Discussant: Jason Mazzone (note: the approach is for discussants to briefly present the authors’ papers, then discuss them)
Kaminski argues that European proportionality approach to speech issues that balances them with others could be better in circumstances where the US’s categorical approach excludes consideration of speech interests at all.
US exceptionalism: we are trying to export our system elsewhere.
On/off approach means that Congress can keep increasing penalties for copyright infringement with little/no 1A constraint. Proportionality approach would be more skeptical of criminal regime, but not here. Would produce some judicial oversight and would be appropriate in the US.
His comments: somewhat skeptical about differences between proportionality and US tiered approach. You do get different-sounding opinions, but would our Court produce different results? Tiers are used somewhat selectively to explain results rather than driving the outcomes. All constitutional doctrines involve weighing; tiers of scrutiny aren’t deployed consistently across doctrines or within them. So are differences the product of analytical framework, or something else?
American exceptionalism: the courts do have an explanation for why they don’t play a greater role in copyright. Specifically granted power in Constitution. That’s the reason courts say they defer. With proportionality, there’d still be a textual starting point.
Perhaps the 1A won’t do the work you want to do. Need to look to other constitutional provisions—due process. 8th Amendment.
Private ordering: much happens through agreement of private parties rather than judicial decisions. Impact on private regimes? If there are few litigated copyright cases, the law may not be casting much of a shadow at all. That’s harder to correct by altering Supreme Court’s analytical approach.
Kaminski: Motivated in part by the puzzle of Stanley v. Georgia: court said that this speech was fully excluded from the First Amendment, then realized that it wanted to reach back into the area. Alvarez: we’re treating 1A as an on/off switch. So what happens when court has already kicked people out.
Q: seems like US judges are supple at getting around categories when they want, and European lawyers seem to be able to inject absolutism. So is this path dependence, concept of copyright as property, some other epiphenomenal factor other than the categories themselves.
Kaminski: a lot of ink spilled about the 1A and Article I (shout-out to me, among others, thanks!)—for the most part, the Bill of Rights restricts Article I powers. To say that copyright isn’t subject to the Bill of Rights is weird.
David Goldberg: ECHR has recently issued an opinion about publication of images from the catwalk. Nothing redeeming about the images—if they’d been involved in opening up a general matter of public debate, like the imposition of standards on women’s bodies. No reason not to find infringement. What strikes him is American exceptionalism—is that a compliment? Pejorative? In hate speech discussions it’s usually pejorative.
Derek Bambauer: precise copies and criminal law. Public choice problems: individuals are never at the table; proportionality might work there to change outcomes. Whether infringement occurs in the first place: that’s fair use, where all the work is being done in the US where all the weighing is being done/sensitivity to social value of infringing use versus impact on entitlements. Is there a bifurcation of worrying about penalties where the US is exceptional, but also fair use is more sensitive to what you care about?
Kaminski: agrees with proportionality as check on the legislation itself. Criminal copyright—but there are instances of one-to-one copying that a court wouldn’t find to be fair use but raise speech issues (see Tushnet). Things that aren’t significantly transformative aren’t found to be fair use, and if that moves into the criminal context, there’s disproportion.
Felix Wu: Different kinds of 1A interests. Some examples seem different—very traditional 1A concerns if someone’s internet service is shut down or an entire website is shut down and a bunch of noninfringing speakers get their stuff taken down. Article I argument doesn’t apply; we may not need the machinery of relating copyright to the 1A. So are these examples useful in showing a difference between the regimes? Going forward, it’s less clear that the copyright specific concerns are central. But what about fair use, as a different kind of 1A interest. Also distinguish interests of speaker and listener—listeners’ interests are interests in access, and paying may be a reasonable barrier but there’s at least an argument to be made.
Kaminski: why is the website seizure case different?
Wu: can impinge on speech of noninfringers; fair use doesn’t even come into it—I happen to be hosted on the same server when the plug is pulled. That is potentially an interest of a different order.
RT: But the concerns about overdeterrence/overbreadth are the same for fair users--the risks of chill/oversuppression of noninfringers are (part of) what people fight about in the fair use context as well.
Other point: Paper makes a TM comparison, where courts often balance the social value of the use of the mark with the likelihood of confusion on an ad hoc basis. It's often tempting to say "the regime I study is screwed up, so maybe those guys over there have figured out a better way to deal with the problems I've identified." But I think TM scholars generally agree that TM/free speech nexus is a mess: some courts weigh speech against confusion even though they're incommensurable, others don’t; there are 3 different free speech tests depending on what you’re doing. And if anything it’s worse in the EU.
