The following post, which provides a constitutional analysis of aspects of the Georgia State case, is written by Bobby Glushko, J.D., who is currently Associate Librarian in the Copyright Office of the University of Michigan Library. I find Glushko’s views to be illuminating and important. In this post, Mr. Glushko speaks for himself, and not for the University of Michigan, or for me.
Anyone who is even casually aware of the controversy surrounding the litigation between Cambridge et al and Georgia State University, has almost certainly read some of the very cogent and compelling arguments against the injunction proposed by the publishers. I agree with many of those critiques, and, at the risk of piling on, am adding another: the proposed injunction is a violation of the First Amendment prohibition against restricting speech.
Copyright law is fundamentally about compromise, about fairness, about the balance between providing incentives for authors to create and the ability to harness that creative energy for the betterment of society. Markets abhor a monopoly, but yet we give authors a limited monopoly on their writings so as to better enable them to create for a living. We need laws to protect rights in non-rivalrous goods;objects that can be used by multiple people at once without reducing the ability of others to partake in them. (For example, a candy bar is rivalrous, if I eat it, you cannot. But a sunset, or a song can be enjoyed by all.) But we limit those laws in order to allow society to more efficiently capture the benefit from those goods. It’s really quite an elegant system, and while you can criticize the particulars, creativity, writing, and “the progress of science and the useful arts,” seem to have been proceeding along quite well for the last 200 years.
Authors create, and users use; some of these uses generate profits for the authors, (or, more realistically, their publishers), and some of these uses do not. Sometimes the system swings out of balance. For example, as neat as it was to be able to download any song in the world from Napster, it was also a massive hub of copyright infringement. The balance was upset, the courts intervened, Napster was shuttered, and the balance was restored. (I’ll note here that I’m aware that balance does not often make all parties at the table happy, and that reasonable people can disagree as to where exactly the fulcrum on the balance point should lie). The proposed injunction in the GSU litigation is a threat to copyright’s balance of a far greater scale than was posed by Napster and its ilk. In their proposal, plaintiffs seek to overturn all of the internal and external limits on the exclusive rights granted by copyright, replacing them instead with a mechanical, restrictive, and frankly unworkable system.
Copyright law does not operate in a vacuum. Alongside the internal limits to the rights granted to authors by the Copyright Act, such as the limitations provided by fair use, and the rights granted to libraries, people with disabilities, etc., there are also external limitations, notably the First Amendment. Stating that “Congress shall make no law…abridging the freedom of speech,” the First Amendment limits the capacity of Congress and the courts to restrict the free expression of ideas. Copyright law limits expression by prohibiting some uses of copyrighted works without permission from the copyright holder. Many of the exceptions in the exclusivity of copyright – fair use, classroom use – exist in order facilitate free speech about copyrighted work. Using copyright to effect a ban on speech can arguably be seen as a violation of the First Amendment, as a prior restraint on speech.
First Amendment challenges to injunctions in copyright cases are nothing new, and courts have not proved particularly receptive to them.  But the proposed injunction in the GSU litigation is a new beast indeed. Prior first amendment challenges to copyright injunctions have dealt with discreet acts of infringement and identifiable actors, for example, the publication of a possibly infringing book or film. And while courts have expressed deference to the first amendment in these cases, they have not found injunctions to be restraints on speech, because the infringing speech was not protected by the first amendment, as the first amendment protects the facts and ideas underlying the expression, not the actual expression itself.
The scope of the proposed injunction in the GSU litigation goes far beyond existing case law, as it limits all speech, by all actors, in any way associated with GSU. As such, it is not a limit on a particular instance of suspected infringement, but a limit on all potential speech going forward. Prior injunctions have been limited in scope and have stopped the publication of existing works; the proposed injunction chills all future expression coming out of GSU, and leaves no space for the comment, criticism, and dialogue that lies at the center of constitutionally protected speech. In order to open up a new business model, the plaintiffs ask the court to shake the foundations of the balance between incentive and expression; and the price of doing so is simply too high
So, why is this important? Essentially, what is at stake here is the fundamental balance between those who use copyrighted works and those who create them. Reasonable people can disagree over how long copyright should last, or how much deference should be given to fair use; that’s the beauty of our system. The proposed injunction would overturn all that Congress and the courts have crafted over the last two hundred years and replace it with a mechanical regime designed to maximize profits for the large publishing houses. This “solution” to the GSU litigation is not only unworkable, it’s unconstitutional and wrong. Asking academics and universities to surrender their statutory and constitutional rights so as to allow publishers to more efficiently extract revenue from them does nothing to advance the progress of science and the useful arts, and will only further illustrate the absurdity of the state of academic publishing, where universities pay academics to write articles, which they edit, peer review, and give to publishers for free, and which are then sold back to universities for substantial sums. Hopefully Judge Evans will see this, deny the proposed injunction, and help bring this litigation to a resolution that respects both sides of the copyright balance..
 For example, see Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), where the Second Circuit upheld a lower courts ruling prohibiting the publication of the book 60 Years Later Coming Through the Rye, a book based on the events in Catcher in the Rye.