Ronald Dworkin on Citizens United: a corporation is a legal fiction without opinions of its own.

Ronald Dworkin criticizes  the Supreme Court’s Citizens United decision — ruling that corporations are entitled under the First Amendment’s guarantee of free speech to an unlimited right to contribute money to political campaigns — for the same two reasons I have. First, the majority overturned precedent while hypocritically espousing their respect for the concept of adhering to precedent, and, second, because it is absurd to treat a corporation for First Amendment persons as the equivalent of a human being:

The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

Archers Daniel Midland abuses copyright law to censor criticism — corporations have the right to free speech, but not the people who criticize them?

Some corporations apparently believe in free speech for themselves but not for individuals. The first video below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing with the media!) about ADM’s profound importance to feeding the world. The piece was produced in advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”

Steven Colbert on Citizens United and Corporations as People

Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence

Metaphors are tricky things. Corporations are “persons” under the law in many respects, just as you and I are. And we treat corporations as rational individuals in the market. These figurative equations of legal fictions with human beings certainly have their utility, but they easily can be pushed too far. Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according to the truism announced by Justice Kennedy’s majority opinion, ”Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” But corporations don’t make decisions about how to spend money on campaign contributions — the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate CEOs to spend corporate money to advance the interests that indubitably are intended to redound to the benefit of those individual CEOs. I wouldn’t limit the ability of CEOs and shareholders to make individual contributions to political campaigns, but why are we treating purely legal entities like they are made of flesh and blood?

As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

Thank god I can ridicule Glenn Beck and Chiropractors.

I think it’s sad anyone can take seriously a Glenn Beck legal claim based on the allegedly defamatory nature of a domain named “glennbeckraped andmurdered- ayounggilrl.com,” but I’m grateful at least for a First Amendment that, I believe, makes it very unlikely any such claim by Beck would prevail and that allows me to title a blog post “I don’t think Glenn Beck raped and murdered a young girl, but why won’t he deny it?”

I could, after all, live in England, where, as Olivia Judson writes,

Several times this summer, science journalists in London have leaned over to me and said something along the lines of, “I was thinking of writing,” and gone on to describe an article that was going to be critical of someone. “But then,” the speaker would gloomily conclude, “I thought to myself, ‘Simon Singh,’ and I decided not to.”

In England, as the Guardian explains, not only will the legal costs of defending a libel action will be considerable, often running into hundreds of thousands of pounds,” but, unlike in the States, “the loser almost always has to pay the costs of the winner, plus any damages awarded to the claimant.” As Judson points out, in England not only do “[l]ibel cases cost little to bring — you can make a no-win-no-fee arrangement with your lawyer” — but, most importantly, the defendant has the burden of proving the allegedly defamatory statement is true. In contrast, in the States, a public figure must prove the defamatory statement not only was false but was made with a reckless disregard for the truth. And even a non-public figure has the burden of proving the falsity of the allegedly defamatory statement.

Why is Simon Singh the person potential critics of bad science are reluctant to become? Because Singh is being sued by the British Chirpractic Association for libel after he wrote the following:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

At least in this country we can hear presentations like the following:

Conventional chiropractic [medicine] is a confused pseudoscience that attracts non-discerning customers and students just as surely do supermarket tabloids, astrologers, palm readers and psychics. Don Paulin, who directs the Victims of Chiropractic outreach and is a member of the National Council Against Health Fraud, will examine the status of chiropractic and illustrate his talk with videos.

You can feel the way you want to about chiropractors, but I’ve never seen any evidence that satisfies me its benefits are anything other than the result of a placebo effect, and I’m glad I can say so without any great fear of being hauled into a court on charges of libel. Though, as the Guardian article linked to above suggests, since my posts can be read anywhere, I suppose there’s some risk I could be sued by chiropractors in England.

Do we need to protect Exxon’s right to free speech?

