Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment

In a recent Techdirt post, France: Copyright Is More Important Than Human Rights, Mike Masnick points out that France’s Nicolas Sarkozy, “a strong supporter of more draconian copyright laws, … has also been talking about the need to clamp down on free expression online.” And that he even declared

that copyright is more important than human rights online:

The Foreign Ministry said that France does not wish to sign a UN declaration favorable to the defense of human rights on the Internet until there is no consensus on the fact that freedom expression and communication does not take precedence over other rights, including intellectual property.

That’s from a Google translation of the French which is a little awkward. Using a different translator, it translates the “until there is no consensus” to be “as long as there will be no consensus.” French speakers, feel free to confirm. But it appears the French government is saying that it refuses to sign a declaration concerning human rights online unless those who sign on agree to admit that freedom of expression and communication is less important than copyright. That’s insane.

Of course this should not be a surprise, since copyright originated in censorship and still results in censorship (see examples here, here, and here).

A recent example of copyright censorship was discussed on a This Week in Law #127: Smells Like Albert Einstein: the DMCA takedown of iJustine’s YouTube video tribute to Steve Jobs, sung to the tune of a Lada Gaga song. (Here’s one of the videos pulled from YouTube; one is still up, for now, and embedded below.)

As the TWiL hosts note, this kind of use of a copyrighted work may not be covered by the “parody” fair use exception, since it’s not a parody of the Lady Gaga song; it’s using a version of the song for another purpose–even if it was to parody Steve Jobs, it’s not a parody of the work itself.

One of the hosts, Evan Brown, opined that though such a takedown might seem like an infringement of free speech, a violation of the First Amendment, it’s not, because it’s private action not state action (I’m paraphrasing Brown). I’m not sure if this analysis is right, since copyright is a private right granted by the state and enforced in state courts. Imagine if the central state were to give a right to people to sue people for practicing Mormonism–such a law, such a grant, would surely infringe the freedom of religion in the First Amendment. (Incidentally, when the Supreme Court overturned laws banning flag-burning in 1990, Louisiana purportedly enacted a statute penalizing people engaged in battery of a flag burner with a $25 fine. Not sure if this is apocrypha or not; I haven’t seen found the statute.)

I think the stronger argument that copyright-caused censorship does not violate the First Amendment is that the Constitution itself authorizes copyright law. So copyright and its censorious effects must be compatible with the First Amendment. I suppose someone could argue that the First Amendment came laterthan the copyright clause (1791, two years after the Constitution was ratified), and therefore, to the extent there is incompatiblity between the two–namely, copyright gives rise to censorship that abridges freedom of speech–the later provision prevails, i.e. the (1789) copyright clause would be held to be at least partially unconstitutional as incompabitle with the 1791 First Amendment. In other words, the argument would be that the First Amendment partially repealed the copyright clause, just as the Twenty-first Amendment (1933) repealed the alcohol prohibition of the Eighteenth Amendment (1919). I think such an argument has some merit, even if those who drafted and ratified the Bill of Rights might not have been aware of this conflict. If I were on the Court, I’d side with the First Amendment over the Copyright Clause.

Another point worth considering: in light of extremely excessive penalties and damages awarded for copyright (and patent) infringement (millions of dollars for downloading a few songs, far beyond actual damages, e.g., in the Jammie Thomas case; see the $4.5 billion per year estimate by John Tehranian, in We are all copyright criminals: John Tehranian’s “Infringement Nation”), could it be argued that such penalties are “excessive fines” in violation of the Eighth Amendment? As far as I know this has not been argued against, but I see no immediately obvious reason why such argument might not work (especially given that the Eighth Amendment was ratified in 1791, two years after the Copyright and Patent Clause).

Update: See also Eighth Amendment and copyright trolls; Tom W. Bell, “Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property,” Chapman L. Rev. 18, no 3, Art. 8 (2015); Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?.