Copyright Crime and Punishment: The First Amendment's

Maryland Law Review

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Amendment's Proportionality Problem

Margot Kaminski

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587

AMENDMENT’S PROPORTIONALITY PROBLEM

MARGOT KAMINSKI



ABSTRACT

The United States is often considered to be the most speech-

protective country in the world. Paradoxically, the features that

have led to this reputation have created areas in which the United

States is in fact less speech protective than other countries. The

Supreme Court’s increasing use of a categorical approach to the

First Amendment has created a growing divide between the U.S.

approach to reconciling copyright and free expression and the

proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amend-

ment minimizes opportunities for judicial oversight of copyright.

Consequently, as corporations lobby for ever-increasing penal-

ties and enforcement mechanisms, the United States has fostered

one of the world’s least speech-friendly criminal copyright re-

gimes. The United States is exporting that regime, including its

presumption that copyright is unrelated to freedom of expression.

Instead of exporting flawed presumptions, the United States

should reintegrate proportionality concepts into First Amendment

doctrine to examine the proportionality of sanctions for speech

that has functionally been deemed unprotected by the First

Amendment.

INTRODUCTION

The United States is often considered more speech-protective than any

other country. The First Amendment requires the government to recognize



Lecturer in Law, Research Scholar in Law at Yale Law School; Executive Director of the

Information Society Project at Yale Law School. Thanks to Jack Balkin and Amy Kapczynski for

extensive remarks on this piece in its earlier stages. Many thanks also to Derek Bambauer, Brad

A. Greenberg, Molly Land, Edward Lee, Jason Mazzone, Tamara Piety, and Peter Yu, and to par-

ticipants at the Freedom of Expression Scholars Conference 2013 for helpful comments, criticism,

and thoughts. Any mistakes are my own.

588 MARYLAND LAW REVIEW [VOL. 73:587

that the remedy for bad speech is more speech, not punishment.

Only a

few categories of speech are historically not subject to First Amendment

protection.

Paradoxically, however, the Supreme Court’s First Amend-

ment doctrine, which is usually very speech-protective, has created substan-

tive areas where the United States is less speech-protective than other na-

tions.

The United States, unlike other constitutional regimes, uses a tiered

approach to constitutional analysis, familiar to many as the choice between

strict scrutiny, intermediate scrutiny, and rational basis review.

First

Amendment doctrine offers a striking example of this tiered approach.

With the exception of content-neutral speech regulations and areas covered

by intermediate scrutiny,

speech is either categorically protected in the

United States or not protected at all.

When speech falls into a category that

is not protected, courts effectively abdicate judicial review of legislative

sanctions.

. See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“If there

be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes

of education, the remedy to be applied is more speech, not enforced silence.”); President Obama’s

Remarks at the U.N. General Assembly, CNN (Sept. 25, 2012, 10:53 AM),

http://news.blogs.cnn.com/2012/09/25/president-obamas-prepared-remarks-at-the-u-n-general-

assembly (“[I]n a diverse society . . . the strongest weapon against hateful speech is not repression,

it is more speech—the voices of tolerance that rally against bigotry and blasphemy, and lift up the

values of understanding and mutual respect. I know that not all countries in this body share this

particular understanding of the protection of free speech—we recognize that.”).

. See United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing the following catego-

ries of exceptions to First Amendment protection: “incite[ment of ] imminent lawless action, ob-

scenity, defamation, speech integral to criminal conduct, so-called ‘fighting’ words, child pornog-

raphy, fraud, true threats, and speech presenting some grave and imminent threat the government

has the power to prevent” (citations omitted)).

. Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing,

63 U. COLO. L. REV. 293, 296–97 (1992).

. See generally Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in

First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 788–89 (2007) (articulating the devel-

opment of intermediate scrutiny and the categories included within its analysis); Geoffrey R.

Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 48–50 (1987) (explaining the Court’s

content-neutral jurisprudence).

. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Explora-

tion of Constitutional Salience, 117 HARV. L. REV. 1765, 1767 (2004) (noting that “questions

about the involvement of the First Amendment in the first instance are often far more consequen-

tial than are the issues surrounding the strength of protection”); Sullivan, supra note 3, at 296 (ob-

serving that the tiered system, “[w]hen applied in its strong bipolar form, such a two-tier system

functions as a de facto categorical mode of analysis despite its nominal use of balancing rheto-

ric”). But see Joseph Blocher, Categoricalism and Balancing in First and Second Amendment

Analysis, 84 N.Y.U. L. REV. 375, 397 (2009) (observing that First Amendment doctrine represents

a blending of categorical and balancing approaches).

. See infra text Part III.A.

2014] COPYRIGHT CRIME AND PUNISHMENT 589

By contrast, courts around the world increasingly balance copyright against

fundamental rights, including speech.

This Article identifies the paradox

that, at least in copyright law, the United States is less solicitous of speech

interests than other countries and international courts. The lack of speech

protection in U.S. copyright jurisprudence results in large part from the

American use of categorical review in free speech analysis.

This Article

partakes in comparative constitutionalism by comparing the U.S. approach

to that of other countries and international bodies.

The First Amendment’s on-off switch provides minimal judicial over-

sight of the copyright regime in the United States.

Consequently, over the

last two decades the United States has fostered one of the world’s least

speech-friendly criminal copyright regimes. This Article contributes to the

sparse but growing literature on criminal copyright by addressing the role

free trade agreements play in propagating the U.S. criminal copyright

standard internationally.

Part I of this Article compares the proportionality analysis that most of

the world’s constitutional courts use when reviewing laws implicating fun-

damental rights with the Supreme Court’s tiered framework of review in

First Amendment doctrine. Part II discusses how U.S. tiered review has

functionally placed copyright law outside of First Amendment analysis,

while international courts and other institutions have acknowledged that

. See Golan v. Holder, 132 S. Ct. 873, 891 (2012) (concluding that Congress may take

works out of the public domain and restore copyright protection, noting that “nothing in the histor-

ical record, congressional practice, or our own jurisprudence warrants exceptional First Amend-

ment solicitude”); see also Michael Birnhack, The Copyright Law and Free Speech Affair: Mak-

ing-up and Breaking-up, 43 IDEA 233, 236, 296–98 (2003) (discussing “the need to relocate the

[copyright] conflict discourse in a constitutional framework”).

. See infra Part II.

. See Golan, 132 S. Ct. at 890–91 (refusing to apply heightened First Amendment scrutiny

to the withdrawal of works from the public domain and clarifying that weak review applies to all

meaning “the ‘idea/expression distinction’ and the ‘fair use’ defense”); Eldred v. Ashcroft, 537

U.S. 186, 221 (2003) (refusing to apply heightened scrutiny to the Copyright Term Extension Act,

which lengthened copyright’s term length).

. See generally Lydia Pallas Loren, Digitization, Commodification, Criminalization: The

Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement,

77 WASH. U. L. Q. 835, 837–38 (1999) (analyzing criminal copyright infringement in light of the

No Electronic Theft (NET) Act); Geraldine Szott Moohr, Defining Overcriminalization Through

Cost-Benefit Analysis: The Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783, 785–87

(2005) (exploring cost-benefit analysis as a method to defining the overcriminalization of copy-

right law).

590 MARYLAND LAW REVIEW [VOL. 73:587

examines the differences between the United States and international ap-

proaches, and concludes that the divide between them is growing.

Part III addresses some of the problems created by the U.S. approach.

There has been insufficient judicial oversight of copyright law in the United

States to prevent its expansion, especially in the criminal realm. As a con-

sequence of ever-increasing penalties and expansive criminal enforcement

mechanisms, the U.S. copyright regime now raises substantial speech con-

cerns. The regime can be overbroad, can result in collateral censorship, can

give rise to chilling effects, and can allow for prior restraints on speech.

Part IV explores how the United States is attempting to export its cop-

yright regime internationally in free trade agreements, and the recent rejec-

tion of those efforts in Europe through popular protest. Finally, in Part V,

this Article uses the example of criminal copyright law to identify patholo-

gies of the categorical approach and offer a suggestion. The United States’

current efforts to export criminal copyright enforcement, along with a pre-

sumptively categorical approach to reconciling copyright and speech, con-

flict with public intuitions about free speech held by people around the

world. Instead, courts should take the opposite tact and reintegrate ele-

ments of proportionality analysis into First Amendment jurisprudence. Do-

ing so would provide a more complete and nuanced understanding of free-

dom of expression and return the United States to its position as the most

speech-protective country in the world.

I. PROPORTIONALITY ANALYSIS VERSUS THE CATEGORICAL APPROACH

Most of the world’s constitutional courts employ a balancing test when

reviewing laws that implicate the protection of fundamental rights.

The

balancing test, referred to as proportionality analysis, is triggered by a pri-

ma facie showing of rights infringement

and resembles a weaker version

of strict scrutiny. Proportionality analysis involves four steps. First, the

court examines whether the government has a legitimate purpose for the

law.

Second, it examines whether the means employed are rationally re-

lated to that legitimate purpose.

Third, it deploys a least-restrictive-means

test to ensure that the law does not curtail the fundamental right any more

. See Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitu-

tionalism, 47 COLUM. J. TRANSNAT’L L. 72, 74 (2008) (“By the end of the 1990s, virtually every

effective system of constitutional justice in the world . . . had embraced the main tenets of [pro-

portionality analysis].”).

. Id. at 75.

. Id.

2014] COPYRIGHT CRIME AND PUNISHMENT 591

than is necessary.

Finally, the court balances the benefits of the narrowly

tailored law against the costs incurred by the infringement of the right, giv-

en the facts of the case.

Under proportionality analysis, courts may end up balancing one fun-

damental right against another. A court typically considers how seriously a

given right has been implicated by a case and balances the depth of this in-

cursion against the strength of the government’s invoked interest.

The

more extensive the government’s incursion into the core of a given right,

the more serious the government’s purpose must be.

Sometimes the gov-

ernment invokes the protection of one right as justification for encroaching

on another.

The court then weighs the two rights, considering the strength

of the right protected and the severity of government encroachment onto the

right being impinged.

The United States, by contrast, uses a tiered system of review for

rights violations.

The court chooses which type of review to apply: strict

scrutiny, intermediate scrutiny, or rational basis review.

Each tier, at least

on first blush, contains elements of a balancing test; strict scrutiny, for ex-

ample, requires that regulations be narrowly tailored to a compelling gov-

ernment interest.

But as the U.S. tiered doctrine has developed, the tiers

have become increasingly rigid.

Strict scrutiny, especially in First

Amendment doctrine, is now famously close to being “fatal in fact.”

As a

. Id.

. Id. at 75–76.

. Jud Mathews & Alec Stone Sweet, All Things in Proportion? American Rights Review

and the Problem of Balancing, 60 EMORY L.J. 797, 837 (2011).

. Id.

. See id. (comparing a court’s ability to recognize a person’s consumption of child pornog-

raphy as free expression, while allowing the government to regulate the sexual exploitation of

children against the protection of political protest from state regulation).

. Id. at 837–38 (finding that the right to free expression in child pornography is minimal in

comparison to the right of political speech, which is considered a fundamental right).

. Id. at 836, 838; see also Bernhard Schlink, Proportionality in Constitutional Law: Why

Everywhere but Here?, 22 DUKE J. COMP. & INT’L L. 291, 297 (2012) (explaining that generally,

the United States protects rights categorically but also uses a “means-end analysis that is more-or-

less through proportionality analysis”).

. Mathews & Sweet, supra note 18, at 836.

. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).

. Mathews & Sweet, supra note 18, at 837.

. Gerald Gunther, Foreword, In Search of Evolving Doctrine on a Changing Court: A

Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972). But see Adam Winkler, Fa-

tal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59

VAND. L. REV. 793, 795–96, 844 (2006) (pointing out that in Adarand Constructors v. Pena, 515

U.S. 200, 237 (1995), the Supreme Court “wish[ed] to dispel the notion that strict scrutiny is

‘strict in theory, but fatal in fact,’” and showing that strict scrutiny is not always deadly, but that it

is “most fatal in the area of free speech”).

592 MARYLAND LAW REVIEW [VOL. 73:587

consequence, U.S. courts often do not balance rights against each other; in-

stead, their decisions frequently turn on which standard of review they

choose to apply.

A. The First Amendment’s Categorical Approach

The Supreme Court’s approach to the First Amendment is a noted ex-

ample of U.S. constitutional exceptionalism and the U.S. preference for

tiered review.

In fact, the Supreme Court initially created strict scrutiny in

a First Amendment case.

Justices Felix Frankfurter and Hugo Black dif-

fered over whether the Court should use a balancing test or an absolutist

approach to free speech.

The Court created strict scrutiny as a way to rec-

oncile these two approaches.

Strict scrutiny, as it was first introduced,

functioned as a weighted balancing test. It thus represented a compromise

between absolutism and balancing.

Strict scrutiny as originally formulat-

ed allowed the court to perform a balancing test, but put a heavy thumb on

the scale in favor of the importance of free speech.

Therefore, early forms

of strict scrutiny more closely resembled proportionality analysis.

Strict scrutiny, however, evolved from being a proportionality test to

more of an on-off switch.

Content-based regulations of speech are now all

subject to strict scrutiny and, therefore, are almost always found to be un-

constitutional.

As many know, however, the First Amendment does not

unconditionally protect all speech. The Court has developed ways to devi-

. See infra Part II.

. See supra note 5 and accompanying text.

. See Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scruti-

ny, 48 AM. J. LEGAL HIST. 355, 361–80 (2006) (discussing the “Birth of the Compelling State In-

terest Test and Strict Scrutiny” as part of the First Amendment jurisprudence in 1963, when used

in three opinions written by “high-protectionist Justices Brennan and Goldberg”).

. Compare Konigsberg v. State Bar of California, 366 U.S. 36, 61 (1961) (Black, J., dis-

senting) (discussing the absolutist approach), with Dennis v. United States, 341 U.S. 494, 524–25

(1951) (Frankfurter, J., concurring in judgment) (discussing the balancing test of “competing in-

terests”).

. Siegel, supra note 29, at 375.

. Id.

. Id. at 376.

. See Mathews & Sweet, supra note 18, at 841 (noting that “[a]s we found with respect to

earlier versions of strict scrutiny, American judges considered [proportionality analysis] to be in-

herent parts of the judicial repertoire”).

. See supra notes 4–5 and accompanying text.

. But see Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2728–29, 2731 (2010)

(upholding a content-based speech regulation under strict scrutiny because national interest in

combating terrorism was sufficiently important and law was narrowly tailored to further that im-

portant end).

2014] COPYRIGHT CRIME AND PUNISHMENT 593

ate from the tiered review’s protective framework in order to arrive at the

conclusion that some speech is not protected.

The following are a few examples of how the Court arrives at a non-

speech-protective decision within current First Amendment doctrine. The

Court is often uncomfortable applying a pure tiered review, even in the First

Amendment context.