There’s an interesting and largely ignored set of precedents at play in the campaign finance case the Supreme Court heard arguments in yesterday. The focus is on whether Chief Justice Roberts — after having emphasized during his confirmation hearings the importance of precedent and the extraordinary circumstances that would require it to be overturned — will vote to overturn over 100 years of limits on corporate donations to political campaigns on the grounds that limiting corporate contributions to political campaigns is an unconsitutional limitation on free speech. Here’s my bet (which I strongly recommend you don’t take): Roberts will overturn the precedent and vote to overturn the campaign finance restrictions.

But there’s an even older set of precedents that ought to be subject to review: the precedents that conclude that corporations are “persons” just like you and me; accordingly, corporations are entitled to free speech rights, protection against unreasonable searches and seizures, and all the other rights guaranteeed to individuals under the Constitution.

There’s nothing self-evident about concluding that a corporation is entitled to these protections. One reason is what the right wing of the Court identified years ago in concluding that limitations could be made on a union’s power to contribute money to political causes: an individual union member’s views might difffer from the union’s. Just so, an individual stockholder or director’s views might differ from that of the corporation’s.

More importantly, though, the idea of a corporation is a convenient legal “fiction” — really a metaphor — that courts employ because it is, well convenient for purposes of certain legal analysis. But when we confuse the metaphor for the reality we can get into trouble. As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

So think twice before you conclude that the campaign finance case is all about overcoming restrictions on free speech, which is the position argued on the left by the ACLU and on the right by the Wall Street Journal:

Hillary Clinton may end up the accidental heroine in the battle to reassert First Amendment rights over restrictions on political speech. Yesterday, the Supreme Court heard a historic reargument in the case of Citizens United v. Federal Election Commission, and the Justices have a chance to revisit two of their greatest offenses against the Constitution.

The case involves a political documentary made during last year’s Presidential primaries about then-Senator Clinton called “Hillary: The Movie.” It wasn’t what you’d call a glowing portrayal. Funded by a group called Citizens United, the film was intended to be shown on cable TV during the primary season, a profile that got it caught in the net of campaign finance reform laws that control political advertising.

At stake are two major precedents in the campaign-finance canon, Austin v. Michigan Chamber of Commerce (1990) and a portion of McConnell v. FEC (2003). In Austin, the Court ruled the government may ban corporations from engaging in what’s known as “express advocacy” directly from corporate treasury funds, requiring the funds to be channeled through a separate political action committee. In McConnell, the Court built on that decision to uphold most of the Bipartisan Campaign Reform Act, a.k.a.

the 2002 McCain-Feingold law, including a section that banned “electioneering communications.”

. . . The First Amendment was designed specifically to protect speech in just the kind of scenario “Hillary: The Movie” presents—the right to engage in the political process and to challenge and comment on candidates. Citizens United is the ideal opportunity to overturn a major swath of bad law.

No, the First Amendment was not “designed to specifically protect speech” by business organizations — it was intended to protect speech by individuals. It’s an amazing argument from those who would normally argue that we need to stick to the Original Intent of the Framers, but it shows too that Original Intent is merely a means to a political end, not a reasoned position.

Woody Allen settles for $5 million for commercial use of his image.

New York State is unusual in giving people a right to deny the use of their image (or voice or name) for commercial purposes). Under Section 51 of New York’s Civil Rights Law, anyone “whose name, portrait, picture or voice is used within this state for advertising purposes or for the purpose of trade without the written consent first obtained” may sue to enjoin the use and for damages.

Thus, the only real legal issue in Woody Allen’s lawsuit against a clothing company that used an image of him from “Annie Hall” without on billboards without permission was the amount of damages Allen would be able to provehe had suffered. Thus, though Allen’s complaint sought $10 million, he settled today for $5 million. There were, however, other issues that would have come up. As the New York Times reports,  ”a trial that could have dredged up potentially salacious details about him and his wife, Soon-Yi Previn.” Nonethless, the parties continued their dispute in the court of public opinion after the settlement:

“Threats and press leaks by American Apparel designed to smear me did not work, and a scheme to call a long list of witnesses who had absolutely nothing to do with the case was also disallowed by the court,” Mr. Allen said outside the federal courthouse, reading from a statement.

