A First Amendment Perspective on the Construction of Third Party Copyright Liability

Abstract:     
This Essay offers preliminary thoughts about the application of the First Amendment to third party copyright liability. For some time, commentators have warned that third party copyright liability chills speech, but relatively few inquiries have ventured beyond the surface of this observation. This is perhaps explained by the judiciary's general reluctance to apply the First Amendment to copyright in any meaningful way. Court after court has stated that copyright raises few, if any, First Amendment problems because copyright encourages the production of speech. To the extent that copyright occasionally runs the risk of suppressing speech in a constitutionally problematic way, doctrines such as the idea/expression dichotomy and fair use make sure that copyright does not expand to the point that where First Amendment objections become real.

The standard explanation of copyright's relationship to the First Amendment suggests that there is no need to give particular attention to third party issues. After all, those facing third party copyright liability will often respond by preventing others from infringing. If the scope of copyright's suppression of speech is compatible with the First Amendment, then presumably the speech prevented by potential third party defendants is similarly compatible.

Closer inspection reveals, however, that third party copyright liability increases copyright's chill by separating the benefits of speaking from the burdens of liability. This changes the incentives faced by key actors. Consider, for example, a newspaper accused of infringement posting on its website a book review that contains a long quote. A newspaper in this position must decide whether to remove the review from its website. In doing so, it will weigh the risk of liability and the cost of defending itself against the value gained from continuing to speak. For purposes of contrast, consider next the internet service provider accused of third party copyright infringement because it hosts the servers where the newspaper posted the book review. In deciding whether to remove the book review from the Internet, the service provider will consider the likelihood of liability and the cost of defense, but no countervailing value related to the service provider's own speech will offset these potential costs, for that value is enjoyed by the user, not the service provider. Accordingly, the service provider will be more willing to remove the accused book review from the Internet than the newspaper would be, and indeed most third party defendants will be quicker to suppress speech than primary speakers.

The relatively high risk of chill associated with third party copyright liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of vicarious liability, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability. This requires two steps. First, the Essay will describe the present contours of third party copyright liability and the open questions that might be influenced by First Amendment concerns. Second, the Essay will connect the construction of third party copyright liability to the chilling of speech. In doing so, the Essay will use insights borrowed from New York Times v. Sullivan and Gertz v. Robert Welch to answer some of the open questions concerning the construction of third party copyright liability. Among other things, the Essay argues that the First Amendment requires a narrow application of vicarious liability and that presumed damages cannot be granted in many cases of contributory liability.

Keywords: copyright infringement, New York Times v. Sullivan, Gertz v. Robert Welch, First Amendment

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