Feature

Censorsed: Copyright’s Festering Free-Speech Problem

John Tehranian

©2017. Published in Landslide, Vol. 9, No. 5, May/June 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Latin celebrities Noelia Lorenzo Monge and Jorge Reynoso had a problem on their hands. Secretly wed in a Las Vegas ceremony in 2007, they had kept their nuptials hidden from the world and had always told their fans and the media they were single. But when a tabloid rag obtained wedding photographs from the couple’s former bodyguard, Monge and Reynoso’s furtive union was exposed. At first blush, there was little the couple could do, legally speaking. After all, the First Amendment typically provides vigorous protection to news reporting, especially when it is entirely truthful and on a matter of public interest. But Monge and Reynoso would not take the outing of their marriage quietly. So they did with copyright law what they could not do with any other area of the law: they made Maya Magazines, the owner of the tabloid, pay.1

First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs—not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya’s activities protected under the fair use doctrine, the Ninth Circuit ultimately reversed and, in a published decision, deemed Maya liable for infringement.2 According to the appellate court, Maya’s actions constituted an unauthorized use of the heart of a series of unpublished creative works for the highly commercial purpose of tabloid journalism. Thus, Maya had, in the court’s view, improperly usurped first publication rights to the photographs, thereby depriving the rights holders of the decision to license (or not license) those works as they wished.

But Monge and Reynoso’s victory came at significant cost to the First Amendment and, ultimately, to the vitality of our copyright system. By fetishizing property interests in copyrighted works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets. As Andrew Baum has cautioned, the case might prevent the press from reproducing e-mails confirming an affair denied by a general and his book-writing mistress (e.g., General Petraeus and Paula Broadwell) or the secret same-sex relationship of a gay-bashing congressman.3

Monge v. Maya Magazines is no outlier in empowering the use of copyright law as a potent tool to suppress speech. Examples of the disingenuous use of copyright law for censorious purposes abound. In recent years, as the Digital Media Law Project has documented, creationists have repeatedly used the Digital Millennium Copyright Act (DMCA) to force the takedown of critical materials put online by evolutionists.4 In Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, abortion-rights activists brought infringement litigation to enjoin speech by pro-life forces.5 In Four Navy SEALs v. Associated Press, military personnel ginned up copyright claims to suppress photographs documenting human rights abuses.6 And, in Savage v. CAIR, a prominent political talk show host sued to prevent unauthorized reproductions of his broadcasts in order to suppress criticism of his hate-filled rants.7

Copyright’s Censorship Problem

In short, copyright law has become the weapon par excellence of the twenty-first century censor. Fueled by a desire to prevent one’s perceived foes from making certain types of speech, an individual has no better friend than copyright law. Copyright violations are ubiquitous—with smartphones in our pockets and networked computers at our desks, we all infringe copyright law multiple times a day and leave digital fingerprints to document our infringing activities if a putative rights holder bothers to investigate.8 Liability can be massive—up to $150,000 per willful act of copyright infringement.9 Copyright suits are difficult to fend off—the average suit costs hundreds of thousands of dollars to defend.10 And, perhaps most saliently to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses.11 As the Supreme Court expressly held in Eldred v. Ashcroft, “copyright’s built-in free speech safeguards are generally adequate to address [any conflict with free speech rights],” as “[t]he First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”12

Increasingly, therefore, instead of engaging in robust free speech to convince the public of the merits of their respective views, organizations at the frontlines of leading cultural and political issues have waged a proxy war against each other through the prism of copyright law. With the strategic use of infringement claims, they have found a powerful new tool to silence their opponents. Yet this is hardly what the Framers of the Constitution had in mind when they envisioned how political differences might be resolved in the twenty-first century.

All the while, the current state of affairs has been particularly exacerbated by the copyright exceptionalism embraced by many courts. In other arenas, courts have carefully developed strong First Amendment checks to prevent parties from imposing tort liability against their ideological adversaries when those adversaries exert their expressive rights. Defamation, false light, invasion of privacy, and intentional infliction of emotional distress claims are all checked by the First Amendment, per New York Times v. Sullivan,13 Time v. Hill,14 Cox v. Cohn,15 and Hustler v. Falwell,16 respectively. But copyright claims are not, according to a long line of cases culminating with the Supreme Court’s decision in Eldred v. Ashcroft.17 As such, would-be censors have converted losing tort claims into viable copyright infringement claims that punish their foes for legitimate speech-related activity. These censorious efforts troublingly utilize the apparatus of the state (via a state-granted monopoly) to silence and suppress disfavored speech.

