Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional

from the arguments-in-the-extreme dept

I've often discussed the original constitutional reasoning behind patents and copyright law, specifically the phrase we all know in Article 1, Section 8:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

From this, I still believe it's quite clear that if copyright or patents are used in a way that does not "promote the progress" of those things, then it is unconstitutional to use copyright or patent law in that way. Not everyone agrees with me, of course. However, I've mostly focused on the "promote the progress" side of things, but haven't delved as much into the details of "science and useful Arts." I have read up extensively on what the founders meant by that, which can be simplified as "science" meaning scientific publishing/books and "useful Arts" meaning inventions. There's also a fair bit of evidence that the real focus of the founders was on patents, rather than copyright. It wasn't that they weren't concerned at all about copyright (they were), but that the bigger issue was patents, and copyright was a sort of "throw in" at the behest of some vocal authors, along with some remembrance of states' fights over local copyright policies. But, on the whole, it was patents that were considered of much more importance to progress than copyrights.

And, not only were copyrights initially for a "limited time" (14-years) but the first federal copyright law in the US limited copyright to books, maps and charts. Tom Bell points out that, based on this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with "science"? And if it really was intended to cover art and music, then why didn't the founders have it cover music that was being composed at the time? Perhaps it was because they realized that music and paintings had nothing to do with science, and the Constitutional clause is only limited to promoting the progress of science and the useful arts (and, again, in the parlance of the day, "useful arts" was inventions). As Bell states:

Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however--"the Progress of Science and useful Arts"--and a great many works now covered by copyright cannot plausibly claim to do both.

Bell is interpreting the Constitutional clause in an even stricter manner -- suggesting that any work covered by patents or copyright needs to promote both progress in science and in the useful arts, which is an even higher bar, though I'm not sure I'm convinced it was meant to be both. Also, many would retort that the Constitution grants the Congress the ability to determine if such monopolies promote the progress of science and the useful arts -- and as long as Congress says they do, then we should consider that they do (no matter how wrong they might be). For a variety of reasons, that line of thinking is problematic, but it is the line that the Supreme Court has taken with copyright before (such as in the Eldred case). I'm not necessarily convinced of Bell's thinking here, but it's certainly a point worth pondering (and discussing).

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Not That It Matters... But Appeals Court Rejects Webcasters' Challenge Over Copyright Royalties

from the and-ignores-constitutionality-issue dept

Last week, we noted that the DC Appeals court had rejected a challenge to the Copyright Royalty Board's rates set for satellite radio. Michael Scott notes that the same court has also rejected the challenge to webcasting rates. Of course, this is mostly a moot discussion, because just days before the decision, SoundExchange and some big webcasters worked out a deal -- though there are serious questions about how reasonable these rates really are to webcasters. Still, this latest ruling once again highlights just how out of touch the Copyright Royalty Board is with reality. If the current negotiated rates threaten to put a lot of webcasters out of business, and the CRB's original rates were even higher, doesn't that suggest a pretty serious problem both with the CRB and with the appeals process? Separately, it looks like the court had no problem at all ignoring the constitutional questions about the Copyright Royalty Board for a second time. It's as if no one wants to actually follow what the Constitution says...

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Appeals Court Punts On The Constitutionality Of Copyright Royalty Board

from the another-issue-for-another-time dept

While much of the focus on royalty rates has focused on the settlement between webcasters and SoundExchange, in a separate issue, an appeals court has sided with the Copyright Royalty Board in the rates it set for satellite radio (SoundExchange wanted the rates to be even higher, of course). The court found no reason to rule against the CRB, finding no evidence that the rates were "arbitrary, capricious, or unsupported by substantial evidence." But, perhaps drawing more focus was that, in this case, there were some side questions about the very legitimacy of the Copyright Royalty Board itself. This is due to a recognition (first in the patent space) that some of these appointments appear to violate the appointments clause of the Constitution.

