Constitutional Expert: ‘Copyright Violations Are Not Protected by the First Amendment’
Author:  Howard Gantman
Date:  05/24/2011

Floyd Abrams, a noted constitutional expert and defender of the First Amendment, today wrote the Senate Judiciary Committee, and firmly declared that there is no First Amendment right to steal creative content and distribute it on the Internet through rogue websites.

In his letter, Abrams defended the Constitutionality of the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (the PROTECT IP Act) and said the bill was needed to help stem the theft of American intellectual property that costs “American creators and producers billions of dollars per year,” and results in “hundreds of thousands of lost jobs annually.”

The letter from Abrams, who has an extensive history in arguing constitutional cases before the Supreme Court, is in direct contrast to assertions made by a number of bloggers who have mounted a campaign against the bill, and seem more interested in protecting the rights of mostly foreign based rogue websites than the American jobs and businesses whose livelihoods are placed at risk by the illegally obtained content being marketed on these sites.  He writes:

“It is no answer to this challenge to treat loose metaphors—the Internet as ‘the Wild West,’ for example—as substitutes for serious legal analysis.  It is one thing to say that the Internet must be free; it is something else to say that it must be lawless.  Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws.”

In concluding that the bill passes constitutional muster, Abram’s responded directly to criticisms of the bill that have been raised:

“First, there is a recurring argument that the United States would be less credible in its criticism of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites. Second, there is the vaguer notion that stealing is somehow less offensive when carried out online.

“I disagree.  Copyright violations are not protected by the First Amendment.  Entities ‘dedicated to infringing activities’ are not engaging in speech that any civilized, let alone freedom-oriented, nation protects. That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.”

Abrams is a partner at Cahill Gordon & Reindel LLP  who is representing the Directors Guild of America, the American Federation of Television and Radio Artists, the Screen Actors Guild, the International Alliance of Theatrical and Stage Employees, and the Motion Picture Association of America.  He noted that the PROTECT IP Act does not address all types of infringement online, but is focuses more precisely on “websites that are dedicated to infringing activities.”

“The PROTECT IP Act would establish a statutory category of websites that are ‘dedicated to infringing activities.’  There are two ways that a website can meet this statutory category:  Either a website has ‘no significant use other than engaging in, enabling or facilitating’ infringement; or a website is ‘designed, operated, or marketed [] primarily as a means for engaging in, enabling, or facilitating infringement,’ and ‘facts or circumstances suggest’ the website is used ‘primarily as a means for engaging in, enabling, or facilitating infringement.’  Under both definitions, infringement is defined by current copyright and trademark law. Thus the statute requires the offering of goods or services in violation of title 17 U.S.C., such as reproduction, distribution or public performance of copyrighted works (section 501), or circumvention of technological measures that control access to copyrighted works (section 1201), or the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark (section 34(d) of the Lanham Act (15 U.S.C. 1116(d))

And finally, for those critics who have charged, without legal justification, that the bill would lead to a blacklist or crackdown on many legal commentary sites, Abrams notes that the PROTECT IP Act focuses “on a narrow category of entities which are not simply trafficking in some infringing content, or occasionally breaking federal laws, but which are primarily devoted to providing and selling infringing content in the United States.”

“Since the PROTECT IP Act applies only to websites that are ‘dedicated to infringing activities,’ based on the precedent for online infringement liability, Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936 (2005), actions under the PROTECT IP Act require a showing that a target website is both violating current federal law and engaging in wholesale infringement.  Therefore, any website basically engaged in legal activities, such as commentary, socializing or commerce, cannot be pursued under the PROTECT IP Act.  Indeed, the definitions of ‘dedicated to infringing activities’ specifically exclude websites that have any other ‘significant use,’ or websites that are not ‘primarily’ used for infringement.”