Pushback and Its Limitations: Fighting Allegations of Racism, Torture, and Corruption with Copyright Law

Admittedly, the disingenuous use of copyright law as a censorship tool has not been without some pushback. Indeed, it would be wrong to claim that the system is entirely broken, as the federal courts have responded with occasional tenacity to the growing threat of censorious copyright litigation. When such cases reach a decision on the merits, the courts have typically denied the infringement claims. In some instances, they have even gone out of their way to enable early adjudication of such claims at the motion to dismiss stage. In other instances, they have not only rebuked such claims, but also awarded fees to prevailing defendants as a means of deterring such disingenuous uses of copyright litigation in the future.

But, as the Monge v. Maya Magazines decision indicates, the response is not all positive, and in some ways the problem has grown. Although some courts have entertained early adjudication of fair use issues, most have declined. The resulting situation means that defendants with even the most ironclad fair use defenses still have to face backbreaking expenses in litigation—including exposure to discovery—in order to successfully vindicate their rights. The courts have also issued enough binding and troubling precedent to make censorious cases viable. And, finally, part of the problem is out of the hands of the courts: the extrajudicial relief provided to copyright holders under the DMCA has made censorious uses of copyright law, without reliance on courts, all too easy.

Consider Michael Savage’s copyright infringement suit against the Council on American­‑Islamic Relations (CAIR).18 During a 2007 radio broadcast of his political talk show, Savage declared the Quran to be “a book of hate” and deemed Muslims “throwbacks” who should be deported “without due process.”19 In response, CAIR posted an online critique of Savage’s vitriol and encouraged “radio listeners of all faiths to contact companies that advertise on Michael Savage’s nationally-syndicated radio program to express their concerns about the host’s recent anti-Muslim tirade.”20

With the online post, CAIR excerpted (without permission) approximately four minutes from Savage’s two-hour broadcast.21 The use of Savage’s broadcast appeared to be a quintessential form of commentary and criticism, immunized from liability both under the strictures of copyright law’s fair use doctrine22 and the First Amendment.23 Savage, however, felt that CAIR had illicitly impinged on his exclusive dominion over his intellectual property, so he sued for copyright infringement.24

To its credit, in Savage v. CAIR, the court quickly dispensed with the suit by granting a motion for judgment on the pleadings on the ground that the fair use doctrine protected CAIR’s actions as a matter of law.25 Ultimately, however, CAIR was left absorbing the costs of defending a meritless suit; although the court admitted that “plaintiff’s Copyright Act claim was ‘never strong and was litigated anemically,’” it declined to award CAIR fees.26

By denying CAIR’s motion for fees, the court failed to deter overreaching claims. So it should not be surprising that, shortly thereafter, Savage attempted to silence other groups by using similarly tenuous claims over the same piece of intellectual property. This time, Savage targeted Brave New Films, which had incorporated one minute of Savage’s comments—only a quarter of CAIR’s use—as part of a media piece it had prepared on his anti-Muslim views and posted on YouTube.27 Despite the court’s ruling of fair use over the exact same footage in the CAIR case, Savage’s company—Original Films—claimed that Brave New Films had infringed its rights. Original Films filed a takedown notice with YouTube pursuant to the DMCA. YouTube removed the video just after Brave New Films took out a full-page advertisement in the New York Times with a link to the video. The blow to Brave New Films was significant: the takedown thoroughly neutered the power of its concentrated (and expensive) outreach campaign.28 Although Brave New Films ultimately sued so that it could have its use of the video restored, the damage had already been done. Savage’s cynical use of copyright law silenced his critics at precisely the right moment.29

Litigants have also regularly turned to copyright law as a transparent vehicle to punish their critics. In Katz v. Chevaldina, Irina Chevaldina wrote several caustic blog entries charging Raanan Katz, a noted Florida businessman and minority owner of the Miami Heat, with immorality and illegality in his commercial affairs.30 In so doing, Chevaldina used a photograph of Katz to identify him for her audience. Katz sued, claiming that he owned the copyright to the photograph and that Chevaldina had engaged in copyright infringement.31 The court refused to address the fair use issue at the motion to dismiss stage and expressly declined to follow prior precedent supporting adjudication of the fair use defense at the early stages of a lawsuit, claiming that, among other things, fair use was a mixed question of fact and law not appropriate for resolution prediscovery.32 As the court concluded, it is a “general rule that fair use defenses are not ripe for determination before the summary judgment stage.”33 Katz’s suit therefore marched on, despite the fact that it was a transparent attempt to impose liability against Chevaldina for her speech-related activities on a matter of legitimate public concern, a view buttressed when a unanimous Eleventh Circuit panel decided Chevaldina’s fair use defense resoundingly in her favor after almost two years of litigation.34