While I do have serious questions about the legitimacy of the CRB, it's got a lot less to do with the appointments clause, and a lot more to do with the question of why judges are setting universal royalty rates in an industry, rather than letting the market set the rate -- especially when the CRB judges often do not appear to be particularly internet literate. So the whole appointments issue seems like a side show. Even if a court were to find that the CRB violates the appointments clause, I'm sure a hasty solution would be worked out, whereby those allowed to make appointments (the president or heads of cabinet-level departments) would simply rubber stamp the appointments.

Either way... it doesn't seem to matter just yet. In ruling on the latest case, basically the issue was punted, saying that the matter wasn't raised in a timely manner, and therefore the question will be ignored for now.

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Jammie Thomas Decides To Appeal Constitutionality Of $1.92 Million Damages Award

from the and-away-we-go... dept

As we speculated earlier this week, given the silence from the Jammie Thomas camp since the $1.92 million verdict against her, we assumed she was gearing up for an appeal -- and that's now been confirmed. Thomas' lawyer has announced that Thomas has decided to appeal, questioning the constitutionality of the statutory damages awarded, which was the obvious attack point. It will be interesting to see who gets involved in actually managing the appeal.

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French Constitutional Council Guts 'Three Strikes' As Unconstitutional

from the sorry-Sarkozy dept

Well, that didn't last long at all... After some back and forth (and tremendous pressure from French President -- and known copyright infringer -- Nicolas Sarkozy), France passed a three strikes law that would kick people off the internet for three accusations of unauthorized file sharing. However, it looks like the law may be going nowhere fast. France's Constitutional Council has gutted the law, after finding significant constitutional problems with it. The Council specifically barred the heart of the law: the cutting people off the internet part, noting:

communication and liberty of expression are fundamental rights that only a judge can rule on.

Indeed. The council said that it could be okay to cut off internet users... but only with a judge's permission. It's expected that the law may be adjusted to push these issues in front of a judge -- but that's a much better (though still not perfect) situation, since a judge should at least require evidence rather than simple accusations. Either way, it's yet another defeat for an industry that continues to insist that somehow kicking people offline is going to "save" the industry.

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Is A Conviction Constitutional If It's Based On Evidence From An Unconstitutional Search?

from the buttle-or-tuttle? dept

In a case where the legal implications should thrill any fans of Terry Gilliam's movie classic Brazil, the Supreme Court is set to examine if it's constitutional to convict someone, based on evidence that was only collected due to bad data in a government database. There's no question that a search of someone due to bad data in a database is unconstitutional, but the question is whether or not what's found in that search can then be used to charge someone. In this case, a bad (obsolete) database entry in a county database resulted in the search of an individual's car, where drugs and a firearm were found. This resulted in a conviction and jail time, but the search itself wasn't constitutional, because the data was incorrect. The appeals court let the conviction stand, oddly arguing that throwing out the conviction wouldn't put much pressure on governments to keep their data clean. The court also argues that anyone convicted as a result of such bad data, should simply file a separate, civil, lawsuit against the government. Of course, it seems like the bigger issue should simply be on the constitutionality of using any unconstitutionally obtained evidence in a lawsuit.

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Life, Liberty And The Pursuit Of More Patents?

from the patent-apps-not-innovation dept

At the Republican Convention, Matt Yglesias catches a funny picture of an AT&T poster touting the company's enthusiasm for the patent system. It reads: "life, liberty, and the pursuit of more patents. AT&T: Averaging 2 patent applications per day. Proudly connecting political supporters in Minneapolis."

Photo by Matt Yglesias at Minneapolis-St. Paul Airport.
It's interesting that AT&T is bragging about its pursuit of "more patents" rather than, say, more R&D spending or more innovation. AT&T isn't exactly known for its record of high-tech innovation, so it's a little surprising to see it hold itself out as a poster child for the patent system—particularly when we remember that AT&T and other telco incumbents have used the patent system to extort tens of millions of dollars from companies like Vonage that are actually innovating.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Is The Copyright Royalty Board Unconstitutional?

from the this-sounds-familiar... dept

Last month, we wrote about a Constitutional challenge to the patent appeals board. It was based on the theory that the Constitution clearly says that certain appointments can only be made by the President, the courts or the heads of a department. A legal change a few years back let the USPTO director appoint judges to the patent appeals board -- but the Patent Office director is not the head of a department. He reports to the Commerce Secretary who should be nominating the judges -- thus suggesting that all of the appointments over the last few years have been unconstitutional.

