This is my talk at the University of Michigan TEDx, before 1700 people at the Michigan Theater. Just up, so I’m posting it without commentary for now.
Received this nice email about my law review article discussing copyright and online television.
Re: Marvin Ammori, Copyright’s Latest Communications Policy: Content-Lock-Out and Compulsory Licensing for Internet Television, 18 CommLaw Conspectus 375 (2010)
Dear Professor Ammori and Editor:
The referenced article has been judged one of the best law review articles published within the last year in the fields of entertainment, publishing and the arts. As such, it has been selected for inclusion in the 2011 edition of the ENTERTAINMENT, PUBLISHING AND THE ARTS HANDBOOK, published annually by Thomson Reuters (West). This Handbook provides in-depth treatment and comprehensive coverage of the latest issues, regulations, legislation, and case law affecting the entertainment and publishing industries and the arts. As editor of that HANDBOOK, I am privileged to congratulate you on the selection.
Happy my article will be anthologized in an annual publication devoted to entertainment law and I thank the good folks at Thomson Reuters. I hope the republication will make the article available to some people who might not have otherwise come across it.
Looking forward to my talk, 4:15 pm, this Friday.
Here are the details of the event. Honored to be one of the speakers.
I got an email saying that my article was among the top ten most downloaded articles on SSRN, among constitutional and statutory articles, from January 31 to today. Turns out I’m not only in the top ten, I’m third.
Not bad for an article I posted only 12 days ago. It’s called First Amendment Architecture; it has received some great attention, and I am pushing its ideas.
Here is the full list.
Also, I visited Northwestern Law School yesterday, and saw a friend on the faculty there. His office looked very academic: books and stacks of papers everywhere. He pointed to the largest stack in the center of his desk, and said, “That’s your article on top.” So people are downloading, hopefully to read, believe, and spread the gospel.
Glad the ideas are getting out there, even in draft.
X-posted at Huffington Post.
Law professors have a lot of theories about what the First Amendment means, but the most “standard” theory is not very useful for addressing some of the most important free speech issues of our time–and that theory would even limit average Americans’ ability to speak with one another. To understand these theory’s frequent uselessness, consider that it does not really incorporate mass media, broadcasting, cable, and Internet laws. Nor does it usually incorporate rules ensuring that all speakers have access to government-owned public parks and streets. These areas of law are merely “exceptions” to their theories, revealing little about the First Amendment’s meaning.
To see the harm, consider what happens when scholars’ do turn to these exceptions. They suggest that government cannot interfere with the “unfettered” private market, even if government is acting to expand the spaces available for average Americans to speak with one another. Imagine government acts to ensure digital spaces are available to all speakers. Government could pass a law saying that phone companies cannot deliberately block phone calls; refuse to carry text messages; or block websites and speech technologies. According to the standard theory, these laws aiming to ensure access to digital speech spaces would violate the First Amendment, despite any argument that these laws promote free speech goals. These laws would supposedly violate the free speech rights phone (or cable) companies–to operate in an unfettered private market free of government interference. They claim “access rules,” which provide Americans access to media and telecom companies’ facilities, consist of dangerous government involvement.
That is, a side effect of scholars theories is to conclude that the First Amendment is not a bedrock for ensuring democratic discourse but a protection for the nation’s largest telecom and media corporations.
I address these issues in a (much longer) recent draft paper, and do so more briefly here. My thinking is influenced by (and in turn influenced) my work as the lead lawyer on a network neutrality case that Jeff Rosen called “a model for the free-speech battles of the future.” Tim Wu called this draft paper an “important work” and “fascinating,” but not everyone can read 70 pages of legal analysis. Here is the Cliff Notes, the version I tell at cocktail parties and indie rock shows.
The problem. Scholars’ standard theories rest on a few Supreme Court decisions. They read these decisions and draw conclusions about “what the First Amendment means.” They downplay the significance of decisions that conflict with these few, chosen opinions, and classify the conflicting decisions as mere “exceptions.”
The flaws with this approach would be obvious elsewhere. Imagine your “baseball theory” is that the Chicago Cubs win the World Series every October; years they win prove your theory, but years when other teams win are mere “exceptions” to the dominant theory. Or, imagine your physics theory is that the universe revolves around the Earth; the moon proves your theory, but the orbits of planets and galaxies are mere “exceptions” to the true theory.
