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I recently became aware of a decision from the High Court in South Africa that examines an interesting intersection of freedom of expression, copyright and contract. It addresses the issue of how to define the public interest in an environment of relatively unguarded rhetoric about the role of copyright in society that is worth exploring. But first, a quick recap of the relevant facts, none of which were in issue.

A well known filmmaker, Ms. SE Vollenhoven, was hired by South African broadcaster, SABC, to produce a documentary film exposing certain governmental improprieties. In her contract with SABC, Vollenhoven transferred all copyright interests to SABC in exchange for compensation. SABC ultimately decided that it was uncomfortable with the product, and decided against releasing it. Vollenhoven initiated a discussion with SABC in an effort to buy back the rights to the film, but SABC refused, leading SABC to seek an injunction preventing Vollenhoven from engaging in any acts that would infringe their rights in the film.

For the purposes of this analysis, let’s assume that all equities are with Vollenhoven, and that the public would gain from the release of the film. I am not in a position to make such a judgment personally, but certainly my sympathies would be with a filmmaker whose own expressive work is relegated to the dustbins due to a decision by a business partner to keep the film out of the public eye. Her frustration is clearly understandable. Let’s further assume that the government pressured SABC into not releasing the film—not because in fact I assume this, but because it is certainly possible, and I want to examine the copyright questions in a light least hospitable to the assertion of copyright. There is an axiom in legal circles that “bad facts make bad law,” but sometimes bad facts allow us to observe legal principles without artifice or obstruction in ways that are useful for our understanding of fundamental principles of law and justice.

This is just such a case. Much as we might sympathize with Vollenhoven, the arguments presented by her counsel would require us to believe that the rejection of free will that undergirds freedom of contract and self-determination is a legitimate price in the quest for perceived freedom. I believe that is a fundamentally flawed proposition, and that willingness to constrain free will that allows a person to determine the scope of her consent undermines rather than advances the public good. The ends, even assuming that they are noble and just, do not justify a means that eliminates consent while seeking to improve the human condition. Vollenhoven and amici (we will get to them later)  ask us to reject free will to achieve freedom. But there is no freedom at the end of that road. As the Court brilliantly and succinctly observed: “a limitation of freedom is irreconcilable with the right of choice.

There are a number of equitable doctrines under which contracts may be vitiated, for example when they are the result of duress or where the consent required for formation of a contract is found to be absent. But here, no such equitable doctrines would apply. Vollenhoven was an accomplished filmmaker who freely negotiated a contract with SABC for her services. There is no suggestion from any party that the contract was somehow unfair, nor are we talking about the application of a non-negotiated provision of law vesting copyright in an employer or commissioning party. Vollenhoven herself does not assert anything different. Her unhappiness with the result of the contract is understandable, but doesn’t justify the attempt to circumvent it through a novel and dangerous mischaracterization of copyright laws and exceptions thereto.

This is where things get interesting. Since the contract under which SABC obtained the copyright in the documentary was unassailable, Vollenhoven and her supporters determined to “free the film” by asserting an implied exception to copyright laws to permit dissemination of information in the public interest. This took a variety of forms, all of which eventually defaulted to the proposition that the public’s interest in access superseded the copyright owner’s interest in protection. I take particular note of the participation of the Freedom of Expression Institute (FXI) on behalf of Vollenhoven since they most perfectly articulate the position that copyright is a form of censorship, having written in their 2015 copyright reform submission to DTI that: “FXI believes that copyright law and free speech are fundamentally in conflict. It should come as no surprise, at all, that both governments and the private sector use copyright law to suppress speech and dissent.” Vollenhoven’s counsel, as summarized by the Court, argued that the Copyright law exists, inter alia, “to promote the free spread of art, ideas and information, not to hinder it and to regulate copyright so as to enhance a vibrant culture in South Africa. Thus on a purposeful interpretation of the Act, so it is argued, it is not just to protect owners of copyright but to advance the public good.”

The Court was unimpressed, finding that: “There is nothing…to support the meaning of public good relied on by the Respondents. Their construction of public good or welfare is equated to dissemination of ideas and this is nowhere to be found or implied….The view that copyright aims to promote public disclosure and dissemination of works cannot be regarded as a true reflection of the purpose or intent of the Act and is not part of our copyright law. The Respondents’  conception of the purposes of the Copyright Act is overbroad. The Act by no means purports to regulate or promote the free spread of ideas although it undoubtedly is a mechanism by which this result may be effected. It is straining the proper limits of the Act to find some kind of implied condition of dissemination in the conferral of copyright.”

And of course, the Court is absolutely correct–enjoining the distribution of the film doesn’t prevent the distribution of the information/ideas contained therein, only the specific original expression of said ideas. Vollerhoven, or anyone else, remains free to tell stories through separate vehicles. As the Court explained: “[Vollerhoven] concedes readily that the respondents have right to tell the story in a different work and have not attempted to stifle this form of expression. In truth the respondents’ freedom of speech is not impinged at all. What is impinged is the use of the work which the respondents sold to the applicant and were substantially rewarded monetarily. The copyrights are vested by law in the applicants. This cannot be conflated with an infringement of freedom of speech. Vollenhoven shows that she is alive to the distinction between the work and the underlying story or idea and does not shirk from asserting her rights to exploit the story as she is well entitled to do.”

