Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Can copyright and the First Amendment coexist on the Internet?

December 22, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects.  Today’s topic: the constitutionality of bills pending in Congress to limit Internet copying of movies, music and writings.

The statement at issue:

“The first Copyright Act was adopted in 1790, the year before the First Amendment was ratified.  While there has sometimes been tension between the two, it has never been suggested that wholesale theft of copyrighted creative efforts such as movies was somehow within the realm that the First Amendment protects.”

—Floyd Abrams, noted First Amendment attorney in New York, in an op-ed column in the Washington Post on December 9, “Property theft on the Web is no less wrong,” supporting pending legislation in Congress – particularly the Stop Online Piracy Act – that would  provide new remedies for copyright violations on the Internet.

We checked the Constitution, and…

Floyd Abrams (Photo by David Shankbone via Wikimedia Commons)

Attorney Abrams was right on two points.  First, the current state of the law, as spelled out in Supreme Court decisions, is that the Constitution’s Copyright Clause and its First Amendment can coexist – though with an edge for rights granted under the Copyright Clause.  Second, there is, indeed, a tension between the two, and the Supreme Court regularly concedes that point, even while giving some preference to copyrights over freedom of expression.

But what Abrams did not say is that the tension clearly has heightened with the growth of the Internet and, most significantly, with the spread of the idea that the Internet should be a completely open mode of expression, with virtually no government-imposed restraints.   The sometimes heated debate over how free the Internet should be was on public display in angry shouting matches at a recent meeting of the House Judiciary Committee working on drafts of the proposed “Stop Online Piracy Act.”

On both sides of this running controversy, hyperbole is regularly used – those in favor of cracking down on Internet copying of protected movies, music and books talk of “thievery” and “piracy,” and those against such new restrictions talk of Chinese-style “censorship” and “blacklisting.”

But beneath the hyperbole, there is a deep and serious constitutional controversy that is raising fundamental issues about just how far Congress can go in enforcing the Copyright Clause on the sometimes Wild West frontier of the World Wide Web.   Lined up on one side of that controversy are virtually all of the Hollywood film studios, the music publishing industry, and major book and TV corporations and their interest groups.   On the other side are such Web giants as Google, Yahoo, Twitter, Facebook, and eBay.

The only common ground between the opposing coalitions is that there is, in fact, a lot of pilfered material appearing on websites in the U.S. and around the globe.  There is no agreement whatsoever on what to do about it.

The Supreme Court, with increasing frequency, is being drawn into this controversy, especially with claims that copyrights on creative works are narrowing severely the “public domain” – especially, digital archives – that supposedly should reflect the openness of Internet expression.

Even now, the Court is weighing a case on whether Congress has the authority to put back under copyright protection creative works that had entered the public domain in the U.S.  Again, the competing claims in that case pit the Copyright Clause against the First Amendment.   The decision in the case of Golan v. Holder was heard by the Court in early October, and a decision should be issued sometime in the coming months.

The Justices have never gone as far as the federal appeals court in Washington, the D.C. Circuit Court, did in a ruling in 2001, when it said that “copyrights are categorically immune from challenges under the First Amendment.”  But when that case went to the Supreme Court, it resulted in a ruling (Eldred v. Ashcroft) that broadly expanded Congress’s authority to lengthen the term of copyright owners’ rights and concluded that the Copyright Clause itself incorporates all the free expression concepts that might be protected under the First Amendment.

That ruling, however, produced two strong dissents, one of which accused the majority of taking the position that “the Court has virtually no role in reviewing congressional grants of monopoly privileges to authors, inventors, and their successors.”

Only four members of the majority in that case remain on the Court, and one of the dissenters is still there.  Thus, the Golan case outcome will be watched carefully to see whether the four more recently named Justices line up on the side of the Copyright Clause, or the First Amendment, or somewhere in between, with the result having major implications for the digital community and for copyright owners.

Meanwhile, Congress will go back to work in January on the “Stop Online Piracy Act.”

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.


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