First, there are some areas of law that clearly apply

to speech but are not covered by the First Amendment, such as securities

regulation, antitrust law, and bans on criminal solicitation.

Once the

Court finds itself in a topic covered by the First Amendment, one approach

it uses to get around the First Amendment is to label certain activities unex-

pressive, and thus not subject to First Amendment protection.

Another

way courts get around strict scrutiny to subject speech regulation to light

intermediate scrutiny.

A third approach to circumventing the First

Amendment is to determine that the government regulation at hand is in

fact content-neutral, not content-based; this triggers intermediate scrutiny.

A final approach creates whole categories of speech that are recognized as

unprotected, even though they are also recognized as speech.

Thus, the

substance of a First Amendment decision usually involves following a se-

ries of rules, logical or not, that categorize both the type of regulation and

the type of expression, rather than weighing the strength of the speaker’s

speech right against the strength of the governmental interest.

I do not want to overstate my claim as to the First Amendment’s cate-

gorical nature; within intermediate scrutiny cases, for instance, the Court is

. See Mathews & Sweet, supra note 18, at 836.

. The Court’s multiplying approaches to taking speech outside of First Amendment pro-

tection exemplify what Mathews and Sweet call the pathology of doctrinal instability. Mathews &

Sweet, supra note 18, at 836–37. Doctrinal instability occurs when U.S. courts find themselves

needing to escape from the bifurcated results created by tiered review. Id. at 847. Mathews and

Sweet posit that courts then create intermediate tiers of review to engage in more subtle judicial

reasoning resembling proportionality analysis, such as intermediate scrutiny. Id. at 846–47.

. See Schauer, supra note 5, at 1771.

. See Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting) (noting that

“Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech,” and not

covered by the First Amendment); United States v. O’Brien, 391 U.S. 367, 376–78 (1968) (creat-

ing the test for determining when conduct is expressive, but finding that the government could

constitutionally regulate the burning of a draft card).

. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661–62 (1994) (finding that the “appro-

priate standard by which to evaluate the constitutionality of must-carry is the intermediate level of

scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech”).

. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48–49 (1986).

. See supra note 2 and accompanying text.

. See Schauer, supra note 5, at 1769 (noting that “[w]hen the First Amendment does show

up, the full arsenal of First Amendment rules, principles, standards, distinctions . . . becomes

available”); Sullivan, supra note 3, at 296 (observing that outcomes can be determined at the

threshold of determining which test is applied, “[b]ut this is not real balancing”).

594 MARYLAND LAW REVIEW [VOL. 73:587

likely to engage in real balancing of speech and other values.

The trou-

bling phenomenon I identify here, however, is that when language falls into

one of the categories of speech that is covered by the First Amendment but

receive no First Amendment protection—such as fraud, true threats, or ob-

scenity—proportionality analysis can allow foreign and international courts

to be more speech-protective than the U.S. categorical approach conven-

tionally permits.

Proportionality analysis does not guarantee more protec-

tion, but “[y]ou simply cannot do everything with boxes that you can do

with balancing.”

Today’s Supreme Court is particularly enamored with the categorical

approach in its First Amendment cases.

In recent cases, the Court has ad-

hered to the “historical and traditional categories” of exceptions to First

Amendment protection, refused to apply a balancing test to create new ex-

ceptions, and applied strict scrutiny.

The Court explained that the “vast

realm of free speech and thought always protected in our tradition can still

thrive, and even be furthered, by adherence to those categories and rules.”

The two-tiered and categorical approach to First Amendment protec-

tion has some distinct advantages.

Formalism is highly speech-protective

. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 533–35 (2001) (weighing the public interest

in disclosure against the privacy harms done to the victim of a wiretap and finding protection un-

der intermediate scrutiny); Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173,

183–84 (1999) (finding that the promotion of legal gambling constitutes commercial speech pro-

tected by the First Amendment and thus subject to intermediate scrutiny); see also Sullivan, supra

note 5, at 297 (pointing out that in contrast to strict scrutiny and rationality review, “intermediate

scrutiny is an overtly balancing mode”).

. But see Heidi Kitrosser, Containing Unprotected Speech, 57 FLA. L. REV. 843, 869–78

(2005) (proposing a containment strategy for regulations applied to unprotected speech that re-

quires courts to ask whether the content-based regulation of unprotected speech relates substan-

tially to harm at which the larger unprotected category is directed, and whether the regulation

threatens speech not likely to be restricted through the general category).

. Sullivan, supra note 3, at 308–09 (discussing the practical differences between the cate-

gorization and balancing techniques).

. See id. at 306 (noting the “active controversy” over categorization and balancing in con-

stitutional law).

. United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (noting that “content-based re-

strictions on speech have been permitted, as a general matter, only when confined to the few ‘his-

toric and traditional categories’” (quoting United States v. Stevens, 559 U.S. 460, 468 (2010)));

Stevens, 559 U.S. at 470 (“The First Amendment’s guarantee of free speech does not extend only

to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”);

Ashcroft v. Free Speech Coal., 535 U.S. 234, 246 (2002) (refusing to extend the First Amendment

exception for child pornography to digital child pornography).

. Alvarez, 132 S. Ct. at 2544.

. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105,

128 (1991) (Kennedy, J., concurring in judgment) (explaining that “[t]he case before us presents

the opportunity to adhere to a surer test for content-based cases and to avoid using an unnecessary

formulation, one with the capacity to weaken central protections of the First Amendment”); see

2014] COPYRIGHT CRIME AND PUNISHMENT 595

when courts use it to refuse to create new categories of unprotected speech,

as the Supreme Court has recently done.

By creating categories of pro-

tected and unprotected speech, categorical analysis also gives rise to fewer

borderline cases, and thus operates as a more predictable and less costly

system for most defendants.

The Court’s preference for categorical analysis is supported by sub-

stantial historical examples of the inherent flaws of balancing tests. First

Amendment doctrine once required balancing. Under the “clear-and-

present-danger test,” courts were required to make an inquiry into the “im-

minence and magnitude of the danger said to flow from the particular utter-

ance” and balance the “character of the evil” and likelihood of its occur-

rence “against the need for free and unfettered expression.”

The use of

this test to defeat First Amendment claims in the 1950s gave First Amend-

ment balancing a bad reputation among U.S. speech advocates.

The United States, however, has not always been against balancing.

Additionally, the First Amendment today may not be as categorical as the

current Court assumes it to be.

The current Court’s reliance on formalism

neglects to consider historical nuances of First Amendment application.

In the past, the Court has circumvented First Amendment formalism in

several ways. It has reached within unprotected categories of speech to re-

fine the boundaries of historically prohibited categories of speech.

It has

also GEOFFREY R. STONE, PERILOUS TIMES 396–410 (2004) (discussing the unprecedented First

Amendment activity for the Supreme Court as a result of the Cold War, specifically focusing on

the significance of Dennis v. United States).

. See Stevens, 559 U.S. at 470–72; Alvarez, 132 S. Ct. at 2544.

. See, e.g., Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2733–35 (2011) (applying Ste-

vens in an easy and straightforward manner, and firmly rejecting a balancing test as “startling and

dangerous,” holding instead that the categorical approach is better because it clearly articulates the

details of the obscenity exception to the First Amendment).

. Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 842–43 (1978). The clear-and pre-

sent-danger test was established in Dennis v. United States, 341 U.S. 494 (1951), which found that

the government could regulate Communist speech advocating the overthrow of the government at

some indistinct time in the future. Id. at 515–17.

. See, e.g., Laurent B. Frantz, The First Amendment in the Balance, 71 YALE L.J. 1424,

1428–49 (1962) (arguing that the clear-and-present danger balancing test has been over applied

and overused); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV.

245, 249–50 (1961) (claiming that the Dennis opinion, which argued against an absolutist inter-

pretation of exceptions to First Amendment rights, was predicated on an erroneous conception of

the absolutist interpretation).

. Mathews & Sweet, supra note 18, at 813–14.

. Id.

. New York Times Co.v. Sullivan, 376 U.S. 254, 269 (1964) (explaining that “libel can

claim no talismanic immunity from constitutional limitations”); see also Miller v. California, 413

U.S. 15, 18–20, 23–24 (1973) (observing that obscenity is not constitutionally protected, but rec-

ognizing the need for “standards . . . used to identify obscene material”).

596 MARYLAND LAW REVIEW [VOL. 73:587

banned regulation of speech within the unprotected categories when the

regulation was done for a purpose unrelated to why those categories of

speech were banned.

In addition, the Court has rejected the state’s use of

“any way deemed necessary” to go after speech that did fall into one of the

unprotected categories.

On the surface, current First Amendment doctrine seems to require

tiered review combined with an analysis of categorical exceptions to First

Amendment protection.

At a closer glance, however, this makeshift two-

prong approach is disintegrating, which demonstrates a possible inherent

doctrinal instability.

It thus may be time to develop a less ad hoc ap-

proach to the regulation of speech that falls into an unprotected category.

Courts forego First Amendment formalism in favor of balancing tests

in a number of areas. The most prominent example is the Supreme Court’s

expansion of its use of intermediate scrutiny.

When the Court wants to

balance speech against other values, it employs intermediate scrutiny. The

John Doe standard developed by lower courts, which is used to protect

anonymous speakers from having their identity revealed in frivolous law-

suits, is an example of the regular use of a balancing test.

The John Doe

standard requires courts to balance the speaker’s First Amendment rights

against the strength of the plaintiff’s prima facie case, among other fac-

. R.A.V. v. St. Paul, 505 U.S. 377, 383–84 (1992) (finding that even though the govern-

ment can regulate true threats and fighting words, it cannot designate a content-based subcategory

for regulation within categorically unprotected speech).

. Stanley v. Georgia, 394 U.S. 557, 559–63 (1969) (rejecting the idea that since obscenity

is not constitutionally protected, states are free to deal with it in “any way deemed necessary”).

. See Sullivan, supra note 3, at 301 (noting that “[t]wo-tier review, like overtly taxonomic

or categorical analysis . . . uses classification at the threshold to cut off further serious debate . . . .

Intermediate scrutiny requires far more evaluative work after the threshold has been crossed.”).

. See Mathews & Sweet, supra note 18, at 837.

. See Blocher, supra note 5, at 391–92 (referring to intermediate scrutiny as “the Test That

Ate Everything”).

. See generally Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn

from John Doe?, 50 B.C. L. REV. 1373, 1374–1384 (2009) (describing the evolution of the John

Doe standard and the First Amendment doctrines created to protect the anonymity of Internet

speech in libel suits).

2014] COPYRIGHT CRIME AND PUNISHMENT 597

tors.

Trademark jurisprudence also contains a balancing test that involves

free speech.

In recent years, however, the Court has further entrenched First

Amendment formalism and the categorical approach.

That formalism has

surprising consequences with respect to the First Amendment’s relative pro-

tectiveness of categorically unprotected speech. A purely formalistic ap-

proach to the First Amendment runs the danger of rejecting all speech that

falls into a historically unprotected category, without considering the cir-

cumstances or proportionality of the state’s response to the speech.

Even

categorically unprotected speech can have at least some value; moreover, it

can be used as a vehicle for restricting protected speech.

B. International Free Speech and Proportionality Analysis

In contrast to the United States, most other countries use proportionali-

ty analysis to examine restrictions on speech rights.

Proportionality anal-

ysis sometimes requires balancing speech against other rights, which can

lead to excessive judicial deference to legislatures.

For borderline cases,

however, proportionality analysis can be more protective than categorical

analysis because it always requires balancing the purpose of regulations

against the right of the speaker to speak.

There are no categories of

speech that fall outside of the balancing test entirely, with the exception of

four types of expression that states are actively required to prohibit.

. Id. at 1376–77 (“[C]ourts are beginning to converge on a set of standards to balance the

right to speak anonymously with the rights of those injured by the defamatory anonymous

speech.”); see also Jocelyn Hanamirian, The Right To Remain Anonymous: Anonymous Speakers,

Confidential Sources and the Public Good, 35 COLUM. J.L. & ARTS 119, 120 (2012) (stating that

courts must “‘balance the defendant’s First Amendment right of anonymous free speech against

the strength of the prima facie case presented and the necessity for the disclosure of the anony-

mous defendant’s identity’” (quoting Dendrite Int’l, Inc. v. Doe, No. 3, 775 A.2d 756, 760–61

(N.J. Super. Ct. App. Div. 2001))).

. Mark Bartholomew & John Tehranian, An Intersystemic View of Intellectual Property

and Free Speech, 81 GEO. WASH. L. REV. 1, 41–44 (2013).

. See supra Part I.

. See Michael Coenen, Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to

the First Amendment, 112 COLUM. L. REV. 991, 997, 1027–44 (2012) (arguing that the Court

should take a penalty-sensitive approach to speech analysis).

. Kitrosser, supra note 46, at 848.

. Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptional-

sim, 107 MICH. L. REV. 391, 396–97 (2008).

. T. Jeremy Gunn, Deconstructing Proportionality in Limitations Analysis, 19 EMORY

INT’L L. REV. 465, 483–487 (2005).

. Id. at 470 (citing Soering v. U.K., 161 Eur. Ct. H.R. (ser. A) at 110 (1989)).

. U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of

Opinion and Expression, Report of the Special Rapporteur on the Promotion and Protection of the

Right to Freedom of Opinion and Expression, ¶ 80, U.N. Doc. A/HRC/20/17 (June 4, 2012) (by

598 MARYLAND LAW REVIEW [VOL. 73:587

Article 19 of the International Covenant on Civil and Political Rights

(“ICCPR”) exemplifies the international use of proportionality analysis to

protect freedom of expression.

Article 19 protects the right to freedom of

expression, including the “freedom to seek, receive and impart information

and ideas of all kinds.”

The Article 19 right applies to all media, includ-

ing the Internet.

It is explicitly subject, however, to “certain re-

strictions.”

Any restrictions on freedom of expression under Article 19 are subject

to a three-part test familiar to courts around the world.

The three-part test

mandates that any speech restriction must be provided for by law, protect a

legitimate interest, and be both necessary and the “least restrictive means”

required to protect that interest.

The three-part test is a form of propor-

tionality analysis.

Courts around the world have applied this three-part test when ad-

dressing exceptions to freedom of expression; this application can be seen

in two regional human rights treaties.

The European Court of Human

Frank La Rue) [hereinafter La Rue 2012] (referencing report A/66/290). States are required under

international law to prohibit the following: child pornography; incitement to genocide; incitement

to discrimination through advocacy of national, racial, or religious hatred; and incitement to ter-

rorism. Id.

. International Covenant on Civil and Political Rights, art. 19(2), opened for signature

Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR], availa-

ble at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. The ICCPR, as ratified by

the Senate, is non-self-executing and therefore is not binding law in the United States.

. Id.

. Molly Land, Toward an International Law of the Internet, 54 HARV. INT’L L.J. 1, 4

(forthcoming 2013), available at http://ssrn.com/abstract=2177993.

