Saturday, December 05, 2009

In which I grouse about copyright preemption

People v. Williams (Ill. S. Ct. 2009)

Since I just taught this topic, I figured a new decision in the area was worth blogging about. Illinois, like many other states, makes criminal offenses out of (1) record piracy and (2) failing to label sound recordings with the actual name and address of the manufacturer. (Query: how many legitimate copies are there out there without the manufacturer’s name and address? Rather a lot, I’d think. How many legitimate record companies have been prosecuted for this?) Following the national trend, the court found (1) preempted and (2) okay, which I think is half right.

Illinois has an antipiracy law. Section 16-7 of the Criminal Code says:

“(a) A person commits unlawful use of recorded sounds or images when he:

(1) Intentionally, knowingly or recklessly transfers or causes to be transferred without the consent of the owner, any sounds or images recorded on any sound or audio visual recording with the purpose of selling or causing to be sold, or using or causing to be used for profit the article to which such sounds or recordings of sound are transferred.

(2) Intentionally, knowingly or recklessly sells, offers for sale, advertises for sale, uses or causes to be used for profit any such article described in subsection 16–7(a)(1) without consent of the owner.”

The owner is the owner of the master sound recording, the original physical object on which a given set of sounds were first recorded.

Section 16-8 covers music and movies; it says:

“(a) A person commits unlawful use of unidentified sound or audio visual recordings when he intentionally, knowingly, recklessly or negligently for profit manufactures, sells, distributes, vends, circulates, performs, leases or otherwise deals in and with unidentified sound or audio visual recordings or causes the manufacture, sale, distribution, vending, circulation, performance, lease or other dealing in and with unidentified sound or audio visual recordings.”

An unidentified recording is one without the “actual name and full and correct street address of the manufacturer, and the name of the actual performers or groups prominently and legibly printed on the outside cover or jacket and on the label of such sound or audio visual recording.” (I’m assuming that “for profit” modifies both “manufactures” and “causes the manufacture.” Also, I hope your for-profit movies with incidental clips of performances are all properly labeled. I will return to this.)

The defendant here attempted to sell pirated compact disc recordables (CDRs) at a laundromat in Chicago. Many of the songs were owned by the five major labels, and the CDs didn’t have a label with the true name and address.

There’s no presumption against preemption because Illinois’s law against record piracy came in 1975, after Congress had already decided to bring sound recordings within the scope of copyright law.

The argument here was express preemption. The sound recordings the defendant tried to sell are within the subject matter of copyright. The state argued that Congress only intended to preempt civil laws, not criminal laws, because §301 says only that “no person” is entitled to a state right equivalent to copyright and the state’s antipiracy law is protecting society as a whole and not the copyright or the copyright owner. Um, no; or, more formally, the state’s argument “is at odds with the language of the federal Act, the legislative history of the federal preemption provision and the federal and state case law interpreting the Act.” But other than that, it could have been completely convincing! Among other things, Goldstein v. California dealt with a criminal antipiracy statute the Court deemed to provide “copyright protection” and an “exercise of the power to grant copyrights.” Post-Goldstein, Congress enacted §301, and the legislative history is clear that Congress intended to preempt state law protection for post-1972 sound recordings.

So is there any extra element? The state argued that the consent element was conditioned on ownership of tangible property—the master sound recording—and not ownership of the copyright, and thus distinct from a copyright right. The court disagreed. The essential elements of a violation of the law correspond “almost exactly” to copyright infringement. Among other things, it is an affirmative defense that the sound recordings at issue are in the public domain. The legislature’s purpose was to combat record piracy, not to protect tangible property. Moreover, the Copyright Act protects tangible property too—works that are fixed. Even if the owner of the master recording isn’t the copyright owner, s/he will still need a license from the copyright owner to distribute the sound recording. The gravamen of the law is the protection of copyrightable works.

The state then contended that the “for profit” requirement was an extra element. Unsurprisingly, this claim was rejected. For one thing, some forms of criminal infringement have a commercial advantage/private financial gain element. Thus, this part of the law was preempted.

The court then turned to the true address/failure to label count. The defendant didn’t argue §301 preemption, even though I don’t see what the extra element is—an omission is not an extra element, I would have thought by definition!—though the court’s analysis has implications for preemption.

The defendant argued that the labeling requirements for manufacturers’ names and addresses and performers’ names violated First Amendment rights to anonymity.

First, the court held (wrongly, though relying on cases upholding similar antipiracy laws) that the law doesn’t govern “pure speech” but a combination of commercial conduct and speech. Selling an expressive product may involve a combination of commercial and noncommercial speech, but putting a name and an address on a product is speech. I am not saying this changes the outcome, but it irks me and signals once again how incoherent the speech/conduct distinction is. Because the court found that this was conduct regulation, it was only subject to the O’Brien test. (Which, not for nothing, was designed for expressive nonspeech conduct—when the expressive “conduct” is a name and address/failure to supply a name and address, I don’t even know what it means to call that conduct other than “we plan to uphold this law.”)

Okay: O’Brien allows regulation when the law furthers a substantial governmental interest unrelated to the suppression of free speech and the incidental restriction on First Amendment rights is no greater than necessary. And the law is presumed constitutional; the defendant has to show substantial overbreadth. This law has features that significantly narrow its application, particularly the “for profit” limitation, which means that it wouldn’t cover either free distribution or distribution at a price “geared only to cover the recording’s production and distribution costs.” Though payment doesn’t deprive speech of constitutional protection, this is still a narrowing factor.

