Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, September 22, 2006

Michael McCann on Lance Williams and Mark Fainaru-Wada and the Reporters' Privilege

Check out a blogpost here from Michael McCann's Sports Law Blog regarding the reporters' privilege and the two journalists, authors of Game of Shadows, who are refusing to divulge the source or sources who leaked them grand jury testimony giving them info about Barry Bonds' alleged use of steroids. The two, Lance Williams and Mark Fainaru-Wada, face eighteen month jail terms, but are appealing to the 9th Circuit.

[Thanks to Professor McCann for the tip].

September 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Senate Holds Hearings on Federal Shield Law

The Senate Committee on the Judiciary's Witness List on the federal shield law for reporters September 20th included Deputy AG Paul McNulty. Here is his statement.

Chairman Specter, Senator Leahy, and Members of the Committee, thank you for the opportunity to appear today to discuss S. 2831, the "Free Flow of Information Act of 2006," and unauthorized disclosures of classified information by the media. While others at the Department of Justice previously have testified on these matters, this is my first opportunity to talk with you about them. The issues are weighty, and I commend the careful attention you are giving them.

Let me begin with these facts and observations, upon which we should all agree. The Department of Justice shoulders the important obligation of enforcing the law and ensuring the
public safety against foreign and domestic threats. We also are duty bound to administer justice with fairness. Our work requires a constant balancing of interests.

A determination to commence prosecution requires a careful assessment of all facts and circumstances. Our guidepost, as stated in the United States Attorneys' Manual, is whether the
"fundamental interests of society require the application of the criminal laws to a particular set of circumstances," recognizing that any decision to bring charges "entails profound consequences" for all affected persons. U.S. Attorneys' Manual 6 9.27.001. In all instances, the Department's attorneys represent and must protect the public's interest in the fair and balanced administration of justice.

How we conduct investigations is no less important. We owe crime victims, those suspected of committing crimes, and the public the duty of conducting diligent and thorough investigations. Our search is for the truth, and our record shows that our approach has reflected measured and careful judgments. Overreaching does not serve justice, and the Department's men and women understand and respect that principle.

Our measured approach manifests itself in the daily administration of justice around the country. Our attorneys, for example, take great care to ensure that grand jury investigations are both full and fair. Indeed, the very institution of the grand jury consisting as it does of ordinary
citizens-provides an added layer of balance to our investigations. To be sure, though, a grand jury operates with a broad and time-honored mandate: to search broadly for the truth and enlist everyone with potentially useful information in that search. As the Supreme Court has explained, the "investigative power of the grand jury is necessarily broad if its public
responsibility is to be adequately discharged." Branzburg v. Haves, 408 U.S. 665, 700 (1972).

In our investigations and prosecutions we always respect civil liberties, including the First Amendment rights of citizens and the media. Since the Founding era, journalists have contributed invaluably to our public discourse. Every schoolchild learns of the importance of Thomas Paine's contention, penned as it was in a revolutionary-era pamphlet, that "common sense" compelled a separation from England and the establishment of a new nation. More modem examples abound. Indeed, it is difficult, if not impossible, to read any newspaper or Internet news site and not find commentary on issues of enormous importance to our communities and nation. The Department of Justice fully respects and is committed to protecting the media's right to comment, however favorably or critically, upon the course of government and the actions of public officials.

Striking the right balance today between vigorously investigating and prosecuting crime and protecting civil liberties presents unique challenges. Our nation is engaged in a war on terror, and the Department's highest priority is to prevent another attack. Our prevention efforts must be tailored to the nature of the enemy we face-extremists constantly searching for ways to penetrate our communities and inflict death and destruction upon our people. Secrecy and surprise are cornerstones of our enemy's approach. Our response must follow suit. Our counterterrorism arsenal must include secrecy among its weapons. To publish the full contours of our prevention efforts would provide our enemy with unacceptable opportunities. Certain information must be kept classified and outside the public domain.