In an even more politically charged example, in (the aptly captioned) Four Navy SEALs v. Associated Press, four military personnel sued the Associated Press and a reporter when, in the wake of the high-profile scandal at Abu Ghraib, they ran a story that alleged the SEALs had abused Iraqi prisoners.35 Among other things, the story’s photos showed the SEALs “sitting on, lying atop, or stepping on detainees, some of whom are hooded,” and depicted “military personnel pointing a firearm at a prisoner’s bloody head at point blank range.”36 The SEALs claimed that publication of the photographs constituted an invasion of their privacy (their faces were shown in some of the photographs) and an infringement of their copyright interests.37 Based largely on newsworthiness grounds, the Four Navy SEALs court did not hesitate to dismiss the privacy-related claims on the motion to dismiss.38 However, the court declined to dismiss the infringement claim, deeming the issue “inappropriate for determination in a . . . motion [to dismiss], since fair use is an affirmative defense to an infringement claim.”39

The differing results on the privacy and copyright claims in the Four Navy SEALs suit are of particular note. Because the privacy claims were grounded in state law, they were properly subject to the special motion to strike under California’s Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, which allows prediscovery challenges to any state law claims “based upon an act in furtherance of the right to free speech.”40 For such claims, defendants can force a plaintiff to present admissible evidence showing a probability of prevailing on the merits of the cause of action.41 Failure to do so results in significant consequences: the suit is dismissed, and a defendant is automatically granted its attorneys’ fees.42

Thus, under the anti-SLAPP statute, the court was indisputably able to consider the merits of the privacy claims at the very outset of the case, and the plaintiffs faced swift repercussions for bringing a censorious claim without merit. When the plaintiffs failed to show a probability of success on the merits, the court not only dismissed the privacy claims but also granted the defendants their fees.43 By sharp contrast, as a federal cause of action, copyright claims enjoy immunity from special motions to strike under the anti-SLAPP statute. The infringement claims therefore survived, despite their similarly suspect nature.44

Meanwhile, numerous other courts have declined to adjudicate fair use issues at the motion to dismiss stage.45 As Eric Goldman has concluded, “[s]uccessful fair use defenses on a motion to dismiss are exceptionally rare.”46 Thus, the inapplicability of the anti-SLAPP statute to copyright claims and the courts’ general refusal to consider a fair use defense—no matter how solid—at the prediscovery stages of a lawsuit have combined to make copyright claims particularly valuable weapons for litigious censors.

As such, even when there is an unusually strong fair use defense to an allegation of infringement, a defendant will often face protracted litigation and substantial costs, no matter how meritorious its position. In many instances, an underfunded defendant must kowtow to a plaintiff’s infringement claims, even if the former is ultimately in the legal right. Of course, such an objection could be lodged against litigation of any sort, as well-heeled plaintiffs can often leverage the costs and uncertainty of litigation to wrest concessions from smaller defendants that they would not otherwise receive if the parties enjoyed similar resources. But it is particularly so in copyright law, where, unlike state law claims that might be subject to an early motion to dismiss or motion to strike (per an anti-SLAPP statute, as in the Four Navy SEALs case), there is no such early adjudication mechanism. In addition, problematic interpretations of offer or judgment and the general ability of losing rights-holding litigants to avoid fees liability have made plaintiffs increasingly uncompromising in their demands.

