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

• Author: Chiang, Tun-Jen
• Position: III. Applying the Property Theory to Copyright Law C. Payoffs through Conclusion, with footnotes, p. 551-577

3. Payoffs

   So what are the payoffs of applying the property theory to copyright? Initially, the payoffs are descriptive. As this Article has explained, the property theory provides a coherent framework within which to view the existing law. It explains both why copyright is generally exempt from First Amendment scrutiny (because it is a property system that is content and viewpoint neutral at the systemic level), as well as why this exemption is conditioned on the continued existence of the idea/expression dichotomy and the fair use defense (because those doctrines provide an essential safeguard against overwhelming ownership power). In this way the property theory provides an explanation for all the major elements of the modern doctrine surrounding the relationship between copyright law and the First Amendment.

   Beyond simply providing a descriptive understanding, the property theory has an implication for the scholarly literature: it provides a refutation of the critique that the copyright exemption is an exceptional and unprincipled carve-out from the larger body of First Amendment jurisprudence. What the property theory illustrates is that, properly understood, courts have not treated copyright as a "giant First Amendment duty-free zone" (143) and have not given it "sui generis" treatment. (144) Instead, copyright has been subject to the same limitations as any other system of property.

   Another important point here is that the property theory is not the absolutist copyright-expanding theory that its critics suppose. As I have explained, the property theory does in fact have internal limits that protect free speech interests. This is important because it holds out some potential for reconciliation between the opposing viewpoints in this debate. (145) At a fundamental level, the critics' ultimate position does not appear to be that all copyright protection is categorically unconstitutional (a position that really is incompatible with the property theory), but only that existing law strikes the balance too much in favor of copyright holders. (146) Nothing in the property theory, however, dictates that copyright protection must be broad. The fact that judges have applied the property theory in a copyright-expanding manner says more about the ideological leanings of the current federal judiciary than it does about the property theory--judges who are ideologically inclined towards broad copyright holder rights can reach that outcome whatever the formal level of scrutiny. (147) If the ultimate goal of those attacking the property theory is to achieve narrower copyright rights, (148) then my analysis suggests that they are aiming at the wrong target.

   To be sure, there are two differences between the property theory and the critics' preferred approach. The first difference is the relevant legalistic label. My approach uses the internal doctrines of copyright law to modulate the balance between private ownership and free speech values, while the critics would generally prefer to use something external to copyright law--such as direct application of First Amendment scrutiny--to do so. (149) Although this is largely a labeling difference, the labels do matter, and they lead to the second difference: as a practical and political matter, courts are likely to be more protective of copyright owners if the inquiry is done under the internal rubric of the idea/expression dichotomy and fair use, (150) while they are likely to be more protective of free speech values if the inquiry is done under the external rubric of strict scrutiny. This is because there is a subtle shift of the mental baseline: framing the issue under the rubric of copyright law naturally presents free speech policy concerns as a limited exception to more general copyright rights, while framing the issue under the rubric of First Amendment law naturally presents copyright policy concerns (e.g., the need for incentives to create new works) as a limited exception to more general free speech values. (151)

   But while there is a rhetorical and political difference, there is no logical difference between the two framings. At bottom, both approaches accommodate a balance between copyright policy concerns and free speech policy concerns. And if the critique of the property theory is no longer based on logic and principle but is instead solely about the likely political effects, then much of the force of the critique dissipates.

   4. ADDRESSING OBJECTIONS

1. Copyright Is Not Property

   The most frequent objection that I have received from commentators is that copyright should not be considered "property," and thus comparing copyright to the First Amendment treatment of tangible property is misguided. Given that there is a longstanding debate among property theorists over whether copyright should be considered property, (152) my assumption on this point may appear to be an unsubstantiated leap of logic.

   My response is that I assume copyright is property because the proponents of copyright's unconstitutionality generally make the same assumption. And this assumption is crucial to their argument. Without the assumption that copyright is property, the conventional argument against copyright's constitutionality cannot be sustained.

   This requires some explanation. As a predicate matter, it is important to understand that the conventional argument against copyright's constitutionality is doctrinal in nature. The argument is that copyright is unconstitutional under the letter of standard First Amendment doctrine, not its underlying policy rationale. (153) Jed Rubenfeld explicitly acknowledges this facet of his argument, (154) but it is implicit in those of other critics as well. For example, Lemley and Volokh argue that copyright is content discriminatory and thus should be subject to strict scrutiny, invoking the doctrinal rule that content discriminatory laws are subject to strict scrutiny. (155) But they do not look to the underlying policy rationale for this rule; doing so would undermine their argument. The policy rationale for the rule that content discriminatory laws are subject to strict scrutiny is that it serves as a prophylactic measure against the possibility of viewpoint discrimination--once the government looks at the content of a communication, it might then be able to protect favored views and censor disfavored views. (156) But even Lemley and Volokh acknowledge that copyright is not viewpoint discriminatory, (157) so if the argument depended on underlying policy, there would be little reason to find copyright unconstitutional. The critics' argument is that one should follow the black letter rule without ad hoc policy analysis, (158) because doing otherwise creates an unprincipled and results-oriented carve-out that invites every special interest group to make policy arguments supporting their own little pet carve-outs. (159) This is what the critics mean when they criticize "[c]opyright [e]xceptionalism." (160)

   I fully agree with this doctrine-based approach. Not only is a First Amendment policy analysis prone to interest group lobbying concerns, in the context of copyright's constitutionality it also runs straight into a theoretical and empirical impasse. In a policy debate, the argument against copyright's constitutionality ultimately must be that--as a matter of first principles and without piggybacking on doctrine--copyright law violates the "correct" free speech balance between authorial incentives to create original speech and subsequent access to that speech. (161) The argument in favor of copyright's constitutionality must likewise ultimately be that current copyright law reflects the "correct" balance or falls within some zone of congressional discretion. (162) The theoretical questions are daunting because one's views about how to define the "correct" balance (and the zone of congressional discretion, if any) depend on one's theory of constitutional interpretation, which is a source of perennial disagreement. The empirical questions are practically impossible to resolve because nobody really knows even what the real-world balance in today's copyright regime is, (163) let alone what the balance would look like in a counter-factual world with stronger First Amendment scrutiny. Given these unresolved predicates, the policy argument is unlikely to be resolved anytime soon. The only analytically sound argument that can be made against copyright's constitutionality, given the existing state of knowledge, is one based on doctrine. (164)

   Given the doctrinal premise, (165) the critics of copyright's constitutionality must assume that copyright is property. As a matter of doctrine, the status of copyright as property is well settled. (166) It is true that property scholars continue to debate the question as a matter of theory and policy. But the critics of copyright's constitutionality cannot make free-floating arguments based on theory and policy--at least not without contradicting the premise of their main argument.

   Procedural objections aside, I have no substantive objection to an argument that copyright should not be considered property as a matter of free-floating theory and policy. The debate over whether copyright is property is far too complex for me to resolve here. My point is purely about consistency. If a critic argues that copyright is not property based on first principles (and contrary to standard doctrine), then that critic must also argue that copyright is unconstitutional based on first principles, without piggybacking on standard doctrine. Given the numerous theoretical and empirical quagmires, I do not believe the latter argument has been convincingly made.

   There is one final point to add. Even if one believes, as a matter of first principles, that copyright ought not be considered property, my argument is still important because it provides a limited defense of judges and their actions. If the only objection to my analysis is...