Of course, it didn't take long for folks to recognize that the same question may apply well beyond the patent appeals board. In fact, there's a court case challenging whether the current Copyright Royalty Board is constitutional as well. While the article doesn't go into details, it sounds like it's an identical issue. The CRB members are appointed by the Librarian of Congress rather than the President or the head of a department. This particular lawsuit has been filed by an organization that was hoping to compete with SoundExchange for collecting and distributing royalties. The CRB rejected the request. Given how many problems SoundExchange has had in carrying out its charter, it would seem like competition is a pretty good idea. However, rather than fighting that decision specifically, the company recognizes this same constitutional question. Funny how the boards involved in both copyrights and patents may be unconstitutional for the same basic reason.

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Funny How Universal Music Thinks Infringement Fines Are Unconstitutional When It's On The Receiving End

from the and-how-does-that-work? dept

You may recall Bridgeport Music as a company that claims to own the rights to various musical compositions and has a long history of suing anyone who samples even the tiniest bits of that music. The worst part is that there are very serious questions concerning whether or not it really has the rights to much of the music it claims to control. George Clinton, for example, claims that Bridgeport used forged signatures to get control over his catalog. A recent Bridgeport case may be interesting for a different reason, though -- one that shows how the record labels have no problem contradicting themselves when on the receiving end of a copyright infringement lawsuit.

The lawsuit involved Univeral Music, who lost the original decision and was hit with a rather large fine. Universal Music appealed that decision on a variety of points -- and appears to have convinced the judge that the punitive damages tacked onto the copyright infringement claims were unconstitutional. This is quite interesting because, as Ray Beckerman notes in that link, Universal Music is involved in a bunch of lawsuits where it's pushing for extremely high fines for individuals found guilty of infringement. In fact, Universal Music is actually on the receiving end of a lawsuit that accuses the company of requesting unconstitutionally high fines. In that case, Universal Music is asking for fines that are more than 1,000x the actual damages. Pretty high, right? So what were the damages that Universal Music (and the court) found so unconstitutionally high in this case from Bridgeport? Turns out they were about 10x the actual damages. Funny how that works.

It seems like Universal Music may come to regret pointing out the variety of reasons (pdf) why punitive damages can be seen as unconstitutional, as one would imagine that UMG's own filing will be raised against it in its own copyright infringement suits:

"While the Supreme Court has declined to adopt concrete or bright-line constitutional limits for the ratio between actual or potential harm and a punitive-damage award, the Court nonetheless observed that, "in practice, few awards exceeding a singled-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."... The court cited a 4-to-1 ratio as being close to the line of unconstitutional impropriety."

Universal Music would likely claim in its own defense that it was complaining about punitive damages, and in the other lawsuits it's fighting for statutory damages, but there are already plenty of folks pointing out that there really isn't much of a difference in many cases.

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Are The Last Eight Years Of Patent Board Appeals About To Be Tossed Out?

from the that-would-be-a-big-one dept

A little known lawsuit that has received very little attention could have a massive impact on our patent system. It turns out that, thanks to a procedural change in the law in March of 2000, nearly 2/3 of the appointments to the patent appeals board may have been unconstitutional. This could, potentially, invalidate any ruling involving one of those "unconstitutional" judges over the past eight years. Since the rulings involve panels of 3 such judges, an awful lot of the appeals will have involved one of the now questionably appointed judges. The details are very much inside baseball, but the quick summary is that the law was changed allowing the director of the Patent Office to appoint these judges, rather than the Secretary of Commerce. Yet, the Appointments Clause of the Constitution says that such appointments may only be made by the President, the courts or the heads of a department. The director of the USPTO is not considered a head of a department, as it's a part of the Commerce department (so appointments would need to come from the Secretary of Commerce to be Constitutional).