Finally, putative copyright holders have frequently and successfully abused the DMCA to force the takedown of online materials that criticize them.47 Ecuadorian President Rafael Correa has used DMCA takedown notifications to suppress speech critical of his regime by claiming copyright ownership of parts of video footage being distributed online to substantiate charges of corruption against him.48 The English Defence League (EDL), a rightwing extremist religious group based in the United Kingdom, has used the DMCA to remove critical commentary from a website monitoring hate group activities because the site featured a 16-word quotation from one of the EDL’s members without permission.49

In perhaps the most unusual example, an ex-wife used a purported copyright interest she obtained from her late husband to prevent online distribution of his suicide note.50 The move was particularly ironic and troubling because, when Chris Mackney took his own life on December 23, 2013, he was in the midst of an acrimonious and lengthy custody battle with his ex-wife, Dina. He left behind a lengthy suicide note denouncing her, her family, and her lawyers. During the last months of his life, Chris had maintained a blog detailing his difficult custody battle with Dina, and his suicide note immediately generated attention online, where it was reproduced by numerous websites advocating for greater rights for fathers in family courts. Dina clearly did not appreciate her name being dragged through the mud, but the First Amendment precluded action—except under copyright law. Thus, through DMCA takedown notifications, she prevented online distribution of his suicide note—a note that placed responsibility for his untimely passing squarely on her.51 In the process, she managed to undo her husband’s final dying wish: that his side of the story be known to the world.

Unfortunately, the DMCA’s putative check on takedown abuse—§ 512(f)—has proven largely ineffectual in countering such machinations. Section 512(f) does create a civil cause of action against those who “knowingly materially misrepresent[] . . . that material or activity is infringing”52 based on their “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”53 And, in Lenz v. Universal, the Ninth Circuit held that a “copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).”54 However, judicial interpretation of the mental state required to prove a knowing material representation has neutralized this valuable check on DMCA takedown abuse that Congress had initially written into the Copyright Act. Lenz therefore represented a pyrrhic victory for online users of copyrighted content because it still reaffirmed the judicial view that the “good faith belief” requirement is entirely subjective, not objective,55 and concluded that, so long as “a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.”56

A party issuing a takedown notice can therefore escape § 512(f) liability by possessing a subjective, good faith belief that the activity about which it complains constitutes infringement. This standard is particularly problematic given that some industries, institutions, and individuals have earnestly argued that virtually all uses of copyrighted works require licenses.57 If a copyright holder genuinely subscribes to these views (and therefore lacks subjective bad faith in sending out an overreaching takedown notification), it cannot suffer liability under § 512(f)—no matter how objectively unreasonable its belief.

Addressing Copyright’s Censorship Problem

A Federal Anti-SLAPP Statute

New tools are needed to fight the threat posed by censorious copyright litigation to public debate, expressive rights, and freedom of speech. Reform efforts would ideally introduce a consistent and uniform procedural mechanism for addressing the copyright-as-censorship problem. And the procedure would give victims of such claims the ability to escape litigation at an early juncture and deter plaintiffs from bringing such claims in the future.

One solution for a consistent methodology for early evaluation of censorious copyright litigation might come in the form of anti-SLAPP statutes that many states have implemented. California’s anti-SLAPP iteration, for instance, allows defendants to bring an early “motion to strike” any cause of action arising from any “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”58 For SLAPP-able causes of action brought under California law, a plaintiff must make an immediate showing of a probability of prevailing on the merits. Failure to do so results in dismissal of the claim, with prejudice, and an automatic award of fees to the defendant.59 Thus, the anti-SLAPP protocol allows victims of meritless litigation to dispose of suits early and, with its automatic grant of fees to prevailing defendants, makes plaintiffs think twice about bringing such litigation in the first place.

Consider how such an anti-SLAPP procedure might apply to the emblematic copyright-as-censorship cases we have discussed. California’s anti-SLAPP law defines matters of public issue or interest broadly,60 literally encompassing “any issue in which the public is interested,” including matters wholly between private parties and even tabloid fodder.61 Because copyright-as-censorship cases characteristically involve activities that advance the expression of basic facts or commenting on matters of public concern, the suits would undoubtedly qualify for anti-SLAPP treatment under a federal provision worded similarly to California’s. Thus, the infringement claims in Four Navy SEALs (allegations of torture against members of the armed services); Katz (allegations of corruption against a prominent real estate developer); Savage (a hate-filled rant by a prominent radio talk show host and political commentator); and Monge (the marital status of a major Latin celebrity) would all be subject to an early showing by the plaintiff of a probability of prevailing on the merits.

Ideally, however, we would not want the existence of anti-SLAPP relief to dissuade or diminish attempts by rights holders to vindicate appropriate interests under the Copyright Act. After all, almost all copyright claims have the ability to adversely impact the freedom of speech. But the censorious use of copyright is distinct from the general impediments to users’ expressive rights that are inherent to most copyright litigation. Thus, anti-SLAPP eligibility could be carefully circumscribed.

