Copyright: The Once and Future Foundation of Civil Rights and the Safeguarding of Consent

by Neil Turkewitz

I recently received an invitation to attend the 7th Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property. This year’s speaker will be Margaret Chon, Professor for the Pursuit of Justice, and formerly Associate Dean for Research at Seattle University School of Law. I have to say that “Professor for the Pursuit of Justice” is the coolest title I have ever heard, and I am already in awe of her. I am likewise in awe of Peter Jaszi, and forever grateful to him for sparking my interest in copyright. I went to law school in the early 80’s to fulfill a life-long ambition — temporarily put on hold during my years of wandering the globe writing poetry, to be a civil rights lawyer. Born in an integrated working class part of the Bronx in the late 1950’s, I was very much a child of the 1960’s, and grew up determined to be part of the generation to end discrimination and ensure equal opportunity for all. For me, the question wasn’t whether I would be a civil rights lawyer, but when. One of my best childhood friends and I committed to each other that we would become constitutional lawyers and change the world, and I had no intention of failing to fulfill my end of the bargain. [Note: he didn’t. He’s an appellate judge on the Federal Court of Appeals for the Third Circuit — the first person in his family to have graduated from college].

For me, my path was less direct — interrupted by living a nomadic life as a would-be Kerouac, writing poetry I naturally found worthy of Baudelaire, Rimbaud and Apollinaire, looking for the happiness hidden within Kierkegaard’s despair and pretending I understood Hegel’s dialectic. But eventually I found my way back to the law. Inspired by Foucault and his understanding of the inherently subjective nature of truth, I was a natural fit with the emerging school of Critical Legal Studies, and together with a few friends, quickly formed an association of fellow CRIT’s at the school, organized as the Existentialist Lawstudents’ Association. We held surreal film festivals and alcohol-fueled poetry slams. As an officially recognized school club, we required a faculty advisor. In our case, we had two: Peter Jaszi and Jamie Boyle. In an interesting twist of fate, Peter and I introduced Jamie to copyright; Jamie and I radicalized Peter; and Peter and Jamie made it clear to me that my path was in navigating the intersection of art, creativity and the law. My civil rights battle — one which I didn’t recognize at first, was to defend the ability of creators to be sustained from their craft. It has always animated me.

Over the years, Peter and I have developed quite different ideas about the appropriate role and contours of copyright, and we frequently find ourselves on different sides of arguments about the scope of protection and permissible exceptions, particularly as they relate to fair use. As a consequence, much as I love Peter as a person, we tend to find little in common from a policy perspective. But I fear I have gotten quite far afield. I didn’t intend to sit down to write my story, but to reflect on this year’s speaker — Margaret Chon. The reason for this lengthy preface, however, was to lay the foundation for observations about Chon’s vision, and how it merges in some ways aspects of my thinking of copyright as a tool of empowerment and an important feature of the modern civil rights struggle of the individual to preserve her identity in the digital age, while also expressing some concerns about the potential for copyright to restrict expression.

Most copyright minimalists — a category in which I would generally include Professor Chon, tend to interpret the Constitutional basis of copyright (Article 1, Section 1, clause 8) as premised on an economic quid quo pro between the public on the one hand and the individual author on the other. The more expansive view— and one to which I subscribe, is that the Constitution embraces a much more fulsome approach to the protection of authorship in the public interest, grounded in natural law as well as utilitarianism. See for example this excellent piece by Eric R. Claeys entitled: Labor, Exclusion, and Flourishing in Property Law, or my less insightful (but shorter) piece entitled: In Honor of Constitution Day: Article 1, Section 8, Clause 8 and the Pursuit of Happiness. Professor Sean O’Connor has also recently published a fascinating piece entitled: The Multiple Levels of ‘Property’ in IP and Why That Matters for the Natural Versus Regulatory IP Debates: “The intellectual property field is polarized between what are variously called skeptics or minimalists, on the one hand, and pro-IP or maximalists, on the other. An important skein in this debate is as between those who view IP as purely regulatory law and those who view it as natural property. The former hold IP rights to be malleable creations of the state that exist only to generate an optimal supply of inventions and creations; any stronger rights are seen as harmful. The latter hold IP rights to be fundamental property that should be protected as other natural rights. This article argues that the two camps are talking past each other because they are focused on different levels of “property” in things we think of as IP.”

In any event, Professor Chon’s recognition that the application of a purely economic utilitarian model for copyright undermines societal interests, regardless of whether she herself would frame copyright as resting on natural rights theories, is worthy of careful consideration; and her warning to avoid the “adoption of a formalist approach to copyright that isolates its instrumental purpose to the singularity of promoting commercial activity without regard to its role in generating many other social benefits and costs” should be heeded.