Yes, it sounds a little odd. But that is what First Amendment theory looks like. A few cases prove the theory, while scholars admit many important areas are mere exceptions–from the Internet and broadcast to public streets and parks. And they are “exceptions” precisely because they disagree with the standard theory based on chosen cases.
The standard: theory. The chosen cases are certainly important–they include those protecting the speech of racists, flag-burners, funeral protesters, and other offensive speakers on public property. While protection for the “speech we hate” is very important, the First Amendment does far more than that. But, if you look only at those cases (and cases like them), the core principle of the First Amendment reflects a “negative liberty.” Negative liberty is a political science term meaning a liberty from government action. It is not a liberty to anything–like the liberty to meaningfully contribute to public debate or to have ample spaces for speech. If the core principle is negative liberty, then the First Amendment means government must stay out of the speech market. There are corollary principles (see pages 12-24 for the intrepid). But we can stick to negative liberty here.
But there are exceptions–laws with unusual orbits.
The exceptions: reality. I focus on particular, very important exceptions to test whether the First Amendment is–or should be–merely a negative liberty, rather than broader commitment to our democracy. Specifically: The right to free speech is meaningless without some place to exercise it. What does the First Amendment have to say about Americans access to speak and gather on physical spaces and on digital spaces? The standard theories of negative liberty sounds unconcerned with this issue. So long as government “stays out” and simply respects everyone’s private economic rights, people can speak wherever they have a right to speak.
The standard theories cannot explain reality–so much of reality is an exception to the theories.
Consider some of them.
All of these exceptions conflict with the idea that government must stay out of speech and cannot act to further the speech access of some Americans–even if it requires involvement in the speech market and burdening the property rights of some companies. Reality (or the actual law) conflicts with theory.
The theory dictates that the government need not, and must not, be involved in speech–neither in making physical or digital spaces, neither public nor privately owned spaces, available to Americans for speech. The theory dictates–as several leading scholars have in fact argued–that courts use the First Amendment to strike down any laws passed by congress or agencies that interfere with private speech rights by grant Americans access to “private property” like Internet or phone systems. (For the skeptical, see pages 4, 8-9, 18-19.)
The actual law tells a different story. It’s a more complicated story, just as understanding that stars and planets and moons have different orbits is more complicated than taking the earth as the center of everything. As I (painstakingly) argue, there are several themes and principles evident in the law and Supreme Court decisions that suggest government can provide access to many privately owned spaces for speakers, can require that those spaces be extended to all Americans, can ensure spaces for local and/or national discourse, and can ensure that these spaces carry diverse and antagonistic speakers. (For the curious, see pages 27-51.) The government’s discretion to ensure additional speech spaces also helps justify why the government must make at least streets and parks available: so the public can debate at least these issues, determining whether more spaces are necessary in our democracy.
Usually, when a theory conflicts with reality, the theory must give. Eventually, people will abandon a Cubs-centric baseball theory or an earth-centric physics theory. But, in law, theory can change reality: five Justices could accept the theory and change real law.
The Future of the First Amendment. Changing the law is exactly what scholars argue for. A legal change would align the law with their chosen theories of negative liberty.
What is most at stake in this change is whether the public can adopt laws expanding our access to physical and digital spaces, particularly now as the Internet is as central to American democracy as it is to other nation’s quest for democracy.
Take our example of network neutrality again. The standard theories suggest that government cannot ensure access to digital spaces because that would invite government to make decisions about who can speak that are usually left to the private market; that government would be interfering with the “editorial discretion” of cable and phone companies to “speak” as they wish with their own property, unfettered by government. In fact, when a net neutrality order came before an important federal court last January, a judge asked the lawyer for the affected company (Comcast) why Comcast wasn’t leading with its First Amendment arguments. That First Amendment argument, which follows directly from the standard emphasis on negative liberty, would have empowered Comcast to block technologies on the Internet (such as Miro’s) in the name of their own free speech rights. (See pages 4, 8-9.)
The Supreme Court has not followed this path. Indeed, it deserves to be commended–even now, with a court that does not always favor the free speech rights of the little guy–for upholding and encouraging government’s ability to promote spaces for all Americans to speak. And that the Supreme Court (and most lower courts) have resisted the temptations of this simple theory, in decision after decision, year after year, in medium after medium has been one of the more important and pro-democratic features of our current and past First Amendment. It should remain a key pillar of our law, informing our thinking about what the First Amendment means and should mean, in the free speech battles to come.
Last week, Tim Wu blogged about recent First Amendment scholarship that address issues beyond classical censorship, and he included a shout out to my recent draft article. Also, the last two CoOp posts are about interesting articles (by Lash and by Swedloff).