In making this point, the Department fully appreciates that there is not unity of opinion as to how America should conduct its war on terror. We are fighting a new kind of war that
regularly presents new kinds of challenges, and Americans rightly are asking new kinds of questions. This debate is healthy and welcomed.

But our public dialogue, in which journalists play an essential role, cannot be permitted to itself breach our nation's security. In this regard, the media bears the important responsibility of striking the proper balance in its reporting-to keep Americans informed and to comment broadly without arming our enemy or risking danger to our troops, communities, or nation. The Department appreciates the care with which the media has undertaken this responsibility.

My larger point is that our Constitution permits the proper balance to be struck. As a nation, we are fully capable of both protecting our security and preserving the media's right to engage in robust reporting on controversial issues. Security and free speech are not mutually exclusive. Or, as Justice Goldberg famously observed, the Constitution is "not a suicide pact." Kennedv v. Mendoza-Martinez, 372 U.S. 144,160 (1963).

The Department of Justice has developed a strong record in striking the right balance. I want to describe that record by explaining how we investigate leaks of classified information.
Let me emphasize at the outset the seriousness of the problem posed by the unauthorized disclosure of classified information. An individual who leaks classified national defense information commits a crime. To talk about such leaks, then, is to talk about criminal conduct. There is no virtue in leaking; it reflects a profound breach of public trust and is wrong and
criminal.

The consequences of leaking are extraordinarily grave. Leaks lay bare aspects of our national defense; they provide a window into steps we are taking to secure our country; they risk arming terrorists with precisely the information needed to avoid detection in plotting an attack upon our troops or communities; in short, they expose and damage our nation. These concerns
and realities have been echoed by the President and Members of Congress in both the House and the Senate, including Members of this Committee.

Some skeptics have tried to paint those who unlawfully leak classified information to the press as whistleblowers caught in an intractable dilemma between, on the one hand, allowing
what they believe may be unlawful activity to continue within the Government and, on the other hand, unlawfully disseminating information to someone with no authority to receive it. These
so-called whistleblowers, the argument runs, escape the dilemma by conditioning a disclosure of classified information upon a journalist's promise of confidentiality.

This dilemma is a false one. It incorrectly assumes that the media is an individual's only outlet. Not so. Congress took care to ensure that no Government employee faces such a dilemma by enacting the Intelligence Community Whistleblower Act of 1998. That statute established mechanisms through which members of the intelligence community could voice concerns while ensuring that classified information would remain secure. In the first instance, the statute directs individuals to relay their concerns to their agency's Inspector General. Employees who are dissatisfied with their Inspector General's response are then authorized to bring their concerns to an appropriate committee of Congress in its oversight capacity.

With these mechanisms in place, it is a mistake to dub an individual who leaks classified information a whistleblower. A leaker commits a crime; a whistleblower, by contrast, follows
the legal course of disclosure enacted into law by Congress. The difference is significant and should not be not be lost on the Committee.

Upon learning of a leak of classified information to the media, our primary focus is on identifying and prosecuting the leaker, not the reporter or media organization who received the
leaked information. This focus is reflected in the Department's guidelines for the issuance of subpoenas and other compulsory process to the media. Codified at 28 C.F.R. 50.10, the
guidelines demonstrate how seriously the Department takes any investigative or prosecutorial decision that implicates members of the news media. This policy, by its terms, seeks to
"balanc[e] the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration ofjustice." 28 C.F.R. $ 50.10.

The details are important. The guidelines provide that "[all1 reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to
a member of the news media." Id. 50.10(b). They also call for undertaking negotiations with the media before resorting to a subpoena. Even then the prosecutor should do so only if there are
"reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation-particularly with reference to directly establishing guilt or innocence." & § 50.10(f)(l).

