How Much Can the Government Revise Copyright, Without Running Afoul of the First Amendment and the Copyright Clause?
Part One in a Two-Part Series

In a recent piece for Wired, prominent cyberlaw attorney Jennifer Granick discussed two important federal appellate decisions relating to the intersection of First Amendment law and copyright law. One, Kahle v. Gonzales, was issued in January of this year; the other, Golan v. Gonzales, just last month. Both were litigated by attorneys at the Stanford Center for Internet and Society (CIS), including Granick herself. (She is now the Civil Liberties Director of the Electronic Frontier Foundation.)

In this two-part series of columns, I will discuss both decisions since, as Granick noted, they raise related issues regarding copyright and the First Amendment. In this column, Part One in the series, I'll focus on the January decision by the U.S. Court of Appeals for the Ninth Circuit in Kahle.

But first, in order to provide background for understanding Kahle, it's necessary to briefly recap the Supreme Court's related holding in Eldred v. Ashcroft.

Eldred v. Ashcroft: The Core Arguments and the Court's Decision

Eldred, issued in 2003, involved a constitutional challenge to a federal statute, the 1998 Copyright Term Extension Act (CTEA). The CTEA had extended the period of time that copyright protection of a work is in force from the time an author creates a work until 70 years after the author's death - potentially well over 100 years.

Moreover, this was not the first time that Congress had extended copyright terms. To the contrary, Congress has extended copyright a few times at the behest of media industries seeking to protect works to which they hold the rights.

The constitutional challenge in Eldred was rooted in both the Copyright Clause and the First Amendment. CIS argued in Eldred that the Copyright Clause's authorization to Congress -- to secure copyrights to authors for "limited times" -- could not be fairly read to support the CTEA's creation-to-death-plus-seventy-years period, at least as applied to existing, as opposed to future, works.

Meanwhile, with respect to the First Amendment, CIS contended that the logical result of this and other statutory copyright extensions is to stifle creativity and silence speech, defeating the First Amendment's core purpose.

CIS took the long view: If Congress kept reaching back to repeatedly stretch out the duration of old copyrights, then those who want to create other works, building on the copyrighted works, will never know with any certainty when they would be free to do so.

Indeed, there will be no certainty that a given work will ever fall into the public domain, for Congress could reach back again and again to grandfather the work, and all those of its time, into copyright protection.

As a result, the creativity of those who would build on prior works will be frustrated. From the point of view of new creators, as they try to wait out a 100-plus-year term and stay alive, the limit might as well be eternal.

The Court rejected CIS's argument, 7-2, in an opinion gaining support from all the Court's conservatives and some of its liberals as well. Only Justices Stevens and Breyer dissented.

Moreover, to add insult to injury, it must have appeared to CIS that the majority erroneously interpreted what CIS saw as a complex case as a relative no-brainer - sniffing at its Copyright Clause arguments as merely "novel."

By using the term "limited," the Court reasoned, the Framers of the Copyright Clause meant, in essence, what we mean today: "confine[d] within certain bounds," "restrain[ed]," or "circumscribe[d]." To support this contention, the Court cited both Eighteenth and Twentieth Century dictionaries. And as far as the Court was concerned, this very literal approach was essentially the end of the matter.

By the Court's too-simple logic, because the CTEA extension covered only the life of the creator plus seventy years, not over all future time, it was sufficiently "limited" - indeed, obviously so. The Court essentially said, "Show me the statute that uses the word 'forever' and then we'll talk." (Even then, since the statute could always be amended, would it really mean "forever" from the Court's perspective? Or would the right to amend itself be technically a "limit"?)

The Court gave short shrift to CIS's First Amendment arguments as well. However, it did open the way to possible future challenges when laws change the "traditional contours" of copyright law in a way that may imperil the First Amendment.

As Granick's Wired piece indicates, it's likely that CIS and the EFF will both work aggressively to argue that contemporary laws do indeed fit into the contour-changing, First-Amendment-imperiling niche. That, as I will explain in Part Two, is what they successfully did in Golan v. Gonzales.

It was unfair of the Eldred Court, in my view, to be so dismissive of CIS's arguments. After all, CIS was arguing that the CTEA's term was not literally, but effectively, unlimited, and the Court often looks past the literal meaning of statutes to their effective meaning. Would the Court have deemed "limited" an extension that, according to the wording of our hypothetical legislation, would extend until "such a time as the Sun burns out"?

Moreover, though the Court noted CIS had not provided any special reason that the CTEA, in particular, should be the straw that broke the camel's back of copyright, CIS had a powerful argument that the camel's back has been dramatically sagging for a long time.

