that last bit of messiness and administrative inconvenience, too. But there’s a good reason why, except in truly extraordinary circumstances where public health and safety are imminently threatened, we don’t throw people in jail, or deprive people of their livelihoods, or divest them of their property, whenever a prosecutor and a judge agree that those are just punishments.

And it’s a lot worse than even that. Get this: The House version makes it unlawful (and subjects you to this elimination order) if you:

“tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes].”

Take a careful look at what’s going on here. If the prosecutors have been snooping around on my website to find infringing material and I take “deliberate steps” that prevent them from “confirming” that I have such material on the site — perhaps I have this pet peeve about government agents crawling around what I might regard as private space and I have tried to keep them out — then I have violated the statute even if I don’t actually have infringing material on the site. That is, it’s an independent violation of law to keep the prosecutors from “confirming” that you’re violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you’ve somehow tried to keep the prosecutor off of your website!

It violates principles I’m tempted to call sacred — and all for what?? To protect the rights of our intellectual property owners — to make the world safe for our record companies and movie studios and publishing houses. Even if it was going to work, if the price for protecting those rights is that we have to abandon due process, and the notion that there are 2 sides to every story, and the notion that government agents do not have an inalienable right to know everything that I am doing on the Internet or anywhere else, that price is way too high.

And of course it’s not going to work. I guarantee that. It’s too easy to circumvent — anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you’ve got a way to catch, say, 5 of them, that’s usually a pretty good scheme. We’ll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you’ll catch all 10; after all, if you’re 50 percent likely on average to catch each bad guy, it’s unlikely but by no means impossible that you’ll get ‘em all.

But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much “damage” to your intellectual property as 10 million. If “stamping out copyright infringement” looks like a nightmarish game of whack-a-mole that you can’t possibly win – well, I’m sorry about that, but that’s just the way the world is, so get over it. There’s more — much more — peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it – not by killing my Internet, thank you very much.

UPDATE: Anthony Falzone over at the Stanford Center for Information and Society points out a couple of places where people can speak out about this — see his posting at here, the petition at whitehouse.gov, and the EFF’s “Write Your Congressperson” page

UPDATE 2: Thanks to Ryan Radia and others, who pointed out that this posting inadvertently conflates the two bills (SOPA and Protect IP) now floating around in the House and Senate, respectively, regarding the due process problems raised by the bills. SOPA has corrected some of Protect IP’s more egregious due process problems — eliminating the express invitation for court’s to issue orders based on ex parte hearings. So in a sense my post is focusing on the worst aspects of each bill — which is fair enough, I think, given that we could well end up with the worst aspects of each. I also happen to think that as a practical matter, the due process concerns are still alive in SOPA, which allows courts to enter “TROs, preliminary injunctions, and permanent injunctions in accordance with Rule 65 of the FRCP” against domain names after an in rem proceeding; given that the actual defendants are very likely to be overseas and not subject to in personam jurisdiction, this is likely to lead to a profusion of suits in which no true adversary proceeding is really possible as a practical matter.

As some of you may know, the 2d Circuit heard argument yesterday in the Viacom v. YouTube case, a very important copyright case about which I’ve blogged a number of times before (and in which I co-authored an amicus brief submitted on behalf of some 45 law professors). Last week, I circulated an Op-Ed I wrote about the case to a few of the “national” papers (NY Times and WSJ); I thought (and still think) I was making a point, and a connection, that others have not made in all of the debate surrounding Internet copyright issues (and which are difficult to make in the context of an amicus brief), and I genuinely hope that the judges will indeed stop and consider the deep implications their decision in this case will have for the Internet, and for robust speech on the Internet, for years to come. I was hoping to catch the eye of one of the 2d Circuit judges, perhaps as he/she was sitting on the train heading in to the office, and I figured that the Times or the Journal was a good place to do that. But alas, the editors had other ideas … So I’ve printed it below; maybe, if some of the 2d Circuit judges or clerks are VC readers, they’ll pass it along …
*****************************

COPYRIGHT LAW, THE ARAB SPRING, AND THE INTERNET
DAVID G. POST

On October 18th, at the federal courthouse in downtown Manhattan, the US Court of Appeals will hear arguments in Viacom et al. v. YouTube, a case raising important questions about the application of U.S. copyright law on the Internet. Through a fascinating set of links and connections, the citizens of Bahrain, and Burma, and Syria, and . . . all have a very large stake in the outcome.