. ICCPR, supra note 74, art. 19(3). The restrictions include “(a) [f]or respect of the rights

or reputations of others; (b) [f]or the protection of national security or of public order (ordre pub-

lic), or of public health or morals.” Id.

. Gunn, supra note 71, at 467–68 (describing how the proportionate measure must be satis-

fied by three criteria).

. ICCPR, supra note 74, art. 19(3); see also U.N. Special Rapporteur on the Promotion and

Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur

on the Promotion and Protection of the Right to Freedom of Opinion and Expression, ¶ 24, U.N.

Doc. A/HRC/17/27 (May 16, 2011) (by Frank La Rue) [hereinafter La Rue 2011],

http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

. See, e.g., Council of Europe, Convention for the Protection of Human Rights and Fun-

damental Freedoms art. 10.2, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 221 (entered in force Sept.

3, 1953), available at http://www.echr.coe.int/Documents/Convention_ENG.pdf; Organization of

American States, American Convention on Human Rights art. 13.2, Nov. 22, 1969, O.A.S.T.S.

No. 36, 1144 U.N.T.S. 123, available at

http://www.hrcr.org/docs/American_Convention/oashr4.html; Organization of African Unity, Af-

rican Charter on Human and Peoples’ Rights art. 9, June 27, 1981, 1520 U.N.T.S. 217, available

at http://www.achpr.org/instruments/achpr/; see also Sunday Times v. United Kingdom, App. No.

6538/74, 2 Eur. H.R. Rep. 245, ¶ 49 (1979) (requiring the law to be accessible and “formulated

with sufficient precision to enable the citizen to regulate his conduct”); Lingens v. Austria, App.

2014] COPYRIGHT CRIME AND PUNISHMENT 599

Rights (“ECHR”) has explained that exceptions to freedom of expression

“must be narrowly interpreted and the necessity for any restrictions must be

convincingly established.”

The Inter-American Court of Human Rights

has noted that a restriction on freedom of expression “must be so framed as

not to limit the right . . . more than is necessary.”

The United States is an outlier, as compared to the rest of the world, in

using a predominantly categorical approach to speech rights.

Usually, the

categorical approach means that the United States is more speech-protective

than other countries because most speech regulation is subject to strict scru-

tiny, which is usually fatal-in-fact.

But for the liminal cases, the categori-

cal approach can be less protective than a universal balancing test.

Com-

paratively, the United States is underprotective of categorically rejected

speech.

Once a category of speech has been deemed unprotected, the

United States allows liability for all speech within the boundaries of that

categorical carve-out.

The United States fails to provide judicial oversight

over the type and scope of sanctions applied to unprotected speech.

II. COPYRIGHT AS A CARVE-OUT, OR WEIGHED AGAINST SPEECH

First Amend-

ment doctrine has been notoriously blind to the speech problems created by

Intellectual property and the First Amendment “pull in op-

No. 9815/82, 8 Eur. H.R. Rep. 407, ¶¶ 39–40 (1986) (holding that there must be a “‘pressing so-

cial need’” for the speech restriction, the reasons given must be “‘relevant and sufficient,’” and the

restriction must be proportionate to the aim pursued (internal citations omitted)).

. Thorgeirson v. Iceland, App. No. 13778/88, 14 Eur. H.R. Rep. 843, 865 (1992).

. Compulsory Membership in an Association Prescribed by Law for the Practice of Jour-

nalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85,

Inter-Am. Ct. H.R. (ser. A) No. 5, ¶ 46 (Nov. 13, 1985), available at

http://www1.umn.edu/humanrts/iachr/b_11_4e.htm.

. See Gardbaum, supra note 70, at 397.

. See Sullivan, supra note 3, at 295–96.

. See id. at 295 (discussing how categorical and balancing approaches have oscillated in

First Amendment law).

. Daniel A. Farber, The Categorical Approach to Protecting Speech in American Constitu-

tional Law, 84 IND. L.J. 917, 918 (2009).

. Id.

. See Coenen, supra note 68, at 994 (“[S]ome forms of expression warrant neither total

immunization against nor total exposure to the threat of government-sponsored sanction.”).

. See Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or

Uneasy Allies, 67 WASH. & LEE L. REV. 831, 833–35 (2010) (describing the conflict between the

tion, which may impermissibly deter free speech).

. For criticisms of the U.S. approach to copyright law and free speech, see Mark A. Lem-

ley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48

DUKE L.J. 147, 165–69 (1998) (describing the significance of Harper & Row, Publishers, Inc. v.

600 MARYLAND LAW REVIEW [VOL. 73:587

posite directions.”

As a speech restriction, copyright law “restricts [one]

from writing, painting, publicly performing, or otherwise communicating

what [one] please[s].”

Rather than recognizing the speech implications of copyright law in

the two recent decisions of Eldred v. Ashcroft

and Golan v. Holder,

the

Supreme Court instead applied “only a mild form of rational basis review”

to copyright policy. As long as “Congress has not altered the traditional

contours of copyright protection,” copyright policy is effectively found to

be categorically immune from First Amendment scrutiny.

Petitioners

urged the Court in Eldred to find that an extension of the copyright term

was unconstitutional under intermediate scrutiny, but the Court refused to

apply intermediate scrutiny to copyright policy to find the term extension

disproportionate.

The Court also refused to review copyright policy under

a “congruence and proportionality” standard that it had established in cases

addressing Section 5 of the Fourteenth Amendment.

The First Amendment thus treats copyright policy with a strikingly

formalistic approach.

The Court has held that copyright regulation is con-

tent-neutral and usually subject to a weak rational basis review, so it is not

scrutinized under the First Amendment.

Functionally, Eldred and Golan

put most copyright regulations outside of First Amendment protection, as

though copyright questions were an unprotected category of speech.

100

Nation Enterprises, and its effect on enjoining free speech); Neil Weinstock Netanel, Locating

although the Constitution’s Copyright and Patent Clause explicitly empowers Congress to enact a

Freedom of Imagination: Copyright’s Constitutionality, 112 YALE L.J. 1, 12–30 (2002) (com-

menting on the four principal explanations for copyright law’s insulation from First Amendment

review); and Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and

How Copying Serves It, 114 YALE L.J. 535, 553–55 (2004) (identifying other examples of speech-

protective limits of copyright).

. Bartholomew & Tehranian, supra note 66, at 3.

. Lemley & Volokh, supra note 90, at 165–66.

. 537 U.S. 186 (2003).

. 132 S. Ct. 873 (2012).

. Eldred, 537 at 221; see Bartholomew & Tehranian, supra note 66, at 10 (quoting Golan,

132 S. Ct. at 890–91).

. Eldred, 537 U.S. at 199–208.

. Id. at 217–18.

. NEIL WEINSTOCK NETANEL, COPYRIGHT’S PARADOX 170 (2010) (calling the intersec-

tion of First Amendment and copyright doctrine “judicial formalism at its worst”).

. Eldred, 537 U.S. at 193–94; NETANEL, supra note 98, at 59 (rejecting the ad hoc balanc-

ing of social costs and benefits with regard to content-based regulations).

100

. Golan, 132 S. Ct. at 844; Eldred, 537 U.S. at 193–94.

2014] COPYRIGHT CRIME AND PUNISHMENT 601

By contrast, foreign and transnational courts and institutions explicitly

weigh copyright laws against free expression rights.

101

Multiple European

national courts have weighed copyright protection against the right of free-

dom of expression and information guaranteed in Article 10 of the

ECHR.

102

In 2013, the ECHR held that copyright must be balanced against the

right to freedom of expression established in Article 10.

103

The ECHR did

not perform a balancing test because it found that French judicial authorities

had done so properly.

104

The ECHR explained that national courts will be

granted broad deference in balancing conflicting rights and interests, such

as the right to property and the right to free expression, especially where the

speech involved is commercial in nature.

105

The court, however, recognized

the applicability of Article 10’s freedom of expression to a copyright

case.

106

The ECHR explained that while freedom of expression is subject to

exceptions, any exception must be strictly interpreted and the reason for it

must be convincingly established.

107

From an international perspective, two non-U.S. institutions have, us-

ing proportionality analysis, recently recognized that copyright enforcement

can impermissibly impinge on free speech. In 2009, the Constitutional

Council of the French Republic subjected the new French copyright en-

101

. See Antoine Buyse, Copyright vs Freedom of Expression Judgment, ECHR BLOG (Jan.

22, 2013), http://echrblog.blogspot.in/2013/01/copyright-vs-freedom-of-expression.html (noting

that the European Court of Human Rights held that “a conviction or any other judicial decision

based on copyright law, restricting a person’s or an organisation’s freedom of expression, must be

pertinently motivated as being necessary in a democratic society, apart from being prescribed by

law and pursuing a legitimate aim”).

102

. See id. (citing Plesner Joensen v. Louis Vuitton Malletier SA, [2011] E.C.D.R. 14

(Neth.)). In 1997, the Austrian Supreme Court explicitly acknowledged the conflict between cop-

yright and free expression, under Article 10(2) of the ECHR. Oberster Gerichtshof [OGH] [Su-

preme Court] Dec. 1997, docket No. 4 Ob 361/97, 9 ENTSCHEIDUNGEN DES ÖSTERREICHISCHEN

OBERSTEN GERICHTSHOFES IN ZIVILSACHEN [SZ] (Austria), reprinted in 1998 GEWERBLICHER

RECHTSSCHUTZ UND URHEBERRECHT [GRUR] 896–98 (1998)(Ger.). In 2001, after the UK had

imported several sections of the ECHR into domestic law, the British Court of Appeal acknowl-

edged that “rare circumstances can arise where the right of freedom of expression will come into

conflict with the protection afforded by the Copyright Act.” Ashdown v. Telegraph Group Ltd,

[2001] EWCA (Civ) 1142, [45] (Eng.).

103

. Ashby Donald and Others v. France, App. No. 36769/08, Eur. Ct. H.R. (5th Section) at

¶40 (2013).

104

. Id. ¶¶ 42, 43.

105

. Id. ¶ 39 (noting the increased deference to lower courts when the speech is commercial

speech); id. ¶ 40 (noting that it is difficult to balance conflicting rights, and thus the margin of ap-

preciation—the degree of deference to the domestic court—is important).

106

. Id. ¶ 34 (recognizing the applicability of Article 10 to the copyrighted photographs at

issue).

107

. Id. ¶ 38(i).

602 MARYLAND LAW REVIEW [VOL. 73:587

forcement regime, the HADOPI, to constitutional review.

108

The Council

held that the regime of graduated response, also known as three strikes,

must be subject to judicial oversight because it implicated users’ privacy

and speech rights. The French Parliament may lay down laws to reconcile

property with freedom of expression, but such laws must be proportionate

to their purpose.

109

Furthermore, the Council found that in view of the

guarantee of freedom of expression and the proportionality requirement, the

French Parliament was not at liberty to vest its power in an administrative

authority outside of judicial review.

110

The Court found that the proposed

legal process and burdens of proof were not adequately protective of the

free expression right.

111

Similarly, the United Nations Special Rapporteur on Freedom of Opin-

ion and Expression, Frank La Rue, found that certain copyright enforce-

ment policies disproportionately harm speech rights.

112

The Special Rap-

porteur is appointed by the United Nations Secretary General to report and

advise on rights violations.

113

In 2011, La Rue found that although expres-

sion “may be legitimately restricted under international human rights law,”

any restrictions, including copyright enforcement, must be subject to the

Article 19 three-part test.

114

The report expressed alarm at “proposals to

disconnect users from Internet access if they violate intellectual property

rights.”

115

Such proposals would violate Article 19’s proportionality re-

quirement. The report also expressed concern over the Anti-Counterfeiting

Trade Agreement (“ACTA”), a copyright enforcement agreement.

116

Rue remained “watchful about the treaty’s eventual implications for inter-

mediary liability and the right to freedom of expression.”

117

108

. Conseil constitutionnel [CC] [Constitutional Court] decision No. 2009-580DC, June 10,

2009, Rec. 107 (Fr.), available at http://www.conseil-constitutionnel.fr/conseil-

constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-

580-dc-du-10-juin-2009.42666.html. English version available at http://www.conseil-

constitutionnel.fr/conseil-constitutionnel/root/bank/download/2009580DC2009_580dc.pdf.

109

. Id. ¶ 15 (“Any restrictions placed on the exercising of such freedom must necessarily

be . . . proportionate to the purpose it is sought to achieve.”).

110

. Id. ¶ 16.

111

. Id. ¶¶ 17–19. A later review of the revised HADOPI laws, which involved a court sys-

tem, found that due process had adequately been established and free speech rights were no longer

disproportionately violated. Id.

112

. La Rue 2011, supra note 79.

113

. Id.

114

. Id. ¶ 24.

115

. Id. ¶ 49.

116

. Id. ¶ 50.

117

. Id.

2014] COPYRIGHT CRIME AND PUNISHMENT 603

There is thus a growing divide between the United States’ approach to

reconciling copyright and free expression, and the approach used by other

countries.

118

III. FLAWS IN THE U.S. APPROACH

Focusing on the nature of the free speech regime instead of copyright’s

judicial exceptionalism illuminates a striking feature of the U.S. approach:

in the United States, once a category of speech falls outside of the First

Amendment’s protection, the legislature may apply any variety of sanc-

tions, functionally unchecked by judicial scrutiny.

119

The First Amendment

generally does not distinguish between civil and criminal liability, or be-

tween degrees of severity of sanctions for categorically unprotected

speech—it is a “penalty-neutral” approach.

120

A proportionality analysis of speech, by contrast, is sensitive to wheth-

er a regulation is criminal or civil. In both 2011 and 2012, La Rue ex-

pressed deep concern over the criminalization of online expression.

121

The

2011 Special Rapporteur’s report stated that “[i]mprisoning individuals for

seeking, receiving and imparting information and ideas can rarely be justi-

fied as a proportionate measure to achieve one of the legitimate aims under

article 19 [of the ICCPR].”

122

Indeed, criminalization is problematic as an

enforcement method because a state’s restriction “must be proven as neces-

sary and the least restrictive means required to achieve the purported

aim.”

123

As a result, courts will always be more skeptical of the criminalization

of speech than of civil sanctions.

124

Furthermore, the international intuition

118

. This Article is not the first to observe that the United States and other countries approach

treatment of copyright and free speech, Birnhack focused on the different theoretical foundations

for copyright regimes in different countries, namely the United States internal approach, which

uses fair use and other doctrinal safety valves to reconcile free speech and copyright, and the Eu-

ropean external approach, which weighs copyright against other values. Birnhack, supra note 7,

at 297. This Article focuses, instead, on the different features of applicable free speech regimes.

