By Jenn Webb
On March 7, 2011, the US Supreme Court agreed to hear the Golan v. Holder copyright case. In a post for Duke’s Scholarly Communications website, Kevin Smith — who also wrote about the original case in 2009 — provided a nice background summary:
Basically the problem is that a law passed to reconcile U.S. copyright law with the international treaties that we agreed to in 1988 and after had the effect of removing some works from the public domain. This had virtually never happened before; until the Uruguay Round Agreements Act (URAA) of 1994, things that were in the public domain stayed there, and users could safely depend on their availability for use and reuse. For a subset of materials, however, the URAA changed the rules pretty dramatically and, according to the petitioners, in a way that conflicts with the basic protection of free speech found in the US Constitution.
According to the official case file, the court agreed to hear the case on two issues: “(1) Does the Progress Clause of the United States Constitution, Article I, B’ 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?”
In an email interview, Dana Newman, a transactional and intellectual property attorney, described the case and the nuts and bolts of the decision with which the Supreme Court is faced:
This is an important case because it tests Congress’ ability to extend the boundaries of copyright law. The Constitution gives Congress the power to secure exclusive rights for authors and inventors “for limited times.” Copyright terms have been lengthened under the Copyright Act to now protect most works for 95 years.
The Golan case challenges Congress’ ability to take works that are in the public domain in the U.S. (but still under copyright abroad), and restore their copyright status to comply with international treaties. The law at issue acts as another extension of copyright protection, by “recopyrighting” a large number of foreign works that had been in the public domain in the U.S. for decades.
In a Wired post about the case, David Kravets quoted from a blog posted by Anthony Falzone, a Stanford law lecturer, executive director of the Fair Use Project, and a lawyer for the plaintiff in the case:
The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the public domain, it belongs to the public, and remains the property of the public — free for anyone to use for any purpose.
In our interview, Newman pointed out that a decision in either direction will have far-reaching implications:
If the law’s upheld, it will affect the conductors, performers, educators, libraries, archivists and others who rely on the use and distribution of those foreign works, and create uncertainty as to the status of works currently presumed to be in the public domain. On the other hand, if the law is struck down as unconstitutional, there is the issue of our copyright laws being out of alignment with foreign copyright laws, and the risk that U.S. copyrighted works won’t be recognized in European countries if we don’t respect their copyrights here.
What might ultimately be the larger issue is the increasing globalization factor of intellectual property and the legal world as a whole being slow to adjust. Newman noted:
The case is also interesting in that it highlights the fact that despite living in the digital age of increasing globalization, there is no international copyright law, and rights in one country don’t necessarily translate to the same rights in another country. The recent copyright infringement case involving Lucasfilm and the Stormtrooper helmets was another example — the company couldn’t enforce its U.S. judgment in the UK.
By Jenn Webb
The relationship between libel laws and new media has moved into the legal spotlight with a settlement in the Courtney Love Twitter defamation case and a suit against blogger John Hoff.
These examples, and others, put a new focus on libel. Many people are already familiar with libel cases against magazines and newspapers, but what about content published on Twitter or Facebook, or on personal blogs? And since so many of us are publishers now — whether we define ourselves that way or not — what do individuals need to know about libel?
David Ardia, fellow at the Berkman Center and the director of the Citizen Media Law Project, recently walked me through a couple of examples of how libel laws are slowly adapting to new media platforms. He also offered some common sense best practices for avoiding libel litigation.
Our interview follows.
David Ardia: Libel law, which has been judge-made law for a very long time, has a history of slowly adapting to technological change. I would be reluctant to say that these new social communication technologies have radically changed the law, because they haven’t. But I do think we’re going to begin to see their influence play out over time.
One thing that has been very significant is that the means of publishing information, and the ability to reach many people, is now held by millions. As a result, there are many more instances of speech that could support a lawsuit — or threats of lawsuits — happening today than we have seen in the past.
There’s somewhat of a disconnect in what people think they are doing when they update their status or send a tweet with what is actually happening. There’s a feeling that we’re not speaking to the world, we’re only speaking to our friends. Our speech spreads out to the world very quickly, even when we use social networking platforms where we’re intending to speak to a small number of very close friends and acquaintances.
David Ardia: The first thing to realize is that you’re not in a personal conversation. Online, people bring sets of conversational norms that you might apply when you’re sitting across the table from someone and drinking a beer with them. The Courtney Love Twitter lawsuit gave us a window into that thinking.
This speech is not ephemeral, it’s not constrained — it reaches to all corners of the world, and it is for the most part permanent. So, you should think before you speak. Ask yourself, “if I say what I intend to say, would that bother me if someone were to say that about me?” If the answer to that is “yes,” it doesn’t mean you don’t say it. It means you have to make sure that what you’re writing or saying is what you mean to say, and that you have support for what you’re saying if it relates to factual information. Those kinds of simple questions often can reveal problems before they occur.
David Ardia: The answer is “yes and no.” The same laws apply, but it’s how they are applied that can vary. Context really does matter in a defamation lawsuit.
One of the pre-Internet aspects of how context matters in a defamation suit is that news organizations were typically given more leeway on the editorial page than they were on the news page. On the editorial page, there was the expectation that readers understood what they were reading was opinion — it was not meant to be imparting factual information. The opposite assumption carried over to the news page.
So, when courts have looked at some of the cases — on blogs, for example — they’ve noted that the blogging platform is often used for opinion-style writing, so they give the author the benefit of the doubt in concluding that what they’re saying are statements of opinion versus statements of fact.
