Downloading Penalties Violate First Amendment
People who have believed downloading copyrighted content did not pose any kind of legal problem have faced plenty of legal troubles, but the real trouble comes as enforcement against illegal downloading makes people fear legal downloading.
The chilling effect of the nonstop lawsuits and crackdowns on people for downloading movies and songs concerns University of Arkansas law professor Ned Snow. His recent abstract on the issue, called Copytraps, received mention on PhysOrg for what it has done to web users.
Those who download music, for example, and believe they are doing so legally, does not matter to the courts. Copyright infringement has occurred, and the accused has to pay.
The problem as Snow sees it comes from the broader impact of "copytraps," his word for sites that indicate downloading is legal. Anyone busted for dong this comes away with reluctance to do any other downloading.
That’s where Snow sees a problem. He contends in his analysis that considering the normal First Amendment protections for exercise of speech, penalizing downloaders is unconstitutional:
That certain forms of copy-speech receive First Amendment protection implies that copyright’s strict liability punishment is unconstitutional. It is well established that the First Amendment precludes strict punishment of unprotected speech, for a possible effect of strict punishment is chilling protected speech.
Speakers may refrain from engaging in protected speech for fear that they might mistake whether the speech actually is protected. The mere possibility of such chilling, courts have held, is sufficient to rule unconstitutional strict liability punishment of unprotected speech.
Snow’s essential argument seems to be that if people are prosecuted and penalized for downloading from a "copytrap," they are unlikely to engage in any legal downloading in the future. The effect of the punishment creates a violation of the First Amendment.
We will be interested to see someone try Snow’s opinion of prior restraint as a legal defense. "Strict liability punishment of copying makes no sense in a world where copying is the architecture of being," Snow said of the Internet.