Freedom of speech and independent judgment review in copyright cases.

• Author: Volokh, Eugene

Copyright law restricts speech. It restricts what writers may write, what painters may paint, what musicians may compose. It prohibits not only slavish copying, but also creation of entirely new works, so long as those works use--even if only in part--another's expression.(1) Of course, the Supreme Court has held that copyright law is a valid speech restriction.(2) Because the law stimulates entry into the marketplace of ideas, and because the law prohibits only the use of others' expression, not their ideas or the facts they've uncovered, the Copyright Act(3) doesn't violate the First Amendment.

Nonetheless, as the Court has time and again held, certain procedural safeguards must accompany even substantively valid speech restrictions. One such safeguard is independent judicial review, by appellate courts when reviewing a verdict and by trial courts on motions for judgment notwithstanding the verdict or for summary judgment. Under Bose Corp. v. Consumers Union of United States, Inc.,(4) appellate courts may not just turn over vague phrases such as "actual malice," "incitement," or "expression, as opposed to idea" to factfinders, and then defer to the factfinders' conclusions about what constitutes libel, incitement, or copyright infringement. Instead, courts must "conduct[] an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited."(5) Lower courts have properly accepted this principle for trial court review on motions for summary judgment and for judgment notwithstanding the verdict.(6)

In theory--a theory the Supreme Court has accepted as a principle of constitutional law--such independent review prevents prejudiced or erroneous deprivation of constitutional rights by factfinders.(7) If a factfinder erroneously concludes that your book infringes someone else's book, the factfinder hasn't just made a legal mistake: It has made a mistake of constitutional magnitude, and has deprived you of your First Amendment right to write your own expression, even when based on another's idea. Courts must, Bose holds, protect against such mistakes by policing factfinders' decisions.

Beyond this, independent review is also supposed to help prevent future mistakes by making the lines in free speech law clearer and more administrable. Judicial review is part of the "evolutionary process of common-law adjudication" that "give[s] meaning" to legal rules.(8) As courts see more cases of a particular type, they can refine the line between protected speech (such as non-obscene art, innocent error, or copying of ideas) and unprotected speech (such as obscenity, punishable libel, or copying of expression). They might create new subrules that clarify the meaning: of the rules, for the benefit of both future courts and future speakers. Or they might provide benchmarks against which future courts can compare and contrast new fact patterns.

In Part I, we explain why Bose compels independent review of "substantial similarity of expression" determinations.(9) Though the great: majority of circuits have held, without considering free speech issues, that such determinations should be reviewed only for clear error,(10) we believe these circuits are mistaken. The doctrinal demands of Bose are quite clear. In Part II, we argue that there is nothing special about copyright cases that would justify departing from the independent judgment rule. In light of this, giving copyright law a free ride not given other speech restrictions is wrong and corrosive of people's respect for free speech generally.

In Part III, we ask whether this result--and Bose itself--makes sense. The Supreme Court's "First Amendment due process"(11) jurisprudence has been a pragmatic, largely seat-of-the-pants, judgment about the real world impact of various procedural devices, be they independent review, punitive damages, or what have you. Could Bose be mistaken, either as applied to copyright law or generally? Has the Court gone too far in constitutionalizing procedure as well as substance in free speech cases? Should it return to treating speech-based claims the same way that other claims--negligence claims, contract claims, and the like--are treated?

We believe that the Court's judgments are probably correct: The error-correcting and law-clarifying benefits of independent review exceed the costs imposed on the system and on litigants by the increased likelihood of appeals. Nonetheless, it is important to think skeptically about such broad but unproven judicial pronouncements regarding the likely effects of law (here rules of judicial review) on human action (here decisions by lower courts and by creators). If people believe that independent review is inappropriate in copyright cases, this might be an opportunity to rethink Bose generally.

Finally, in Part IV, we suggest that lawyers and scholars should consider whether other "First Amendment due process" rules--rules that, for instance, require proof by clear and convincing evidence or limit the availability of punitive damages--likewise apply to copyright cases. This issue deserves more attention than it has so far received.

1. WHY INDEPENDENT JUDGMENT REVIEW IS MANDATED

   1. Freedom of Speech and Copyright

      Copyright law restricts speech. It restricts you from writing, singing, painting, or otherwise communicating what you please.(12) If your speech copies ours, and if the copying uses our "expression," not merely our ideas or the facts we have uncovered, your speech can be enjoined and punished, civilly and sometimes criminally.(13) And copyright law applies to creative adaptation, not just to literal copying. Rap musicians are restricted from including "samples" of others' music in their own songs.(14) Artists are forbidden from creating artworks that are too similar to others' art.(15) Writers are barred from writing books--even books based on real events--whose plots are too similar to what others have done.(16) Copyright law is a serious restriction on speakers' ability to express themselves the way they want.

      Harper & Row, Publishers, Inc. v. Nation Enterprises(17) made clear that speech infringing another's copyright is not constitutionally shielded from copyright law. Copyright's limitation on speech that uses others' expression is justified because that limitation is itself an "engine of free expression": It "supplies the economic incentive to create and disseminate ideas."(18) At the same time, the Court strongly implied that this rationale would not justify restrictions on speech copying facts or ideas. The Court characterized "the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas" as a "First Amendment protection."(19) It pointed out that "[n]o author may copyright his ideas or the facts he narrates,"(20) and cited Justice Brennan's statement in New York Times Co. v. United States(21) that copyright laws are constitutional because they "protect only the form of expression and not the ideas expressed."(22) And the Court stressed that it would be an "abuse of the copyright owner's monopoly" for copyright law to become "an instrument to suppress facts."(23)

      Harper & Row thus suggests that the line between using others' expression and using their ideas is of First Amendment significance. Speech communicating facts and ideas using expression that is substantially similar to someone else's expression is constitutionally unprotected.(24) Speech communicating the same facts and ideas in other ways, however, is constitutionally protected.(25) And such a dividing line makes good constitutional sense: The free speech principle may tolerate certain limits on how someone expresses an idea or a fact, but--whether one sees the principle as primarily concerned with protecting self-expression, with fostering democratic discourse, or with guarding the marketplace of ideas--it cannot tolerate restrictions on communicating ideas and facts as such. When you express an idea someone else pioneered or discuss facts that others have uncovered, you might be free riding on their hard work, but it's a free ride we must allow.(26)

   2. Freedom of Speech and Appellate Review

      Speech that copies another's expression is not, of course, the only category of speech unprotected by the Free Speech Clause.(27) Fighting words, obscenity, and libel, for example, are also generally unprotected. For each category, the Court has set forth rules defining the category's boundaries: Defamatory statements about public figures, for instance, are actionable only if made with "actual malice"--knowledge or reckless disregard of their falsity.(28) But these rules are not self-explanatory, and it's not enough for appellate courts just to announce the rules and leave them to judges and juries to apply. As the Bose Court wrote:

      Providing triers of fact with a general description of the type of

      communication whose content is unworthy of protection has not, in

      and of itself, served sufficiently to narrow the category, nor served to

      eliminate the danger that decisions by triers of fact may inhibit the

      expression of protected ideas.(29)

      Therefore, the Court has held, courts must independently review judgments that a certain statement is unprotected. In part, this simply prevents unconstitutional results: Because erroneous denial of constitutional protection is a violation of constitutional rights, courts must "exercise [independent] review in order to preserve the precious liberties established and ordained by the Constitution."(30)

      But beyond that, independent review is also supposed to make the rule clearer for future cases. Independent review should help "confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected...