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A Law Professor Deconstructs

A Law Professor Deconstructs

If you haven’t seen it already, go to YouTube, type “prince lenz” in the search box and watch “Let’s Go Crazy #1,” a 29-second video of a cute toddler pushing a toy cart and dancing to a poorly transmitted Prince song. After viewing, try to imagine what could be so controversial about this charming and seemingly innocuous home movie.

Yet it is controversial. The content of the clip – and the medium used to disseminate it – hurled YouTube and the video’s creator – Stephanie Lenz, a writer and editor from Gallitzin, Pa. – at the center, or perhaps front line, of the conflict between those who own the rights to intellectual property and “fair users,” those who wish to express themselves by using or copying that property.

In this case, Universal Music Group, a large recording and music-publishing company, owns the intellectual property to the song “Let’s Go Crazy.” It is the copyright holder. Lenz is the user. Four months after she posted the movie on the popular video-sharing Web site, Universal invoked the Digital Millennium Copyright Act and ordered YouTube to remove the video, which it did.

Many months later, after Lenz received an offer of legal representation, a U.S. district judge ruled that copyright holders cannot order online files to be deleted without determining whether the file reflects “fair use” of the copyrighted material. After more legal wrangling and nudging from Lenz, YouTube eventually restored the video to its site.

But the battle between copyright holders and users continues. There’s nothing new about the conflict itself, says Ned Snow, associate professor at the University of Arkansas School of Law. Tension between the two has existed for centuries, perhaps since people began publishing or sharing ideas. In U.S. courts specifically, the conflict has existed for at least 150 years. What’s new about the conflict, Snow says, is the medium, or the method to deliver expression.

“Essentially, everything on the Internet is copied or a copy,” Snow says. “I call it the Copynet. It is a medium in which multiple parties – creators, intermediaries and end-users alike – make multiple copies in the creation and distribution of expression. In other words, the whole function and existence of the Internet is based on copying. To simply view something requires making a copy. (Internet service providers) have to make copies for the medium to even function.

“So the question is, how does copyright law – which essentially is government-sanctioned restraint on copied expression – intend to control or limit speech in a medium that depends on copying to exist? This question has gained importance as the Internet has become a universal medium for the individual to speak to the masses. As a society, we haven’t ever experienced a medium like this before. The Internet represents a medium that is far ahead of a copyright law that never contemplated copying as the means of functioning.”

In his latest article, “Proving Fair Use: Burden of Proof as Burden of Speech,” Snow addresses some of the issues that arise in the conflict between the Internet and copyright law. First he argues that current copyright law has a chilling effect on Internet expression. Specifically, judicial interpretation of fair use – a 168-year-old doctrine that allows people to use copied material in their speech – has become so constricted that it inhibits speech. Second, the cause of this constriction – a gradual shift of the responsibility for proving unfair use from the copyright holder to the fair user – was a mistake, the result of courts being influenced by incorrect interpretations of the fair-use doctrine. And finally, Snow argues that the responsibility, or burden, of proving unfair use should be returned to the copyright holder.

The conflict between copyright and speech has a long and tortuous history. Snow reached back more than 160 years to document its evolution. His research revealed that the burden to show whether a copier’s use of expression was fair or unfair initially lay with the copyright holder. For more than a century, courts provided a broad, or liberal, doctrine of fair use by imposing the burden of proof on copyright holders. Copiers of expression were broadly protected from liability because copyright holders had to prove that copiers had made unfair use of the original expression. It was in this manner, Snow says, that 19th-century courts conceived of the relationship between copyright, speech and fair use. Fair use was defined as a right to protect speech.

In the 1920s, however, two legal commentators examined the conflict and attempted to redefine fair use. They framed it as an excuse – rather than a right – for copyright infringement. This excuse, they argued, seemingly arose from the implied consent of use by the copyright holder. Courts were increasingly swayed by this new definition, and by the 1950s, fair-use protection ceased to be broad. Consequently, the burden of proving fair use shifted to the user. Despite periodic challenges, including important provisions within the Copyright Act of 1976, this status prevails today.

“So with each case through the middle part of the past century, judges and courts were influenced by this new definition of fair use,” Snow says. “This led to the shift of burden on the user. The problem is that this shift was a mistake. It was based on an incorrect conception of the fair-use doctrine. Courts construed fair use in a way that ignored the speech interests of fair users. The current interpretation would offend judges more than a century ago.”

Consequently, copiers and users today must demonstrate to courts the legitimacy of their fair-use speech. This is a difficult and prohibitively expensive burden, Snow says. It means that defendants – users such as Lenz, although she never was a defendant in a court case – must establish facts in response to plaintiff’s allegations – such as those by Universal Music Group – even when those allegations raise inquiries that are speculative and subjective in nature.

Fairness criteria demand that users demonstrate that the use is “transformative,” meaning it must add something new to the original expression – a challenging process. Users also must show that their expression does not significantly affect the value of or potential market for the copyrighted work. Snow says both of these demands depend too heavily on subjective opinion.

He argues that because these issues are often speculative and subjective in nature, they are nearly impossible to prove. The more subjective the inquiry, the more likely it is that reasonable minds will disagree on the correct interpretation of evidence. And when competing interpretations exist, each of which is reasonable, the burden weighs too heavily against the party charged with persuading the fact-finder that the evidence must be interpreted one way.

Knowing the boundaries of fair use is guesswork, Snow says. Too much confusion exists, even among copyright lawyers and judges. There is no clear legal standard for proving whether copied expression is fair or unfair.

Recent developments in the burgeoning digital society have made the conflict between copyrights holders and fair users even more contentious. As Internet users such as Lenz employ existing expression – the Prince song – to create and broadcast new expression – her video – they become vulnerable to copyright lawsuits. Snow expects there are more cases, similar to Lenz’s, that he and other legal analysts know nothing about because the expression was silenced due to threat of suit.

The threat of a suit creates the chilling effect. Saddled with a burden of proof that is difficult and expensive to pursue, fair users back down. The mere threat of suit by copyright holders, regardles of how original the new expression may be, quickly silences users who otherwise would face a costly battle to prove their speech was fair.

“Given the vague standard of proving fair use, along with the cost of a copyright attorney, it is all too common that fair users do not go to court to find out whether their use was fair,” Snow says. “It is much less costly to be silent, so they self-censor.”

As Snow mentioned, U.S. society has not experienced anything like the Internet and its bag of fuzzy social and legal issues. Since its invasion of American homes, businesses and schools less than 20 years ago, both courts and lawmaking bodies, not to mention parents, psychologists and law enforcement, have struggled to keep up with a variety of complex issues, including obscenity, privacy, trespassing and piracy.

But it is copyright, Snow says, that dominates courts and legal scholarship. It has also helped him build a career. Since graduating from Harvard Law School in 2003, his research has focused on various copyright-vs.-free-speech tensions created by or because of the Internet.

The titles of his other articles – “Copytraps,” “A Copyright Conundrum: Protecting Email Privacy” and “The TiVo Question: Does Skipping Commercials Violate Copyright Law” – reflect a commitment to take on complex issues and shed new light on actual and potential conflicts.

Snow’s legal arguments, including those in the burden-of-proof article, have been controversial. For example, in the email privacy article, in which he examines the strength of legal arguments to protect private e-mail expression, Snow concludes that the Federal Copyright Act does not protect the privacy interests of an original e-mail sender in precluding its recipient from forwarding the e-mail. He argues that those privacy interests, however, may strengthen an argument for common law copyright to offer copyright protection.

In the same article, Snow contends that sharing email with a third party inhibits free expression, because senders feel they cannot be candid when faced with the possibility that their communication may be sent to a third party without permission. Snow further examines the extent to which an original e-mail sender may enforce property rights to e-mail and determines that electronic communication is subject to the same common-law principles as conventional mail.

“Common law recognizes that authors of personal correspondence hold absolute property rights in their private expression,” Snow says. “Although the Copyright Act has been construed to preempt common law rights of expression and thereby deprive authors of privacy, there is no such preemption. Under the Constitution, private expression falls outside the scope of expression that is subject to federal regulation. So it is arguable that the routine practice of e-mail forwarding could be construed to violate principles of common-law copyright, regardless of what the Federal Copyright Act says.”

In “Copytraps,” Snow looks at downloading music from the Internet. He focuses specifically on the scenario in which end-users encounter Web sites that falsely represent downloading as legal. With no way of knowing whether the representation is true – thus, the trap – users are likely to be deceived and mistakenly think it is legal to download. They face harsh penalties for doing so. If a copyright holder has not authorized downloading, regardless of a Web site’s representations or appearance, the downloader is liable and can be subject to a significant fine.

This phenomenon occurs frequently, and record labels are aggressively pursuing lawsuits over music piracy. Snow emphasizes that the automatic punishment of copyright law applies to whatever expression may be downloaded. Stories, pictures and videos are all subject to strict punishment under copyright law. Given that the very structure of the Internet is predicated on users’ ability to copy or download, the potential for punishing innocent downloaders is vast. Snow says that the extent of risks that Internet users assume by downloading is only beginning to be seen.

But the automatic punishment, he says, penalizes innocent Internet users who have no means of knowing whether or not the material offered on a Web site infringes copyright. At this point, Snow backs up and reminds readers that legal downloading – copying files with permission from the copyright holder – is a receipt of expression, and the act of receiving expression is protected by the Free Speech Clause of the Constitution. Therefore, Snow contends, the First Amendment protects the act of legal downloading.

However, the potential for copytraps chills legal downloading. The automatic and severe punishment of innocent downloaders makes Internet users reluctant to download material that seems legal. This reluctance, Snow argues, represents a restraint on free speech. For these reasons, Snow contends that copyright law’s automatic punishment of illegal downloading violates the First Amendment.

“The very potential for copytraps, with automatic penalties assessed against the innocent downloader, raises First Amendment concern,” he says. “Internet users who are aware of the law or who have fallen victim to a copytrap are much more wary of sites purporting to offer legal downloads.”
Most Internet users trust Web sites to determine the legality of downloading, Snow says, and users continue to download without inhibition. So far, there have not been significant decreases in legal downloading.

“But that fact doesn’t matter,” Snow says. “First Amendment law makes it clear that the possibility of inhibition of the speech process, including the receipt of speech, is sufficient to create a constitutional tension. And that possibility is glaringly evident in the download context.”

To learn more about Snow’s research, including studies on cybersquatting and trespassing in virtual reality, visit Ned Snow’s biography webpage.

“Essentially, everything on the Internet is copied or a copy.”

About The Author

Matt McGowan writes about research in the College of Engineering, Sam M. Walton College of Business, School of Law and other areas. He is the editor of Short Talks From the Hill, a podcast of the University of Arkansas. Reach him at 479-575-4246 or dmcgowa@uark.edu.

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