In the spirit of karma, I figured I’d note some of my own favorite recent readings. I had some time to read over Spring Break. These include new readings on free speech and innovation, as well as an Internet law classic. Continue reading
I recently posted a draft law review article called First Amendment Architecture.
After months of working on the article, it’s interesting to see it out in the world and to see people talking about it. On Concurring Opinions, Tim Wu was kind enough to call it “important” and “fascinating.” (I’d sent an earlier draft for his comments.) Several hundred people have at least glanced at it. I posted it on a site called SSRN the night of March 23d. Today is the 26th. SSRN reports that little more than 600 people have read the abstract. So, on average, about 150 people a day–most of that in the first two days. Over 60 people actually downloaded the article, which isn’t hundreds or thousands, but still pretty gratifying for an author facing a small target audience for 70-page law review articles challenging conventional wisdom about the First Amendment.
X-posted on Balkinization and Concurring Opinions
The Southern District of New York rejected the Google Books settlement. I provide a summary of the opinion here. Essentially, Google negotiated a settlement with the publishers and authors that sued it. Then, after the settlement, hundreds of publishers and authors objected. Competitors and the DOJ raised concerns. So, yesterday, the court rejected the settlement based mainly on those objections and concerns. It applied a nine factor test, relying mainly on one factor–the reaction of the class. It determined that the class had five important objections. (All of which I summarize here.)
Here I want to post some initial reactions about three themes that seem to animate the decision.
These themes are: (1) that Google shouldn’t benefit from its blatant copyright infringement, (2) that Congress, not a court, should determine many of the forward looking issues, and (3) that the settlement should be rejected because it would grant Google a monopoly over out-of-print books still in copyright (e.g., many books published after 1923).
Copyright. At several points, the court suggests that Google engaged in massive copyright infringement. Usually, it merely quotes one of the objectors without endorsement. These quotes include calling Google a “serial infringer” or “pirate.” The court also states that the settlement would give Google advantages over competitors, therefore “rewarding [Google] for engaging in wholesale copying of copyrighted works without permission.”
This implicit theme of Google being a pirate strikes me as misguided. First, Google has a fair use argument for its copying; so far, Google’s uses have been limited and noncommercial. Google did not merely flout the law but appears to have attempted to follow it.
More importantly, Google’s actions are the usual means of progress in distribution technologies. A page of history is worth a volume of logic here: the history of copyright suggests that incumbent distributors will try to disadvantage new distributors by withholding copyrights. Technological advances often came from innovators “copying first” and asking for permission later. Tim Wu has analyzed this history, and I discussed it recently in the context of online television. For example, in the early 1900s, makers of piano rolls disregarded music composers’ copyrights. In the 1960s and 1970s, cable operators rebroadcast broadcast signals without obtaining copyrights. Copyright holders sued VCR makers for copyright infringement. Copyright holders characterized the Internet as one giant copying machine. If piano roll companies, cable operators, VCR makers, and Internet providers had waited for permission from their competitors–the existing distributors of copyrighted works–they would have waited a long time. This wait would have denied or delayed innovative benefits to all of us. Digitizing libraries has enormous benefits, as even yesterday’s court opinion acknowledges. (“Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books.”) But I think Google deserves credit for moving forward on an innovative way to distribute information; history suggests that waiting for permission is often a losing proposition for everyone
Sometimes, the courts side with the new distributors, sometimes they do not. The usual resolution of such disputes is either immunity from infringement or a compulsory license. A compulsory license means granting distributors the right to distribute copyrighted materials for a set fee. This resolution usually happens through Congress.
Congress. Second, while Congress does often resolve these new copyright issues, the court’s beliefs about congressional action seems idealistic. The court says: “The questions of who should be entrusted with guardianship over orphan books [i.e. out of print, copyrighted books], under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.” While Congress is more suited for a forward-looking, ex ante remedy than a court would be, it is not because Congress will look beyond self-interest. As Jessica Litman recounted in a classic book about copyright history, Congress makes copyright policy by blessing negotiations among private, self-interested parties. Indeed, for about 100 years, Congress has not engaged in rational policy analysis of copyright policy; it has simply deferred to private negotiations, as no other method has succeeded in passing a copyright revision. The congressional process suffers from classic public choice problems, heavily favors commercial interests over noncommercial interests, and concentrated interests over more public interests. It usually results in broad copyright protections and specific, narrow exemptions for those lucky enough, and powerful enough, to be at the table. In this case, before Congress, Google would have every incentive to agree to sweeping copyright assertions by authors and publishers, in exchange for exemptions to those assertions. The primary difference is that Google’s largest competitors–such as Microsoft and Amazon–would likely be at the table in Congress, and could sink any negotiated bill that gives Google exclusive advantages. (Just as they were able to sink this settlement in court.) So, while Congress may be the right place, it would be the right place largely because it would likely ensure that a larger number of private, self-interested parties are invited to the negotiation. Congress is not the right place because it will engage in enlightened policy making on copyright or more carefully consider the public interest. Again, copyright history tells a pretty persuasive story on Congress’s usual role.