This process ordinarily plays out across multiple levels within the Department of Justice. A prosecutor seeking confidential source information from a journalist must justify the request in
writing. If the request receives approval from a United States Attorney, it then comes to Washington for careful vetting within our Criminal Division, Office of Public Affairs, the Office
of the Deputy Attorney General, and, ultimately, the Office of the Attorney General. The Attorney General's approval is mandatory in all cases in which cooperation fails with a particular journalist.

This exhaustive and rigorous process is undertaken for a reason-to enable close scrutiny by career prosecutors and to ensure that subpoenas seeking confidential source information from
journalists are issued only as a matter of last resort. In the past 15 years, the Attorney General has approved only approximately 13 requests for media subpoenas that implicated source information. This record reflects restraint: we have recognized the media's right and obligation to report broadly on issues of public controversy and, absent extraordinary circumstances, have committed to shielding the media from all forms of compulsory process. The Department of Justice will steadfastly continue to strike this same balanced approach in our investigations.

Our approach fully complies with the law. While the Supreme Court repeatedly has stressed the importance of the media's role in our society, it also has decisively declared that the
media is not exempt from the general obligation-shared by all citizens-to provide evidence to grand juries investigating crimes. The seminal case is Branzburg v. Haves, 408 U.S. 665 (1972). The Supreme Court in Branzburg held that journalists had no First Amendment right to refuse to comply with a subpoena and provide testimony to a grand jury regarding information received from a confidential source. See id. at 690-91. The Court's message was plain: "[Wle cannot accept the argument that the public interest in possible future news about crime from
undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the
commission of such crimes in the future." Id. at 695. Other courts have reinforced this conclusion. See, e.g., In re Grand J ~ r Syu bpoena, Judith Miller, 438 F.3d 1141, 1146-48 (D.C.
Cir. 2006); New York Times v. Gonzales, No. 05-2639,2006 WL 2130645, at *11-12 (2d Cir. Aug. 1,2006).

No aspect of the legal landscape or the Department's guidelines has inhibited the media from robustly reporting and commenting on controversial issues. To the contrary, journalists have time and again proven themselves more than able to gather information and disseminate news and commentary on the most controversial matters of the day. Only in extraordinarily rare circumstances-approximately 13 cases in 15 years-has the Department determined that the interests of justice warranted compelling information implicating sources from a journalist. We have struck the right balance and will continue to do so in the future.

I want to turn now to S. 283 1, the "Free Flow of Information Act of 2006." The Department of Justice firmly opposes the bill. In recent months, at least three Department officials have provided statements or offered testimony on the proposed legislation, and on June 20 of this year we detailed our objections in a views letter. I do not intend to rehash all of the points made in our letter or prior testimony. Allow me instead to focus on the bill's most serious deficiencies and to address the practical consequences that would befall the administration of justice and criminal defendants if the bill became law.

As an initial matter, proponents of the bill contend that it is a necessary response to certain recent high-profile cases in which the Department's actions have purportedly signaled a
newfound eagerness to stop journalists from reporting of leaks. The contention is misguided. The Department has not changed its policy or approach to investigating leaks. We continue to
follow the same guidelines and processes that have resulted in the issuance of subpoenas implicating source information in only approximately 13 cases in the last 15 years. We continue
to regard journalists as a source of last resort. There is not one shred of evidence supporting the notion that the Department of Justice is out to get the media.

Nor is there anything but conjecture to support the contention that journalists are writing in fear. Indeed, the argument parallels the same ones presented to, and rejected by, the Supreme Court in Branzburg in 1972. The Supreme Court dismissed as "speculative" the assertion that reporting would be chilled by requiring journalists to provide confidential source information to a grand jury. Branzburq, 408 U.S. at 694. If the critics in Branzburg were to be believed, we would have seen a marked decline in press freedoms in the ensuing years. Of course, the opposite has occurred. We live in an age in which news and critical commentary is everywhere--in print, over airwaves, and throughout the Internet. The proponents of the bill have not proven their case; they have failed to demonstrate that the Department of Justice has sought to compel confidential source information from journalists more aggressively or in greater numbers than it has in the past. The proposed bill is a solution in search of a problem.