Consider, for example, when Universal famously forced YouTube to take down Stephanie Lenz’s popular62 video of her young son dancing to Prince’s 1980s classic “Let’s Go Crazy,” an action that led to Lenz v. Universal.63 While Universal’s actions may have been bad form, ill-advised, or unremittingly avaricious, they were not censorship. The point of Universal’s infringement claim was to maximize profits and control the use of a work to which it possessed a copyright; it was not primarily motivated by a desire to suppress Lenz’s speech. Likewise, when Warner Brothers sued the makers of an unauthorized Harry Potter encyclopedia in Warner Bros. v. RDR Books,64 it sought to protect the economic market for Harry Potter and Warner’s exclusive right to produce its own definitive Harry Potter treatise, not to suppress the defendant’s particular point of view about the Harry Potter universe.

By sharp contrast to these suits involving Universal and Warner Brothers, in censorious suits, a plaintiff’s primary motivation is a desire to suppress the defendant’s particular message or the context of his or her use. But because motivation can be difficult to determine independently, we can use a proxy to indicate potential bad faith: whether the plaintiff lacks a legitimate economic motivation to preserve a rightful market for the licensing of its copyrighted work. And, because the purpose of anti-SLAPP relief is to promote the public interest in freedom of speech, the concerns raised in this article specifically pertain to instances where use of a copyrighted work strongly advances the expression of basic facts or commentary on matters of public concern. To that end, the availability of anti-SLAPP relief could be limited to cases impacting the public interest bearing the hallmarks of censorious motives: where (1) the plaintiff lacks a legitimate economic motivation to preserve an established market for the licensing of its copyrighted works, and (2) the defendant’s use of the work at issue advances the expression of basic facts or comments on matters of public concern.

A New York Times v. Sullivan for Copyright Law

Reform that addresses copyright’s censorship problem need not only come from Congress. Courts could take certain steps. Admittedly, efforts to convince courts to introduce an explicit free speech check on copyright cases have largely failed. As Jennifer Rothman has put it, “there has been a virtually unrelenting rejection of First Amendment review in copyright cases.”65 But courts’ reluctance to place an express First Amendment limit on all copyright enforcement may be one significant reason for that failure.

Notably, courts have had no problem with imposing carefully circumscribed First Amendment limitations on tort liability in a variety of scenarios. In New York Times v. Sullivan, the Supreme Court famously held that defamation claims brought by public officials should be subject to a critical First Amendment check: a showing that the defendant acted with actual malice by either intentionally disregarding the truth or acting with reckless indifference toward it.66 As the Court reasoned, allowing public officials to prevail on defamation claims based on mere negligence alone would cast too great a shadow on the First Amendment by chilling reporting on political matters.67 The Supreme Court has subsequently extended the holding of New York Times v. Sullivan to all manner of defamation,68 false light,69 intentional infliction of emotional distress,70 and invasion of privacy71 cases involving public figures or matters of public concern.

These doctrinal innovations had a common goal: preventing the courts themselves from being used by private individuals as a means to wield the power of the state (through the imposition of legal liability) to effectively suppress speech on matters of public concern. However, despite the value of these innovations, the courts did not go far enough and left a gaping exception—copyright law. Agile and cynical litigants have exploited this loophole. This blind spot in the courts’ jurisprudence has, in recent years, resulted in the wave of censorious infringement litigation that we have documented. Such litigation has raised the specter of severe liability for speech related to matters of public concern—precisely the type of liability from which the Supreme Court sought to protect defendants with New York Times v. Sullivan and its progeny. The adoption of a New York Times v. Sullivan–like check on censorious copyright claims—ones that pertain to matters of public concern where the plaintiff seeks to vindicate interests outside of the established market for the licensing of its copyrighted works—could serve as an important step toward combating censorious infringement litigation.

It is also worth noting that, even in the intellectual property context, courts have independently created First Amendment defenses in specific circumstances. Despite the existence of statutory defenses including fair use, federal courts have checked trademark liability on First Amendment grounds with widespread adoption of the artistic relevance defense from Rogers v. Grimaldi, where any use of a trademark in a creative work is permitted so long as the use is artistically relevant and does not explicitly mislead as to sponsorship or endorsement.72 And, despite the existence of separate statutory defenses, California courts have checked right of publicity claims on First Amendment grounds with adoption of the transformative use defense from Comedy III v. Saderup, where any transformative use of a celebrity’s likeness is excused from liability.73 Copyright’s moment for an explicit First Amendment check has come.