While the issue was first raised by a well-regarded scholar last year, the argument is now being put to the test in court by a company that felt the Board ruled incorrectly on one of its patents, and raised that issue as a part of an appeal. The Patent Office and the Justice Department are claiming that the company can't raise this issue now because it had not been used earlier (an appeal is supposed to be on the same issues raised earlier). Even if that's the case, then you can bet some other company will eventually raise this issue as well -- so the courts are going to need to deal with it sooner or later. Given the ramifications of a ruling saying that such appointments were unconstitutional (potentially invalidating an awfully large number of rulings), it would be surprising if the courts actually went that way. While it is reasonable to question why the head of the USPTO should be allowed to appoint these judges (there's a potential conflict of interest), pulling eight years of rulings into question would present a legal nightmare over what, honestly, seems like a minor procedural issue. There are plenty of problems with the patent system, but I'd rather they not be dealt with using minor procedural "gotchas."

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The Constitution Still Doesn't Let States Stop Kids From Buying Video Games

from the for-those-who-weren't-paying-attention-the-first-dozen-times dept

Again? State after state after state has passed laws that ban the sale of certain video games to children, and time after time after time those laws are struck down as unconstitutional. Not a single one has passed muster, and yet court time and taxpayer money is wasted over and over again on these same issues, with at least 10 states having gone through the same process with the same results. States cannot ban the sale of video games to children. It's a violation of the First Amendment. This does not mean that stores themselves can't make such a policy, just as movie theaters have voluntarily (not based on a law) agreed not to let kids see movies of certain ratings. But to pass a law is unconstitutional. A lower court in Minnesota made that clear in 2006 -- but it didn't stop the politicians from appealing... and losing. Yes, a federal appeals court has agreed with the lower court that banning the sale of video games is not constitutional. While the lower court had noted:

"There is a paucity of evidence linking the availability of video games with any harm to Minnesota's children at all.... It is impossible to determine from the data presented whether violent video games cause violence, or whether violent individuals are attracted to violent video games."

The appeals court was a little less direct:

"Whatever our intuitive (dare we say commonsense) feelings regarding the effect of violent video games, precedent requires undeniable proof that such violence causes psychological dysfunction...."

Despite claims to the contrary by some activists, there still is no evidence linking violent video games to violent behavior. In fact, as has been pointed out repeatedly, violent crime has continued to drop as violent video games have become more and more popular. At most, studies have shown that violent video games make people emotional, but that doesn't lead to increased violent activity outside of the game itself. Of course, that won't stop grandstand politicians from pushing for such violent video game bans, despite the knowledge that they're clearly wasting taxpayer money every time they do so.

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Judges Rejects Gambling Group's Attempt To Toss Out Anti-Online Gambling Law

from the keep-trying dept

A group calling itself the Interactive Media Entertainment & Gaming Association has failed in its attempt to get a judge to throw out Congress' law designed to ban online gambling. While the judge did note that the group has standing to bring this suit (which was an open question), she did not find their case compelling at all. She basically said that Congress passed the law legally and it wasn't a violation of the Constitution. The group is planning to appeal, but it still seems like a more likely path towards getting such a law overturned is to convince Congress that it made a mistake.

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On The Constitutional Reasons Behind Copyright And Patents

from the might-as-well... dept

Last week, when I wrote about Microsoft being the latest in a long line of companies or industry lobbying groups to try to put together a one-sided educational campaign, to try to convince young people that intellectual property was sacred, I suggested that it was about time that someone put together a contrasting "educational" campaign that wasn't biased by the companies providing it. A couple folks asked me to put together just such a campaign -- which, unfortunately, I don't have the time or resources to do. However, I figured that I could at least use the blog to cover some of the key points that any such educational campaign should contain. With that in mind, I'll be running a short series of posts, like my earlier series on economics, that will look at some topics having to do with what, today, is called "intellectual property."

