...and the Bad (or Why do Law Profs Have to Constitutionalize Everything?)

If you think a Problem is Big enough to Write a Book About it must be of constitutional magnitude, right? There's more to Netanel's Chapter 5 argument than that, of course, but it does seem like every law prof believes his or her pet issue has constitutional implications. Maybe (other?) law schools teach students to fetishize the Constitution and Supreme Court too much - I don't know.

In any case, as you can probably guess, I don't buy Netanel's argument in Chapter 5 that the 1st Amendment should be brought to bear on copyright in its current form by courts. I particularly don't agree with most of his criticisms of the Court's decision in Eldred.

Let me first make it clear that I think the CTEA is a stupid law, a profoundly vivid example of bad public policy and industry capture of legislation. I just don't think that is enough to make it unconstitutional.

I think the Court's conclusion is basically right - the 1st Amendment doesn't make content-neutral copyright laws unconstitutional unless they go way beyond the traditional role and structure of copyright. I am somewhat sympathetic to Netanel's case that the DMCA does go too far to be constitutional, but I am not convinced that either the CTEA does so, or that, as he argues, the basic framework of Eldred and the analysis behind it are wrong.

A blog post isn't a very good place to get into the details of the Court's reasoning and, more generally, the doctrinal interplay between copyright and the 1st Amendment. I do want to make a broader argument, however - that constitutionalizing copyright, even if it can be defended doctrinally, is a bad idea. Netanel's book up to this point has done a good job of giving a relatively balanced account of the copyright/free speech intersection. Copyright burdens speech, but we need it or we don't get enough speech. Drawing lines is hard. Lots of smart people have struggled with how to set the balance. Reasonable and democratic societies have set copyright protections and free speech protections at different levels, and faced different problems as a result. In other words, this is fundamentally a public policy issue - it involves balancing different interests and values, making predictions based on limited information, and, ultimately, picking some winners and losers. Figuring these kinds of issues out is what democracy is for, not courts. Constitutionalizing the free speech-copyright balance, at least when it goes beyond setting outer boundaries as the Court did in Eldred, freezes the compromise. There is no reason to believe that the Court would strike the right balance, or a better balance than Congress today, and it would be crazy to think that the balance they set today would be the right one tomorrow. And if copyright is constitutionalized today, we will have to deal with that balance in perpetuity.

I feel the same way about this issue as many people do about abortion and Roe - whatever one thinks of the doctrinal basis of the decision, or even the underlying correctness of either position, the Court's decision has locked out political debate and prevented the country from ever really dealing with the issue. I fear the same might happen with copyright if Netanel's advice were followed. To be sure, removing issues from public debate (and therefore majority rule) is the purpose of judicial review - but the power should be wielded carefully, especially in areas like copyright that are complex and in flux.

I agree with Netanel's skepticism about Congress' ability to avoid industry capture and come up with an effective copyright law. Its track record is not good (see CTEA, DMCA). Still, it is the institution we have in this country to deal with these kinds of public policy issues. If Congress isn't doing its job, we need to demand beter representation, not push off decisions onto unelected bodies by arguing they are part of the original social contract. Doing so, I feel, is an abdication of our democratic responsibilities. Whether we want to make incremental changes to copyright, or blow it up entirely, we need to do it ourselves, through our representatives.  To paraphrase Obama, "we are the change in copyright we have been waiting for." 

Comments

[Ruben Rodrigues]

I tend to agree with your characterization of a "constitutionalized" copyright in many respects. However, I think there IS a useful role for courts to play in applying/expanding/interpreting "Fair Use" as the embodiment of 1st Amendment within the Copyright regime. I think many of the issues we've discussed over the past three weeks, particularly the "clearance culture" propagated by errors and omissions insurance, could be settled with a more well-defined and robust "Fair Use" regime--one that weighs 1st Amendment concerns heavily against the copyright holder's interest. Granted, reinvigorating Fair Use can't happen over night. Perhaps a statutory amendment that explicitly requires a more vigorous free-speech "Fair Use" analysis is warranted. Either way, I think there's an important role for courts to play, since any way you cut it, "Fair Use" is going to have to be a case-by-case determination. Applying too rigid a standard will likely draw the line in a manner either too infringing of copyright or too infringing of speech.