The case involves interpretation of a provision in the Digital Millennium Copyright Act (DMCA), enacted by Congress in 1998 to update the Copyright Act for the Information Age. The DMCA gave “providers of online services” an immunity from copyright infringement claims arising out of the activities of their users and subscribers. Website operators, for instance, would not be liable for their users’ infringements unless they themselves had “actual knowledge” of the infringing activity, or were at least “aware of facts and circumstances from which infringing activity is apparent.” At the same time, the statute imposed a condition: A website operator that receives a “take-down notice” from a copyright holder, identifying specific infringing content available at the site, must “respond expeditiously to remove, or disable access to” the infringing material, or it forfeits the immunity and becomes exposed to liability for the underlying infringment(s).

The scheme has been a resounding – perhaps even an astonishing – success. The “notice-and-takedown” process has proved to be an efficient and effective remedy for copyright holders seeking to eliminate, or at least mitigate, the damage from infringing conduct on the massive scale made possible by Internet technologies; hundreds of thousands, or perhaps even millions, of infringing works have been removed from the Internet through the notice-and-takedown process, without the need for costly and time-consuming litigation. At the same time, website operators have a simple and straightforward means of avoiding exposure to potentially astronomical liability under the Copyright Act’s (rather generous) damage provisions (which permit recovery of up to $150,000 for each infringed work).

The result? Extraordinary and unprecedented growth over the past decade in innovative Internet services and applications based entirely on participatory user expression – “social media,” “user-generated content,” or “Web 2.0” services and applications. Thousands of Internet businesses, many of which are now household names around the globe – Facebook, Twitter, YouTube, Blogger, Craigslist, Myspace, Tumblr, Flickr, and many, many others – share one common characteristic: they provide virtually no “content” of their own (copyrightable or otherwise), but instead provide a platform for users to exchange content with one another. Internet users have responded in truly breathtaking numbers: to take one of many examples, YouTube users upload more than 40 hours of video every minute of every day, amounting to more video content each month than the combined output of all three major U.S. television networks for the past 60 years.

It is impossible to imagine this development in the absence of the DMCA immunity, just as it is no coincidence that all of the websites listed in the preceding paragraph are based in the United States, where the immunity has been most firmly embedded in the law. Without an immunity from infringement claims, permitting users to freely exchange content with one another at this scale would be financial suicide; the liability exposure would amount to hundreds of millions of dollars in copyright damages each and every day. No rational investor would provide financing for such an operation, no bank would lend it money, no employee would stake even a small part of his/her future on it, without the reassurance provided by the DMCA immunity.

In short, without the DMCA immunity there would be no Facebook, no YouTube, no Twitter. And without Facebook, and YouTube, and Twitter, Hosni Mubarak is quite probably still the President of Egypt. It’s hard to prove that, of course – but most observers agree that these “social media” sites were part of the indispensable infrastructure allowing demonstrators in the “Arab Spring” revolutions to communicate with one another and to organize against rulers who were very skilled in the suppression of dissent and the disruption of communication among their citizens.

