Ignorance is Bliss: Subconscious Infringement and the Chilling Effect after Golan v. Holder
On January 18th, the Internet went black to protest the Stop Online Piracy Act (SOPA). On the same day, the Supreme Court released its decision in Golan v. Holder. __ U.S. __, 131 S. Ct. 1600 (2012) Many people did not notice that a decision was handed down by the Court related to copyright on the day that they were protesting copyright legislation, possibly because the Court did nothing more than maintain the status quo. The majority in Golan held that Congress was within its power to remove foreign works from the public domain and grant copyright protection to foreign authors whose works had no previous protection under United States law. Relying heavily on its opinion in Eldred v. Ashcroft, 537 U.S. 186 (2003), the Court refused to find any implication of the First Amendment so long as the traditional contours of copyright remained in place, namely the idea/expression dichotomy and fair use. The majority focused in its opinion on the impact that the restoration might have on past users of the work and did not take into account how custom and culture surrounding certain art might affect future speech. By only considering whether the law violated a generally applicable First Amendment prohibition, the Court neglected the chilling effect that its decision might have, particularly in light of the doctrine of subconscious infringement.
To understand the doctrine of subconscious infringement, first consider ordinary infringement. Imagine someone who seems to have taken the melody from “Blitzkrieg Bop” by the Ramones and made only minor adjustments. Typically in an infringement action, the plaintiff must show that the defendant had access to the original work and that there is enough similarity that the defendant probably copied the original work. No defendant will say that he did not come up with the work on his own so the court looks to whether or not the defendant could have heard the song. In the case of “Blitzkrieg Bop,” anyone who has gone to a sporting event would have heard it. If the plaintiff can show that at some point in his life, the defendant spent a lot of time at sporting events, he might persuade the court that the defendant subconsciously copied his work. For an example of this with more explanation, see Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000).
Some of the works removed from the public domain had become similarly ubiquitous. The example most often cited is “Peter and the Wolf.” The low cost of public domain works makes them a staple in education. Many people, some who now make music or write books, grew up on these materials. They played them in school or read them in class. The works which left the public domain form the foundation of many American’s educations.
Someone who understood the law might hesitate to create works for fear that the work may take too much from something practiced for hours as a child and long since forgotten. But how many such people are there? Can it be said that there is a chilling effect if speech is not chilled, but only because the law is not known by anyone? The law does not like to operate under the assumption that people do not know it, and chooses to ignore that excuse without a law which says that ignorance is a permissible defense. Ignorantia legis neminem excusat—Ignorance of the law excuses no one. This leaves the impact of the bill in a precarious state in which the bill only does not affect people potentially because they do not know what will expose them to liability.
Despite what the Court might say, fair use is not a panacea. It is a hazy doctrine with which courts and attorneys struggle. To expect an artist to ascertain whether or not fair use will protect the work she just created is asking too much. Fair use is not a heavy shield to lift. It certainly will not prevent people from bringing claims and forcing artists into settlements. Even if an artist were willing to fight this to the Supreme Court, the plaintiff could drop the suit or grant a license which would render the case moot.
The plaintiffs in Golan were not creators but performers and educators. They wanted to continue performing the works without paying for them. The Court found that argument unpersuasive since many people continue to perform the works and just simply purchased a license. With subconscious infringement, the author/performer does not know she has infringed. Even if she realized it later, she cannot simply get a performance license to protect herself, since that would not cover the incorporation of the elements of the original work into the new work. The contrary argument is that the artist is no more at risk for a subconscious infringement claim than with any other song, but this argument neglects to consider how much more prevalent these works are and their roles in society. Because public domain works are so ubiquitous and so often used as a tool in education, they are more likely to be drawn upon than other works. Many artists cut their teeth on public domain works, and so these works are of a different character than rock songs played at every sporting event for the past twenty years.
At oral arguments Chief Justice Roberts and Justice Kennedy, two justices who joined the majority, seemed much more sensitive to this issue:CHIEF JUSTICE ROBERTS: Well, what about — what about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and all of a — assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?
GENERAL VERRILLI: What copyright does, by definition, is provide exclusive rights in expression; and so, if the First Amendment is triggered whenever copyright provides exclusive rights in expression that it didn’t used to provide, then heightened scrutiny will apply any time Congress exercises its copyright power. And what the Court said in Eldred —
CHIEF JUSTICE ROBERTS: So, he’s just out of luck? And that’s just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So, those people are just out of luck?
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JUSTICE KENNEDY: But can you — can you cite me to some — some authority which says the First Amendment doesn’t apply to a copyright —
GENERAL VERRILLI: No. We don’t say it doesn’t apply, but Eldred
JUSTICE KENNEDY: The First Amendment test doesn’t apply. There has — there has to be a – a test. Now, maybe — say it isn’t immediate scrutiny but something else. But — but certainly the First Amendment is implicated.
GENERAL VERRILLI: Yes. And what Eldred said, as I read it, Justice Kennedy, is that unless Congress alters their traditional contours of copyright, then rational basis scrutiny, rather than any heightened form of First Amendment scrutiny, applies.
CHIEF JUSTICE ROBERTS: Even under — even under rational basis scrutiny, it seems to me that you run into Justice Breyer’s concern that the government interest is vanishingly small when it comes to promoting progress under the Copyright Clause, so that the interest weighed on the other side of the — the restriction of free speech rights — it’s hard to say that that’s necessarily going to tip the balance in every case. (Oral Arguments, Golan v. Holder pg. 40-41 & 43, 2011)
For Chief Justice Roberts to assert that the government’s regulation would not pass rational basis scrutiny shows that he felt that government’s argument was particularly weak. Rational basis scrutiny is the lowest level of scrutiny and only requires that the government act in a way that it believes will accomplish an end. It is the most deferential of the Court’s standards. Roberts’ words though speak of a balancing test, which suggests he saw perhaps a higher standard implicated, but that it is purely speculative.
To be fair, the Court was not faced with an issue involving subconscious infringement, and oral arguments dealt mostly with prior users and performing works as the creators intended; however, it is clear the court was aware that this law would reach creators. By reaffirming Eldred’s holding that fair use and idea/expression dichotomy are enough, the Court has enhanced the stare decisis power of Eldred and sent a message to lower courts that First Amendment challenges to copyright law is verboten.
Golan left some wiggle room in holding that the law was constitutional at least in so far as it relates to general First Amendment prohibitions. This allows for an as applied challenge to the law, provided that the case was not dropped before it made it to the Supreme Court. Since as a society, we have decided that new expression is a good thing, the saving grace in all of this is that people do not generally understand copyright law. They do not know that these works are protected. They do not know about subconscious infringement. They will continue to create. It seems strange, though, that a chilling effect on speech is averted simply by virtue of people’s ignorance.