119

. See Coenen, supra note 68, at 994 (discussing the “penalty-neutral” approach to free

speech adjudication in the United States, where speech is “either protected, in which case it may

not be punished, or unprotected, in which case it may be punished to a very great degree”); see

also Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471,

1517 (1998) (observing that the First Amendment does not generally “impose[] limits on the se-

verity of punishment for speech that the government is entitled to criminalize”).

120

. See supra note 119 and accompanying text.

121

. La Rue 2012, supra note 73, ¶ 64; La Rue 2011, supra note 79, ¶ 34.

122

. La Rue 2011, supra note 79, ¶ 36.

123

. Id. ¶ 69.

124

. Id.

604 MARYLAND LAW REVIEW [VOL. 73:587

is that human rights law protects the “vertical relationships” between the

state and individuals more strongly than private “horizontal relationships”

between individuals.

125

Thus, criminalization of speech is particularly sus-

pect because it directly involves the enforcement power of the state against

the individual. Criminalization also invokes the powerful stigma of official

state disapproval, which is far stronger in criminal law than, for example, a

system of agency-administered fines.

The U.S. approach to the First Amendment does not take into account

differences between criminal and civil sanctions.

126

This feature of First

Amendment doctrine has remained relatively overlooked because the Court

often throws out civil speech laws and, thus, has not needed to consider ex-

plicitly whether criminal speech sanctions are more problematic than civil

ones.

127

In the United States, most speech regulation is not permissible even in

the civil context.

128

As a consequence, First Amendment doctrine, unlike

international freedom of expression, fails to decry the criminalization of

speech as disproportionate to all but the most serious government aims.

129

While states within the United States have repealed their criminal libel

laws, no clear First Amendment rule tells states they cannot criminalize li-

bel if they define it in line with the definitions sanctioned in First Amend-

ment case law.

130

In fact, the Supreme Court, in dicta, has made observations that equate

criminal and civil sanctions.

131

The Court observed that “the [f]ear of dam-

age awards . . . may be markedly more inhibiting than the fear of prosecu-

tion under a criminal statute.”

132

Some forms of civil regulation can create

“hazards to protected freedoms markedly greater than those that attend reli-

125

. P. Bernt Hugenholtz, Copyright and Freedom of Expression in Europe, in THE

COMMODIFICATION OF INFORMATION 247–48 (Niva Elkin-Koren & Neil Weinstock Netanel eds.,

2002); Affaire Tolstoy Miloslavsky C. Royaume-Uni [Tolstoy Miloslavsky v. United Kingdom],

20 Eur. H.R. Rep. 442 (1996).

126

. See Coenen, supra note 68, at 994–96 (explaining that “the standard method of First

Amendment analysis is penalty-neutral” and, when the Court “has flirted with penalty-sensitive

review, [it] has proceeded in an ad hoc manner”).

127

. See id. at 994 (describing First Amendment litigation as a “winner-take-all affair”).

128

. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (reviewing the case

“against the background of a profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open”).

129

. See supra note 119 and accompanying text.

130

. Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment

Laws, and “Cyberstalking,” 107 NW. U. L. REV. 731, 751–53 (2013).

131

. New York Times Co., 376 U.S. at 277–78.

132

. Id. at 277.

2014] COPYRIGHT CRIME AND PUNISHMENT 605

ance upon the criminal law.”

133

The Court then concluded that “[w]hat a

State may not constitutionally bring about by means of a criminal statute is

likewise beyond the reach of its civil law of libel,” effectively equating civil

and criminal liability.

134

Despite this statement of equivalence, the Court has struggled with an

intuition that criminal prosecution is more problematic than civil sanc-

tions.

135

This discomfort is an instance of the doctrinal instability created

by the First Amendment’s categorical approach.

136

In one case, the Court

observed that “a law imposing criminal penalties on protected speech is a

stark example of speech suppression.”

137

In another case, the Court clari-

fied that a First Amendment holding permitting administrative sanctions of

speech might not extend to criminal prosecutions.

138

The Court also noted

its “greater tolerance of enactments with civil rather than criminal penal-

ties.”

139

Further, the Court has reasoned that when a case did not involve a

criminal statute, the consequences of its decision were “not constitutionally

severe.”

140

The Supreme Court came closest to recognizing that criminal sanc-

tions might be more problematic than civil sanctions in Reno v. American

Civil Liberties Union.

141

In Reno, Justice Stevens stated several times that

criminal sanctions are more troubling than civil sanctions.

142

Concluding

that the statute at hand was not narrowly tailored, the Court explained that

“the risk of criminal sanctions ʽhovers over each content provider, like the

proverbial sword of Damocles.ʼ”

143

Criminal statutes are problematic be-

cause of the harsh penalties they carry, as well as the social stigma that ac-

133

. Id. at 278 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).

134

. Id. at 277. The civil libel law at issue had produced damages that were one thousand

times the maximum fine under a comparable criminal statute, and the Court pointed out that

“criminal-law safeguards,” such as an indictment, proof beyond a reasonable doubt, and double

jeopardy, would not be available to a defendant in a civil action. Id. at 277–78.

135

. See Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (stating that “criminal prosecution

under a statute regulating expression usually involves imponderables and contingencies that them-

selves may inhibit the full exercise of First Amendment freedoms”).

136

. Id.

137

. Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002).

138

. FCC v. Pacifica Found., 438 U.S. 726, 750 (1978) (explaining that the Court had “not

decided . . . that this broadcast would justify a criminal prosecution”).

139

. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99

(1982).

140

. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 589 (1998).

141

. 521 U.S. 844 (1997) (holding that full First Amendment protection extends to speech on

the Internet).

142

. Id. at 872.

143

. Id. at 882 (quoting ACLU v. Reno, 929 F. Supp. 824, 855–56 (E.D. Pa. 1996), aff’d, 521

U.S. 844 (1997)).

606 MARYLAND LAW REVIEW [VOL. 73:587

companies a criminal conviction.

144

The severity of punishment creates an

“increased deterrent effect” that, “coupled with the ‘risk of discriminatory

enforcement’ of vague regulations, poses greater First Amendment con-

cerns than those implicated by . . . civil regulation.”

145

This language, how-

ever, seems to be in direct tension with the Court’s language from New

York Times Co. v. Sullivan

146

equating civil sanctions of speech with crimi-

nal sanctions.

147

The lack of a clear rule disfavoring the criminalization of speech is a

perversity of the United States’ deviation from proportionality analysis.

Because speech is categorically either in or out of the First Amendment’s

protection, the Court rarely reaches whether the sanctions themselves are

appropriate.

148

The only specific sanction that receives close First Amend-

ment scrutiny is the use of prior restraints.

149

Notably, even prior restraints

are not scrutinized in the copyright enforcement context.

150

A. Judicial Abdication and the Political Economy of Intellectual

Property

The First Amendment thus does not distinguish between criminal and

civil liability once a category of speech is outside of its protection.

151

Cop-

yright policy functionally has been found to be outside the scope of First

Amendment protection, subject only to weak rational basis review unless

Congress tampers with the First Amendment “safety valves” of fair use or

the idea-expression dichotomy.

152

Because most copyright policy is effec-

tively outside of First Amendment scrutiny, the U.S. legislature has been

144

. Id. at 872 (“In addition to the opprobrium and stigma of a criminal conviction, the

[Communications Decency Act of 1996] threatens violators with penalties including up to two

years in prison for each act of violation.”).

145

. Id. (citing Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996)).

146

. 376 U.S. 254 (1964).

147

. Id. at 277–78.

148

. See supra note 127 and accompanying text.

149

. Lemley & Volokh, supra note 90, at 169–70. “Prior restraints” are defined as “prelimi-

nary injunctions, not permanent injunctions.” Id. at 169 (emphasis omitted).

150

. Id. at 174–75.

151

. See supra note 129 and accompanying text.

152

. See Eldred v. Ashcroft, 537 U.S. 186, 218–21 (2003) (finding that copyright can be rec-

onciled with the First Amendment and thus subjected only to rational basis review because it con-

tains the internal safety valves of idea-expression dichotomy and fair use doctrine; because it was

enacted close-in-time with the First Amendment; and because copyright is the “engine of free ex-

pression”).

2014] COPYRIGHT CRIME AND PUNISHMENT 607

able to ratchet up speech-restricting copyright enforcement measures un-

checked by judiciary review.

153

Tiered review can permit judicial abdication to the legislature.

154

This

claim may be counterintuitive to those who see proportionality analysis as

deferential, and tiered review as more protective. By leaving copyright pol-

icy outside of judicial scrutiny, however, the Court defers to Congress on

the statutory details of copyright law.

155

This deference is a consequence of

a First Amendment system that regularly allows for only all-or-nothing re-

view.

156

If the Court had decided to subject copyright to more than rational

basis review, it might have found itself regularly deciding many parameters

of copyright policy.

157

Instead, by functionally placing copyright outside of

the First Amendment, the Court left all speech-related details for Congress

to decide.

158

In Eldred, the Supreme Court considered the constitutionality of the

creased copyright term was disproportionately restrictive of freedom of ex-

pression, the Court explicitly deferred to Congress, explaining that “it is

generally for Congress, not the courts, to decide how best to pursue the

159

When the Court in Golan considered

whether Congress could take works out of the public domain and reinstate

wants with copyright policy, as long as it does not alter the “traditional con-

153

. See id. at 204–08 (stating that the Court is “not at liberty to second-guess congressional

determinations and policy judgments of this order, however debatable or arguably unwise they

may be”).

154

. Mathews & Sweet, supra note 18, at 838.

155

. These statutory details of copyright law are referred to in the literature as “policy levers.”

See Pamela Samuelson & Suzanne Scotchmer, The Law and Economics of Reverse Engineering,

111 YALE L.J. 1575, 1649 (2002) (noting that “[a]ll intellectual property rights regimes . . . have

certain policy levers in common, wielded to a greater or lesser extent”). Bartholomew and Teh-

ranian suggest that copyright’s lack of deference to the First Amendment partially may be because

90 (explaining that statutes can close off “avenues for addressing expressive concerns”); see also

Shyamkrishna Balganesh, The Pragmatic Incrementalism of Common Law Intellectual Property,

63 VAND. L. REV. 1543, 1578 (2010) (noting that common law is more adaptable because it uses

standards instead of rules).

156

. See Bartholomew & Tehranian, supra note 66, at 72 (observing that “judges operating

within the freedom of the common law appear better able to preserve a broad theoretical land-

scape, whereas statutory analysis restricts judicial autonomy”); Balganesh, supra note 155, at

1578 (noting that courts have greater discretion when dealing with standards as opposed to rules).

157

. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429–31 (1984) (stating that

Congress has the “institutional ability to accommodate fully the varied permutations of competing

interests that are inevitably implicated by . . . new technology”).

158

. Id.

159

. Eldred v. Ashcroft, 537 U.S. 186, 212 (2003).

608 MARYLAND LAW REVIEW [VOL. 73:587

tours” of copyright protection and impinge on fair use or the idea-

expression dichotomy.

160

The consequence of judicial deference to Congress’s choices on copy-

right policy details is that the political economy of copyright lawmaking

remains unchecked by the judiciary in the United States.

161

Unchecked

the expense of second-generation users and authors.

162

Political economists explain the stunning recent expansion of U.S.

163

Intellectual property crea-

tors and owners, which are often large corporations, receive high economic

rents through copyright protection.

164

But copiers, who are often dispersed

individuals, receive only a competitive advantage.

165

The costs of organiza-

tion are thus higher and the benefits of organization lower for those protect-

ing the public domain than for those desiring more copyright protection.

166

Without checks from the judiciary, this has resulted in an upward ratchet of

statutory growth.

167

Criminal copyright law and enforcement measures, while infrequently

discussed, are particularly problematic examples of U.S. copyright expan-

sion, from a free speech perspective. The United States criminalizes low

levels of copyright infringement, and employs speech-threatening enforce-

ment mechanisms, including the seizure of websites. The United States

has, in recent years, attempted to export its criminal standard and enforce-

ment measures worldwide.

168

In addition, the United States has recently at-

160

. Golan v. Holder, 132 S. Ct. 873, 890 (2012) (“We then described the ‘traditional con-

tours’ of copyright protection, i.e., the ‘idea/expression dichotomy’ and the ‘fair use’ defense.”).

161

. Lemley & Volokh, supra note 90, at 174–75.

162

. See WILLIAM M. LANDES & RICHARD A. POSNER, THE POLITICAL ECONOMY OF

INTELLECTUAL PROPERTY 1–5 (2004) (tracing the expansion of intellectual property protection,

specifically focusing on the scope of copyright law).

163

. Id. at 10–13, 16–17.

164

. Id. at 14–15.

165

. Id.

166

. Id. at 14–15.

167

. But see Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of

Intellectual Property, 117 YALE L.J. 804, 808 (2008) (“The public choice accounts developed in

IP scholarship to explain the strengthening of IP law over the last thirty years suggest that such a

countermobilization is highly unlikely, or even impossible. How, then, can we account for the

new A2K mobilization and its apparent successes?”).

168

. See generally Margot E. Kaminski, An Overview and the Evolution of the Anti-

Counterfeiting Trade Agreement, 21 ALB. L.J. SCI. & TECH. 385 (2011) (arguing that ACTA was

developed to maximize international intellectual property standards, without opportunity for fair

negotiations amongst all interested countries); Susan K. Sell, The Global IP Upward Ratchet, An-

ti–Counterfeiting and Piracy Enforcement Efforts: The State of Play (June 9, 2008),

http://www.twnside.org.sg/title2/intellectual_property/development.research/SusanSellfinalversio

2014] COPYRIGHT CRIME AND PUNISHMENT 609

tempted to apply its criminal enforcement across borders to citizens of other

countries—where infringement is not similarly criminalized—resulting in

several recent extradition cases.

169

Criminal copyright law was first enacted in the United States in

1897.

170

For the next century, the underlying distinction between civil and

criminal copyright law was that criminal law punished commercial-level

infringement, while civil law punished individual infringement for non-

commercial purposes.

171

In 1997, the No Electronic Theft Act (“NET

Act”)

172

altered this distinction.

173

Under the NET Act, an infringer no

longer requires a commercial motive and need not infringe at a commercial-

ly significant level to be found criminally liable for copyright infringement

in the United States.

174

The current criminal copyright standard is two-pronged: one prong

targets infringement of any amount if done for private financial gain; and

the second punishes infringement over a certain threshold amount, when

done willfully but without a requirement of financial or commercial mo-

tive.

175

The first prong of the statute, which requires a financial motive but

no threshold amount of infringement, may at first seem to trace past legal

requirements that infringement be of a commercial nature.

176

It is, however,

a lower hurdle. The financial motive in the first prong need not require a

n.pdf (arguing that the United States exerts a strong influence on international IP framework de-

velopment in its quest for higher global IP standards).