Copyright Comes Full Circle

Several hundred years ago, copyright started out as a law of censorship. With its official chartering in 1557, the Worshipful Company of Stationers and Newspaper Makers (later known as the Stationers’ Company), a guild of London booksellers, implemented a register system.74 With royal backing, this system enabled the Stationers’ Company to prevent the publication of, as well as seize and destroy, any unauthorized works not duly authorized by the Stationers’ Company (and, implicitly, the Crown). The entry of a book in the register gave the publisher thereof a “copye” and the attendant rights thereto—rights that became known as “copyrights.” For a century and a half, the Stationers’ Company and the Crown combined to use copyright as an effective tool for censorship in England.

Unfortunately, copyright is threatening to come full circle. Infringement ubiquity, penalty severity, and First Amendment immunity have combined to create ideal conditions for private litigants to exploit this state-granted monopoly to censor the expressive activities of their adversaries. Though not insubstantial, efforts by the courts to curb this trend have ultimately failed, thereby sparking the need for reform. Such reforms not only should vindicate the expressive rights of the political and social adversaries who have found themselves on the receiving end of meritless infringement litigation meant to censor their speech, but also should strengthen the functioning of the copyright regime for legitimate rights holders seeking protection of their appropriate “copye” rights.

Endnotes

1.Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012).

2. The Ninth Circuit’s majority faulted Maya for “rely[ing] solely on the sensational photos” rather than publishing “other supporting evidence such as a marriage certificate” to make its point. Id. at 1170, 1179. The dissent disagreed that use of the marriage certificate would have sufficed and posited that “Maya’s use of the photos was . . . integral to exposing to the public the depth of their relationship and the actual events of their secret Vegas wedding night—the venue, the clothing, the after-party. Contrary to the majority’s contentions, a mere marriage certificate would not suffice.” Id. at 1188 (Smith, J., dissenting).

3. Andrew Baum, Private Affairs/Public Rights: Can Copyright Be Used to Protect Newsworthy Secrets?, 5 Landslide, no. 5, May/June 2013, at 6.

4. Sam Bayard, Creationist-Atheist Brouhaha over DMCA Takedown Notices, Digital Media L. Project (Sept. 20, 2007), http://www.dmlp.org/creationist-atheist-brouhaha-over-dmca-takedown-notices.

5. 868 F. Supp. 2d 962 (C.D. Cal. 2012).

6. 413 F. Supp. 2d 1136 (S.D. Cal. 2005).

7. Brave New Films 501(c)(4) v. Weiner, No. C 08-04703 SI, 2009 WL 1622385, at *1 n.1 (N.D. Cal. June 10, 2009); Savage v. Council on Am.-Islamic Relations, Inc. (Savage v. CAIR), No. C 07-6076 SI, 2008 WL 2951281, at *1 (N.D. Cal. July 25, 2008).

8. John Tehranian, Infringement Nation: Copyright 2.0 and You (2011) (detailing the unwitting infringements of copyright law that we all commit on a daily basis).

9. 17 U.S.C. § 504(c)(2).

10. As the American Intellectual Property Law Association’s (AIPLA’s) annual Report of the Economic Survey notes, the median cost for litigation for a middle-of-the-road copyright infringement suit in 2013 was $563,000 per side. AIPLA, Report of the Economic Survey 2013, at I-176 (2013).

11. See, e.g., Neil Weinstock Netanel, Locating Copyright within the First Amendment Skein, 54 Stan. L. Rev. 1, 4 (2001).

12. 537 U.S. 186, 221 (2003) (emphasis added).

13. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

14. Time, Inc. v. Hill, 385 U.S. 374 (1967).

15. Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).

16. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

17. Eldred, 537 U.S. at 221.

18. Savage v. CAIR, No. C 07-6076 SI, 2008 WL 2951281, at *1 (N.D. Cal. July 25, 2008).

19. Plaintiff Brave New Films’ Notice of Motion and Motion for Partial Summary Judgment, Brave New Films 501(c)(4) v. Weiner, No. CV 08-04703 SI, 2009 WL 1622385 (N.D. Cal. June 10, 2009), 2009 WL 527974, at *1.

20. Press Release, Council on Am.-Islamic Relations, National Radio Host Goes on Anti-Muslim Tirade (Nov. 1, 2007), http://www.cair.com/press-center/press-releases/2768-national-radio-host-goes-on-anti-muslim-tirade.html.