To kick it off, I wanted to discuss the very rationale for intellectual property rights in the US. While many people assume that there's always been strong support for things like copyright and patents in the US, that's not the case at all. Thomas Jefferson and James Madison, who were the main players involved, were actually quite skeptical of the concept. Both talked at length about the subject, but a brief quote from each should give you a sense of their feelings. Thomas Jefferson's eloquent statement read thusly:

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

He then goes on to note that there can be cases where society chooses to create monopolies "as an encouragement to men to pursue ideas which may produce utility," but also that "other nations have thought that these monopolies produce more embarrassment than advantage to society." Clearly, he saw both the good and bad that such monopolies provide, and knew he was treading a fine line. James Madison felt equally so:

"But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good."

Yet, after discussing it back and forth in a series of letters, the two agreed to include the following in the Constitution, in Article 1, Section 8:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

And with that, the basis of copyright and patents was born in the US. However, it was clearly done with ambivalence, and the recognition that such "exclusive" rights could have more downsides than advantages. Note, also, that they were clear in their language, that the sole purpose of granting these exclusive rights was "To promote the Progress of Science and useful Arts." From that reading, it should be clear that any use of these types of monopolies in ways that do not promote the progress of science and useful arts is not covered by the Constitution at all.

These days, this language has been twisted. Supporters of stronger copyright and patent laws often point to this clause in the Constitution, claiming that it means that all of these types of monopolies, by their nature, "promote the progress." Yet, given Jefferson and Madison's own words, it is clear that this was not the intention at all -- and both were quite worried about how these rules could be twisted. For years, Jefferson was able to prevent that by managing the patent system himself. Yet, it didn't take all that long for problems to occur once he no longer was there to watch over the system.

Next up, I'll take a look at the "big three" categories that are often called "intellectual property": copyright, patents and trademarks.

---

Links to other posts in the series:

• On The Constitutional Reasons Behind Copyright And Patents
• Patents, Copyrights And Trademarks, Oh My!
• If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
• What Kind Of Progress Are We Promoting?
• Why Do Patents Tend To Cause More Harm Than Good?
• The Case For And Against Software And Business Model Patents

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Your Encryption Key Is Protected By The Constitution?

from the can't-incriminate-yourself dept

In an interesting case up in Vermont, a federal judge has ruled that someone accused of a crime cannot be forced to reveal his or her encryption key, as it would be a violation of the Constitution's 5th Amendment, saying that an individual cannot be forced to self-incriminate. In an age where encryption is becoming increasingly popular, expect to see other cases of this nature. It seems likely that a case like this one (if not this one itself) will eventually wind up before the Supreme Court to determine whether or not someone can be forced to give up his own encryption key. Where it gets tricky is the question of whether or not the key itself incriminates the person. As the article notes, a person can be forced to give up a key to a safe that contains incriminating evidence, which many say is analogous to this situation. In the meantime, though, we've already seen cases where people are presumed guilty just because their computers have encryption software installed -- so, it may not matter whether or not the key is provided when the presence of PGP alone is viewed as incriminating.

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Convicted Spammer Claims Anti-Spam Law Is Unconstitutional

from the well,-he-would-say-that,-wouldn't-he dept

A few years ago, the state of Virginia convicted a notorious spammer under its state anti-spam laws, and sentenced him to nine years in prison. The spammer, Jeremy Jaynes has been appealing the decision ever since, without much luck. Last year, an appeals court upheld the conviction and noted that a nine year sentence didn't seem excessive. However, it appears Jaynes is now trying a totally different route to fighting the conviction: claiming that Virginia's anti-spam law is unconstitutional. The idea is that it violates first amendment free speech rights by banning even spam that's non-commercial in nature. The state, however, is responding that the law doesn't ban any kind of speech at all -- but it does ban falsifying information in order to trespass on others' systems for the sake of advertising. There may actually be a fairly fine line that's worth distinguishing here between banning the specific kind of speech and whether or not the "speaker" is falsifying information in order to get across that speech. It seems unlikely that the courts will rule against the anti-spam law, but if it does it would be interesting to see if spammers in other states follow suit.

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