Copyright Laws and the First Amendment
Juan Marin
Colombia
ENG 1430
On March 13th, 2007, CNET News.com reported that Viacom, one of the biggest media entertainment companies in the United States, was suing Google, owner of YouTube, for over one billion dollars over “massive intentional copyright infringement” for allowing their users to post clips from Viacom’s shows (Broache, Sandoval). This happening brought to attention the fact that “oftentimes, particularly in the age of the Internet, copyright [laws] and the First Amendment collide” (Hudson Jr.). The point here is that both the Copyright Clause and the First Amendment of the Constitution were created in a time where no thing such as Internet or media sharing, not even television, could be foreseen. When first proclaimed in 1790, the Copyright Clause was intended to protect authors and inventors by giving them rights over their writings and discoveries (Lessig). One year later, in 1791, the First Amendment was published, stating that “Congress shall make no law . . . abridging the freedom of speech.” At first sight, these two laws complement each other; they could be resumed under the commandment of expressing whatever people think but not stealing what others have expressed. The problem came later, no more than a few years ago, when Internet brought the possibilities of media sharing to the tip of people’s fingers, literally, allowing people all around the globe to transmit information, which is often times copyrighted, in a massive way through web pages such as YouTube. This situation shows the fact that the Copyright Clause goes against the First Amendment of the Constitution.
When the First Amendment was proclaimed, it complemented the Copyright Clause. The main objective of the Copyright Clause was to prevent people from stealing the intellectual creations of others. This applied mainly to writings, all forms of art, scientific discoveries, and inventions, all of which were protected by patents. The Copyright Clause also motivated writers, scientists, artists and creators to make their work, knowing that people would have to pay them in order to copy their products and discoveries. Later, the First Amendment came into effect, and complemented the Copyright Clause by saying that anyone could express his or her own ideas freely, but at the same time it contradicted the Copyright Clause, because it banned the use of other’s intellectual property, even if it was used to express one’s own ideas. Since then there has been a controlled balance between these two laws; some copyrighted materials can be used under the “fair use” statement, which states that intellectual property can be used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without infringing copyright, but with the sudden appearance of Internet, this balance became disrupted.
Copyright laws were not made for current media such as Internet. Back in the late 1700’s, there were no massive communication media such as TV, radio or the Internet. In order to transmit a message, people would rely on what nowadays we know as “snail mail,” which could take even weeks to get to its destiny. Now we live in a world where everything happens fast, and a message, because of electronic media, can be delivered as soon as one may think of it. This fact opens the door to copyright infringement, as happens in the case of YouTube; a favorite among young people because of many reasons: first of all, it is free. Add to this, the website's friendly interface and the easiness to upload and view the user-posted videos, and you'll end up with one of the most profitable, rapid-growing websites on the Web. Such is the growth of YouTube, that in November 2006, it was bought by Google for 1.6-billion dollars (Lessig); all this thanks to the millions of users that use it to freely express their opinions, post their videos and link to it as a source of entertainment. Although one of the Terms of Use for YouTube users is that they are not allowed to post copyrighted material, some users do post clips and excerpts from some copyrighted material, especially TV shows and music videos. This occurs most probably because people do not have a clear concept of the Copyright Clause, in regard to which contents are copyrighted, and because commonly all of the content over which the lawsuit against YouTube was based has been broadcasted on public media.
The case of YouTube has not been the only case in which the First Amendment and the Copyright Clause have crashed against each other. Probably the most noticeable case and the one that affected users the most occurred a few years ago when Napster closed its website due to legal issues with some recording labels who argued that Napster was incurring in copyright infringement for allowing their users to share copyrighted material, mostly music recordings, over the Internet. Napster lost the case and was forced to close its website. Later it reopened legally after reaching an agreement with the biggest recording labels who licensed their recordings to Napster, which would then sell them over the Internet at a very low price. When this happened, Napster only had a test group of 20,000 users (Waraker), but ever since, the website has been regaining popularity and now it is, once again, one of the most recognized sources of music over the Internet.
In response to this issue, someone could argue that the Copyright Clause should be respected, and that the First Amendment must be limited in order to prevent Copyright Infringement. This is partly true, because the work of the people in the entertainment field, as well as any other type of job, should be respected, and the Copyright Clause is there to ensure that it is respected. But on the other hand, the Copyright Clause oversteps the First Amendment because, as it is currently written, it does not allow to post clips or fragments, even if is not used for profit. I think that the Copyright Clause should be modified in order to give a bit more of freedom to the public. In fact, a new type of copyright laws, known as the Creative Commons, is being used to protect content such as blogs and wikis without limiting the access people have to these protected contents, and allows them to be shared, copied and use with freedom (creativecommons.org).
The world has changed a lot since 1790. We have advanced light years in almost every aspect. Unfortunately, some of the laws that rule over those other areas have not evolved with them. The First Amendment of the Constitution guarantees the freedom to express ideas, thoughts, and feelings, but it is sad that laws such as the Copyright Clause just fly in the face of Freedom of Speech. There used to be a balance between these laws, and this balance should be restored, and updated. The Creative Commons License is a big step toward this balance, but it is not enough. The companies and enterprises that rule the media should all give a little way to the future and allow the millions and millions of users throughout the world to express their ideas freely and to make of this a world in which the Freedom of Speech goes beyond the law and becomes part of the reality.
References
Creative Commons. Creative Commons. Retrieved 23 Apr. 2007 from http://www.creativecommons.org/.
Grossman, L. (25 Dec.-Jan. 2006). Person of the year: You. Time. 38-80.
Hudson Jr., D. L. (2004). Copyright and the First Amendment. First Amendment Center. Retrieved 8 Apr. 2007 from http://www.firstamendmentcenter.org/analysis.aspx?id=13828.
Lessig, L. (18 Mar. 2007). Make way for copyright chaos. The New York Times. Retrieved 8 Apr. 2007 from http://select.nytimes.com/gst/abstract.html?res= F00C15F634550C7B8DDDAA0894DF404482.
Waraker, A. (2002) Napster reopens as subscription site. Vnunet.Com. Retrieved 23 Apr. 2007 from http://www.vnunet.com/vnunet/news/2117139/napster-reopens-subscription-site.