Let there also be no doubt about the ramifications the bill would have on the administration ofjustice. The bill would work a dramatic change in current practice and severely hamper our ability to investigate and prosecute serious crimes, including acts of terrorism.

Under Section 9 of S. 283 1, a court must determine "by a preponderance of the evidence" that "an unauthorized disclosure has significantly harmed the national security in a way that is
clear and articulable" and that such harm "outweighs the value to the public of the disclosed information." By its terms, then, the bill not only transfers to the judiciary the authority to
second-guess the Executive's determinations regarding what does and does not harm the national security, it also licenses courts to find that a reporter's promise to conceal a source's identity can override national security interests, even when harm to national security is conceded. The only necessary finding is that the public interest was sufficiently strong to justify disclosure of the classified information.

The Department of Justice is particularly concerned about Section 9 and its transfer of authority to make national security determinations to the federal judiciary. The bill would force federal judges into making extremely difficult decisions about the national security implications of a particular leak4ecisions that would require extensive and nuanced knowledge about our larger national security strategy, the details of classified programs, and the ground-level impact of certain information being disseminated to the public. The process would require the submission of ample evidence and consume inordinate amounts of time, which we rarely can afford to lose when confronted with the dynamics that define national security challenges today. Perhaps Judge Wilkinson put these concerns best in his concurring opinion in United States v.
Morison, 844 F.2d 1057 (4th Cir. 1988):
Evaluation of the government's [national security] interest . . . would require the judiciary to draw conclusions about the operation of the most sophisticated electronic systems and the potential effects of their disclosure. An intelligent
inquiry of this sort would require access to the most sensitive technical information, and background knowledge of the range of intelligence operations that cannot easily be presented in the single 'case or controversy' to which courts are confined. Even with sufficient information, courts obviously lack the
expertise needed for its evaluation. Judges can understand the operation of a subpoena more readily than that of a satellite. In short, questions of national security and foreign affairs are of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
Id. at 1082-83 (Wilkinson, J., concurring).

Section 9 of the bill would thrust the judiciary into law enforcement matters reserved by the Constitution to the Executive branch. Within the context of confidential investigations and secret grand jury proceedings, determinations regarding the national security interests are best made by members of the Executive branch-fficials with broad access to the full scope of information necessary to protect our national security. As Justice Stewart explained in his concurring opinion in the Pentagon Papers case, "it is the constitutional duty of the Executiveas a matter of sovereign prerogative and not as a matter of law as the courts know law-through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense." New York Times Co. v. United States, 403 U.S. 713,729-30 (1971) (Stewart, J., concurring).

Let me be clear about what is at stake in Section 9. Under existing law, an individual wishing to challenge a subpoena bears the burden of proving that the request for particular
evidence is unreasonable or oppressive. The proposed bill, by contrast, saddles the Government with the obligation of going into a federal court and producing evidence of a quantity sufficient to prove clear and articulable harm to our nation's security. In addition to infringing upon constitutionally-conferred executive authority, the bill goes a step further and makes matters all the worse: it places a thumb on the scale in favor of the reporter's privilege. The Government cannot obtain confidential source information unless it first proves that the harm to our national security would outweigh the public's interest in maintaining the free flow of leaked information.
Our national security is too important to be subjected to these standards and burdens.

Section 9, in short, would reflect bad policy and make bad law. The practical impact, moreover, could be enormous. To provide a simple example, consider a journalist who publishes a detailed story about covert classified efforts to track the movements of international terrorists. The story also contends that aspects of the covert program have encroached on privacy interests
of certain individuals by mistakenly identifying them as terrorists. The journalist attributes the information to a confidential source and describes the source as a government insider who is so concerned about the program that he intends to resign and relocate outside the United States, taking with him documents detailing the program's operation.