That’s what’s at stake in that courtroom. The entertainment industry plaintiffs in the case challenge the lower court’s decision (allowing YouTube to assert the immunity against all of the plaintiff’s infringement claims), and seek a ruling that would shift some of the burden of identifying and locating infringing material onto the website operators’ shoulders. The legal arguments involved are complex, with much technical hair-splitting on both sides. Along with 45 colleagues from the legal academy, I submitted an amicus brief to the court on YouTube’s side, arguing that the language, structure, and purpose of this statutory provision places that burden squarely on the copyright holders through the notice-and-takedown process. But however the court ultimately rules, its decision will go a long way towards determining the kind of Internet we have going forward, and one hopes that the judges recognize that, and that they keep Tahrir Square in mind as they deliberate about the shape of US copyright law.

Terry Hart, over on Copyhype, asks (and tries to answer) the question. According to Hart, nobody should; referring to his famous 1813 letter to Isaac MacPherson – a letter I (and many others) have called a “foundational document” for US intellectual property law — Hart writes:

[Jefferson's] points have little relevance to copyright. . . .While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidedly weak. . . . Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’” In this regard, a letter written in 1813 about patents isn’t very helpful.

I’ve got a different — and much more straightforward — answer to that question. Why should we care what Jefferson thought about copyright?

1. Because he’s Jefferson. I don’t know about you, but I care about — as in, I’d like to know more about — Jefferson’s views on damn near everything. Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history – I don’t even think there’s any serious competition on that front. So if I were interested in metalworking, I’d be interested to know what Jefferson thought about metalworking. If I were interested in gardening, I’d be interested to know what Jefferson thought about gardening. If I were . . . you get the idea. I’m interested in copyright. QED.

Now, Jefferson also probably had more nutty and bizarre thoughts about a more diverse range of subjects than any person in history. He was no prophet, and he was hardly infallible. Part of the fun, with Jefferson, is weeding out the crazy (we need a new Constitution every 19 years; mammoths are not extinct, but are in fact still roaming the Ohio forests) from the brilliant (um, that’s a long list …read my book). There’s a good deal of both, in the land of Jeffersoniana. But I’m not going to dismiss his ideas on anything until I know what they were and turn them over in my mind a bit.

2. Because he was smarter than you, or I, or anyone else currently commenting on intellectual property matters.

3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property. Take that paragraph from the MacPherson letter that Hart quotes:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Every intro text in IP law builds on this insight, though with different language. The objects of protection in IP law are (a) “non-exclusive” and (b) “non-rivalrous.” If anyone can point me to a better, more concise, or more insightful articulation of these central features the central dilemma of intellectual property, (or any articulation from a date earlier than 1813) I’d be really interested to see it.

4. Because if you understand the MacPherson letter — not “agree with it,” necessarily, but understand it — you will, perforce, understand a great deal about intellectual property law. [It ain't easy, by the way - it took me months, when I was writing my book, to actually figure out what the hell he was talking about; all that stuff about Oliver Evans' patent, and the construction of mills and "hopper boys," and the rest of it ... but they were months very well spent. I saved you the trouble of doing that, in the last chapter of my book - and these are the thanks I get!]

5. Because the MacPherson letter articulates — once again, astonishingly, (a) for the first time in history (as far as I can tell), and (b) better than anyone else has ever done subsequently — the notion that intellectual property law is “social law,” and not “natural law.” In my view, this is of the most profound importance. Here’s what I wrote in that speech that Hart refers to:

Protecting the freedom of expression was a task of the very highest order, in Jefferson’s view, because freedom of expression was a natural right, belonging to all. It is not given to us by law, nor is it derived from law. It is just in the “nature” of things, part of the way the world is constructed, derived not from the laws of Man but “the laws of Nature and of Nature’s God”: if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking. They’ll do that without any law to help them. Humans communicate with one another not because the law enables them to do so; they communicate with one another because—well, because that’s the kind of beings we are, and that is what is in our nature. Law’s job is not to enable that communication, but to protect it when it does occur.

