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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 hate-
filled 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.
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 247
I. 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 third-
world 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 Revis ited: 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”).