EFF Files Brief in Viewfinder Case

The EFF has filed a friend of the court brief arguing that the First Amendment commands the rejection of a French copyright law ruling against an American company and the decision thus cannot be enforced here.

The case, Sarl Louis Feraud International v Viewfinder Inc, has been bouncing around for a while now as the original French action beginning back in January of 2001. The claim is one of copyright infingement because a photographer for Viewfinder, a fashion ezine, took pictures of some dresses at a fashion show and posted them on their website without paying or asking permission to do so. The French court ruled in favor of the plaintiff, not because of the merits of its claims, but because Viewfinder never showed up. The two sweetest words in the English language weren't sweet enough, however, as Sarl's attempt to have his victory enforced in America was denied last September by Southern District of New York Judge Gerald Lynch (Read that decision here). Sarl is currently appealing that decision and the EFF has filed a brief, with the Center for Democracy and Technology and the ACLU, supporting Judge Lynch's decision in favor of Viewfinder.

The most interesting aspect of the case is its international flavor. Fashion designs are not copyrightable here in the US (though a movement is afoot to change that), while France has some of the strictest laws fashion copyright laws around. Since the Internet is medium that knows no geographical bounds, the question of whose laws apply to any given website creates an issue when laws conflict. For two good analyses, check out William Patry's Choice of Law and Internet Copyright and Kurt Wimmer and Eve Pogoriler's International Jurisdiction and the Internet.

Also, the principle of "ordre public" says that the US would generally have to enforce a French court's decision against an American company here, unless it violates a public policy here. In this case the public policy that enforcement here would run afoul of is the First Amendment, one of, if not the most important public policy this country has.

Viewfinder originally tried their hand at two arguments. First they argued that the French decision could not be enforced here because it was inconsistent with American copyright law (in that fashion is not copyrightable here). In rejecting this claim, Judge Lynch wrote:

Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole. Different countries will, at different times, reach different conclusions as to the types of creative endeavor that should receive the benefit of copyright protection and the extent of that benefit, and different conclusions as to the kinds of competitive activity that should be encouraged or discouraged by trademark law. If the United States has not seen fit to permit fashion designs to be copyrighted, that does not mean that a foreign judgment based on a contrary policy decision is somehow "repugnant to the [American] public policies underlying the Copyright Act and trademark law."

Thus, even if we think the French are nuts for placing fashion design on such a high copyright pedestal, it is not for American courts to call them out on it.

The second argument was that enforcing French copyright law here would infringe on the first Amendment. It was on this basis that Judge Lynch ruled in favor of Viewfinder. Quoting from the opinion:

Viewfinder's last, and sole persuasive, argument is that the French judgment is "repugnant to fundamental notions of what is decent and just" because Viewfinder's conduct is protected by the First Amendment. The freedoms of speech and of the press protected by the First Amendment are not mere vagaries of legal policy, matters of legal detail that might as easily have been resolved differently by our legislatures or courts. Freedom of speech is a matter of constitutional command, binding even on the will of the majority as expressed in legislation. The very Congress of the United States "shall make no law abridging the freedom of speech, or of the press." Even among the basic human rights protected by the United States Constitution, the First Amendment occupies a special place. As Justice Cardozo put it, the American legal tradition "reflects a pervasive recognition of th[e] truth" that freedom of speech is "the matrix, the indispensable condition of nearly every other freedom."

Bingo. Judge Lynch then proceeded to confirm, over Sarl's objections, that pictures contain sufficient speech-like qualities to fall under the protections of the First Amendment, that a lack of editorial comment accompanying the pictures is not fatal for "a picture is worth a thousand words," and that using the pictures in a for-profit website is not a problem because this was a "simple sale of a news photograph of a public event." Relying on the breadth of American First Amendment jurisprudence, Judge Lynch reached the conclusion that the French decision was incompatible with the American ideal of free speech in that it prevented legitimate and well recognized forms of expression.

The EFF brief generally restates Judge Lynch's argument, but is very well written and definitely worth a read for understanding the connections between copyright law and free speech.

That so much emphasis is placed on the First Amendment is odd, presumably because of the international law elements of the case, since the First Amendment is not usually so well discussed in copyright infringement cases between American parties. In Viewfinder, the court essentially ignored the copyright argument, saying that the First Amendment issue was more important. In other circumstances, the court would have said that the First Amendment issues are subsumed within the fair use defense (referring to either Campbell v Acuff-Rose Music or Suntrust v Houghton Mifflin - the Wind Done Gone case). When the First Amendment issues are considered within the context of fair use, they tend to lose the emotional impact that is so present in Judge Lynch's decision. Even odder is the notion that American courts might take free speech defenses to copyright more seriously against international plaintiffs than when an American is claiming free speech against a claim of copyright infringement by another American.

The Viewfinder case illustrates the power that more emphasis on the First Amendment could have for copyright cases generally. Using the Google Book Search lawsuit as an example, Google, acting as an intermediary for the everyone with an Internet connection, would have a significant First Amendment claim to stand on. But as copyright has developed, that argument would have to be sparsed out between the various elements of fair use, diluting the argument and not providing proper space to claim important free speech values (ie, the right to read and the right to receive information).

If a court used a similar approach as in Viewfinder to Google, I think it would come out something like the following:

Court: Google, are you infringing on someone's intellectual property rights?
Google: Maybe, but only because this is a new area of law and it could go either way. But... um... there's a good chance it might.
C: Ok, well, does Author's Guild claim of copyright infringement affect your free speech?
G: Of course it does! We're just allowing people to track down information, kind of like a giant library of Alexandria. Is that so wrong of us?
C: Is that effect so great as to be against the important public policy of free speech, and all that that policy entails?
G: Yes. Free speech entails the right to speak one's mind, but in that is the right to gather information. As has been said, speech does not exist in a vacuum.
C: I agree. Go ahead and digitize the books...
- or -
C: I am not moved by your free speech claim. I think you're scamming the authors here. But I'll tell you what, can you show me that your use is nonetheless fair?
G: Fair use!? Boy, do I have a story for you...

I don't think such an approach would be that wrong, and in fact, that kind of heavy reliance on the free speech implications for an internet copyright dispute would help return the proper balance between the public's right to access and the copyright owner's limited rights of control.

Of course, Judge Lynch may just be one of those French-hating freedom fry loving kind of guys. But that would be ok too. I'm a big fan of the law of unintended consequences.