Copyright, though, is different. Copyright is what Jefferson called – and I believe he was the first person to point this out and make this distinction — “social law.” Copyright does not derive from the nature of things, from the way the world is, or is constructed, because it is in the nature of things that ideas move freely from one person to another. As he memorably put it in an 1813 letter that has become one of the foundational documents for intellectual property law in the US:
If nature has made any one thing less susceptible than all others of exclusive property, it is the “idea.” That ideas should freely spread from one to another over the globe seems to have been particularly and benevolently designed by nature. Ideas are like the air we breathe – incapable of confinement or of exclusive appropriation, and expansible over all space.

The only way to keep an idea to yourself is to . . . well, to keep it to yourself. The moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Once it gets loose, it is like the air we breathe, expansible over all space, incapable of confinement.

And, like fire, ideas don’t get “used up” as more people use them: The peculiar character of ideas is that no one possesses an idea the less because others possess more; he who receives an idea from me receives instruction himself without lessening mine, just as he who lights his candle at mine receives light without darkening me.

Copyright, in other words, doesn’t come from the laws of nature, it comes from the laws of man. It is not, like freedom of expression, antecedent to the law, but entirely dependent on it.

What difference does all this make? A great deal. It does not mean that we should get rid of copyright law –it’s not an anti-copyright (or pro-copyright) notion. But it does mean that copyright law should always serve free expression, and not vice versa. It means that when these two great forces come into conflict with one another – and as I said, they do with some frequency nowadays – we know where we stand. We have our thumb on the scales on the side of free speech; we need to be vigilant and alert to the circumstances where copyright law is not serving the cause of free expression, where it is interfering with our right to speak and communicate with one another, and we need to adjust it accordingly.

To put it bluntly: When we’re destroying books under the authority of copyright law, we not only need to be sure that they’re the right books; we need to be damned sure.

You may, or may not, agree with all that; many people don’t. But to care about intellectual property means at least to have a view on that, one way or the other — and confronting, and understanding, Jefferson’s views will help you do that.

That’s why we should care.

If any of you happen to find yourself in the neighborhood, I’m giving a talk this evening at The David Library of the American Revolution, in Washington Crossing, PA, entitled “The Continuing Saga of Thomas Jefferson and the Internet” – my favorite subject, as you know. It’s a little off-the-beaten-path, I realize, so here’s a text of the talk I’ll be delivering:

The Continuing Saga of Thomas Jefferson and the Internet
Talk Delivered at The David Library Lecture Series
on “The Unfinished Constitution” Washington Crossing PA

I want to cover a lot of ground tonight, and I want to make some connections that might be new to you. I want to focus on two parts of our Constitution, one familiar, one not-so-familiar. The familiar one is the provision prohibiting Congress from making any law “abridging the freedom of speech or of the press” – the First Amendment. The not-so-familiar one is the provision granting to Congress the power “to promote the Progress of Science” by “securing to Authors the exclusive Right to their Writings” – the so-called “Copyright Clause” of Article I Sec. 8.

The interplay between these two provisions – one a grant of power to the government, the other a prohibition on government’s use of power – is complicated, fascinating, and even profound.

To begin with, there is, and always must be, tension between them. It’s built in, as it were. Copyright law restricts free expression – indeed, that is the very point of copyright law. That’s its job. Copyright works by giving Authors certain exclusive rights – monopoly rights – to their expression, and it allows them to restrict the speech of others where that speech conflicts with those exclusive rights. I cannot reproduce today’s New York Times and distribute it to my friends or put it on my Facebook page – copyright restricts my freedom to speak. I cannot walk into a bar at Washington Crossing and sing my version of Bob Dylan’s Like a Rolling Stone (though I have a terrific cover version of the song . . .) – copyright restricts my freedom to speak. I cannot take the final scene from the Harry Potter motion picture and insert it into the video I’m making on the occasion of my parents’ 50th anniversary – copyright restricts my freedom to speak. I cannot translate Jonathan Franzen’s Freedom into Italian – copyright restricts my freedom to speak. If I do any of these things (without the permission of the copyright holder), I’m subject to legal sanction. That’s how copyright works – by restricting expression.