Despite their best efforts, the Department of Justice and the intelligence community are unable to identity the confidential source through independent means, and the journalist refuses
to cooperate voluntarily with the Department. To prevent further harm to national security, the Attorney General quickly approves a narrowly-tailored subpoena that seeks only the identity of
the journalist's source. The journalist believes the public has a right to know about the covert program and the potential privacy problems and thus challenges the subpoena in court.

Under current law, to prevail on a motion to quash, the journalist would be required to prove the subpoena request was unreasonable and oppressive. Given the circumstances, it is
unlikely the journalist could make such a showing and thus the Department would learn the leaker's identity and apprehend him in time to prevent additional harm to our national security.

Under the proposed bill, however, the Department would first be required to provide affirmative proof that the leak damaged our national security. While it is possible that such a showing could
be made in this scenario, it is equally likely that a court could find that the harm was not yet realized or capable of specification. That finding would be enough to defeat the subpoena, even though the journalist would have done nothing other than file the motion to quash, thereby shifting the burden of proof to the Government. Moreover, even if a court credited the Department's showing of harm, the court nevertheless could find that public's interest in learning about the alleged privacy violations outweighed the Government's interests. That finding would defeat the subpoena.

This example is both realistic and revealing. It proves that the proposed legislation would impose significant and potentially crippling burdens on federal law enforcement in cases directly affecting our national security. Given the Department's record of restraint in compelling confidential source information from journalists, the bill would inflict unjustifiable harm upon a
proven approach to effective law enforcement.

Section 9 is by no means the only provision of S. 283 1 with serious deficiencies. The bill is deficient in the simplest of dimensions. Take, for example, the definition of "journalist" in
Section 3. It includes only journalists who work for financial gain and thereby discriminates against individuals who, for no money, contribute a story to a local newspaper. This deficiency
leaves the bill wide open to serious constitutional challenge on the ground that it unjustifiably discriminates against categories of speakers.

Section 5 of the bill raises grave constitutional concerns of an altogether different variety. The Sixth Amendment entitles defendants to compel witnesses to appear in court and testify.
Section 5, however, would permit defendants to access such a witness only if, "based on an alternative source," they are able to show that the witness had information relevant to a successful trial defense. The Sixth Amendment imposes no such "alternative source" requirement. Section 5 is egregiously defective in a more basic way. It requires a court to balance criminal defendant's "constitutional rights" against the "public interest in newsgathering and in maintaining the free flow of information." Such a balancing requirement is indefensible;
individuals facing grave criminal penalties, say, for example, a life sentence, should not have their "constitutional rights"-indeed, their liberty-thwarted by the interest of "newsgathering."

Other points warrant emphasis. Some supporters of S. 283 1 have suggested that the bill is no more than a codification of the Department's own guidelines. That view is badly mistaken.
The Department's guidelines preserve the constitutional prerogatives of the Executive branch with respect to key decisions regarding, for example, the kind of evidence that is presented in grand jury investigations and what constitutes harm to the national security. The proposed legislation, by contrast, would shift ultimate authority over these and other quintessentially prosecutorial decisions to the judiciary. Furthermore, the proposed legislation would replace the
inherent flexibility of the Department's guidelines, which can be adapted as circumstances require-an especially valuable attribute in a time of war-with a framework that is at once
more rigid (by virtue of being codified by statute) and less predictable (by virtue of being subject to the interpretations of many different judges, as opposed to a single Department with a clear track record of carefully balancing the competing interests).

I have also heard it suggested that the Department's concerns are overblown because many states have enacted workable media shield laws. Such analogies are entirely misplaced. An individual state's decision to provide a reporter with protection against a subpoena from a prosecutor investigating crimes under state law, serious though those crimes may be, says little about the virtues of providing journalists with such protections at the federal level. The Federal Government, unlike state and local governments, is uniquely responsible for providing for the national defense, working with our international partners to prevent acts of terrorism, and
investigating crimes with expansive national and international ramifications, such as terrorism, espionage, and leaks of classified information.

