The New ©ensorship

• Author: John Tehranian
• Position: Irwin R. Buchalter Professor of Law, Southwestern Law School
• Pages: 245-295

The New ©ensorship John Tehranian ABSTRACT: Copyright law has become the weapon par excellence of the 21st-century censor. Fueled by a desire to prevent one’s perceived foes from making certain types of speech, an individual has no better friend. Copyright violations are ubiquitous. Liability can be massive. Copyright suits are difficult to fend off. And, perhaps most saliently to the sophisticated censor the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses. Whether it is a creationist group using the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists, abortion-rights activists using copyright law to enjoin speech by pro-life forces, or a political commentator vindicating his exclusive rights to recordings of his shows to suppress criticism of a hatefilled rant, examples of this disingenuous use of copyright law abound. After surveying the growing use of copyright law for the purposes of censorship, this Article examines just how this trend undermines both the vitality of our copyright regime and public discourse; how some courts have attempted to deal with this problem through the use of procedural machinations, including early adjudication of cases through motions to dismiss; and how the law might better respond as a whole to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to serve as a transparent proxy to censor cultural or political opponents.  Irwin R. Buchalter Professor of Law, Southwestern Law School. I would like to thank Peter Afrasiabi, Chris Arledge, David Fagundes, Eric Goldman, Lindsey Hay, and Deidré Keller for their helpful comments and suggestions. 245 246 IOWA LAW REVIEW [Vol. 101:245 I. INTRODUCTION ............................................................................. 247 II. THE RISING TIDE OF CENSORIOUS USES OF COPYRIGHT LAW ...... 252 A. COPYRIGHT AND CENSORSHIP: TWO HYPOTHETICALS ............... 253 1. How Copyright Law Can Make All of Your Online Reviews Positive ............................................................. 253 2. How Copyright Law Can Shut Down the Activities of Overzealous Activists................................................. 255 B. COPYRIGHT AND CENSORSHIP: THE GROWING THREAT ............. 258 C. COPYRIGHT AS CENSORSHIP AND THE TENSION BETWEEN INTELLECTUAL PROPERTY AND THE FIRST AMENDMENT ............ 262 III. THE FEDERAL COURTS’ RESPONSE: AN ASSESSMENT OF THE GOOD, THE BAD, AND THE UNAVOIDABLE .................................... 267 A. EARLY ADJUDICATION AND ITS LIMITS ...................................... 267 1. Evaluating the Merits on a Motion to Dismiss ............ 267 2. Bearing the Costs of Censorious Infringement Litigation........................................................................ 268 3. The Limits of Early Adjudication: Two Examples from the Military and Business Worlds....................... 270 B. THE DMCA SAFE HARBOR, EXTRAJUDICIAL RELIEF, AND THE CENSORSHIP PROBLEM ............................................................ 273 C. CENSORSHIP UNDER JUDICIAL IMPRIMATUR .............................. 276 IV. ADDRESSING THE COPYRIGHT-AS-CENSORSHIP PROBLEM ............. 278 A. DISTINGUISHING BETWEEN CENSORIOUS RESORTS TO COPYRIGHT LAW AND OTHER (POTENTIALLY ILL-ADVISED BUT NONETHELESS LEGITIMATE) ENFORCEMENT EFFORTS...................................... 278 1. Distinguishing Economic Interests from Censorious Motives: A Dancing Toddler and Harry Potter ............. 278 2. Distinguishing Dignitary Concerns from Censorious Motives: Separating Fiction from Fact ......................... 280 B. THINKING ABOUT REFORM ...................................................... 282 1. A Federal Anti-SLAPP Statute ...................................... 283 2. Section 512(f) Reform.................................................. 286 3. A New York Times v. Sullivan for Censorious Uses of Copyright ....................................................................... 288 V. CONCLUSION ................................................................................ 