169

. See, e.g., Complaint, United States v. O’Dwyer, No. 10 Mag. 2471 (S.D.N.Y. Nov. 5,

2010), available at http://www.scribd.com/doc/100259020/U-S-v-O-Dwyer-SDNY-1-Sealed-

Complaint. In the Complaint, a citizen of the United Kingdom, Richard O’Dwyer, was charged

with conspiracy to commit copyright infringement and criminal copyright infringement for own-

ing and operating TVShack.net and TVShack.cc. See id. ¶¶ 1–4. As a result, the United States

successfully obtained an extradition order in British courts to bring O’Dwyer to the United States

for trial; however, the case settled. Richard O’Dwyer ‘Happy’ U.S. Copyright Case Is Over, BBC

NEWS (DEC. 6, 2012), http://www.bbc.co.uk/news/uk-england-20636626.

170

. Act of Jan. 6, 1897, ch. 4, 29 Stat. 481.

171

. See, e.g., Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry

Based on Morality, Harm, and Criminal Theory, 83 B.U. L. REV. 731, 735–36 (2003) (distin-

guishing between civil and criminal provisions in copyright law); Note, The Criminalization of

Note] (explaining that the 1897 Act “introduced the paradigm of differentiating criminal from civ-

il copyright violations based upon whether the infringement was pursued for purposes of commer-

cial exploitation”).

172

. No Electronic Theft Act (NET), Pub. L. No. 105-147, 111 Stat. 2678 (1997).

173

. The NET Act was prompted by United States v. LaMacchia, in which the United States

District Court for the District of Massachusetts found that copyright infringement lacking a com-

mercial motive could not be prosecuted under criminal law. 871 F. Supp. 535, 544–45 (D. Mass.

1994).

174

. No Electronic Theft Act § 2(a).

175

. Id.; 17 U.S.C. § 506(a)(2) (2010).

176

. 17 U.S.C. § 506(a)(1) (2010).

610 MARYLAND LAW REVIEW [VOL. 73:587

sale; it is satisfied by the “receipt, or expectation of receipt, of anything of

value, including the receipt of other copyrighted works.”

177

Thus, in order

to criminally infringe copyright under the statute, a user need only expect to

receive something of value, including other copyrighted works.

178

This def-

inition targets file sharing of any amount.

Both prongs of current U.S. criminal copyright law sweep into realms

traditionally occupied by civil copyright law.

179

The first prong’s “financial

motive” targets all intentional exchanges of infringing works, even where a

user receives only one work from another user.

180

The second prong’s low

statutory threshold ($1,000 of infringement in a 180-day period, regardless

of motive) threatens to criminalize routine infringement that has been seen

as personal use or fair use, such as photocopying books for educational pur-

poses.

181

Moreover, prosecutors have indicated that they are willing to

prosecute excerpting.

182

Fair use is a defense to criminal copyright in-

fringement, but the statutory definitions of the two criminal infringement

offenses may restrict the scope of findings of what constitutes fair use.

183

The current international standard for criminal copyright resembles an

earlier stage of U.S. law. The international standard established in the

Agreement on Trade-Related Aspects of Intellectual Property Rights

(“TRIPS”) requires criminalization of copyright infringement only when it

is “willful” and done on a “commercial scale.”

184

177

. Id. § 101 (defining the term “financial gain”).

178

. Id. § 506(a)(1).

179

. Moohr, supra note 171, at 739.

180

. U.S. DEP’T JUSTICE, COMPUTER CRIME AND INTELLECTUAL PROP. SECTION, CRIM. DIV.,

PROSECUTING INTELLECTUAL PROPERTY CRIMES 54 (3d ed. 2006) [hereinafter PROSECUTING

MANUAL] (“For example, federal prosecutors have successfully charged ‘commercial advantage

or private financial gain’ in cases where defendants ran a closed peer-to-peer file-trading network

that required new users to contribute pirated material in order to join.”).

181

. Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution of

Criminal Copyright Infringement and the Importance of the Willfulness Requirement, 77 WASH.

U. L. Q. 835, 868–69 (1999).

182

. See PROSECUTING MANUAL, supra note 180, at 38 (discussing potential prosecution for

reproduction of partial portions of a work).

183

. Fair use analysis is statutorily defined and consists of four prongs: the purpose and char-

acter of the work, the nature of the copied work, the amount and substantiality of the copying, and

the effect on the work’s value. 17 U.S.C. § 107 (2010). These low standards potentially restrict

court findings of fair use in cases of infringement over $ 1,000, and when somebody has ex-

changed one work for another. See, e.g., Loren, supra note 181, at 869 (pointing out that deter-

mining “criminal copyright infringement” will be difficult “when the defendant’s use is not moti-

vated by commercial advantage or private financial gain”). The statutory definitions of criminal

Id.

184

. See Agreement on Trade-Related Aspects of Intellectual Property Rights art. 61, Apr. 15,

1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869

2014] COPYRIGHT CRIME AND PUNISHMENT 611

The United States and China recently disputed the meaning of “com-

mercial scale.”

185

The United States proposed that “commercial scale” must

encompass the activities of both those engaging in activities for a “financial

return,” no matter how small their operations, and those who infringe at a

“sufficient extent or magnitude,” regardless of motive.

186

This proposal no-

ticeably attempted to read the international standard to reflect current U.S.

criminal copyright law. A World Trade Organization (“WTO”) Dispute

Settlement Panel rejected the U.S. argument that criminal copyright covers

all infringement except for de minimis use,

187

and refused to provide a defi-

nition of “commercial scale.” Instead, the WTO Dispute Settlement Panel

found that the United States provided insufficient evidence to demonstrate

what “commercial scale” meant “in the specific situation of China’s mar-

ketplace.”

188

The panel also refused to reach whether “commercial scale”

requires that states criminalize infringement over a certain amount, done

without a for-profit motive. Thus the panel confirmed that United States

criminal copyright law goes beyond the international requirement that states

criminalize commercial scale infringement. Instead of criminalizing only

commercial scale infringement, the U.S. definition criminalizes noncom-

mercial personal use infringement.

189

U.N.T.S. 299, 33 I.L.M. 1197 [hereinafter TRIPS Agreement] (“Members shall provide for crimi-

nal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or

monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for

crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the

seizure, forfeiture and destruction of the infringing goods and of any materials and implements the

predominant use of which has been in the commission of the offence. Members may provide for

criminal procedures and penalties to be applied in other cases of infringement of intellectual prop-

erty rights, in particular where they are committed wilfully and on a commercial scale.”).

185

. See generally Report of the Panel, China—Measures Affecting the Protection and En-

forcement of Intellectual Property Rights, WT/DS362/R (Jan. 26, 2009) [hereinafter China IP

Panel Report] (discussing the thresholds for which the United States claims “China has not pro-

vided for criminal procedures and penalties to be applied in cases of wilful trademark counterfeit-

ing or copyright piracy on a commercial scale”); see also Miriam Bitton, Rethinking the Anti-

Counterfeiting Trade Agreement’s Criminal Copyright Enforcement Measures, 102 J. CRIM. L. &

CRIMINOLOGY 67, 71–72 (2012) (noting the rapid pace at which “[c]riminal law has been embed-

ding itself into intellectual property law,” as well as “difficulty and opposition” resulting from the

“unique characteristics of intellectual properties”); Peter K. Yu, The TRIPS Enforcement Dispute,

89 NEB. L. REV. 1046, 1056 (2011) (citing TRIPS Agreement art. 61).

186

. China IP Panel Report, supra note 185, at § 7.480.

187

. Id. at § 7.551–7.553.

188

. Id. at § 7.614.

189

. See Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property Infringe-

ment, 24 HARV. J. L. & TECH. 469, 516 (2011) (referring to the current criminalization standard in

800 (referring to the NET Act as targeting personal use infringement).

612 MARYLAND LAW REVIEW [VOL. 73:587

Numerous scholars have criticized the expansion of U.S. criminal cop-

yright law, exploring its lack of moral underpinnings.

190

They have argued

that the costs are too high and benefits too uncertain.

191

They have criti-

cized the expansion as a psychologically ineffective enforcement tactic.

192

They have even criticized the criminal copyright standard under the Copy-

right Clause, concluding that overly broad copyright criminalization un-

dermines the constitutional purpose of copyright law.

193

B. Speech Problems with Criminal Copyright

Although numerous scholars have noted that criminal copyright raises

speech problems, these problems have not been discussed at length.

194

Per-

haps the lack of scholarly analysis has been due to under enforcement of the

NET Act.

195

In 2008, however, Congress enacted the Priority Resources

and Organization for Intellectual Property Act (“PRO-IP Act”) to increase

190

. STUART P. GREEN, THIRTEEN WAYS TO STEAL A BICYCLE: THEFT LAW IN THE

INFORMATION AGE 253–57 (2012) (concluding copyright offenders are not “sufficiently culpable

to justify criminalization”); Bitton, supra note 185, at 72; Moohr, supra note 171, at 735; see also

Stuart P. Green, Moral Ambiguity in White Collar Criminal Law, 18 NOTRE DAME J.L. ETHICS &

PUB. POL’Y 501, 510 (2004) (discussing white-collar crimes and the difficulties of identifying

both harms and victims).

191

. Moohr, supra note 11, at 807–08.

192

. See Tom R. Tyler, Compliance with Intellectual Property Laws: A Psychological Per-

spective, 29 N.Y.U. J. INT’L L. & POL. 219, 224–25 (1997).

193

. See Note, supra note 171, at 1718 (“The mere threat of criminal penalties could chill the

very activities that the Copyright Clause is intended to promote.”); see generally Diane L. Kilpat-

rick-Lee, Criminal Copyright Law: Preventing a Clear Danger to the U.S. Economy or Clearly

Preventing the Original Purpose of Copyright Law?, 14 U. BALT. INTELL. PROP. L.J. 87, 118

(2005) (concluding that the evolution of copyright law and the punishments go beyond its original

purpose and what is necessary to deter infringement).

194

. See, e.g., I. Trotter Hardy, Criminal Copyright Infringement, 11 WM. & MARY BILL RTS.

J. 305, 306 (2002) (explaining that criminal copyright is perceived by the general public as re-

stricting free speech and other paramount rights); Bitton, supra note 185, at 83 (“Criminalizing

that copyright policy implicates “special concerns” that include “the inherent tension with the val-

ues embodied in the First Amendment that are present when people are given a monopoly over

expressive works”); Manta, supra note 189, at 516 (explaining that criminal copyright might pose

a particularly difficult problem because of the “possible chilling effect on expressive activities”);

Moohr, supra note 11, at 789 n.14 (noting that “the First Amendment also plays a role in copy-

right doctrine, preventing the rights granted to authors from restricting the public’s right to free

speech”); Note, supra note 171, at 1718 (“The mere threat of criminal penalties could chill the

very activities that the Copyright Clause is intended to promote.”).

195

. See Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Cop-

yright Infringement, 82 OR. L. REV. 369, 377 (2003) (noting that no convictions were made during

the first eighteen months after the NET Act’s enactment).

2014] COPYRIGHT CRIME AND PUNISHMENT 613

criminal enforcement, and the speech problems have since become more

apparent, prompting further academic discussion.

196

Since the PRO-IP Act, criminal copyright enforcement efforts both in-

side and outside of the United States have increased. It can be difficult to

ascertain precise numbers, because the government combines its assessment

of copyright enforcement with other kinds of intellectual property (“IP”) en-

forcement in its data collection.

The U.S. government, however, has highlighted its general increase in

IP enforcement since the PRO-IP Act.

197

Since 2009, United States Immi-

gration and Customs Enforcement (“ICE”) and Homeland Security Investi-

gations (“HIS”) of IP-related cases are up 71%, arrests are up 159%, and

convictions are up 103%.

198

The FBI has increased IP-related arrests by

68% since 2010.

199

In each year since 2009, Assistant United States Attor-

neys have charged approximately 170 criminal IP cases, representing a 14%

increase in the number of defendants charged per year prior to 2009.

200

the 202 IP defendants sentenced in 2012, over half received prison terms,

with over 40 defendants receiving sentences of longer than one year in pris-

on.

201

International cooperation between national law enforcement agencies

has also increased, as U.S. agencies cooperate with agencies in Canada,

Mexico, and international bodies, such as INTERPOL.

202

The United States

has highlighted several extradition efforts related to copyright crimes.

203

In addition to building enforcement infrastructure, the PRO-IP Act

created new civil and criminal forfeiture provisions.

204

The United States

196

. PROTECT IP Act of 2011, S. 968, 112th Cong § 4 (2011); Grace Pyun, The 2008 PRO-

IP Act: The Inadequacy of the Property Paradigm in Criminal Intellectual Property Law and Its

Effect on Prosecutorial Boundaries, 19 DEPAUL J. ART TECH. & INTELL. PROP. L. 355, 377–78

(2009). See generally Christopher J. Buccafusco & Jonathan S. Masur, Innovation and Incarcera-

tion: An Economic Analysis of Criminal Intellectual Property Law 1–4 (University of Chicago

Coase-Sandor Inst. for Law & Econ., Research Paper No. 649, 2013), available at

http://ssrn.com/abstract=2297488 (discussing the scope and enforcement of IP laws and their ex-

pansion in the use of criminal sanctions to deter IP violations).

197

. See, e.g., U.S. INTELL. PROP. ENFORCEMENT COORDINATOR, 2013 JOINT STRATEGIC

PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT 1 (2013) [hereinafter 2013 Joint Strategic

Plan].

198

. Id.

199

. Id. at 21.

200

. Id. at 21, 44. See also Ryan Rufo, Below the Surface of the ACTA: The Dangers That

Justify New Criminal Sanctions Against Intellectual Property Infringement, 39 AIPLA Q.J. 511,

530 (2011) (describing a report estimating that “17.53% of total Internet traffic in the United

States infringed intellectual property rights”).

201

. 2013 Joint Strategic Plan, supra note 197, at 44.

202

. Id. at 25.

203

. Id. at 26, 30.

204

. Pyun, supra note 196, at 356.

614 MARYLAND LAW REVIEW [VOL. 73:587

has been using these provisions, founded on its underlying standard for

criminal copyright law, to seize and forfeit websites ex parte, and without

subsequently going to trial.

205

Operation in Our Sites, a coordinated effort

between multiple U.S. law enforcement agencies, resulted in the govern-

ment seizure of more than 1,700 website domain names since 2010 and the

seizure of substantial monetary assets.

206

Project Fake Sweep, nominally a

trademark enforcement operation, has also seized over 300 websites en-

gaged in distributing allegedly pirated copyrighted works.

207

There are at least five distinct speech problems with enforcing a stand-

ard for criminal copyright infringement that extends broadly enough to in-

clude noncommercial personal use. The first is a First Amendment due

process problem: there is no protection from prior restraints in copyright

law and, therefore, the government can use and has used criminal copyright

procedures to take speech down ex parte and before trial.

208

The second is a

collateral censorship problem: when governments go after the intermediar-

ies, as the United States has through criminal copyright enforcement, inter-

mediaries often become overcautious and censor user speech.