“I suspect this dose of legal reality led to their 11th-hour settlement,” he added.

Mr. Charney [founder and CEO of the defendant], who spoke to reporters afterward, said he did not regret using the image of Mr. Allen dressed as a Hasidic Jew, and that his insurance company had forced him to settle.

“I’m not sorry for expressing myself,” he said. “I wish him the best with his career, and I am looking forward to his next film.”

Mr. Charney seemed to argue that his First Amendment rights to free speech justified his conduct, and he’s right that if he has a constitutional right to do what he did the state statute could not prevent him from doing so. But it seems likely to me the state has a legitimate interest in protecting its citizens against the commercial exploitation of their own identities, and therefore the free speech rights in connection with commercial use of one’s identity are likely  similar to the fair use rights of copyrighted works. Since the image is unmistakeably Mr. Allen’s, since the use is as commercial as they come, and since Allen likely could have proven some financial harm, it seems to me unlikely any First Amendment argument could have helped the defendant in this case.

Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us.

Calling the right a creator has in his or her work intellectual property is misleading. It conveys the imipression thatthe work is property in the same way a television of a piece of land is property. You can fence in land. You can stop anyone from using your television. But intellectual property is not personal property the way things are and it is not real property the way land and the buildings attached to land are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked about his position on copyright, says simply, “Artists have a right to control their images and the right to be credited. ”

He might wish it so, but it isn’t so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have no control. If they had control, there’d be no lawsuits. Nor does fair use require crediting the artist whose work is used without consent.

There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the rise of copyright as we know it.

But another, and very American reason U.S. law does not treat the products of creative expression the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in certain circumstances without the consent of the owner of the copyright, is based squarely on the First Amendement’s guarantee of the freedom of expression.

Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use, courts look at, among other things, whether the challenged use has a negative impact on the commercial market for the copyrighted work. While the commercial damage to the copyrighted work is a significant factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the right to free speech should require that it should be required in order for a court to find infringment. As she explains in the abstract to her paper, “Copyright Harm and First Amendment,” a showing of harm is required in every single other constitutional restriction on free speech and there is no justification for treating copyright differently:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists do have the right to control their work and to attribution for any use of their work. You may wish it were so, and there may even be reasons to believe your position merits my sympathy, but that assertion isn’t the law and doesn’t make it the law.

The ACLU on the Nazis’ right to march in Skokie, Illinois

Shepard Fairey, lightning rod

I’ve pointed out both that I believe strongly that Shepard Fairey’s use of an AP photograph to create his Obama Hope poster does not infringe the pohotograph’s copyright and that Fairey has been the target of frequent criticism in the art community regarding his “originality” and regarding his apparent hypocrisy in asserting infringement claims against artists who had appropriated his images.

It has come to my attention that some criticize the Fair Use Project’s decision to take up Fairey’s cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.

As a lawyer, I strongly disagree with this position.  If, as I zealously believe, the Obama Hope poster is fair use, it would be self-defeating to those of us who support the explicit application of the fair use doctrine to transformative appropriation art and various other methods of “remixing” pre-existing works, regardless of our view of Fairey himself,  if we failed to support Fairey’s position in connection with the Obama Hope poster.

I cannot help but recall last year’s lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking to require the makers of the documentary “Expelled” from using a 15 second excerpt of John Lennon’s song “Imagine” in their documentary.  As I wrote at the time, I believed the lawsuit was misbegotten and that the film’s use of the excerpt constituted fair use despite my love of John Lennon and my contempt for the film, which purports that “theorists” of “Intelligent Design” have unjustifiably been expelled from the conversation regarding evolution and the development of life.  The court hearing the case agreed with my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers of “Expelled” in that case.

Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the people asserting fair use.  I supported the right of Nazis to march in Skokie, Illinois, a community full of Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First Amendment regardless of how vile the message being conveyed may be.  The Supreme Court agreed.

That doesn’t mean we can’t criticize Fairey when he seems to want his cake and eat it too.  (Though it may be that Fairey’s thoughts have evolved on these issues — while he sent a cease-and-desist letter to Baxter Orr for Orr’s appropriation of one of Fairey’s images, Fairey never followed that letter up with any other action despite Orr’s continued use of the image.)

You may not like Fairey.  But that does not mean we shouldn’t support his position when he happens to be right.  To fail to do so would be to cut off our noses to spite our faces.

Protecting copyright through new technologies must accomodate our constitutional rights to free speech.

We are, of course, in the midst of a conflict between existing intellectual property laws and the radical changes to the material conditions on which those laws were built. Producers of music and video scream bloody murder because their products can be reproduced and disseminated at little cost, an entirely different situation than when that reproduction required expensive equipment and copies could only be sent out in phyisical form one at a time.

These are truisms, but they are the truisms that are at the basis of the intellectual property wars through which we are living.

There’s a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot. According to Computerworld, “MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.”

In other words, if you upload a copyrighted clip, the new technology will insert advertising into the clip whether you want it there or not. The motivations of the copyright owners are obvious. They want money for the use of their copyrighted materials, which they consider their “property.” But, while copyrighted materials are “intellectual property,” they are not property in the sense that real estate, money, and cars are property.

Here’s the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owner’s “property” rights.

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001).  In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone’s use of the characters and story line from Gone with the Wind constituted fair use.  In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court). (And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation League.)

So here’s the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived from their copyrighted works does not make my speech theirs; it does not give them the right to inject their advertisements into my own creations. They may think I’m stealing their property if I take a sample of one of their copyrighted works and use it to create something new. I think they’re wrong. But I also think they’re doing the equivalent of putting a billboard on my front lawn when they put their advertising in that new creation of mine. And I think that’s wrong too.

Ruling Imagination: Law and Creativity

The futility, and perhaps unconstitutionality, of locking down your digital creations

DRM (”Digital Rights Management,” a/k/a digital copy protection or digital locks) restricts the ways you can copy and distribute your digital media.  I’ve heard even artists suggest that advances in digital locks will solve the problems they think are posed by the ease with which digital media can now be duplicated and disseminated.

The Digital Millennium Copyright Act,(the “DMCA”) purports to make it unlawful to override a CD or DVD’s digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

I seriously doubt, however, that a court could impose liability under the DMCA on someone who evades DRM protection to copy material he subsequently uses for a legitimate, non-infringing use.  Fair use is grounded in the Constitution, both in (1) the “Copyright Clause,” which gives Congress the power 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,” and (2) in the First Amendment protection of free speech.

In other words, fair use is a constitutional right, and constitutional rights cannot be infringed by mere legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary’s Inner Tracy Flick video are in violation of the DMCA’s provision making it unlawful to copy material under DRM protection even though the video otherwise makes fair use of scenes from the movie Election. Thus, Soghoian concludes, if the creator of the video “used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash-up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.”

I don’t buy it.  Many, many digital forms of media state, in effect, that “no copying of the information contained herein is permitted by its creator for any purpose.” Standing alone, those statements are meaningless. Plainly, one can make unauthorized copies of information for many purposes. Nor could Congress pass a constitutionally effective law that purported to make those and similar statements enforceable. Again, if you have a constitutional right to copy and use copyrighted materials, a constitutional amendment would be required to take away that right.

I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than a bare declaration that any copying is unlawful.  No statute can make enforceable mere declarations that unauthorized copies are illegal.  I really don’t see why an easily evaded digital lock is, for these purposes, any different.