In fact, the Copyright Act specifically authorizes the seizure and destruction of books, DVDs, and the like – one of the very few places in our law that does so. US marshals can (and do) take books and throw them into the incinerator. Now, they only do so, mind you, on court order, after due process; I’m not suggesting that we live in some sort of barbaric, book-burning society. Not at all. But the fact remains that our copyright law permits the destruction, in certain circumstances, of books and newspapers and CDs and DVDs and . . . , and there is an obvious tension between such law and the freedom of speech protected by the 1st Amendment.

At the same time, of course, copyright law also encourages speech, and the production and dissemination of expressive communications – music and sculpture and news reporting and movies and all the rest. It is and was intended to be, as the Supreme Court put it recently, one of “the engines of free expression . . . by establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”

Like I said – it’s complicated.
Continue reading ‘Talk on Jefferson, Copyright Law, and the Net:’ »

I’ve blogged about this a couple of times before [here and here, for starters], but this is, alas, an issue that is not going away. The federal government appears to have decided that the best way to control unlawful conduct on the Net is to use the technique of “domain name seizure” – using some variant of the criminal forfeiture laws to proceed against alleged wrongdoers by persuading a court to “seize” their domain names — that is, to order their domain name registry or registrar to pull the name from the database so that, Internet-wide, a request for the website at that URL will come back empty.

It is a nightmarish scenario (literally), and we should all be up in arms about it. I’ve never paid much attention, to be candid, to the law of criminal forfeiture – but I’m going to start now. If you want a sense of what “law” looks like in a regime like this – where prosecutors can waltz into a judge’s chambers without the inconvenience of having a lawyer on the other side, or even a defendant that has notice that there’s a proceeding against him/her, and walk out with an order that makes your website vanish from the Internet; a regime under which you can wake up one morning and find that you have been “disappeared” without anyone having even given you any advance notice that you were in trouble with the law — take a look at some of the documents filed in the case of the Rojadirect.com website. [The case, in the Southern District of NY, is captioned "Puerto 80 Projects v. US," -- the facts are nicely summarized in this brief, and a collection of related documents can be found here]. Prof. Mark Lemley is representing the owner of the seized domains, which is encouraging – Lemley’s an outstanding lawyer, and the court will hear good arguments why the seizure process is both outrageous and unconstitutional. Lemley and I (along with Dave Levine) co-authored a Law Professors’ Letter in opposition to Senator Leahy’s “Protect-IP Act”, which would authorize these seizures in cases where the feds have evidence that a site is “dedicated to [copyright or trademark] infringing conduct.” The Letter (on which we collected over 100 signatories) is posted here.

As it happens, I reread Kafka’s “The Trial” this summer, in a wonderful and highly recommended new translation by Breon Mitchell. It turns out that it’s actually quite hilarious – as in laugh-out-loud funny. I recall reading once that Kafka used to read his stuff out loud for friends and that they’d all end up laughing hysterically – same for Chekhov — but I never really understood how that could be true until I read this version.

But if we reserve the adjective “Kafkaesque” for the truly dark side of the developments he describes – that dreamlike terror that comes from having sinister forces in the State apparatus focused on your destruction and having no way to find out why, or what you can do about it — I think a world in which prosecutors are routinely proceeding in this way merits use of the term.

Just putting in a plug for an upcoming one-day conference here at Temple Law School on October 22, organized by my colleague Nancy Knauer, on “Aging in the US: The Next Civil Rights Movement?” The goal of the Symposium, in the words of its organizers, “is to move the national conversation surrounding aging beyond the traditional elder law topics of estate planning, benefit eligibility, and health care financing and ask whether elder rights should be the next civil rights movement.” There will be a host of speakers and presenters, including Nina Kohn from Syracuse Law School and M.T. Connolly of Lifelong Justice, and it should be an interesting day.

Information regarding the conference and registration is available at www.law.temple.edu/aging.