209

Third,

overcriminalization pushes intermediaries into private ordering out of fear

of enforcement, which promotes privatized censorship and reduces trans-

parency.

210

Fourth, criminalizing low-level infringement impinges on an

Internet user’s right to receive information.

211

And fifth, a low criminal

standard permits arbitrary enforcement, which can be used to punish other

205

. Mike Masnick, Website Censored by Feds Takes Up Lamar Smith’s Challenge: Here’s

Your ‘Hypothetical,’ TECHDIRT (Jan. 10, 2012),

http://www.techdirt.com/articles/20120110/11395317367/website-censored-feds-takes-up-lamar-

smiths-challenge-heres-your-hypothetical.shtml. Most famously, the United States charged Kim

Dotcom and his associates with both direct criminal copyright infringement and accomplice liabil-

ity, and forfeited their domain names. See Drew Olanoff, Here’s the Full 72 Page Megaupload

DOJ Indictment, THENEXTWEB (Jan. 20, 2012, 12:12 AM),

http://thenextweb.com/insider/2012/01/20/heres-the-full-72-page-megaupload-doj-indictment/.

The U.K. citizen Richard O’Dwyer was also charged with both conspiracy to commit copyright

infringement, and criminal copyright infringement, for owning and operating TVShack.net and

TVShack.cc. Both domain names were seized. See supra note 169.

206

. 2013 Joint Strategic Plan, supra note 197, at 20.

207

. Id. at 65.

208

. Lemley & Volokh, supra note 90, at 158–65; Rubenfeld, supra note 90, at 3. Although it

has not yet had an opportunity to consider the constitutionality of civil in rem forfeiture, the Court

has been careful to distinguish between criminal and civil forfeiture proceedings. See Alexander

v. United States, 509 U.S. 544, 553–54 (1993) (explaining that the criminal forfeiture provision at

issue was after trial, and therefore not a prior restraint); Id. at 559 (Souter, J., concurring in part

and dissenting in part) (distinguishing that this case concerned criminal forfeiture, not civil forfei-

ture).

209

. See infra note 219 and accompanying text.

210

. Derek Bambauer, Orwell’s Armchair, 79 U. CHI. L. REV. 863, 867–68 (2012).

211

. See infra note 228 and accompanying text.

2014] COPYRIGHT CRIME AND PUNISHMENT 615

kinds of speech the government does not like, and can cause chilling ef-

fects.

212

The combination of a low underlying criminal copyright standard and

a lack of First Amendment scrutiny allows the government to employ crim-

inal procedures that, when applied to speech, resemble prior restraints.

213

the name of criminal copyright enforcement, the United States has used pre-

indictment seizures to seize the domain names of websites prior to trial.

214

The low standard of criminal infringement eases the probable cause re-

quirement, providing low hurdles for the government’s ability to obtain a

warrant to seize an entire website domain.

215

Seizing an entire site implicates the speech rights of more than the ac-

cused; it also censors all other users who speak through the website, regard-

less of whether they are copyright infringers.

216

The tool of civil asset for-

feiture, created by the PRO-IP Act of 2008, does not even require probable

cause.

217

Civil asset forfeiture is problematic, but it may be less significant

than critics have deemed in this area because of how easy it is to show

probable cause of low-level criminal infringement and thus obtain a pre-

indictment seizure warrant.

The second speech problem raised by the low criminal copyright

standard is collateral censorship.

218

How liable websites are for criminal

restraint problems are solved, an overly broad criminal standard still creates

a specter of criminal liability for an intermediary for de minimis behavior or

even accidental behavior. The specter of criminal liability encourages col-

212

. See infra note 231 and accompanying text.

213

. Timothy B. Lee, How the Criminalization of Copyright Threatens Innovation and the

Rule of Law, in COPYRIGHT UNBALANCED: FROM INCENTIVE TO EXCESS 55, 55–74 (Jerry Brito

ed., 2012).

214

. See, e.g., Mike Masnick, Breaking News: Feds Falsely Censor Popular Blog for over a

Year, Deny All Due Process, Hide All Details . . ., TECHDIRT (Dec. 8, 2011, 8:29 AM),

http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-

popular-blog-over-year-deny-all-due-process-hide-all-details.shtml (discussing a pre-indictment

seizure of a website domain for over a year before trial).

215

. See Mike Masnick, Feds Tie Themselves in Legal Knots Arguing for Domain Forfeiture

in Rojadirecta Case, TECHDIRT (May 16, 2012, 10:22 AM),

http://www.techdirt.com/articles/20120516/05031118941/feds-tie-themselves-legal-knots-

arguing-domain-forfeiture-rojadirecta-case.shtml (arguing that the government “could easily seize

and forfeit any search engine domain or any website that allows public comments, merely by as-

serting that a link in a search result or a link in a comment led to infringing material”).

216

. Christina Mulligan, Technological Intermediaries and Freedom of the Press, 66 SMU L.

REV. 101, 120–21 (2013).

217

. Pyun, supra note 196, at 387.

218

. See Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the

“Speaker” with the New Media, 71 NOTRE DAME L. REV. 79, 116 (1995); see also J.M. Balkin,

Free Speech and Hostile Environments, 99 COLUM. L. REV. 2295, 2298 (1999).

616 MARYLAND LAW REVIEW [VOL. 73:587

lateral censorship by the intermediary against the user.

219

Intermediaries are

not invested in content in the same way users are, so a fear of criminal lia-

bility can cause intermediaries to take down user material out of an excess

of caution. Criminal copyright liability is a real threat for online intermedi-

aries: the U.S. government has charged online intermediaries with both di-

rect criminal infringement and aiding and abetting criminal infringement.

220

The third speech problem is related: threatening to charge online in-

termediaries with criminal infringement, whether direct or secondary, can

push them into more opaque private ordering regimes with less due process

for Internet users. This scenario arises out of the same natural caution that

causes collateral censorship. If an online intermediary fears criminal en-

forcement, one thing it can do to protect itself is to make a bargain with

content owners to show good intent. The PRO-IP Act established a system

wherein content owners consult with the Department of Justice about bad

actors.

221

In the United States, content owners and Internet Service Provid-

ers (“ISPs”) have entered into a bargain, with encouragement from the U.S.

IP Enforcement Coordinator: the copyright alert system. The copyright

alert system is a private agreement, in which ISPs promise to slow down In-

ternet speeds if copyright infringement is found.

222

Privately ordered regu-

lation such as this is problematic because citizens have trouble identifying

and protesting it, and thereby engaging in the process of governance.

The fourth speech problem raised by the overcriminalization of copy-

right infringement is that it impinges on the Internet user’s right to receive

information, recognized in both international and U.S. law. The Supreme

Court noted that “the Constitution protects the right to receive information

219

. United States courts have also recognized the problem of collateral censorship, although

without calling it by that name. The 1959 case of Farmers Educational and Cooperative Union v.

WDAY, 360 U.S. 525 (1959), beautifully outlines the problem. In the context of the FCC’s must-

carry rules, a local radio station could not take down a candidate’s speech just because they judged

it to be libelous. That station, however, also could not be held liable for libel. The court stated:

Quite possibly, if a station were held responsible for the broadcast of libelous material,

all remarks even faintly objectionable would be excluded out of an excess of caution.

Moreover, if any censorship were permissible, a station so inclined could intentionally

inhibit a candidate’s legitimate presentation under the guise of lawful censorship of li-

belous matter.

Id. at 530.

220

. See supra note 205 and accompanying text.

221

. See Priority Resources and Organization for Intellectual Property Act of 2008, Pub. L.

110-403, 122 Stat. 4256 (codified as amended at 15 U.S.C. §§ 8101 et seq. (2012)), available at

http://www.gpo.gov/fdsys/pkg/PLAW-110publ403/pdf/PLAW-110publ403.pdf.

222

. See Lisa Richwine, Internet Providers to Act Against Online Pirates, REUTERS, July 7,

2011, http://www.reuters.com/article/2011/07/07/us-internet-piracy-idUSTRE7667FL20110707

(reporting that certain U.S. ISPs will post warning messages and throttle internet speeds should

they discover their customers illegally downloading copyrighted films).

2014] COPYRIGHT CRIME AND PUNISHMENT 617

and ideas.”

223

This right “is fundamental to our free society.”

224

The right

to receive information is linked to a right to personal intellectual breathing

space,

225

and “the right to be free from state inquiry into the contents of

[one’s] library.”

226

of one’s library.

227

Criminalizing a de minimis level of infringement, with a

low showing of intent, allows the state—in addition to private actors—to

partake in the examination of any content a user might have.

228

Such crimi-

nal copyright infringement often appears in proposed U.S. laws as a justifi-

cation for state surveillance or network management.

229

The U.S. network

neutrality provisions contain carve-outs for monitoring and managing ille-

gal content, explicitly including copyright infringing material.

230

Finally, overcriminalization gives rise to the problem of arbitrary en-

forcement. Arbitrary enforcement chills speech; this reasoning is often

used to justify the First Amendment’s overbreadth and vagueness doctrines.

A vague statute “delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.”

231

Broad criminaliza-

tion has the same practical consequences: if everybody is a criminal, the

state can choose whom to prosecute at will. This discretion allows states to

prosecute citizens for copyright infringement as punishment for other be-

havior or speech that they cannot otherwise prosecute.

In Russia, for example, the government has arrested a series of noted

dissidents not for political speech but ostensibly for copyright infringe-

223

. Stanley v. Georgia, 394 U.S. 557, 564 (1969).

224

. Id.

225

. Rubenfeld, supra note 90, at 24–25, 28.

226

. Stanley, 394 U.S. at 565.

227

. See Lemley & Volokh, supra note 90, at 166 (observing that copyright law “seriously

restricts speakers’ ability to express themselves the way they want” and therefore should be sub-

ject to First Amendment scrutiny).

228

. See generally Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copy-

right Management” in Cyberspace, 28 CONN. L. REV. 981, 981 (1996) (discussing “digital moni-

toring of individual reading habits for purposes of so-called ‘copyright management’ in cyber-

space”); see also Paul Ohm, The Rise and Fall of Invasive ISP Surveillance, 2009 U. ILL. L. REV.

1417, 1452 (2009) (discussing the proper balance between ISP surveillance and user privacy).

229

. Emil Protalinski, After Denouncing SOPA and PIPA, How Can Facebook Support

CISPA?, ZDNET (Apr. 12, 2010, 8:07 AM), http://www.zdnet.com/blog/facebook/after-

denouncing-sopa-and-pipa-how-can-facebook-support-cispa/11700 (“CISPA also includes por-

tions about protecting intellectual property . . . If an IP thief is considered a threat to cyber securi-

ty, then his website, or where he posted the content, could technically be blocked by CISPA.”).

230

. Open Internet, FCC, http://www.fcc.gov/openinternet (last visited Jan. 17, 2014)

(“[N]othing in the rules prohibits reasonable efforts by a broadband provider to address copyright

infringement or other unlawful activity.”).

231

. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (noting that an overly inclu-

sive criminal standard raises the same concerns discussed in the vagueness doctrine).

618 MARYLAND LAW REVIEW [VOL. 73:587

ment.

232

In the 1990s, the United States Trade Representative made a deci-

sion not to ask for IP enforcement in China because it feared that IP en-

forcement would be used as a guise for political repression.

233

In the United

States, the prosecution of Aaron Swartz under the overly broad Computer

Fraud and Abuse Act (“CFAA”) was viewed by many as retribution for his

involvement in the Stop Online Privacy Act (“SOPA”) protests.

234

Over-

criminalization of speech allows a government to go after any of its citizens

to prevent behavior that cannot itself be criminalized, creating the same

problem recognized by the Court when a state carved out particular subcat-

egories for enforcement within an otherwise unprotected category of

speech.

235

Beyond permitting bad government behavior, the “risk of dis-

criminatory enforcement” can create chilling effects.

236

Many copyright scholars implicitly assume copyright “piracy” is one-

to-one infringement done in lieu of a purchase, and consequently refuse to

include piracy within the scope of free speech protections.

237

But the inter-

national legal standard defines “piracy” simply as copyright infringe-

ment.

238

Unchecked criminal copyright enforcement presents many of the

same speech problems as its civil counterpart.

The secondary effects of overcriminalization of copyright infringement

are an important discussion; however, there are also speech-related prob-

lems with the underlying standard itself. Insofar as there is agreement that

areas should be applied. A speaker’s intent is often central to the state’s

ability to punish that speech.

239

Usually, the state cannot assume the intent

232

. Mike Masnick, Russian Officials Abusing Copyright Law—with Microsoft’s Help—to

Intimidate Gov’t Critics, TECHDIRT (Sept. 13, 2010, 8:47 AM),

http://www.techdirt.com/articles/20100912/12440610969.shtml.

233

. Yu, supra note 185, at 1085.

234

. Jacob Sloan, Did the Government Target Aaron Swartz over His Role in Defeating

SOPA?, DISINFORMATION (Jan. 28, 2013), http://www.disinfo.com/2013/01/did-the-government-

target-aaron-swartz-over-his-role-in-defeating-sopa.

235

. R.A.V. v. St. Paul, 505 U.S. 37, 384 (1992).

236

. Reno v. ACLU, 521 U.S. 844, 872 (1997).

237

. See Lemley & Volokh, supra note 90, at 211–12 (explaining that piracy is an “[e]asy”

case, and First Amendment due process should not apply where a defendant has made “identical

or nearly identical copies of the plaintiff’s works, and there is no claim of fair use but only some

other copyright defense”); Tushnet, supra note 90, at 567 (“I have no free speech right to down-

load entire works for which I could readily pay.”).

238

. See TRIPS Agreement, supra note 184, at 342 (“‘[P]irated copyright goods’ shall mean

any goods which are copies made without the consent of the right holder . . . which are made di-

rectly or indirectly from an article where the making of that copy would have constituted an in-

fringement of a copyright or a related right.”).

239

. See Anjali Dalal, Protecting Hyperlinks and Preserving First Amendment Values on the

Internet, 13 U. PA. J. CONST. L. 1017, 1069 (2011) (advocating that “applying the doctrine devel-

2014] COPYRIGHT CRIME AND PUNISHMENT 619

of a speaker, but instead, must demonstrate that intent. Free speech protec-

tion often requires the state to establish that a speaker has particularly mali-

cious intent, or intends that his or her speech will produce harmful conse-

quences.

240

One prong of the U.S. criminal copyright standard requires only that

the infringer intend to break the law, with no motivation of financial gain.

241

This is a low level of intent that might be met, for example, by showing that

the original copyrighted work had an FBI warning explaining that copyright

infringement is a criminal offense. That low level of intent is not reconcil-

able with historical concerns about intent in free speech jurisprudence.

242

To be speech protective in the area of criminal copyright, which is so often

analogized to theft, the standard might require that the infringer intends to

engage in theft rather than speech.