21. See Savage, 2008 WL 2951281, at *7.

22. 17 U.S.C. § 107.

23. U.S. Const. amend. I.

24. See Savage, 2008 WL 2951281, at *1.

25. Id. at *15.

26. Savage v. Council on Am.-Islamic Relations, Inc., No. C 07-06076 SI, 2009 WL 188848, at *1 (N.D. Cal. Jan. 26, 2009).

27. Joan Brunwasser, Brave New Films Sues Shock Jock Michael Savage, OpEdNews (Oct. 10, 2008), http://www.opednews.com/articles/Brave-New-Films-Sues-Shoc-by-Press-Release-081010-626.html.

28. See Plaintiff Brave New Films’ Notice of Motion and Motion for Partial Summary Judgment, supra note 19, at *7 (“As a result of that takedown notice, YouTube removed not only ‘Michael Savage Hates Muslims’ from Brave New Films’ channel, but disabled Brave New Films’ entire channel at a critical time in the presidential election cycle, rendering unavailable a large number of videos that expressed important political views, and just as Brave New Films ran a full-page ad in the New York Times.”).

29. See Brave New Films 501(c)(4) v. Weiner, No. 308CV04703, 2009 WL 3413839, at *2 (N.D. Cal. Sept. 11, 2009).

30. 900 F. Supp. 2d 1314, 1315–16 (S.D. Fla. 2012).

31. Id.

32. Id. at 1315–17.

33. Id. at 1316.

34. Katz v. Google Inc., 802 F.3d 1178, 1184 (11th Cir. 2015) (denying Katz’s infringement claims and holding that “every reasonable factfinder would conclude the inclusion of the Photo in [Chevaldina’s] blog posts constituted fair use”).

35. 413 F. Supp. 2d 1136, 1140–41 (S.D. Cal. 2005).

36. Id. at 1141.

37. Id. at 1142.

38. Id. at 1144.

39. Id. at 1148.

40. Id. (citing Cal. Civ. Proc. Code § 425.16(b)).

41. Cal. Civ. Proc. Code § 425.16(b).

42. Id. § 425.16(c).

43. There is a potential strategic lesson here too for the plaintiffs: by bringing the state law claims for invasion of privacy, they subjected themselves to the anti-SLAPP statute and risked early adjudication and an automatic award of fees to the defendants.

44. See Four Navy SEALs, 413 F. Supp. 2d at 1148.

45. See, e.g., Browne v. McCain, 612 F. Supp. 2d 1125, 1130 (C.D. Cal. 2009) (noting that “in light of a court’s narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a 12(b)(6) motion”).

46. Eric Goldman, Blogger Wins Fair Use Defense . . . On a Motion to Dismiss!—Righthaven v. Realty One, Tech. & Marketing L. Blog (Oct. 21, 2010), http://blog.ericgoldman.org/archives/2010/10/righthaven_defe.htm.

47. See 17 U.S.C. § 512(c), (i) (conditioning Internet service provider eligibility for the DMCA safe harbor from infringement liability on compliance with, among other things, the designation of an agent for receipt of takedown notices, removal of infringing material upon receipt of takedown notifications, and termination of the accounts of repeat infringers under appropriate circumstances).

48. Glenn Garvin, Glenn Garvin Commentary: Phony Copyright Claims Exploit Holes in U.S. Internet Law, Columbus Dispatch (Dec. 19, 2013), http://www.dispatch.com/content/stories/editorials/2013/12/19/phony-copyright-claims-exploit-holes-in-u-s—internet-law.html.

49. Cory Doctorow, UK Website Taken Down by Spurious Copyright Complaint regarding UK Ultra-Right Groups, Boing Boing (Oct. 10, 2012), http://boingboing.net/2012/10/10/uk-website-taken-down-by-spuri.html.

50. Mike Masnick, Ex-Wife Allegedly Using Copyright to Take Down Husband’s Suicide Note, Techdirt (Apr. 25, 2014), https://www.techdirt.com/articles/20140425/11184127030/ex-wife-allegedly-using-copyright-to-take-down-husbands-suicide-note-where-he-blames-their-custody-battle.shtml.

