Preliminary Remarks on Personal Use and Freedom of Speech

Abstract

This discussion-paper is part of a larger project in which I explore ways contemporary forms of enforcing copyright law through intermediaries, or gatekeepers, affect free speech values that may be implicated by personal and non-commercial uses of copyrighted content. The sole focus of this essay is the extent to which personal use of copyrighted content is related to free speech values. With the advent of digital technologies and their undeniable impact on copyright interests, content owners have turned to alternative methods of copyright enforcement sidestepping legal copyright mechanisms and doctrines. Some of these alternative mechanisms involve enforcing copyright interests indirectly, through technological intermediaries, with varying degrees of legal backing. This form of enforcement has become so significant that “the regulation of intermediaries can conceivably be regarded as a new objective of intellectual property law”. Sometimes, indirect enforcement proceeds by exposing intermediary entities to civil liability for infringement by end-users. For example, by subjecting to liability online services that facilitate individual uses, secondary liability rules induce these services to encode monitoring mechanisms or design technologies to curb uses that may or may not be infringing. In the process, legal gatekeeping regimes are established where the task of policing infringing behavior is delegated to these intermediaries. In other cases, intermediaries and copyright owners set up private gatekeeping relations. For instance, today we see a worldwide trend to enlist conduits for internet access (Internet Service Providers or ISPs) to monitor, filter and generally police individual users believed to be illegally filesharing. As direct enforcement against users becomes costly in a digital context, the responsibility for copyright enforcement is delegated to those technologies designed to enable expressive activity. However, because risk-averse intermediaries do not capture the full value of the online content they control, they might be induced to over-enforce copyright interests, adversely affecting end-users’ speech interests. While some consequences of overenforcement may clearly register as affronts to free speech values (for instance, ISP’s cutting off internet access to clients for copyright infringement), some potentially affected activities are not immediately seen as covered by freedom of speech. In particular, indirect enforcement may affect individual activities that occur within a personal sphere of non-commercial uses that are part of what people expect to do with digital information goods. But because these personal uses may not implicate new creative expression, engagement in political speech, manipulation of digital works or communication of ideas to the public, they do not necessarily “have a facial claim to be considered with reference to the reasons underlying” freedom of speech. Through an evaluation of First Amendment theory and doctrine, this discussion essay considers free speech values plausibly implicated by personal non-commercial uses. After arguing that the First Amendment is implicated in such uses, further research will consider modes of contemporary copyright indirect enforcement and their potential impact on personal uses. Since this paper reflects the initial stages of a larger project, it intends to identify further research avenues rather than final conclusions. From the reader I would greatly appreciate criticism and help on the overarching structure and goals of the project and on the specific arguments made in its constituent parts.