Free speech principles also suggest that for speech to be regulated, it

must have particularly harmful consequences.

243

The “substantive evil must

be extremely serious” for free speech protection not to apply.

244

Courts

should be wary of impinging upon “speech that . . . creates no victims.”

245

The U.S. criminal copyright standard targets copyright infringement

done with the expectation of the receipt of anything of value, regardless of

the scale of infringement and the level of harm to the rights holder.

246

The

second prong of the U.S. standard targets infringement done with no mali-

cious motivation, but at a certain scale: $1,000 of aggregate infringement in

180 days. That is not “serious” harm, especially when the $1,000 value es-

timate is made with an assumption that copyright infringing goods should

be valued at full market value.

247

This low standard is justified by the ag-

oped in Sullivan, courts should demand an intent-based standard that requires plaintiffs to show

that defendants possessed the requisite mens rea to facilitate illegal behavior”).

240

. See Virginia v. Black, 538 U.S. 343, 365 (2003) (rejecting the state’s use of cross burning

as prima facie evidence for intent to intimidate, because the provision “blurs the line between

these two meanings of a burning cross”); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (the

speech must be “directed to inciting or producing imminent lawless action”); New York Times

Co. v. Sullivan, 376 U.S. 254, 280 (1964) (requiring a showing of actual malice on the part of the

reporter for liability to attach to statements made).

241

. No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997); 17 U.S.C. §

506(a)(1)(B) (2012).

242

. See supra notes 174–178 and accompanying text.

243

. See Landmark Commc’ns v. Virginia, 435 U.S. 829, 842 (1978).

244

. See Bridges v. California, 314 U.S. 252, 263 (1941) (establishing a “working principle

that the substantive evil must be extremely serious and the degree of imminence extremely high

before utterances can be punished”).

245

. Ashcroft v. Free Speech Coal., 535 U.S. 234, 236 (2002).

246

. No Electronic Theft (NET) Act § 2(a), Pub. L. No. 105-147, 111 Stat. 2678 (1997); 17

U.S.C. § 506(a)(1)(B) (2012).

247

. Goldman, supra note 195, at 426–27.

620 MARYLAND LAW REVIEW [VOL. 73:587

gregate harm to the industry. In the speech context, however, individuals

should not be punished for the aggregate harm done to an industry; they

should be punished only for the harm they themselves create.

IV. THE EXPORTATION OF THE U.S. CRIMINAL COPYRIGHT STANDARD

United States criminal copyright law is speech-restrictive, and the

United States is exporting it. Using the weight of its cultural and economic

power, the United States is in the process of foisting its version of criminal

248

Between 1997 and the present,

the United States has entered into a number of bilateral and plurilateral free

trade agreements that provide a criminal standard more similar to the NET

Act than to the current international standard established in TRIPS.

249

United States free trade agreements, like U.S. law, deviate from the in-

ternational requirement that countries criminalize copyright infringement

done on a “commercial scale.” Instead, similar to U.S. law, the free trade

agreements split criminal copyright into two parts. The first offense crimi-

nalizes infringement done for “commercial advantage or private financial

gain,” with private financial gain often defined as the “receipt of anything

of value.”

250

The second offense criminalizes “significant infringement”

with no motivation of financial gain.

251

Appendix I shows the extent to which the Office of the United States

Trade Representative has achieved its agenda. The United States currently

has free trade agreements with twenty countries.

252

Most of these agree-

ments contain detailed intellectual property provisions, including provisions

on criminal copyright law.

253

The three free trade agreements and two re-

gional agreements examined as examples in the appendix do show some

variation, depending on the pushback from the negotiating countries.

254

Co-

lumbia represents the most stringent criminal standard, followed by Aus-

248

. Sell, supra note 168, at 10–12.

249

. Id. at 8.

250

. 17 U.S.C. §§ 101, 506(a)(1)(A) (2012).

251

. Id. § 506(a)(1)(B). This second definition mimics but does not precisely export its U.S.

equivalent, which penalizes willful reproduction or distribution of over $1,000 in 180 days. Id.

Using the term “significant infringement” instead of this statutory threshold could give other sig-

natory states more autonomy, or could result in a lower threshold for criminal infringement with

no for-profit motive than even the NET Act standard.

252

. Free Trade Agreements, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,

http://www.ustr.gov/trade-agreements/free-trade-agreements (last visited Jan. 17, 2014).

253

. Trade Agreements, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,

http://www.ustr.gov/trade-agreements (last visited Jan. 17, 2014).

254

. See infra Appendix.

2014] COPYRIGHT CRIME AND PUNISHMENT 621

tralia, which resisted the insertion of “private” before “financial gain.”

255

Chile achieved several important concessions in its negotiations, including

a footnote explicitly leaving out de minimis infringement, no matter the mo-

tive.

256

The Dominican Republic-Central America-United States Free

Trade Agreement (“CAFTA”) contains a particularly stringent standard,

criminalizing “willful infringements that have no direct or indirect motiva-

tion of financial gain, provided that there is more than a de minimis finan-

cial harm.”

257

While international law currently does not explicitly criminalize aiding

and abetting copyright infringement, the United States recently put forward

provisions in the ACTA criminalizing aiding and abetting copyright in-

fringement by companies.

258

This addition targets website owners, as evi-

denced by recent prosecutions of website owners by U.S. authorities. It can

be expected to appear in future free trade agreements.

259

The United States

also exports prior-restraint-like seizure procedures.

260

Free trade agree-

ments and the ACTA both contemplate the pre-trial seizure and forfeiture of

materials, likely including websites, used during infringement.

261

The exportation of U.S. criminal copyright law not only exports both a

substantive criminal standard and enforcement mechanisms, it also transfers

the U.S. understanding of the nexus between copyright and free expression:

that copyright law receives no speech scrutiny. This approach is increasing-

ly out of line with the public intuition about copyright and free speech.

The U.S. population does not appear to believe that intellectual proper-

ty crimes are morally wrong.

262

By recent industry estimates in 2011, over

255

. See infra Appendix.

256

. See infra Appendix.

257

. See Dominican Republic-Central America-United States Free Trade Agreement, Ch. 15,

art. 26(a), Aug. 5, 2004 [hereinafter CAFTA], available at

http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/asset_upload_file934_3935.pdf

(last visited Jan 29, 2014).

258

. Anti-Counterfeiting Trade Agreement, art. 23(4) [hereinafter ACTA], available at

http://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf (last visited Jan. 29,

2014).

259

. See supra Part I.

260

. See infra Part V.

261

. See, e.g., U.S.-Australia Free Trade Agreement, ch. 17, art. 26(b), May 18, 2004,

431.6.M.1248 [hereinafter Australia FTA], available at tp://www.ustr.gov/trade-agreements/free-

trade-agreements/australian-fta/final-text; U.S.-Chile Free Trade Agreement, ch. 17, art. 22(c),

June 6, 2003, 421.6.M.1026 [hereinafter Chile FTA], available at http://www.ustr.gov/trade-

agreements/free-trade-agreements/chile-fta/final-text; ACTA supra note 258, at arts. 25(1), 25(3).

262

. Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on

the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L.J. 167,

238 (2002); Hardy, supra note 194, at 306–08; Pyun, supra note 196, at 390–91; see also Tom R.

Tyler, Compliance with Intellectual Property Laws: A Psychological Perspective, 29 N.Y.U. J.

622 MARYLAND LAW REVIEW [VOL. 73:587

17% of U.S. Internet traffic is IP-infringing.

263

One-third of the U.S. popu-

lation under 30 finds sharing music acceptable; one-quarter of Internet users

aged 30-49 engage in file sharing; and 12% of users over 50 file share.

264

The nature of intellectual property and the ways in which it differs

from real property also contribute to the moral ambiguity of IP infringe-

ment.

265

While Congress may repeatedly use the analogy of real property

theft,

266

the general public is ambivalent about equating copyright to proper-

ty.

267

People have instincts about property, obtained from decades of per-

sonal experience with ownership rights in tangible objects and face-to-face

transactions.

268

Intellectual property infringement, however, often involves

intangible objects and an aggregate harm rather than face-to-face transac-

tions and individualized harm, and is therefore not intuitively perceived as

morally equivalent to real property theft.

269

Appreciating the aggregate ef-

fect of one’s actions does not come naturally, so infringers rarely feel guilty

for these actions.

270

People appear to have a strong speech intuition that is invoked by ex-

cessive copyright enforcement. Recent protest movements in the United

States and abroad successfully galvanized millions by describing copyright

enforcement as “censorship.”

Two recent mass protest movements show how the public’s speech in-

tuition has been harnessed to criticize copyright enforcement. The SOPA

was the latest in a series of copyright enforcement bills that proposed block-

ing domain name service (“DNS”) to websites alleged to be bad actors.

271

DNS-blocking functionally shuts down a website, although users in the

know can easily route around the blockage.

272

To obtain a court order to

block U.S.-directed sites, the United States Attorney General would allege

INT’L L. & POL. 219, 225 (1997) (discussing the moral judgments of people in the United States

and how such judgments shape law-related behavior).

263

. Rufo, supra note 200, at 530.

264

. Id.

265

. Hardy, supra note 194, at 326; Moohr, supra note 171, at 766.

266

. See Manta, supra note 189, at 473 (noting that policymakers rely on the property analogy

and theft analogy).

267

. Hardy, supra note 194, at 326.

268

. Id. at 332.

269

. Id. at 332, 338.

270

. Id. at 338.

271

. See Yochai Benkler, Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals

on Where We Go from Here, TECHPRESIDENT (Jan. 25 2012),

http://techpresident.com/news/21680/seven-lessons-sopapipamegauplaod-and-four-proposals-

where-we-go-here; see also David G. Robinson, Following the Money: A Better Way Forward on

the PROTECT IP Act, 24 (Sept. 18, 2011) (unpublished manuscript), available at

http://ssrn.com/abstract=1930013.

272

. Id. at 2.

2014] COPYRIGHT CRIME AND PUNISHMENT 623

criminal copyright infringement or facilitation of criminal copyright in-

fringement.

273

From November 16, 2011, the first day of House hearings on the

SOPA, to January 18, 2012, a growing coalition of political insiders and

popular outsiders used the Internet and the cause of preventing censorship

to rally U.S. citizens against the SOPA legislation.

274

Activists, not law-

yers, proposed the censorship framework.

275

The censorship framing re-

flected a popular intuition that enforcement encroached on speech rights,

not a legal argument that SOPA violated the First Amendment.

276

The coa-

lition was able to point to existing examples of web censorship done in the

name of copyright enforcement, such as the yearlong takedown of the music

blog Dajaz1.com.

277

The first popular protest against SOPA occurred in November 2011,

on the eve of the first House hearings. Advocates from Fight for the Future

proposed calling the day “American Censorship Day” and encouraged sites

to adopt “stop censorship” banners.

278

Four million people visited the

AmericanCensorship.org site on the day of the hearing, and multiple com-

panies joined in the protest.

279

As of January 18, 2012, however, eighty members of Congress still

supported SOPA and only thirty-one opposed it.

280

That same day, more

than 15,000 websites went dark in a coalition-organized protest of SOPA;

273

. James Temple, Stop Online Piracy Act Would Stop Online Innovation, SFGATE (Nov. 2,

2011, 4:00 AM), http://www.sfgate.com/business/article/Stop-Online-Piracy-Act-would-stop-

online-2324440.php.

274

. See Susan K. Sell, Revenge of the “Nerds”: Collective Action Against Intellectual Prop-

erty Maximalism in the Global Information Age, 15 INT’L STUD. REV. 67, 68–69, 72 (2013)

(providing a list of SOPA’s opponents). See generally EDWARD LEE, THE FIGHT FOR THE

FUTURE: HOW PEOPLE DEFEATED HOLLYWOOD AND SAVED THE INTERNET—FOR NOW 2–4

(2013) (describing how people organized the largest Internet protest in history, plus the largest

single-day demonstration on the streets of twenty-seven countries of the European Union).

275

. See Cindy Cohn, Address at the Yale Law School Information Society Project (Feb. 14,

2013), available at http://ylsqtss.law.yale.edu:8080/qtmedia/isp/ISPCohen021413_s.mov (ex-

plaining that Fight for the Future advocates, not attorneys, proposed labeling SOPA “censorship”).

276

. Id. A First Amendment argument was later suggested by academics. See Laurence H.

Tribe, The “Stop Online Piracy Act” (SOPA) Violates the First Amendment 1–4 (Dec. 6, 2011)

(unpublished manuscript), available at http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-

on-SOPA-12-6-11-1 (listing several provisions of SOPA that violate the First Amendment).

277

. Masnick, supra note 205.

278

. Parker Higgins, American Censorship Day Is This Wednesday—And You Can Join In!,

ELECTRONIC FRONTIER FOUNDATION (Nov. 10, 2011),

https://www.eff.org/deeplinks/2011/11/american-censorship-day-wednesday-and-you-can-join.

279

. Sell, supra note 274, at 76.

280

. Josh Constine, SOPA Protests Sway Congress: 31 Opponents Yesterday, 122 Now,

TECHCRUNCH (Jan. 19, 2012), http://techcrunch.com/2012/01/19/sopa-opponents-supporters.

624 MARYLAND LAW REVIEW [VOL. 73:587

Google and Craigslist featured censorship bars on their homepages.

281

Over

five million signatures supported Google’s online petition against SOPA.

282

By Friday of that week, Congress shelved SOPA and its Senate counterpart,

the Protect IP Act (“PIPA”).

283

The defeat of SOPA roused a transnational coalition that had already

been fighting against another significant copyright enforcement effort, the

ACTA.

284

Negotiated outside of existing international institutions as a large

trade agreement, ACTA attempted to ratchet up international copyright,

trademark, and patent standards and enforcement measures, including bor-

der measures and criminal enforcement.

285

Eight participating countries,

including the United States, signed ACTA in October 2011.

286

The Europe-

an Union and its member states had not yet signed ACTA when SOPA

failed in the United States.

287

On January 26, 2012, twenty-one member states of the EU, including

the UK, signed ACTA.

288

In the three days leading up to signature, protests

similar to the anti-SOPA protests broke out across Europe. In Poland,

crowds of thousands of young people gathered, many holding up banners

protesting censorship.

289

Some put tape over their mouths to signify their

fears.

290

As more of Europe considered adopting ACTA, protests mount-

ed.

291

In Croatia, demonstrators carried banners reading, “Stop internet

censorship.”

292

In Warsaw, banners read “Down with censorship” and

281

. Sell, supra note 274, at 77.

282

. Id.

283

. Jonathan Weisman, Antipiracy Bills Delayed After an Online Firestorm, N.Y. TIMES,

Jan. 21, 2012, at B6.

284

. Adam Clark Estes, SOPA Stopped for Now, Anti-Censorship Activists Turn to ACTA,

THE WIRE (Jan. 26, 2012, 10:20 AM), http://www.thewire.com/technology/2012/01/sopa-

stopped-now-anti-censorship-activists-turn-acta/47892/.