One of the more interesting cases related to this issue is the “Skanks in NYC” case. A site featured some pictures of a fashion model in New York and called her a “skank” and other offensive terms. The court in that case talked about how many of these terms don’t have a clearly defined meaning, but that in the context of this blog, the use of those terms in combination with other reporting on the blog made some of the statements seem like statements of fact. The court refused to dismiss the case outright on that basis. So, context really matters. In that sense, we do see the libel laws being adapted to the unique context for bloggers and tweeters.
There’s also the question of applying these guidelines to professional journalists, because obviously journalists use blogs and Twitter as well. So, one aspect of the question is platform dependent — that’s the context question. The other question is what is expected of someone prior to publication with regard to verification and accuracy? In that area, we have a lot less guidance from the courts in the context of new media. Typically, in a libel case, the courts look at what a reasonable journalist would do.
In a public figure or public official case, the plaintiff has to prove actual malice. That is a very high standard for them to overcome — it basically means the publisher has to have known that what they were publishing was false, or they had serious doubts as to what they were publishing, but they went ahead and did it anyway. Actual malice will apply in public figure cases whether the defendant is a professional journalist or not.
For private figures, the standard is negligence — or what a reasonable person would do in that context. We don’t know how the negligence standard would apply in the context of a non-professional blogger or tweeter — would there be a lower standard? I imagine a reasonable journalist would do more, in terms of fact checking and vetting, than a reasonable person who is just blogging or posting. That’s an area where the law has yet to give us clear answers.
David Ardia: Yes — that goes to the public figure test. Public figures are people who voluntarily enter the public eye. Courts really look at whether a plaintiff has voluntarily entered the public eye and how widespread interest is in them. Those folks are expected to show actual malice in order to succeed in a libel case. We have some guidance from the Supreme Court on this, but how that plays out on the Internet we don’t know yet.
One of the reasons why a celebrity or a public figure has to prove actual malice is because they have access to the means of counter-speech that a private figure doesn’t. Someone who has a million-plus Twitter followers can correct the record themselves. There’s also an expectation when you’re voluntarily in the public eye that you take on the risk that people are going to say bad things about you. Courts have basically said that’s part of the price you pay for the benefits that come from that kind of position.
It’s a good question whether this maps precisely to the online environment, where you can develop a sort of celebrity that can be a million-miles wide and only a half-inch deep, or a million-miles deep and only a half-inch wide. In those situations, should an individual have to prove actual malice in all instances? We don’t really know.
This interview was edited and condensed.
By Jenn Webb
Digital publishing brings to light a number of new challenges and areas of uncertainty for everyone, from publishers to authors to retail consumers. Sebastian Posth (@sposth), a partner at A2 Electronic Publishing, discusses some of these issues in the following interview. He outlines questions raised in the digital rights and distribution arenas and talks about why the waters have become so muddied.
Our interview follows.
Sebastian Posth: Rights and licensing have changed dramatically with both the growing number of platforms available for digital exploitation and the introduction of new forms of usage for copyrighted works — à la carte download-to-own content, DRM-protected lending features, cloud computing-supported “digital lockers” for consumers, subscription services comparable to Napster or Spotify in the digital music world.
Publishers are faced with long and complex agreements from Amazon, Apple, Google, Barnes & Noble and numerous ebook startups, and they all have the same questions: Do I actually own the rights these companies want from me? How can I make sure I don’t breach one agreement by signing the other? And how do I make sure I avoid costly injunction letters when there is a rights conflict with one of my licensors?
Sebastian Posth: In traditional print rights, the so-called “first sale doctrine” (also known as the exhaustion doctrine) means that once a lawfully made copy of a work has been distributed by the rights owner, the owner of that copy is able to sell, lend or otherwise give away this copy without further permission from the original rights owner. This means that no brick-and-mortar bookstore or public library ever needed any license agreements with any publishers to sell or lend books.
In digital publishing, there is no first sale doctrine. This means there needs to be a “chain of title” — a chain of successive and corresponding rights assignments from the author via the publisher and the digital distributor to the retailer and, ultimately, the end consumer of an ebook. And this chain needs to be in place as long as the work’s copyright is actively exploited. For instance, when a public library “buys” an ebook from a publisher or aggregator, it still needs to maintain the rights to lend this book to its library users for as long as those users are given access to it.
Sebastian Posth: Digital distribution opens up the world for big and small publishers in ways that most people couldn’t have imaged just a few years ago. Any publisher or even self-published author can sell books to people from Anchorage, Alaska, to Zhengzhou, China, without titles ever being “not available” or “out of stock,” and without huge print and distribution costs.
At the same time, the legal aspects of this world-wide distribution are almost impossible to evaluate for smaller entities. A multitude of questions emerge: What tax implications will signing an “agency deal” for the U.S. have for a European publisher? Is my romance best-seller from Scandinavia violating any laws in the United Arab Emirates or Australia? Do I need to know about local fixed price laws for books in countries ranging from France to Germany?
Sebastian Posth: At the moment, publishers and retailers are the ones most challenged by this complexity. A natural reaction is to try to secure rights for every possible (and even impossible) digital exploitation from their licensors, just to be on the safe side. If we can, as an industry, more clearly define rights, then I believe we will not only introduce a clear and robust rights framework for our business, but also be able to offer readers the widest choice of ways to consume books electronically, which will help grow the market for everybody.
This interview was edited and condensed.