To Speak, Perchance to Have a Dream: the Malicious Author and Orator Estate as a Critique of the Digital Millennium Copyright Act's Subversion of the First Amendment in the Era of Notice and Takedown

• Publication year: 2014

To Speak, Perchance to Have a Dream: The Malicious Author and Orator Estate as a Critique of the Digital Millennium Copyright Act's Subversion of the First Amendment in the Era of Notice and Takedown

Michael Bradford Patterson

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Patterson: To Speak, Perchance to Have a Dream: The Malicious Author and Ora

TO SPEAK, PERCHANCE TO HAVE A DREAM: THE MALICIOUS AUTHOR AND ORATOR ESTATE AS A CRITIQUE OF THE DIGITAL MILLENNIUM COPYRIGHT ACT'S SUBVERSION OF THE FIRST AMENDMENT IN THE ERA OF NOTICE AND TAKEDOWN

Michael Bradford Patterson^*

TABLE OF CONTENTS

I. INTRODUCTION..........................................................................................179

II. BACKGROUND.............................................................................................181

A. BASIC RIGHTS OF COPYRIGHT HOLDERS.........................................181
B. DEFENSES TO COPYRIGHT CLAIMS UNDER § 106........................... 182
C. PROTECTION OF AUTHOR AND ORATOR ESTATES........................ 183

1. Martin Luther King Estate..............................................................183
2. J.D. Salinger Estate.........................................................................184
3. James Joyce Estate.............................................................................186

D. MODERN COPYRIGHT AND FIRST AMENDMENT CONCERNS...... 188

1. Sonny Bono Copyright Term Extension Act.....................................188
2. Eldred v. Ashcroft........................................................................189
3. Golan v. Holder............................................................................191

E. NOTICE AND TAKEDOWN—DIGITAL MILLENNIUM COPYRIGHT ACT...................................................................................193

1. The Basics of Notice and Takedown.................................................193
2. Notice and Takedown in Practice......................................................194

III. ANALYSIS......................................................................................................195

A. THE SAFE HARBOR PROVISION CREATES INCENTIVES FOR COPYRIGHT HOLDERS TO SUPPRESS MATERIAL THAT MAY NOT INFRINGE ON COPYRIGHT........................................................195
B. THE MECHANISMS ALLOWING UPLOADERS TO PROTECT THEIR CONTENT ARE INADEQUATE................................................ 196

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1. The Fair Use Defense Online...........................................................196
2. Burden-Shifting.................................................................................198

C. ESTATES ARE SPECIAL CASES.............................................................198
D. FIRST AMENDMENT CONSIDERATIONS OF COPYRIGHT...............200
E. SOLUTIONS............................................................................................203

1. Modified Licensing System................................................................203
2. Remove Safe Harbor/Increase the Requirements of the Provision for Internet Service Providers..............................................................205
3. Alternative Proposals........................................................................206

IV. CONCLUSION...............................................................................................206

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I. INTRODUCTION

The "I Have a Dream" speech¹ —one of the most influential and immediately recognizable speeches of the twentieth century—is a profoundly moving oration that galvanized a nation. However, if a video of the speech was posted online without permission of the copyright owner, it would be removed—likely by using a takedown notice.² The power that a deceased author's estate has over the author's copyrighted works long after death can have severe consequences on anyone who posts them online, and can have a chilling effect on free speech.³ As Bill Rutherford, the executive director of the Christian Leadership Conference, said, "I think Martin Luther King must be spinning in his grave . . . he gave his life for his ideas of justice, peace and love. He attempted his entire life to communicate ideas for free. To communicate, not to sell."⁴ Though this assertion is undercut by the fact that King himself established a copyright over "I Have a Dream" shortly after his speech, the fact remains that someone would likely have to pay twenty dollars to view the speech legally in its entirety, by purchasing the DVD.⁵ Today, the rights to the video of the speech are held by EMI Music Publishing, a music publishing company, which means that video footage of the speech cannot be uploaded without EMI's permission.⁶ The King Estate is not alone; throughout the past 100 years, many other estates, such as the James Joyce and J.D. Salinger estates,⁷ have leveraged copyright to sell rather than disseminate the famous words of their forebears. With the onset of takedown notices, the power that estates hold over public discourse is greater than ever. The ability of the estates of