I was particularly interested in a 2016 article entitled “Copyright’s Other Functions.” At the outset, she expresses a view that, to my way of thinking, misunderstands that fundamental nature of copyright. She writes: “As a not unforeseen part of the statutory bargain, copyright holders hold a governmentally granted means to prevent others from exercising full expression. Speech is primarily impacted by copyright when the defendant is proven to have infringed the plaintiff’s protected work. In that case, the danger to the expressive freedoms of the defendant can be mitigated by copyright safety valves (or policy levers) such as the scope of protection (narrowed by the idea/expression distinction, for instance), applicable defenses (such as fair use), and (hopefully) a reasonably limited term of protection. This logic is how the tension between copyright and the First Amendment is usually resolved.

I don’t want to spend too much time debating my points of disagreement with Professor Chon, but I will point out that this is a strained telling of the relationship between the First Amendment and copyright given that the Supreme Court has, on a number of occasions, clearly articulated the absence of tension between copyright and the First Amendment. The Supreme Court decision in Eldred v. Ashcroft is particularly on point:

“That Amendment [the First] and the Copyright Clause were adopted close in time. This proximity indicates the Framers’ view that copyright’s limited monopolies are compatible with free speech principles. In addition, copyright law contains built-in First Amendment accommodations. See Harper & Row, 471 U.S., at 560. First, 17 U.S.C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author’s expression. Harper & Row, 471 U.S., at 556. Second, the “fair use” defense codified at §107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes. “Fair use” thereby affords considerable latitude for scholarship and comment, id., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569… The First Amendment securely protects the freedom to make — or decline to make — one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

Given this legal background, it is curious, to say the least, to refer to copyright as providing “means to prevent others from exercising full expression,” unless “full expression” isn’t grounded in any social, civic or legal context, in which case it is both meaningless and misleading anyway. But again, I digress. For having expressed a very skeptical and unduly narrow view of the Constitutional underpinnings of copyright, Professor Chon nonetheless devotes her piece to how copyright, unhinged from a purely economic utilitarian premise, can serve as a mechanism to address various harms if we avoid being overly formalistic — how copyright, and its inherent protection of privacy (that which one does not wish to share), can be the foundation of digital civil rights. To that, I say, “hear, hear.” I find it particularly interesting that, like Professor Danielle Citron, she focuses on how a purely economic utilitarian model fails to serve the interests of victims and the less powerful segments of society. The embrace of what is essentially a natural rights approach to copyright that recognizes that the expectation of privacy falls within its ambit — particularly coming from someone who expressly avows a skepticism about copyright, is highly welcome.

I have attached below a few key excerpts from her paper, but I encourage everyone to read it in its entirety. There is, as noted, much with which I disagree, and which I think mischaracterizes the nature of copyright. But there is also much to celebrate, and many common themes in our individual quests for justice — economic and/or moral.

“The use of copyright law to address non-consensual porn squarely raises the question of whether it a distortion of copyright or whether this a natural evolution of copyright’s underlying policies in response to the sweeping scale of digital networks. Yet addressing privacy harms is well within the accepted historical, and therefore current, functions of copyright, particularly regarding unpublished works. And the use of copyright as one tool (among others) in knowledge governance and policymaking is essential in ubiquitous digital networks…

Furthermore, in Harper & Row, the U.S. Supreme Court grappled squarely with the potential conflict between the First Amendment and copyright in unpublished works by a public figure. The Court’s majority clearly expresses that privacy concerns are not only historically compatible with copyright, but also embedded within the current copyright statutory framework.

The Harper and Row Court further states, “freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” “Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.” Moreover, in the Court’s earlier Stewart v. Abend decision, the Court (again through Justice O’Connor) emphatically stated that “nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright. In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work.” The conclusion from both historical and current case law is that copyright’s commercial purpose is absolutely consistent with functions such as privacy protection, and can survive First Amendment scrutiny.

Copyright’s other function to further Internet privacy is a response to this systematic valorization (and conversely devaluing) of certain legal and social categories. The assumptions that “progress” can only be expressed through the smooth functioning of market mechanisms reinforces, and even magnifies, the structured nature of economic, gender and other forms of inequality. Intellectual property, as I have argued elsewhere, operates within a larger frame of human flourishing.

This approach of incorporating copyright’s other functions into the mainstream of copyright instrumentalism also reflects a critical and structural inquiry into copyright’s larger goal of “progress of science.” Cyber harassment of all kinds, including non-consensual porn, has reached epidemic proportions and affects multiple vulnerable populations. The largely, although not entirely, gendered nature of the harms of non-consensual porn which disproportionately affects women as victims, must be acknowledged. To do otherwise would result in the adoption of a formalist approach to copyright that isolates its instrumental purpose to the singularity of promoting commercial activity without regard to its role in generating many other social benefits and costs.”