Copyright and Free Speech, Part IV

To recap, ladies and germs, we have examined the basic goals and differences between free speech law and copyright law. We have consulted the great Nimmer on where free speech ends and copyright begins--or where copyright ends and free speech begins, and looked at some illustrative court cases.

Now, the fun part: applying the whole darn thing.

Free speech
We've already seen from the The Wind Done Gone case that the courts don't like any government action that restrains freedom of speech. Here are a few useful terms:

• prior restraint: any government action intended to PREVENT speech or expression (ie, an injunction against publishing a book like The Wind Done Gone or printing something in the press like the Pentagon Papers. But this also includes passing a law that imposes any kind of criminal penalty for speech.)
• idea-based or content-based regulation: any kind of government action that hinges on the idea or the message behind the speech.
• content-neutral regulation: a government action affecting speech that is not concerned with the idea or message behind the speech.
• discriminatory intent: just how it sounds--action meant to allow some speech and restrict other speech.
• discriminatory effect: action that may not be intended to discriminate between certain types of speech, but has the effect anyway.
• time/place/manner restriction: a government action that controls, but does not cut off, the ability to speak (ie, requiring a permit to hold a rally in the streets, passing a noise ordinance in neighborhoods, banning signs of a certain size in certain locations, etc.)
• government interest: the reason behind the government action, the motive.
• compelling government interest: a very serious or important reason for the government to take the action it's taking

Now, how does all that relate to copyright? The answer is this: when a person accused of copyright infringement raises a free speech/First Amendment defense, these are some things the courts may look at.

Example 1: In the The Wind Done Gone case, the appeals court decided that to prevent publication of the book was an unlawful prior restraint on Alice Randall's free speech. The private or government interest in allowing the owners of Gone With The Wind to sue is, of course, the reason behind copyright: to encourage creativity and expression and dissemination of ideas by granting the authors a monopoly in the rights to their work. But the court decided that the interest wasn't compelling enough to justify prevention of publishing ideas. The copyright owners could still sue for damages, or even impoundment and destruction of all the books after the fact once infringement had been established, but they couldn't stop the speech before they'd even proven their case.

Example 2: (This one straight from the blogs.) There's been a lot of discussion in the debates about fandom and copyright about pornography and obscenity based on authors' copyrighted works. We've gone through the legal definitions of obscene, broader definitions of obscene, etc, and the question has come up more than once:

If the author can't stop fansites that produce legally-obscene things based on her works, can she get them for copyright violation?

Good question. There's no concrete answer, but here are the issues:

• Suppose the author takes a site owner who posts pornographic material based on her work to court for copyright infringement. The site owner claims free speech. The material on the website, while dirty or inappropriate, is not legally obscene, but the author wants the site shut down.
• The court may consider the questions of 1) whether the author is specifically targeting this type of site while allowing other site because she doesn't like what this site says, 2) whether the author's copyright allows her to control activities like what is on this site (ie fanfiction, fanart, story/episode recaps, trivia, reviews, etc.), 3) what are the author's interests and how are they affected by the fansite, 4) what are the fan/public's interest and how would they be affected by stopping the fansite.
• How will they rule? Hard to say. The more original material added to the site, the further it gets from the coverage of copyright. It could be straightup derivative work or it could be fair use.
• If the material isn't legally obscene, is the author's distress reason enough under the law to stop the speech? Take Texas v. Johnson, the US Supreme Court case that held that a particulat type of speech could not be suppressed just because someone might be offended. On the other hand, permitting people to post dirty material relating to an author's work isn't exactly consistent with the purpose of motivating those authors to create.
• Is there any sort of public benefit from allowing this type of website? Can the court consider the quality of the content at all, or is that a content-based discrimination?

As I've said, there is not concrete answer, and the balance will tip based on the facts.

Example 3: JK Rowling's name keeps coming up in the blog discussions, particularly the question of whether or not she "condones" or "approves" pornography based on Harry Potter. There are several cases of websites containing NC-17 rated fanfiction being sent "Cease-and-Desist" letters from Rowling's attorneys. The letters speak of the risks to children of finding such sites on a random search for Harry Potter-related material.

• Obviously, this shifts the balance a little more when the interests of children get involved. But Rowling's agents didn't make their claim based on obscenity--they made it based on copyright.
• Could this action survive a court case? See Example 2.

Example 4: Suppose cases like 2 and 3 come to Congress's attention, and they amend the copyright act to allow the copyright owner complete control and discretion over what kinds of fan activities to allow. (In other words, an author could go after fans or fanwriters for any idea on a website that he doesn't like.)

• The law gets challenged as violating free speech. Will it succeed?
• For one thing, it's straightup, government-sanctioned idea-based discrimination. But it's not the government acting directly, just private authors. Does this make a difference? And what about fair use? Does the new law allow authors to go after critics?

Example 4 would be the kind of situation that both fanwriters and authors would probably dread: a direct collision between copyright and free speech, with fandom in the center.

I'm aware that my answers in these examples are vague at best--but that's how law works. (And that's why so many lawyers get ulcers.) The answer, more often than not, is "maybe."

Thoughts?

This is probably the last post for now, unless something else comes up related to these issues that seems worth posting, but I invite everyone to weigh in.