51. For a sample of Dina’s takedown notices, see Letter from Rachelle E. Hill, Bean, Kinney & Korman, P.C., to A Voice for Men, LLC (Apr. 15, 2014), http://www.avoiceformen.com/wp-content/uploads/sites/2/2014/04/Letter-to-AVOICEFORMEN.COM-redacted.pdf.

52. 17 U.S.C. § 512(f)(1).

53. Id. § 512(c)(3)(A)(v).

54. Lenz v. Universal Music Corp., 815 F.3d 1145, 1153 (9th Cir. 2015).

55. Id. at 1153–54 (citing Rossi v. Motion Picture Ass’n of Am., 391 F.3d 1000, 1004–05 (9th Cir. 2004)). Numerous other courts have also adopted Rossi’s subjectivity standard. See Tuteur v. Crosley-Corcoran, 961 F. Supp. 2d 333, 342–43 (D. Mass. 2013); Third Educ. Grp., Inc. v. Phelps, 675 F. Supp. 2d 916, 927 (E.D. Wis. 2009); Dudnikov v. MGA Entm’t, Inc., 410 F. Supp. 2d 1010, 1013 (D. Colo. 2005).

56. Lenz, 815 F.3d at 1154.

57. See James Boyle, Afterword to Keith Aoki et al., Tales from the Public Domain: Bound by Law? 67–70 (2006) (critiquing content creation industries’ nurturing of a “permissions culture,” where every use of a creative work purportedly requires permission and payment to a putative rights holder). Such absolutist views are not without some support in relevant precedent. See, e.g., Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004) (holding that any unauthorized sample of a sound recording, no matter how small, constitutes copyright infringement, and cautioning all would-be users of copyrighted work to “[g]et a license or do not sample”).

58. Cal. Civ. Proc. Code § 425.16(e).

59. Id. § 425.16(c).

60. Indeed, California Code of Civil Procedure section 425.16(a) mandates that the anti-SLAPP statute “shall be construed broadly.”

61. Nygard, Inc. v. Uusi-Kerttula, 72 Cal. Rptr. 3d 210, 220 (Ct. App. 2008).

62. Mainstream audiences apparently did not consider, or mind, that the child was dancing to a song replete with references to phone sex and “purple bananas.”

63. Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008).

64. Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 546–47 (S.D.N.Y. 2008) (holding that, although the encyclopedic guide to Harry Potter was transformative, it took “too much original expression” and ultimately infringed Warner’s copyright).


65. See Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463, 464 (2010).

66. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

67. Id. at 300 (Goldberg, J., concurring).

68. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (extending New York Times v. Sullivan to require a showing of actual malice for imposition of punitive damages in defamation claims pertaining to a matter of public concern, even if the plaintiff is a private figure); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) (extending New York Times v. Sullivan to require a showing of actual malice for liability in defamation claims brought by any public figures).

69. See Time, Inc. v. Hill, 385 U.S. 374 (1967).

70. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

71. See Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).

72. 875 F.2d 994 (2d Cir. 1989). Under Rogers, so long as use of a plaintiff’s trademark is “artistically relevant” to the defendant’s expressive work, there can be no liability under the Lanham Act unless the defendant’s use of the plaintiff’s trademark is explicitly misleading—i.e., makes an affirmative statement of the plaintiff’s sponsorship or endorsement, beyond the mere use of the plaintiff’s name or other characteristic. Id. at 1000–01. Besides the Second Circuit, which issued the Rogers decision, at least three other federal circuit courts have expressly adopted the test. See, e.g., Parks v. LaFace Records, 329 F.3d 437, 451–52 (6th Cir. 2003); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002); Sugar Busters LLC v. Brennan, 177 F.3d 258, 269 & n.7 (5th Cir. 1999).

73. Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 807, 808 & n.10 (Cal. 2001). The Comedy III test provides that a defendant’s expressive activity can serve independent and absolute defense to a prima facie violation of the right of publicity in California if it is sufficiently transformative, with the relevant inquiry being “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” Id. at 800–01, 809.

74. See Oren Bracha, Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909, at 33–37 (2017); see also Our Heritage: 16th–17th Century, Stationers’ Co., https://stationers.org/our-heritage/16th-17th-century.html.

John Tehranian

John Tehranian is the Paul W. Wildman Chair and Professor of Law at Southwestern Law School and a founding partner of One LLP, an intellectual property and entertainment firm with offices in Beverly Hills, Newport Beach, and Del Mar, California. This article is based on themes explored more broadly by the author in The New ©ensorship, 101 Iowa Law Review 245 (2015).