Information Monopolies. The court is right to be concerned with the settlement’s effect on competition. While Google took the initiative to digitize millions of books and should be able to monetize that investment, Google should not receive exclusive legal advantages. The settlement grants to Google, and Google alone, the right to publish out-of-print copyrighted works without permission, until an objection. Other competitors would have to obtain permission first, before publishing online in the first place. Microsoft, Amazon, and the Department of Justice contended this would grant Google an effective monopoly over these orphan works. As a result, Google would have an advantage in the search market–people would begin their searches at Google’s more complete catalog–and in the subscription market–libraries would subscribe to the most complete database of books, which is Google’s.
The court was concerned with the problem of Google becoming, essentially, an information monopoly. The court’s discussion reminded me of the AT&T breakup order in 1982, where the DC district court imposed additional conditions on AT&T–above and beyond what the DOJ sought in a consent decree–based on First Amendment concerns. As the DOJ’s mandate pertains to competition concerns, the AT&T court looked more broadly to public interest concerns implicit in the First Amendment–notably that the First Amendment favors the “widest dissemination of information from diverse and antagonistic sources.” The court also looked to the recent history of media consolidation, and noted a fear that the consent decree, unless amended, could have led to further media consolidation. As a result, the court imposed a condition on AT&T’s ability to compete in a nascent industry called “electronic publishing.” Electronic publishing was not Google Books; but the court was not really sure what electronic publishing was beyond the transmission of information through phone wires.
Once again, yesterday, a court seems reluctant to bless a negotiation that would lead potentially to the concentration of control of information in the hands of one company. This reluctance reminds me of Jack Balkin’s observation that the most important free speech questions in the 21st Century may be questions of “design”–of structuring our communications environments. (I write about these issues in a recent draft article, so they are on my mind.) The Google Books settlement will likely have a greater impact on how Americans access information than even recent, justly celebrated decisions about funeral protests or hate speech. As a result, the court seems keenly, and rightly, aware of the problem of information monopolies.
On Improving the Settlement
The court states that one change would address most of its concerns: making the settlement opt-in, rather than opt-out. At the moment, class members must opt-out of letting Google use their copyrights. Rather, the settlement could require publishers affirmatively to opt-in; just as Microsoft and Amazon must seek permission from every publisher or author, so must Google seek opt-in from every publisher or author.
My instinct on this different. I would prefer balancing the playing field for Microsoft and Amazon, but doing so in the other direction: they should be able to “opt in” to the Google settlement on Google’s terms. That is, Google has effectively negotiated a compulsory license for orphan works: it can publish works and then pay 63% of revenues. This will enable Google to digitize books more rapidly, without fear of major liability, and with revenues going to copyright holders. These are important benefits. The settlement as structured undermines competition: Google has special status as the lone publisher with this compulsory license. Rather than removing the license from Google, the court should encourage extending it to all providers. Even competitors should have this compulsory license. This would provide the public the benefits of rapid access to these works in digital, searchable form, while also providing competition in providing that access. Changing the opt-out to an opt-in is more like throwing out the baby with the bath water.
On Tuesday, the Southern District of New York rejected the Google Books settlement. The 48-page order is here, and some news stories are here and here. I provide some thoughts <elsewhere>, but here is a summary, for those who’d rather not read all 48 pages.
The court’s rejection is notable for our nation’s information policy; the terms of any settlement would have had an enormous impact on the availability of books online.
Background. Back in 2004, in partnership with several university libraries, Google began copying books for its Google Books project. It has copied 12 million books and has made these books available for search. For copyrighted books, it displays snippets. For books so old that copyright does not apply (e.g., pre-1923), it displays full texts.