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authors and orators to pull speeches, letters, and biographies down from the public sphere has grown past the level considered by the Supreme Court only eleven years ago when they held that the Copyright Term Extension Act comported with the First Amendment.⁸

I limit this inquiry to author and orator estates because inherent in this discussion is the idea that works created by authors and orators have distinct educational value. Though as a society we generally shy away from valuing different forms of speech, when copyright is abused online the effect may be felt disparately by those seeking to educate or create derivative works that may shine light on the original. For example, it is not beyond the realm of possibility that high schoolers would be better educated by viewing the video of the "I Have a Dream" speech rather than reading it in their textbook. Dissemination through video is a powerful medium that is threatened by our current Digital Millennium Copyright Act (DMCA) system.⁹

It's unsurprising that estates zealously attempt to protect the copyrights they hold: The estate of a dead celebrity can be extremely lucrative.¹⁰ For instance, in 2012, Michael Jackson's estate raked in $145 million, while Elizabeth Taylor's estate was able to make $210 million.¹¹ Entertainers are not the only people who make money long after they are dead—Charles Schultz, the creator of the Peanuts comic strip characters, made $37 million in 2012.¹²

Because estates have the potential to make great sums of money after the creator of the work is dead, they have a vested interest in keeping that work secure and profitable. The internet is still relatively young and has transformed the way that we transmit information and display our created works. It only makes sense, therefore, that there is a legal mechanism in place allowing rights holders to assert copyright claims over material posted online. However, the current system is one that encourages bad copyright claims by "malicious" estates, and chills free expression on the Web.¹³ Moreover, the DMCA's notice and takedown system inherently fails to record how often these negative effects

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occur. The system, which pulls material off the Web, also disincentivizes content uploaders from fighting back or litigating a fair use defense against a copyright holder.¹⁴ Thus, many of the "chilling effects" are felt, even if not seen directly. However, the estate cases highlighted above are indicative of the underlying problem online as this Note will further discuss.

Part II of this Note will discuss the United States copyright law landscape, from its origins in the Constitution to its current state on the internet, including a discussion of two Supreme Court challenges (Eldred v. Ashcroft and Golan v. Holder) to modern copyright laws. Part III will analyze how the considerations the Supreme Court took into account in those cases have been warped by our current DMCA system. In order to protect these First Amendment considerations, several solutions will be discussed, including a modified licensing system, an automation of the DMCA system, and several proposals from legal commentators.

II. Background

This section will discuss the current copyright landscape, beginning with basic rights of copyright holders. The discussion will then turn to defenses to copyright claims under section 106 of the Copyright Act. Next, three estates will be presented as examples of how estates wield great power in our current copyright system. Two challenges to our current copyright system, Eldred v. Ashcroft and Golan v. Holder will be used to illuminate the First Amendment considerations of copyright law. Next, a discussion of the DMCA will show how our copyright protections often operate on the internet.

A. BASIC RIGHTS OF COPYRIGHT HOLDERS

The United States Constitution itself provides the origins of copyright law by granting Congress the power to "[P]romote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."¹⁵ The rights of copyright holders are codified in section 106 of the Copyright Act.¹⁶ These protections begin from the instant an author fixes a work in a tangible medium of expression (such as a writing, drawing, sculpture, etc.) so long as the work is

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sufficiently original.¹⁷ Copyright protection for a work lasts for the life of the author, plus seventy years after the death of the author.¹⁸

The Copyright Act grants several exclusive rights to authors.¹⁹ First, the right of reproduction is arguably the most important protection afforded author and orator estates, and violations of this section lead to many lawsuits. Copyright holders also possess the right of adaptation—or "derivative works."²⁰ This right requires those who write something based on a novel or play to get the creator's permission to...