Rehabilitating the property theory of copyright's First Amendment exemption.

• Author: Chiang, Tun-Jen
• Position: Abstract through III. Applying the Property Theory to Copyright Law B. The Idea/Expression Dichotomy and the Fair Use Defense Serve as Safeguards Against Overwhelming Ownership Power, p. 521-551

ABSTRACT

A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.

There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been harshly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a "non sequitur," because it supposedly implies that Congress can declare anything to be property and thereby circumvent the First Amendment.

This Article aims to rehabilitate the property theory. Contrary to its critics, the property theory does not say that anything labeled "property" is exempt, but rather contains two internal limits. First, the government-created rules of the property system must be content and viewpoint neutral, though the private enforcement of those rules can be viewpoint motivated. Second, even within the context of private enforcement, there must still be some protection against excessive ownership power. Understanding the property theory, including its internal limits, then provides a powerful legal justification for the Court's treatment of copyright law--one that is far better than what the Court has itself articulated.

INTRODUCTION

A longstanding issue in the copyright literature is the relationship between copyright law and the First Amendment. Copyright inherently restricts speech in the sense of prohibiting infringers from printing copyrighted books, selling copyrighted albums, or publicly performing copyrighted plays. (1) Notwithstanding this speech-restricting effect, however, the Supreme Court has repeatedly held that copyright is generally exempt from First Amendment scrutiny. (2) Many scholars have criticized this exemption as an unprincipled and unwise carve-out from ordinary First Amendment jurisprudence. (3) This Article seeks to defend the Court's doctrine against these criticisms, though it does so on grounds that are quite different from what the Court has itself articulated. As I shall explain, copyright is and should be generally exempt from First Amendment scrutiny because copyrights are a form of personal property, and the private enforcement of a property right is generally not subject to First Amendment limits.

This claim might seem obvious, but it runs against the scholarly consensus. (4) For example, Mark Lemley and Eugene Volokh call the property theory a "non sequitur," (5) while Jed Rubenfeld calls it an "unthinking defense" of copyright's constitutionality. (6) The unpopularity of the property theory is also reflected in the fact that, although the Supreme Court has rejected the challenge to copyright's constitutionality, it has done so entirely without reference to copyright's status as property. (7) Instead, the Court's rationale is based on the supposed intent of the Framers of the First Amendment. (8)

My goal in this Article is to explain why the property theory is far superior to the Framers' intent theory in providing a coherent framework to explain the Court's doctrine. (9) And I argue that the scholarly criticisms of the Court's doctrine in this area are mistaken. Before proceeding further, however, it is important to clarify what my argument is not about:

First, I make no claim about whether, as a matter of first principles, copyright should be considered property. My claim is only that, as a matter of constitutional law doctrine, the status of copyright as property is well settled, and I therefore take this status as a given for purposes of my analysis. On the deeper theoretical question I am agnostic.

Second, my claim does not endorse a Blackstonian view of property or of copyright. I am not saying that copyright's status as property means that it is subject to no First Amendment limits. Instead, a key part of my argument is that the property theory provides limits on copyright that critics of the theory have overlooked.

Third, my normative claim is limited. My argument is that, as a matter of doctrinal fit and coherence, the current copyright system complies with the general doctrinal principles of the First Amendment as they have been applied by the Supreme Court in other contexts. I am seeking to refute criticisms of copyright's First Amendment treatment that are based on a claim of doctrinal inconsistency; I do not seek to refute all such arguments categorically. In other words, I make no claim that current doctrine is the "best" interpretation of the First Amendment as a matter of first principles. Nor do I make any claim that, as a matter of fundamental copyright theory, the existing protections within copyright law best promote the progress of science or the balance of incentives and free speech. Those who wish to argue for weaker copyright protection as a normative matter--including those who wish to make this argument based on free speech values--will find no opposition from me.

Now that I have clarified the scope of my claim, here is a roadmap. In Part I, I first lay out the existing doctrine and explain the inadequacies of the Framers' intent theory. The existing doctrine is that copyright is generally--but conditionally--exempt from First Amendment scrutiny so long as it has a fair use defense and an idea/ expression dichotomy. The Framers' intent theory neither explains the general exemption nor the specific conditions. The theory cannot explain why modern copyright law, which is far broader and has a much longer term than anything the Framers could have imagined, is exempt. Nor can the theory explain why the exemption is conditioned on two legal doctrines that did not become part of American copyright law until after the Framers were all dead.

In Part II, I lay out the property theory, which says that enforcement of private property rights is generally--but not automatically--exempt from First Amendment scrutiny. I will place particular emphasis on explaining why the property theory does not mean that anything labeled "property" is automatically excluded from the First Amendment. The property theory has two important internal conditions that must be satisfied before it exempts the enforcement of a private property right from First Amendment scrutiny. The first is that the legal rules of the property system at issue must be content and viewpoint neutral, even if individual private enforcement might depend on the viewpoint of a defendant's speech. (10) Thus, the fact that Goldman Sachs might file a trespass suit against Occupy Wall Street protestors would not endanger the exemption of real property from the First Amendment, because the real property system as a whole is neutral in allowing all landowners to broadcast whatever message they like on their own property. But libel--often mentioned by the critics as an analogy to copyright (11)--is not exempt from First Amendment scrutiny, because the libel system itself is not viewpoint neutral: libel law punishes only criticism and not praise, and thus has a tendency to mute debate in favor of the status quo and those already in power. (12) For this reason, defamation law is not exempt from the First Amendment.

Second, even with regard to private case-by-case enforcement, there must be some protection of free speech in cases of overwhelming private economic power. This is most aptly demonstrated by the Supreme Court's decision in Marsh v. Alabama, (13) which held that First Amendment scrutiny applied to the private exercise of property rights when a company owned the entire town and exercised such pervasive ownership power that there was no reasonable alternative forum of expression for the town's residents. (14) As this example demonstrates, the property theory is neither formalistic nor inflexible: it does not automatically exempt something from the First Amendment merely because it is labeled "property."

In Part III, I apply the property theory to the specific context of copyright law. As this Part will discuss, the property theory explains both the general exemption of copyright law from the First Amendment (because copyright is mostly content neutral at the systemic level), and the specific conditions that qualify this exemption (the fair use defense and idea/expression dichotomy serve to guard against overwhelming ownership power). The payoff here is twofold. First, the property theory provides a coherent framework to understand the relationship between copyright and the First Amendment. Second, it refutes the common argument that copyright's First Amendment exemption is unprincipled and aberrational.

In Part IV, I consider and refute some remaining arguments against the exemption of copyright from the First Amendment. In particular, I address the arguments that copyright is a content discriminatory restriction on speech, that copyright is distinct from other property because it is non-rivalrous, that Congress can game the exemption to grant property rights over disfavored speech, and that, even under the property theory's own terms, a First Amendment privilege is required because current protection for free speech is inadequate. This Part explains why each of these objections is misguided.

In Part V, I discuss some of the limitations of the property theory. The property theory does not provide a complete defense of all of copyright law. Perhaps most importantly, it applies only to private enforcement of property rights, and thus it cannot defend copyright law's criminal provisions. I also briefly explore the implications and fit of the property theory as applied to other areas of intellectual property. A brief conclusion then follows.

1. THE COPYRIGHT EXEMPTION AND THE FRAMERS' INTENT THEORY

   1. Copyright's Exemption from the First Amendment

      Although formal...