The contrary rule argued by her counsel and by FXI is untenable, and would require embracing the perverse logic that the protection of expression is itself a restriction on freedom of expression, a proposition worthy of Wonderland’s Red Queen. If the right of access enjoyed by the public always supersedes the individual’s right to control the uses of her property, then copyright is truly meaningless. FXI’s position essentially acknowledges this. While I think that FXI is mistaken, and fails to capture how copyright serves to democratize the production of original cultural materials for the benefit of society, I will at least give them credit for their directness. Perhaps they believe that state support for the arts is a better tool for sustaining creators. Perhaps they believe in private patronage. But unlike many of their copyright-skeptic peers in the west, they at least own their narrative and don’t feel the need to say that they believe in copyright while rejecting any modality for its protection. It’s a flawed vision that fails to reflect that the interests of the public are served by sustaining creators, and by protecting fundamental human rights in connection with the creation of original works. But it is a vision. Hopefully one that will evolve through an increased recognition that ensuring consent in a technological universe that celebrates lack of permission is central to advancing our humanity and retaining and celebrating our cultural differences.

In a recent article for the San Francisco Daily Journal I examine Google v. Equustek: a case currently before the Canadian Supreme Court involving the scope of jurisdiction of Canadian courts to enjoin conduct on the internet.

In the piece I argue that

a globally interconnected system of free enterprise must operationalize the rule of law through continuous evolution, as technology, culture and the law itself evolve. And while voluntary actions are welcome, conflicts between competing, fundamental interests persist. It is at these edges that the over-simplifications and pseudo-populism of the SOPA/PIPA uprising are particularly counterproductive.

The article highlights the problems associated with a school of internet exceptionalism that would treat the internet as largely outside the reach of laws and regulations — not by affirmative legislative decision, but by virtue of jurisdictional default:

The direct implication of the “internet exceptionalist’ position is that governments lack the ability to impose orders that protect its citizens against illegal conduct when such conduct takes place via the internet. But simply because the internet might be everywhere and nowhere doesn’t mean that it isn’t still susceptible to the application of national laws. Governments neither will nor should accept the notion that their authority is limited to conduct of the last century. The Internet isn’t that exceptional.

Read the whole thing!

Last week, the Internet Association (“IA”) — a trade group representing some of America’s most dynamic and fastest growing tech companies, including the likes of Google, Facebook, Amazon, and eBay — presented the incoming Trump Administration with a ten page policy paper entitled “Policy Roadmap for New Administration, Congress.”

The document’s content is not surprising, given its source: It is, in essence, a summary of the trade association’s members’ preferred policy positions, none of which is new or newly relevant. Which is fine, in principle; lobbying on behalf of members is what trade associations do — although we should be somewhat skeptical of a policy document that purports to represent the broader social welfare while it advocates for members’ preferred policies.

Indeed, despite being labeled a “roadmap,” the paper is backward-looking in certain key respects — a fact that leads to some strange syntax: “[the document is a] roadmap of key policy areas that have allowed the internet to grow, thrive, and ensure its continued success and ability to create jobs throughout our economy” (emphasis added). Since when is a “roadmap” needed to identify past policies? Indeed, as Bloomberg News reporter, Joshua Brustein, wrote:

The document released Monday is notable in that the same list of priorities could have been sent to a President-elect Hillary Clinton, or written two years ago.

As a wishlist of industry preferences, this would also be fine, in principle. But as an ostensibly forward-looking document, aimed at guiding policy transition, the IA paper is disappointingly un-self-aware. Rather than delineating an agenda aimed at improving policies to promote productivity, economic development and social cohesion throughout the economy, the document is overly focused on preserving certain regulations adopted at the dawn of the Internet age (when the internet was capitalized). Even more disappointing given the IA member companies’ central role in our contemporary lives, the document evinces no consideration of how Internet platforms themselves should strive to balance rights and responsibilities in new ways that promote meaningful internet freedom.

In short, the IA’s Roadmap constitutes a policy framework dutifully constructed to enable its members to maintain the status quo. While that might also serve to further some broader social aims, it’s difficult to see in the approach anything other than a defense of what got us here — not where we go from here.

To take one important example, the document reiterates the IA’s longstanding advocacy for the preservation of the online-intermediary safe harbors of the 20 year-old Digital Millennium Copyright Act (“DMCA”) — which were adopted during the era of dial-up, and before any of the principal members of the Internet Association even existed. At the same time, however, it proposes to reform one piece of legislation — the Electronic Communications Privacy Act (“ECPA”) — precisely because, at 30 years old, it has long since become hopelessly out of date. But surely if outdatedness is a justification for asserting the inappropriateness of existing privacy/surveillance legislation — as seems proper, given the massive technological and social changes surrounding privacy — the same concern should apply to copyright legislation with equal force, given the arguably even-more-substantial upheavals in the economic and social role of creative content in society today.

Of course there “is more certainty in reselling the past, than inventing the future,” but a truly valuable roadmap for the future from some of the most powerful and visionary companies in America should begin to tackle some of the most complicated and nuanced questions facing our country. It would be nice to see a Roadmap premised upon a well-articulated theory of accountability across all of the Internet ecosystem in ways that protect property, integrity, choice and other essential aspects of modern civil society.

Each of IA’s companies was principally founded on a vision of improving some aspect of the human condition; in many respects they have succeeded. But as society changes, even past successes may later become inconsistent with evolving social mores and economic conditions, necessitating thoughtful introspection and, often, policy revision. The IA can do better than pick and choose from among existing policies based on unilateral advantage and a convenient repudiation of responsibility.