285

. Kaminski, supra note 168, at 401–10.

286

. David Kravets, US Signs ACTA, ARSTECHNICA (Oct. 4, 2011, 5:00 PM),

http://arstechnica.com/tech-policy/2011/10/us-signs-international-anti-piracy-accord.

287

. Id.

288

. Charles Arthur, ACTA Protests Break Out as EU States Sign Up to Treaty, THE

GUARDIAN (Jan. 27, 2012, 4:43 PM), http://www.guardian.co.uk/technology/2012/jan/27/acta-

protests-eu-states-sign-treaty.

289

. Thousands March in Poland over ACTA Internet Treaty, BBC NEWS EUROPE (Jan. 26,

2012, 10:40 AM), http://www.bbc.co.uk/news/world-europe-16735219.

290

. Vanessa Gera, ACTA Protests in Poland: Groups Fear Copyright Treaty Will Lead to

Censorship, HUFFINGTON POST (Jan. 24, 2012, 2:51 PM),

http://www.huffingtonpost.com/2012/01/24/acta-protests-poland_n_1229110.html.

291

. Charles Arthur, ACTA Criticised After Thousands Protest in Europe, THE GUARDIAN

(Feb. 13, 2012, 2:37 PM), http://www.guardian.co.uk/technology/2012/feb/13/acta-protests-

europe.

292

. Id.

2014] COPYRIGHT CRIME AND PUNISHMENT 625

“Free internet.”

293

Protests also occurred in Paris, Budapest, and Prague.

294

One article hypothesized that Eastern European countries and Germany

were particularly sensitive about the intertwined history of state enforce-

ment and surveillance.

295

A coalition of insiders and outsiders harnessed the power of the Inter-

net under the framework of “censorship” to stop the ACTA treaty in Eu-

rope.

296

In 2012, the European Parliament rejected the ACTA, and it died

in Europe when the European Court of Justice refused to hear claims.

297

These examples show that people around the world mobilized to pro-

test copyright enforcement under the banner of free speech. The First

Amendment approach to copyright has diverged not only from the interna-

tional approach, but also from these popular intuitions about copyright and

speech. Congress formed the current U.S. criminal copyright law with no

judicial scrutiny and at odds with what the public sees as speech rights. The

United States is using its strengths to export that law, and the international

public is beginning to visibly push back.

V. PATHOLOGIES OF THE CATEGORICAL APPROACH

The story of criminal copyright and the First Amendment provides an

important point of comparison between the categorical approach to consti-

tutional analysis and proportionality review. Categorical analysis can, in

borderline cases, foster a divide between the popular understanding of

rights and judicial protection. When there is an imbalance between the leg-

islature and the judiciary, the legislature may exploit that imbalance until

the popular understanding of speech rights is broader than the judicial un-

derstanding.

298

Categorical analysis can thus give rise to a gap between

popular perception and judicial doctrine on fundamental rights.

The categorical approach to the First Amendment fails to permit courts

to step in when the state criminalizes speech that should be subject to lesser

sanctions. The U.S. doctrinal lack of sensitivity to the scope of penalties,

293

. Id.

294

. Id.

295

. See id. (observing that “the accord has sparked concerns, especially in Eastern European

countries as well as in Germany which is sensitive about its history with the Gestapo and Stasi

secret police, over online censorship and increased surveillance”).

296

. See Mike Palmedo, Mapping of Web Space Around the ACTA Debate, INFOJUSTICE.ORG

(Jan. 3, 2013), http://infojustice.org/archives/28226.

297

. Margot Kaminski, Positive Proposals for Treatment of Online Intermediaries 5–6 (Pro-

gram on Info. Justice and Intellectual Prop., Am. Univ. Wash. Coll. Law, Research Paper No.

2012-05, 2012), available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article

=1029&context=research.

298

. See supra Part I.A.

626 MARYLAND LAW REVIEW [VOL. 73:587

and whether they are administered by the state or a private actor, is a conse-

quence of categorical reasoning.

299

When categorical reasoning is combined with a complicated statutory

regime, judges are particularly likely to abdicate analysis and defer to the

legislature. Statutory regimes leave less room for judicial discretion in bal-

ancing rights, because such discretion is constrained by potential conflict

with the legislature.

300

statutory regime meets categorical reasoning.

I do not claim that proportionality analysis is always more speech-

protective. For non-borderline cases, categorical analysis protects more

speech because it protects speech until that speech falls into a clearly delin-

eated unprotected category.

301

Proportionality analysis, by contrast, re-

quires that courts balance speech against other rights or government pur-

poses—it does not dictate that speech always trumps other rights.

302

Thus,

when foreign courts weigh copyright against speech, the strength of the Eu-

ropean justifications for copyright can in fact trump speech concerns, espe-

cially where a court views the speech claim as weaker because the speech at

hand is commercial.

303

But proportionality analysis is more speech-

protective of unprotected speech, in its ability to permit judicial review and

prevent judicial abdication over categorically unprotected speech.

304

I also do not claim that the United States is alone in having an over-

eager legislature on copyright matters. Other countries have criminal copy-

right standards that overcriminalize.

305

In those countries subject to propor-

tionality analysis, however, courts provide a mechanism for challenging the

enforcement of those laws and a framework for evaluating whether they are

disproportionate as speech regulation.

The recent example of the ECHR’s consideration of the Pirate Bay ap-

plication, described by the court as one of the world’s largest file sharing

services on the Internet, shows how other courts examine the proportionali-

ty of criminal copyright sanctions that have gone effectively unexamined in

the United States.

299

. But see Coenen, supra note 68, at 1000 n.32 (taking the position that penalty-sensitive

free speech analysis need not result in a proportionality analysis, but rather that this failure to dis-

tinguish between levels of sanctions is a result of the categorical approach, and thus antithetical to

it).

300

. Balganesh, supra note 155, at 1578.

301

. See supra Part I.A.

302

. See supra Part I.B.

303

. See, e.g., supra note 103.

304

. See supra Part I.B.

305

. See infra Appendix.

2014] COPYRIGHT CRIME AND PUNISHMENT 627

Two founders of the Pirate Bay application were convicted in Sweden

of crimes in violation of the Copyright Act, sentenced to prison, and fined

several million Euros.

306

The ECHR recognized that the convictions inter-

fered with the right to freedom of expression.

307

It found, however, that the

convictions were prescribed by law and pursued a legitimate aim.

308

The

court then weighed the applicant’s interest in freedom of expression against

the state’s interest in protecting the rights of copyright-holders.

309

It found

that the Swedish state benefits from a wide margin of appreciation—a def-

erential standard of review—because it was balancing competing inter-

ests.

310

The ECHR concluded that the prison sentence and award of damag-

es could not be regarded as disproportionate, in large part because the ap-

applicants had not taken any action to remove torrent files despite having

been urged to do so.

311

Thus it declared the application inadmissible as ill

founded.

312

Notably, however, the court appeared to consider the fact that

other enforcement measures had not worked, before declaring the prison

sentence proportionate.

313

The scope of U.S. criminal copyright law demonstrates several failings

of the categorical approach with regard to speech that falls outside of the

First Amendment. Judicial abdication through categorical reasoning has

permitted an overactive legislature to pass disproportionately punitive laws

impacting speech.

314

Courts have few doctrinal options to use to declare

allows state surveillance and other speech-related abuse. This dispropor-

tionate standard has begun to collide with public speech intuitions.

315

Ef-

forts to spread the U.S. criminal regime internationally will fail if the re-

gime continues to be seen by the public as impinging on free speech. Other

regimes that use proportionality analysis should scrutinize the U.S. ap-

proach to criminal copyright law, recognizing that it contains implicit as-

sumptions about the relationship between copyright and freedom of speech.

The United States itself may want to adopt features of proportionality

analysis for speech that is currently considered outside the First Amend-

306

. Neij v. Sweden, App. No. 40397/12, Eur. Ct. H.R., (Feb 19, 2013), available at

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-117513.

307

. Id.

308

. Id.

309

. Id. at 10–11.

310

. Id.

311

. Id. at 11–12.

312

. Id.

313

. Id.

314

. See supra Part I.

315

. See supra Part III.

628 MARYLAND LAW REVIEW [VOL. 73:587

ment’s protection. This would not be as inconsistent with current doctrine

as it might first seem. The Supreme Court recognized in Reno that crimi-

nalizing speech is problematic,

316

and recognized in Stanley v. Georgia

317

that a state cannot use all enforcement methods at its disposal, even against

categorically unprotected speech.

318

In cases where a legislature criminalizes speech that is categorically

rejected from the First Amendment’s protection, U.S. courts should look

closer to enforcement standards, instead of abdicating scrutiny. Courts

could give credence to the notion that criminalization is itself worth inspect-

ing, even for categorically unprotected speech. Rather than employing ad

hoc reasoning, courts could look, even within rational basis review, to how

First Amendment doctrine maps onto existing bodies of pertinent law, such

as criminalization theory, which describes when governments should crimi-

nalize acts instead of subjecting them to civil sanctions. The Supreme

Court has peered within categorically unprotected speech before, but with

no apparent principles. Using principled balancing, U.S. courts could ex-

amine whether and when criminalization is constitutionally permitted.

There may be additional places in U.S. speech law for proportionality

principles; this Article begins a larger project to determine when and where

they might apply.

VI. CONCLUSION

A surprising situation has developed in which the United States has es-

tablished a primitive copyright–free speech interface that it is now export-

ing to the rest of the world. The free speech approach used in other coun-

tries is, perhaps unexpectedly, more adept at handling copyright law. The

U.S. exportation of its criminal copyright standard is also an exportation of

its understanding that copyright enforcement should not be balanced against

speech.

The United States might take advantage of the insights from propor-

tionality analysis by importing a structured form of balancing back into

First Amendment doctrine. It is not the position of this Article that the First

Amendment import balancing tests wholeheartedly, as many elements of

the categorical approach are highly speech protective. Importing balancing

to analysis of speech currently abandoned by the First Amendment, howev-

er, could solve the problems addressed in this Article. For the moment, the

316

. See Reno v. ACLU, 521 U.S. 844, 886 (1997) (“[W]e presume that governmental regula-

tion of the content of speech is more likely to interfere with the free exchange of ideas than to en-

courage it.”).

317

. 394 U.S. 557 (1969).

318

. Id. at 559–60.

2014] COPYRIGHT CRIME AND PUNISHMENT 629

United States is becoming the clear world outlier on copyright enforcement,

and this is indicative of a larger pathology in the way the United States

handles free speech.

630 MARYLAND LAW REVIEW [VOL. 73:587

Appendix. Piracy Statutes

Willful?

For Profit?

Scale of

Offense

Remedies

Pre-trial

Seizure and

Forfeiture

Aiding

and

Abetting

TRIPS

319

Yes.

Unclear:

“piracy . . . on

a commercial

scale”

Commercial

scale

Imprisonment

and/or monetary

fine,

“consistently

with the level of

penalties

applied for

crimes of a

corresponding

gravity”

No. Criminal

forfeiture only.

Seizure and

forfeiture shall

be available as a

“remed[y]”

(presumably

after a trial and

thus criminal

forfeiture not

civil), in

“appropriate

cases” where

infringement

was the

“predominant

use” of

material.

None

U.S. Law:

NET

Act;

320

PRO-IP

2008.

321

Yes.

None. Just

infringement

of more than

$1,000 in 180

days. Where

there is a

motive and no

minimum, it is

for

commercial

advantage or

private

financial gain,

where private

financial gain

includes the

receipt of

anything of

value.

One work is

enough.

Imprisonment

and fines

Yes, established

in the PRO-IP

Act Sec.

2323.

322

“any

property used,

or intended to

be used, in any

manner . . . to

commit or

facilitate the

commission of

an offense”

Removed

from

law in

1976;

however,

federal

aiding and

abetting

statute (18

U.S.C.

§2) has

been

applied.

319

. TRIPS Agreement, supra note 184.

320

. No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997).

2014] COPYRIGHT CRIME AND PUNISHMENT 631

Willful?

For Profit?

Scale of

Offense

Remedies

Pre-trial

Seizure and

Forfeiture

Aiding

and

Abetting

ACTA

323

Yes.

“at least those

carried out as

commercial

activities for

direct or

indirect

economic or

commercial

advantage”

“commer-

cial scale,”

but includes

“indirect

economic

. . .

advantage”

“imprison-ment

as well as

monetary fines

sufficiently high

to provide a

deterrent . . .

consistently

with the level of

penalties

applied for

crimes of a

corresponding

gravity”

Probably: “its

competent

authorities have

the authority to

order the

seizure of . . .

any related

materials and

implements

used in the

commission of

the alleged

offence”

324

and

“its competent

authorities have

the authority to

order the

forfeiture or

destruction of

all counterfeit

trademark

goods or pirated

goods.”

325

word of these

forfeitures

being after trial.

States

must

crimina-

lize aiding

and

abetting of

infringe-

ment.

326

Legal

persons

(compa-

nies) must

be held

liable for

criminal

infringe-

ment and

aiding and

abetting.

327

321

. Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008,

Pub. L. No. 110-403, 112 Stat. 4256, available at http://www.gpo.gov/fdsys/pkg/PLAW-

110publ403/pdf/PLAW-110publ403.pdf.

322

. Id. § 206(a) (quoting Section 2323 of the PRO-IP Act).

323

. See supra note 258, at art. 23(1).

324

. Id. at art. 25(1).

325

. Id. at art. 25(3).

326

. Id. at art. 23(4).

327

. Id. at art. 23(5).

632 MARYLAND LAW REVIEW [VOL. 73:587

Willful?

For Profit?

Scale of

Offense

Remedies

Pre-trial

Seizure and

Forfeiture

Aiding

and

Abetting

CAFTA

328

Yes.

None, and

need not be

significant in

size.

“[W]illful

infringe-ments

that have no

direct or

indirect

motivation of

financial gain,

provided that

there is more

than a de

minimis

financial

harm.”

“commer-

cial scale

includes

significant

willful

infringe-

ments of

rights, for

purposes of

commercial

advantage or

private

financial

gain, as well

as willful

infringe-

ments that

have no

direct or

indirect

motivation of

financial

gain,

provided that

there is more

than a de

minimis

financial

harm”

“imprisonment

or monetary

fines, or both,

sufficient to

provide a

deterrent to

future acts of

infringement”

“its judicial

authorities shall

have the

authority to

order the

seizure of

suspected

counterfeit or

pirated goods,

any related

materials and

implements that

have been used

in the

commission of

the offense, any

assets traceable

to the infringing

activity, and

any

documentary

evidence

relevant to the

offense. Each

Party shall

provide that

items that are

subject to

seizure pursuant

to any such

judicial order

need not be

individually

identified so

long as they fall

within general