Constitutional Challenges to Copyright: A Litigation Explosion

Constitutional challenges to copyright have been rare over the 200-plus year history of copyright legislation in the United States. According to the panelists at yesterday's Columbia Law School symposium "Constitutional Challenges to Copyright" - the challenges to the constitutionality of copyright that started 10 years ago - are not likely to abate.

I recently received an inquiry from a potential client. A couple of eighty-something grandparents in Texas were getting sued because their sixteen-year old grand-daughter had apparently downloaded music without their knowledge. Their internet account activity had been subpoenaed without their knowledge in the Southern District of New York. The amounts involved put them in fear of losing their house.

This was not the first time my office received a call like this and I'm sure it won't be the last. But the civil and criminal penalties accompanying copyright infringement, together with a deep clash in cultural values caused by technological and economic change ensure that the constitutionality of copyright protections will continue to be a hot-button topic. The Columbia symposium, organized by Professor June Besek - provided a valuable resume of where we've been and a roadmap of where the future is likely to go.

The fiercest debate arose over the "public domain" - with Professor Chris Sprigman of the University of Virginia facing heat from publishing industry skeptics from the audience over his contention that the "public domain" had a constitutional grounding. Sprigman said he believed that the Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) was one of the most important decisions for copyright, given its affirmation of the public domain and the right to use public domain works without attribution. When Sprigman advanced an "implied" public domain theory created in 1789 when the first Copyright Act was adopted, the audience was practically shouting. Heady stuff!

In Chapter 12 of Copyright Litigation Handbook, I wrote "Public domain works are works that may be used without payment, without attribution, and without permission." I cited Dastar, a unanimous decision written by Justice Scalia for that proposition. I recall that my editor asked me why I was citing a Lanham Act case for a basic copyright proposition. I responded that it was the only place I could find it! The Supreme Court's statement of the public domain is ethically horrifying to academics, because it "legalizes" plagiarism. But it should be studied carefully, because at least one panelist used "plagiarism" as a synonym for "copyright infringement". I can use a public domain translation of Aristotle as my own quite legally. My failure to attribute the quote, however, would correctly subject me to the academic and ethical charge of plagiarism.

I suspect that the theoretical underpinnings of the public domain may be grounded in the Eleventh Amendment and the basic common law proposition that you are free to copy anything that the law does not forbid you to copy or to communicate in any ways not prohibited by law. Poetry was near to the hearts of our Founding Fathers and I doubt they expected that a poet would expect compensation for a poetry reading, which was a popular pastime. Today's rappers have a different set of expectations.

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