294 2015] THE NEW ©ENSORSHIP I. 247 INTRODUCTION It is a book. It poses no threat to national security. There is nothing particularly salacious or ribald about its content. It does not defame anyone, living or dead. Indeed, it is entirely fictional. And, if it were banned by a thirdworld dictatorship, we would be calling for economic sanctions against the country for such an outrageous act of censorship, writing letters of protest through Amnesty International, and characterizing its incarcerated publisher as a prisoner of conscience. Thankfully, we think to ourselves, it would not happen in a free society such as ours, with its guarantee of First Amendment protections and commitment to free speech. After all, in the United States, we protect even the most repulsive and dangerous forms of speech from prior restraint. Courts will not stop neo-Nazis from marching through the streets of an Illinois town so that they can spread their message of hate among a sizable population of Holocaust survivors, despite the significant threat of violence.1 And courts will not enjoin newspapers from publishing excerpts to sensitive, classified government documents acquired through the commission of a felony, despite the potentially grave national security concerns.2 Yet for all of our rhetorical solicitude to the freedom of expression, we are left with a curious fact that defies our expectations and, perhaps, even calls into question our very sense of the First Amendment: you cannot find this book in any American bookstore, since a court would give little pause about granting its publisher an unpleasant stay in a federal penitentiary. This book is really any work that constitutes a copyright infringement. In historical times, such a work would necessarily have been a pirated copy of someone else’s work—a scenario that does not seem to implicate serious First Amendment concerns since any defense by the infringer would involve the dubious right to make speech that is, by all rights, entirely someone else’s. In the past, after all, copyright law only protected against literal one-to-one reproductions.3 But the scope of copyright law has expanded dramatically, especially over the past century.4 Among other things, it now covers both literal and non-literal takings and, perhaps most importantly, grants copyright 1. See Nat’l Socialist Party v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977). 2. See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971). 3. See, e.g., Stowe v. Thomas, 23 F. Cas. 201, 207 (C.C.E.D. Pa. 1853) (No. 13,514) (holding that the unauthorized German translation of Harriet Beecher Stowe’s novel, Uncle Tom’s Cabin, did not constitute infringement because it was transformative and not a mere slavish reproduction). 4. See NEIL WEINSTOCK NETANEL, COPYRIGHT’S PARADOX 55 (2008) (“It has been largely since Congress enacted the Copyright Act revision of 1976 that copyright’s scope and duration have burst from their moorings, growing with unwonted precipitousness and force.”); Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright, 118 YALE L.J. 186, 230–31 (2008) (noting how, in the years following the Civil War and into the modern era, “the scope of copyright protection and the tests for infringement were expanded well beyond verbatim copying and came to cover increasingly abstract and remote zones of similarity to the protected work”). 248 IOWA LAW REVIEW [Vol. 101:245 holders the exclusive right to create any derivative—a concept that has systematically been defined expansively.5 As a result, works that contain much of one’s own speech and original content can constitute infringements, subject to both injunctive relief and damages if these works are deemed an unauthorized derivative—i.e., a work that draws upon underlying, preexisting content that belongs to someone else.6 Infringements, therefore, can encompass a musical composition with an original melody and original lyrics that happens to lift a bass hook from an old James Brown number;7 a movie with a unique setting and storyline that features a character from Star Trek;8 or, to take a recent example, a fanciful reverse postmodern bildungsroman where Holden Caulfield, now a 76-year-old on the run from a nursing home, confronts his creator, J.D. Salinger.9 Consider the outcome of this last case. In 2009 and shortly before his passing, infamous recluse Salinger came out of hiding, at least legally speaking, to seek an injunction restraining publication of the novel 60 Years Later, an unauthorized send-up of The Catcher in the Rye, purportedly authored 5. 17 U.S.C. §§ 101, 106(2) (2012) (granting copyright owners the exclusive right to prepare derivative works based upon the copyrighted work and defining derivative works expansively to constitute any “work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted”); see also Bracha, supra note 4, at 231 (“By the dawn of the twentieth century, the accumulation of specific entitlements and the expanding scope of protection would lead to the emergence of a general logic of derivative works in copyright thinking. Under this mode of thinking, copyright would be conceived of as the right to control any aspect of the intellectual work, irrespective of medium, format, or form.”); John Tehranian, Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal, 2005 BYU L. REV. 1201, 1248 (arguing that “the broad exclusive right of copyright owners to prepare derivative works has swallowed up the ability of...