But Google did not obtain permission to copy or display the copyrighted books. It relied on a fair use defense. In the words of one objector, its business plan was “So, sue me.” And that’s what many authors and publishers did. Faced with a class action suit, Google and the copyright holders negotiated a settlement back in 2008. Hundreds objected to that settlement, so the parties negotiated the “Amended Settlement Agreement.”
The Amended settlement is a complex 166 page document that enables Google to sell access to the digitized books or to sell advertising against the digital books, and provides copyright holders most of the revenue from those sales–63%. It also seems to give Google an advantage no competitor has: the right to display out-of-print books unless there is an objection. It is often difficult to find the copyright holder for an out-of-print book, and such works are called “orphan works” or “unclaimed works.” Other publishers would generally have to seek permission in advance to display orphan works.
It was this amended settlement that the court rejected. A court must approve a class action settlement because, in such settlements, only some parties negotiate the settlement for a larger “class” of plaintiffs. The negotiating parties my fail adequately to represent the other members of the class.
So a judge must ensure a settlement is “fair, adequate, and reasonable.” And the judge has wide discretion in making this determination. In the Second Circuit, courts apply a nine factor test, and they can determine how to weigh any of the factors based on the particular circumstances. This is essentially pure discretion tucked into a nine factor test. In the Google case, just about all the factors favored the settlement. Only one weighed against settlement in any important way, but it was decisive. That factor was the reaction of the class.
The class objects. As with the first settlement, hundreds of class members objected to the amended settlement, and thousands (6,800) opted out. Some members did write in support, as did some amici. But objections were more numerous and their concerns were, according to the court, “significant.” Objectors included academic authors, whose interests differ from the commercial publishers, and foreign publishers. The Department of Justice also voiced concerns about competition, alongside Microsoft and Amazon. Public interest groups and other amici raised a range of concerns, including privacy.
Indeed, the objections drove the entire opinion. Most of the opinion catalogs seven different objections. I’ll list them here, with the weak ones first, then the significant ones.
The court rejected two objections.
Five objections were more substantial.
Five substantial objections.
The opinion seems motivated less by legal issues and more by the class reaction. The court doesn’t bother to decide some legal issues–whether the settlement would in fact violate international law or the copyright act. The legal issues come up largely as areas of disagreement or objection, not legal problems for resolution. It is as though the court is setting out the areas requiring more negotiation for greater consensus going forward.
Going forward. The court suggested two options.
First, the court explicitly states that one change would address most of these concerns: making the settlement opt-in, rather than opt-out. This change would keep the default rule that the copyright holder need not transfer her copyright involuntarily; they opt-in to transfer, rather than the transfer being automatic. This change would also keep Google from having an advantage over Microsoft and others, which must seek an affirmative license (or “opt in”) from copyright holders.
Second, while not as explicit, the court suggests that the parties should address forward-looking issues through Congress.
I am going to travel again and give some talks. I have not been traveling (or even blogging) because I spent the past few months writing this draft article.*
While writing it, I couldn’t blog or travel. Just not enough time. But it’s out.
So I went to Austin this week (uploaded the paper the moment I landed). I went for South by Southwest Interactive and stayed for the Music Festival. I saw lots of old friends in tech policy: Andrew McLaughlin, Susan Crawford, Tim Wu, Elizabeth Stark, and others. It was a great working vacation turned into music vacation.
But more travel is on the way.
I will be speaking in Chicago, Michigan, and Boston.
In Chicago and Michigan, Nebraska is holding conferences on Space & Telecom law. (Luke Pelican, one of the merry band, will also be speaking in Michigan. So will Erik Mudrinich in Chicago.)
In Boston, I am one of the many speakers at the biggest conference on media reform–the seminal National Conference on Media Reform, organized by Free Press. I’m on a panel. Keynoting speakers include Joseph Stiglitz (Nobel Prize winning economist) and Nancy Pelosi, among others.
My biggest talk will be the second talk in Michigan. I will speak at TEDx University of Michigan!
I’m excited and honored to join an amazing group of speakers at my alma mater. We will be at the historic, beautiful Michigan Theater, which will be at capacity, at 1700. I’ll speak about democracy and technology. That seems like an important topic that excites me …
*The law review article is about the First Amendment’s role in ensuring adequate spaces for Americans to speak, and how that role challenges several flawed assumptions about the First Amendment’s meaning. It was, if nothing else, an ambitious piece, and couldn’t be drafted overnight unfortunately. I’ll say more about it here and on other sites but the ultra-curious can go to the article itself.
Marvin Ammori 