Yesterday, many of the largest and most influential websites on the Internet exercised their power in our attention economy by either going entirely dark (like Wikipedia and reddit) or by prominently displaying calls to action that recommended users contact their representatives and senators about the Stop Online Piracy Act (“SOPA”) in the House and the Protect IP Act (“PIPA”) in the Senate.  The effort apparently worked, with support for both bills collapsing, particularly in the Senate, where even seven of the former co-sponsors of the bill renounced their support. Of course, there’s a good chance some of the more dubious provisions of both will come back at some point.

There is of course no doubt that the SOPA and PIPA bills were bad laws, little more than major media and content companies buying from elected representatives more power to enforce private copyright interests than your local county District Attorney or United States Attorney has to prosecute violent crime.  The bills astonishingly allowed private companies to take down entire websites, and force other websites to change their entire business practices, upon nothing more than a vague allegation of copyright infringement.  As Donny Shaw at OpenCongress described it more than a month ago:

Back in the old days, Congress was a branch of the federal government, separate from corporations, that wrote and passed laws to defend the general welfare of the United State. These days, however, that work is being outsourced to private interests while the actual members of Congress, quaint as they are, spend their time fundraising for their next re-election campaign.

Obviously Congress bears most of the blame for allowing such an absurd piece of special interest legislation to even make it to the floor, and SOPA/PIPA are certainly not the only examples of Congress granting special privileges to content companies under the guise of copyright law, but let’s not forget another party responsible for this set of affairs: the United States Supreme Court.

The primary complaint about SOPA and PIPA is that they permitted copyright holders to damage others’ property, i.e., their websites, without any due process.  Their websites would be shut down or would be required to modify their links before any court had even heard the allegations, much less ruled that the allegations of copyright infringement were meritorious and true. File a one-sided ex parte demand and, viola, a content owner has won its case. If only all lawsuits were so easy and simple to win.

The irony is that we already have a law to prevent those sort of government abuses:  the due process clause of the Fifth Amendment, i.e., “no person shall … be deprived of life, liberty, or property, without due process of law.”

The problem, however, is that the Supreme Court has made quite clear that it interprets the Constitution under a “might makes right” philosophy, and so it has repeatedly ruled in favor of corporate interests, including those of major media companies, despite the plain meaning and intent of the Constitution.  In the Eldred case, for example, valiantly fought by Lawrence Lessig, the Supreme Court held that the phrase “for limited times” in the Constitution’s copyright clause (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) actually means forever.  The Supreme Court has even bent over backwards to go beyond the one-sided laws passed by Congress, and so in the Grokster case invented an entirely new common law cause of action — inducement to copyright infringement — that wasn’t even mentioned by the Copyright Act. All while the astonishingly punitive nature of copyright damages goes unchallenged.

As if on cue, yesterday the Supreme Court took the Internet Blackout Day as an opportunity to reiterate that, when it comes to major media and content companies, profits trump the Constitution.  In Golan v. Holder, the Supreme Court held, 7-2, that “for limited times” includes not only forever, but also forever, including retroactively in the past after the copyright has already expired.  I wish I was kidding, but you can read the opinion yourself. As David Kravets at Wired’s Threat Level notes, “The lead plaintiff in the case, Lawrence Golan, told the high court that it will not longer be able to perform Prokofiev’s Classical Symphony and Peter and the Wolf, or Shostakovich’s Symphony 14, Cello Concerto because of licensing fees.”

The Supreme Court thus essentially held that, “To promote the Progress of Science and useful Arts,” anyone who wants to play a children’s symphony composed more than seventy years ago by a compose who died more than fifty years ago that already fell out of copyright has to pay a tax to an estate or corporate entity that played no role whatsoever in composing the actual piece. Thomas Jefferson would have been appalled: “That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.”

Eric Goldman tells us not to blame the Supreme Court. Well, I do. The bulk of the attention is rightly on Congress for outsourcing their responsibilities to a for-profit industry, but let’s not forget that the supposed guardians of our constitutional liberties, the United States Supreme Court, has already told us that those liberties do not apply within the realm of copyright.

  • Guest

    Oh no! Not Ginsburg! It’s horrible that she adopts a “might makes right” philosophy in the copyright realm.

  • Pchanfrau

    The problem is that very few lawyers, fewer still members of the media, and even fewer still members of the general public have a clue how the Supreme Court is systematically dismantling our democracy. Gaining some sort of leverage to allow the media and public to get a handle on the atrocious rulings from the Supreme Court is impossible.