In closing, I wish to end where I began. The issues before the Committee are of enormous significance. They require each of us to acknowledge the necessity of balancing important interests and then to focus on the Department of Justice's record in striking that balance. That record, as I have explained, is one of success and restraint. We seek to work cooperatively with the media, and only rarely has the Department determined that the interests of justice warranted seeking to compel a journalist to reveal information obtained from a confidential source. The rarity of those occasions reflects the Department's commitment to
respecting the media's important role within our society. The media has been and will remain a source of last resort in our investigations.

Against the backdrop of the Department's record and the lack of any evidence showing that our approach has meaningfully chilled robust reporting by the media, I respectfully urge the Committee not to support S. 2831. The bill would significantly weaken the Department of Justice's ability to obtain information of critical importance to protecting our nation's security,
inject the federal judiciary to an extraordinary degree into affairs reserved by the Constitution for decision within the Executive branch, and, at bottom, encourage the leaking of classified information.

Thank you again for the opportunity to testify, and I look forward to answering the Committee's questions.

Other witnesses who appeared before the Committee were Steven Clymer, Cornell Law School, Theodore Olsen, Gibson, Dunn & Crutcher, Victor Schwartz, Shook, Hardy, & Bacon, and Bruce Baird, Covington & Burling.

Here is a link to the pending bill, The Free Flow of Information Act 2006.

September 22, 2006 | Permalink | Comments (0) | TrackBack (0)

University of Arizona Professor Acquitted of Charges That, Among Other Things, She "Insulted Turkishness"

Elif Shafak, author of The Bastard of Istanbul, who had been charged with criminal defamation and "Insulting Turkishness" under Turkey's Penal Code, Article 301, has been acquitted of the charges. Dr. Shafak is also a professor at the University of Arizona. The provision is the same one under which novelists like Orhan Pamuk and some journalists had also been brought to trial. Here are breaking news reports the BBC has gathered showing reaction to her acquittal. Here is a story from the Chronicle of Higher Education on the trial and acquittal (subscription may be required).

September 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 20, 2006

Georgetown's Institute for Public Representation Seeks Applicants For Two Year Position in Commucations Law

Georgetown's Institute for Public Representation is inviting applications for a two-year graduate fellow/staff attorney position in public interest communication law, starting in August of 2007. It will accept applications through December 1, 2006. Here's more information on the application process from the website.

September 20, 2006 | Permalink | Comments (0) | TrackBack (1)

FTC Seeking Information on Effectiveness of Ratings, Online Sales

The Hollywood Reporter's Brooks Boliek reports on the Federal Trade Commission's collection of data regarding possible online sales of merchandise rated for those 17 and over to minors here. Of particular interest to the FTC is whether the entertainment industry's self policing through stickers and other parental advisory mechanisms is actually working in an increasingly digital and virtual world. See the 2004 report: Marketing Violent Entertainment to Children here posted on the FTC's website.

September 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 19, 2006

Senator Boxer Releases Hitherto Unknown FCC Draft Reports; Martin Promises Investigation Into Why They Were Not Released

Senator Barbara Boxer has released two FCC reports that were apparently shelved, and FCC head Kevin Martin has indicated he will investigate why they were never released. In a letter Martin sent to Boxer, he told her he had asked the FCC's inspector general to find out what had happened. Said Martin, "As with the previous study, I was not Chairman at the time this report was drafted. I had not seen--nor was I aware of--this draft report before you brought it to my attention. No one on my staff had seen this report nor were they aware of it. I want to assure you that I too am concerned about what happened to these two draft reports. I have asked the Inspector General of the FCC to conduct an investigation into what happened to these draft documents and will cooperate fully with him."

In an earlier letter regarding the 2004 report he had said, "As I indicated at the hearing, I was not Chairman at the time that this report was drafted. I had not seen--nor was I aware of--this draft report before you brought it to my attention. No one on my staff had seen this report nor were they aware of it. I am not aware of any other commissioners, past or present, who knew of the report. It is unclear why this report was never released to the public. I am attempting to determine why, but the senior management of the Media Bureau and the Chairman of the Commission at the time are no longer at the Commission."