Also, given that the case has some First Amendment implications for those who'd like to use others' works, CIS's contention that the Court should not wait forever for the camel's back to break is a plausible one. After all, in First Amendment doctrine, "chilling effects" on speech are often taken into account, and the result is to cause decisions either to be made in a pro-First Amendment way or, at times, to be made earlier than they would have been, if no "chilling effect" were implicated.

This isn't to say that the First Amendment argument here is right. There are strong First Amendment implications for those who'd like to keep control of their own works, as well; indeed, creators are the paradigm First Amendment speakers. Still, CIS had a basis for arguing that it was high time to look at what were -- and are -- genuine "chilling effects," and that such chilling effects should play a larger part in the analysis.

Kahle: Merely Eldred Redux?

Like Eldred, Kahle was about whether a change to copyright law violated the Copyright Clause and the First Amendment. This time, the change - partly accomplished through the CTEA - was to shift from the traditional opt-in system, in which copyright registration is required, to an opt-out system, where a work's copyright is automatic, absent a decision by the creator to execute a formal "creative commons" license.

The change, as Granick explained, means that under the current system, "every napkin doodle is copyrighted" unless the creator expressly stipulates otherwise.

Just as seven Justices gave short shrift to CIS in Eldred, a panel of the U.S. Court of Appeals for the Ninth Circuti gave short shrift to CIS in Kahle, offering a mere eight-page opinion that could be boiled down to four words: "Eldred precludes this suit." At one point, the panel even expressly accused CIS of trying to "tangentially relitigate Eldred."

Was the panel right that Kahle was just de ja vu all over again? I think the answer is no. But perhaps CIS should have shelved its Copyright Clause argument, and presented only its First Amendment argument, to make it crystal-clear that this was not, in fact, an attempt to relitigate Eldred.

Once again, CIS was able to cite a potentially massive "chilling effect," and thus present a potentially strong First Amendment argument.

An automatic copyright system will predictably chill the speech of those who seek to create derivative works (that is, works that build on other works), by creating a tide that sweeps in all original works, automatically copyrighting them unless the author fights against it. Inertia is a powerful force, and for this reason, default rules do matter.

Indeed, the Ninth Circuit panel recognized as much: Noting that renewal rights "regulat[e] the amount of works under copyright," it effectively conceded the chilling effect with regard to would-be users of works and/or creators of derivative works, who would be stymied by the opt-out system.

As CIS pointed out, this chilling effect is even more severe in the age of the Internet, when efforts to sweep huge swathes of copyrighted offline content online - often so that it can be accessed more effectively or differently -- might be stymied by the opt-out requirement's effect of forcing website creators to ask copyright holders, one by one, for consent.

Under the prior opt-in system, copyright registrations could offer an online innovator a comprehensive guide to the copyright owners from whom it needed to get consent, and, more or less, how to locate them.

Under the opt-out system, in contrast, the same innovator might have to seek far and wide to find unregistered automatic copyright owners, who might not have wanted to protect their ownership but also never bothered to register copyrights. These indifferent authors of what have been nicknamed "orphan" works may be difficult to locate.

Battles in a Larger War: Original Author Versus Derivative-Work Author

Although CIS's emphasis on chilling effects in Kahle fits well with traditional First Amendment doctrine, its emphasis in Kahle on the rights of derivative users does not. In the end, this may be the core reason why the Ninth Circuit panel rejected CIS's First Amendment argument out of hand.

Historically, First Amendment rights have tended to evoke thoughts of the "streetcorner speaker." At some point, however, as my First Amendment professor Owen Fiss used to point out, the "streetcorner speaker" gave way to evoking thoughts of media and newspaper plaintiffs; suddenly, the paradigm plaintiff was much more like CBS than like the fellow or lady orating on a soapbox in the park.

Still, traditionally, both individual and corporate creators of works were thought to be the First Amendment's traditional core beneficiaries. Those who wanted to use derivative works were, at most, relatively marginal to the First Amendment vision, consisting of, say, the odd satirist or creator of collage. Their use was parasitic, but it had to be tolerated in the name of art and commentary. Granted, some satires were brilliant, but most of great literature consists on non-satiric original works.

Now, one might venture that the parasites appear to be asking to take the place of the hosts. But that characterization, too, is unfair - and too simple.

The "parasites" - say, someone who puts his or her own mash-up on YouTube - are in a sense also creators. Perhaps they are also symbiotes: Mash-ups also promote the original works; so does fanfic (fan fiction employing characters from beloved works or series of works). Also, the sheer volume of "parasitic" work as compared to "original" work (and again, the boundaries of these terms are being tested) is growing, courtesy of the Internet.

What happens if the paradigm case - the original work - is rare, and derivative works are legion?

If that is the mix featured by our real-world marketplace of ideas, can we still elevate a chilling effect on original works far above a chilling effect on derivative works, protecting against the former but essentially ignoring the latter? I'll continue to explore these issues in my next column.