The second narrowing factor is the limited nature of the disclosure requirement for performers—it just requires disclosure of their “name,” but artists may disclose “whatever name they want to use,” including pseudonyms, which the Supreme Court deemed sufficient to maintain a speaker’s anonymity. Thus, the only burden is on manufacturers who seek both anonymity and profit.

The state has a substantial interest in “protecting consumers from deceptive recordings within the commercial market,” particularly since the market is vulnerable to counterfeits. OK, some questions: (1) Aren’t consumers interested in the performer, not the manufacturer? (2) Given that the court just allowed use of pseudonyms, couldn’t I release a record as The Beatles and not fall afoul of this law, suggesting that the provision at issue bears little relation to the asserted interest? (3) Given the analysis of the previous provision, how can anyone maintain with a straight face that the point of this provision is consumer protection rather than combating record piracy? (My conclusion is not that the law is unconstitutional. Rather, I think that there’s §301 preemption. When someone is prosecuted for failing to put the name and address of the manufacturer on a copy, that’s an omission and can’t be an “extra element”; the offense here is record piracy, nothing else. If you disagree: could the state avoid §301 preemption with a law that criminalized failure to mark a pirate CD with the label “pirate CD”?)

Anyway, in light of the narrowness of the statute, any overbreadth is insignificant in light of the statute’s legitimate coverage. The court pointed out that every court to consider a First Amendment challenge to a labeling statute has rejected it. The court was particularly impressed with Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994), singling out a couple of (pretty bad) arguments. The Anderson court thought that anonymity claims for perfomers and manufacturers were “peculiar” because “most of their lives are consumed in marketing their identity.” In First Amendment law, just because most people want to say something doesn’t mean the state can make you say it if you don’t want to do so.

Also, the Anderson court reasoned that one of the primary purposes of the statute was to prevent piracy, thus making a chilling effect on speech almost unthinkable. This isn’t so bad from a First Amendment perspective, though it does require you to believe that almost everyone prioritizes money over anonymity and that the state can legitimately prefer the interests of the former over those of the latter, even though Buckley v. Valeo says that the government can’t suppress the speech of some to enhance the relative voice of others. Since I think Buckley is obviously wrong, I do find this a persuasive First Amendment argument—it just walks the law straight into §301 preemption.

And finally, political or antiestablishment recordings can avoid the law simply by not being sold for commercial gain or profit. After all, if you’re political or antiestablishment, you shouldn’t care about filthy lucre! That’s for Sarah Palin or Al Gore or George Carlin, none of whom … oh, wait. Also, what happens to your record or movie if you don’t identify the performers in your fair-use samples/clips on the label? Maybe we can say that the law doesn’t cover Expelled and its use of Lennon’s “Imagine” because it’s directed at the “primary” performers featured in the work, but the fact that we have to work around this problem signals once again that this is a copyright law.

The decision’s upshot: These labeling laws can be applied constitutionally in most instances; the norm will be that the performer or manufacturer desires disclosure. The law isn’t substantially overbroad.

Finally, the defendant argued that narrow tailoring would require limiting the law only to those who distribute recordings without the owner’s consent, or who distribute misrepresented recordings. But a no-consent limitation, though it might adequately serve the antipiracy interest, would also subject the law to a successful preemption challenge. And anyway, a no-consent limitation would defeat the law’s consumer protection interest. “A consumer has no less a defective product because the copyright owner consented to its distribution, nor is the consumer in a better position to remedy the defect. Dealers could escape liability under section 16–8 if they simply omitted any information on the identity of the recording’s manufacturer. Yet consumers–the persons section 16–8 is designed to protect–are no better off. If the recording they have purchased is defective, they are without a reliable name or address to direct their complaints or seek redress.” The defendant argued that his recordings weren’t misrepresented—they contained the performances on the label—but that doesn’t help because they didn’t have the name and address of the manufacturer, so “unless the recording companies disclosed on defendant’s products actually manufactured the specific recordings,” they were still misrepresented. (A fact I’m sure is totally material to consumers!)

Query: if Congress didn’t use the Lanham Act to create “a species of mutant copyright law,” can states achieve the same effect with a mandatory labeling law without running afoul of preemption? Dastar, I think, bolsters my preemption argument. (Though Sears/Compco do allow states to have labeling laws to protect consumers, so I admit there’s a counterargument—but I really don’t get how the manufacturer labeling serves a consumer protection objective, even though the court accepted that claim with a straight face.)

The defendant then argued that section 16-8 violated substantive due process for failure to bear a reasonable relationship to its purpose. It doesn’t require intent to defraud or deceive, and, without a consent requirement, it doesn’t bear a reasonable relationship to piracy. Given the limits of substantive due process protection, these were easy claims to reject. The law covers “an independent artist selling his own music on a street corner, who neglectfully fails to disclose himself as the performer and manufacturer on the packaging of the sound recording” and “a person who sells authorized copies of a sound recording on behalf of an artist, but where the copies omit the mandated disclosures because the artist may have wanted to conceal his identity.” The legislature meant to punish this conduct, and it was free to do so to protect consumers.

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