The two reports, one entitled "Do Local Owners Deliver More Localism? Some Evidence From Local Broadcast News" and dated 2004 and the other entitled "Review of the Radio Industry" and dated 2003 are now available on the FCC's website.

Read more here in an AP story.

September 19, 2006 | Permalink | Comments (0) | TrackBack (0)

Cornell Offers Guidance to Faculty in Placing Copyrighted Materials on Electronic Reserve

Cornell University has developed a checklist to assist its faculty in negotiating the problems inherent in placing copyrighted electronic materials on reserve. The guidelines are here on Cornell's website along with a memo from Cornell's Provost explaining the reasons for the checklist's existence: concerns over copyright infringement and, in the words of the Provost, "[r]espect of the intellectual property of others" which is "a cornerstone of academic integrity". An article in today's Chronicle of Higher Education discusses the Cornell policy (subscription may be required).

September 19, 2006 | Permalink | Comments (0) | TrackBack (0)

Jessica Litman on Lawful Personal Use

Jessica Litman, University of Michigan Law School, has published "Lawful Personal Use" as Michigan Legal Studies Research Paper 06-004. Here is the abstract.

Whenever someone makes a copy of a copyrighted work, that copy is either authorized by the copyright owner, permitted by some express provision of the copyright statute (such as the ephemeral copy provision in section 112 or the fair use provision in section 107), or infringing. That's what we tell our colleagues and what we teach our students. But most of us don't actually believe it, and this article argues that that understanding of the copyright law is wrong.

I make this argument by examining the copyright law through the lens of personal use. Unlike many other jurisdictions, the United States has not troubled itself to nail down the lawfulness of personal copying and other personal uses. The statute prohibits infringement actions “based on the noncommercial use by a consumer” of “a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium,” but is otherwise silent on the topic of personal uses. We have been comfortable with considerable uncertainty about the scope of lawful personal use because enforcing copyrights against personal uses seemed, until recently, unthinkable.

Two related developments have spurred a reexamination of the lawfulness of personal uses. First, in the last three years, record labels and motion picture studios have sued thousands of individuals for copyright infringement. Second, the Supreme Court in the Grokster case adopted a standard for contributory copyright liability for distributors of technology that turns on whether the uses that the distributors encouraged their customers to engage in are lawful or unlawful.

In this article, I argue that people's reading, listening, viewing, watching, playing and using copyrighted works is at the core of the copyright system. I revisit copyright cases that have attracted criticism for their stingy construction of copyright owners' property rights, and suggest that the narrow reading of copyright rights was motivated, at least in part, by courts' solicitude for the interests of readers and listeners. I then articulate a definition of personal use. Armed with that definition, I look at the range of personal uses that are uncontroversially non-infringing under current law. I focus in particular on personal uses that seem to fall within the literal terms of copyright owners' exclusive rights, and seem to be excused by no statutory limitation, but which are nonetheless generally considered to be lawful. I proceed to offer an alternative test for assessing the lawfulness of personal uses. Finally, I return to the conventional paradigm of copyright statutory interpretation, under which all unlicensed uses are infringing unless excused. I suggest that that rubric is not only inaccurate, but potentially destructive of copyright's historic liberties.

Download a copy of the entire paper from SSRN here.

September 19, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, September 18, 2006

Belgian Court Orders Google To Stop Posting Articles

A Belgian court has told Google to stop posting content from Belgian newspapers on its websites without permission. Copiepresse, which handles copyright for French language newspapers in France and Belgium, had sued Google over the issue. The court informed the company that it would have to pay fines of 1 million Euros per day for noncompliance. Google says it will appeal. Read more here (registration may be required; free).

September 18, 2006 | Permalink | Comments (0) | TrackBack (0)