Q: balancing/proportionality just treats rights as another interest.
Kaminski: Categories don’t dictate outcomes, yes, but they provide a framework for judicial oversight—the thing that’s missing now is a reason for the judiciary to even scrutinize penalties.
Q: sure, but fact and nature of oversight are two different things.
Mazzone: Tiered approach just looks at gov’t action; proportionality could also be a way of looking at the strength of the speech interest. Could what you want be achieved by changing the way we treat noncommercial copying—minimizing liability, no criminal penalties?
Kaminski: problem is definition of noncommercial. Is it commercial when sharing substitutes for a sale? When there’s an ad on a website? As to affirmative weight of an interest, isn’t proposing moving all European caselaw. Do a proportionality approach with the stuff we now kick out of the 1A entirely.
Molly Land: critiques of proportionality come in—they can be ad hoc. Shifting decisions to courts raises concerns of predictability and transparency.
Goldberg: ECHR isn’t balancing 2 different rights but implying an exception to an existing right—there’s a difference between balancing the right to a fair trial and the press’s duty to report, or the right to respect for privacy v. publication—going in, these things are both important and we have scrutiny of the specific facts. But in copyright, there’s no right to property; in principle, there’s a right to publication, and the question is whether there is in principle a reason to limit that right.
Land: ECHR says it’s not engaging in balancing but assessing whether what the national court did was within the margin of allowed balancing. But there is difference in considering IP a property right and not doing so. Getting into the details might yield an interesting agenda.
Mark Bartholomew: maybe give courts more credit—do they really treat copyright as categorically exempt—not like fighting words or sexual harassment; they’ve thought about fair use and idea/expression. Maybe that’s not enough, but it’s not nothing. Should we really be as critical about judges not recognizing civil v. criminal? US v. Moran: intent to copy isn’t enough; you have to intend to break the law because the dangers of criminal penalties.
Q: we’ve moved away from prior restraints in copyright not just as the norm but as the necessary result of every copyright violation—courts are doing better there. Use as many examples as possible to show which system is more protective where. Mountain Dew ad described as the most racist ad ever; can a news organization show the whole thing (1 minute)? Practical answer: you may not be able to fight claim, so use a smaller chunk—but that’s not the truth you’d give to a wealthier client. Should the 1A be available as extra protection? Would the European system provide more protection in the context of something like that use?
Bryan Choi: Why more or less speech protective, instead of different? Some countries define child pornography more broadly than we do—you might not care about that. US cares lots about Wikileaks, but not so much about insulting the Thai king. So there’s copyright domestic policy, and then there’s whether this is being exported unfairly to other countries. And finally whether proportionality should be added to the US.
Kaminski: pathology isn’t necessarily substance, it’s the extent of punishment once it’s outside the 1A, just as penalties for child porn possession are now out of balance with other, worse crimes.
Derek Bambauer: underdeveloped strain of cases on listeners’ rights. Usually listeners are proxies for speakers, but there are points of interest divergence. Proportionality may also be relevant to civil penalties—BMW v. Gore and State Farm turn out to be just about notice, but the legislature is unconstrained about how far it can ramp up the penalties.
Tamara Piety: if you think we’re as a practical matter more property protective than speech protective, this trend in the US is perfectly understandable. Compare broad powers for forfeiture—once the gov’t takes your property, you are in deep trouble.
RT: I think I misunderstood Mazzone’s comments—I thought he wanted to consider the copyright owner’s speech interests in the proportionality analysis.
Wisconsin v. Mitchell as another approach to what’s excluded but somehow still covered depending on what the government does. (Cf. the DC Circuit case about extending the term of Mary Baker Eddy’s Science and Health.) That’s not proportionality; it reflects a different set of concerns.
Mazzone: exceptionalism in criminal penalties: is it helpful to think about particular expressive/deterrence costs that arise from the nature of the federal criminal justice system—the fed gov’t’s powerful tools. Convictions under Pro-IP act: most of them presumably pled rather than going to trial. Lots of charges; huge risks of severe punishments lead to smaller pleas—are these costs to expression the same in other jurisdictions? Australia’s criminal penalties/fines: does their system make it easier to avoid liability/do a risk/benefit calculation and decide to fight?
Kaminski: Recent developments: Pirate Bay case in the EU exhibited the kind of analysis she wants by asking whether the domestic legislature had civil penalties in place that hadn’t been enough to deter before adding criminal penalties. Also: statement from Korea about proportionality of penalties/cutting off internet access.