Where are the copyright liberals when right-wing conservatives need us?
Last week, the National Academy of Sciences, or NAS, joined with the National Science Teachers Association, or NSTA, to tell the Kansas State Board of Education that it would not grant the state copyright permission to incorporate its science education standards manuals into the state's public school science curriculum because Kansas plans to teach students that "intelligent design" is a viable alternative theory to evolution. Kansas is scrambling to rewrite its proposal to win over the NAS and NSTA.
I agree with the vast majority of scientists who believe that evolution is the strongest and most comprehensive explanation for the diversity of life on Earth. I also agree with the vast majority of scientists who think that intelligent design, the theory that the complexity of life must be derived at least in part from a supernatural intelligence, is junk. I support the two scientific organizations in their mission of teaching legitimate theory, rejecting specious sermonizing in schools, and promoting the scientific method for studying observable phenomena.
Yet it concerns me that the NAS and NSTA are using their copyrights to bring wayward Kansas educators into line.
In the United States, intellectual property, or IP, law ensures that creators and inventors will get paid for their work, while doctrines like fair use and time-limited rights leave enough breathing room for the next innovator to use existing creations to comment, critique or make something new. But we have increasingly seen owners leverage their IP rights to get control rather than to get paid.
For example, Disney distributes (.pdf) its movie trailers with a license that says recipients may not use the trailers to criticize the company or the entertainment industry. Diebold challenged college students concerned about election fraud for publishing e-mails in which the company's employees complain about problems with electronic voting machines.
Cisco Systems sued security researcher Mike Lynn for revealing certain information about flaws in its routers, then agreed to dismiss the suit after Lynn promised not to disseminate that information any further. Scientology has used copyright law to attack critics that document their complaints with excerpts from the church's texts. And NBC rejected filmmaker Robert Greenwald's request to pay for permission to use a one-minute clip of President Bush fumbling through an explanation for the war in Iraq on the grounds that the clip is "not very flattering to the president."
With each of these events, scholars and activists, concerned that overly broad IP laws squelch creativity, innovation and speech, rallied to the cause. We "copyright liberals" have been highly critical when IP owners enforce an ideological litmus test for permission to use a work. So why was there no hue and cry in the copyright blogosphere when Kansas got stung? (An exception was Wendy Seltzer's Legal Tags, the Blog.)
NAS and NSTA do not have to endorse the Kansas Board of Education's decision to teach intelligent design. The theory isn't supported by science, and Kansas should not be able to imply that teaching it comports with NAS or NSTA standards. United States trademark law would certainly prohibit Kansas from claiming NAS or NSTA approval for its alternative curriculum. But instead, the organizations are leveraging their copyrights in the standards manuals to get Kansas to accept evolution theory.
There is no well-developed body of law to stop IP owners from leveraging those rights to squelch speech. Increasingly, speakers are trying to use the relatively new doctrine of "copyright misuse" to protect their constitutional rights against IP claims.
In the first copyright-misuse cases, defendants claimed the doctrine as a defense when IP owners sued to enforce contract terms that were anti-competitive, like tying software and hardware sales, or prohibiting use of unprotected ideas in future works.
Then, renowned Judge Richard Posner of the 7th U.S. Circuit Court of Appeals suggested conditions under which using a copyright to stop criticism also might be copyright misuse. This line of thinking influenced the 3rd Circuit when it was considering the Disney trailers case. Both courts said that judges may refuse to enforce a copyright when the IP owner's licensing practices interfere with constitutional policy, specifically the First Amendment right to free speech.
This is an uncomfortable issue for copyright scholars, who, if they are anything like biologists, presumably disagree with intelligent design. But we have to call the game fairly. After complaining so loudly when Disney, Diebold and NBC used copyright as a weapon, it's hypocritical to stand by and watch as others use it to bring the Kansas Board of Education into the scientific fold.
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Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
