FC: Paul Levy's rejoinder over RIAA v. Verizon & First Amendment

[Declan McCullagh <declan () well com>]

Previous Politech message:
"Responses to Public Citizen on RIAA v. Verizon case"
http://www.politechbot.com/p-04756.html

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Date: Tue, 20 May 2003 09:23:51 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: Re: FC: Rejoinder from Paul Alan Levy on RIAA v. Verizon case

Cindy Cohn's email makes two main points:  first, many many
organizations joined her brief, and second, it would be the better rule
if a copyright owner had to bring a lawsuit before it could get a
subpoena issued.

We decline to be impressed by the former argument (which Dave McCurdy
repeats, as does Seth David Shoen though he spares us the full listing
of endorsers -- and what a glorious listing of friends they have!).  I
rather doubt that many courts are impressed by the inclusion of long
lists of amici on a brief.  It is easy to sign people up for a brief
that takes a politically satisfying stance, but so what?   Howard
Roark's correctness or lack of correctness was not affected by the
number of famous or important people who disagreed with him.

The problem with the second argument is that the Court of Appeals is
not free to substitute its judgment for Congress' about whether Cindy's
is the better rule.  The question is whether the statute that Congress
passed violates the Constitution.  We filed our brief because although
some of the constitutional arguments that Verizon made seemed
superficially attractive when I was first asked to argue them in an
amicus brief, but in the end we thought it was unlikely that the
arguments would prevail (if I was wrong, and they do prevail, fine).
Having reached the conclusion, it made sense to offer the court a way in
which it could accommodate the First Amendment and Due Process concerns
that we share with EFF, pertaining to subpoenas issued and enforced
without notice to the Internet user, without invalidating on its face a
statute that was passed to address what Congress regarded as a real
problem.

Karl Auerbach makes a different point - that under our theory, the
publication of the Pentagon Papers could have been blocked under
copyright law, and copyright law should allow awards of damages but not
injunctions against publication.  Karl is wrong in his example, because
the federal government cannot copyright its publications (see section
105 of the Copyright Code), and he is also wrong about the remedies
available for copyright violations.  (see section 502, expressly
authorizing injunctions).

At the risk of going off on a tangent, the real threat of government
suppression of documents like the Pentagon Papers comes not from the law
of copyright but from the law of contract.  A few years ago I had
occasion to represent a retired CIA official who was barred from
publishing an analysis of the Bay of Pigs fiasco that he had prepared.
We argued that this was really the government trying to pursue a
copyright theory, which was forbidden, but the DC Circuit upheld the
ruling against our client on the ground that the government COULD
enforce his secrecy agreement through required pre-publication review.
We made just the sort of arguments that Karl suggests, in contending
that the secrecy agreements could allow the government to evade the rule
against federal copyright, and it got us exactly nowhere.

Karl also takes the Public Citizen press release to task for "blandly
accepting" an assumption that copyright law extinguishes First Amendment
rights.  We actually did not accept the proposition that a mere
allegation of copyright infringement is enough to make it unnecessary to
consider the First Amendment -- disputing that proposition is the main
point of our brief -- but the problem with Karl's note is a deeper one.
The Supreme Court keeps telling us that fair use analysis and other
elements under the copyright laws incorporate First Amendment rights,
and hence there is no room for First Amendment arguments in addition.
Now, there have been some tantalizing tidbits in the occasional opinion
that keep giving the free speech bar hope that some First Amendment
claims might be tenable even when a copyright defense is not, or perhaps
that copyright law might have to be construed in light of the First
Amendment -- there was a passage in the recent 11th Circuit decision
addressing the copyright-based preliminary injunction against
publication of "The Wind Done Gone", and a nice sentence in the Eldred
opinion.  (There is a nice discussion of some of these tantalizing
prospects published today by in Margie Schweitzer's
http://www.jurisnotes.com/fourquestions.htm) article by Peter Yu).
But these are very tough arguments.  It would, in our judgment, a
mistake to predicate the approach to DMCA section 512 on the assumption
that such arguments are going to prevail.

Maybe there is a situation in which the First Amendment would bar an
injunction against a copyright infringement, but if so that argument
could be raised in defense of the subpoena.  On the other hand, I rather
doubt that the various people who might be identified for substantial
violations of the copyright laws through file-sharing are worried about
the possibility of being enjoined as much as they are worried about
being socked for statutory damages.

I have said all I care to say in response to  Brad Templeton's
interesting comments, thank you for including them in your message.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html




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