Copyright is free speech

05-02-16 From CreativeFuture.org

By Robin Sax

This article originally appeared on Psychology Today.

I am a lawyer and I love movies.  You may be thinking, “Of course. That makes sense – what else does an attorney do to unwind?” While I do love zoning out watching other people’s lives unfold via movies, these two parts of my life have become connected in a manner I never would have imagined just a few years ago.

Complex conversations about the value of movies (and other creative works) in the digital age are rendered even more complicated when arguments arise over copyright and free speech.

Wait…

Did I just put those two words in the same sentence? I hesitate to write “copyright” and “free speech” too close together for fear that I might unwittingly contribute to the work of those who attempt to confuse the two.

First, let’s get this out of the way: Piracy is not free speech. I repeat PIRACY is not free speech. As a matter of fact, piracy, plainly speaking, is illegal. It is a crime. Therefore, attempts to eliminate the for-profit digital theft of creative works is not an attack on free speech; it is prudent crime prevention.

When I first heard about CreativeFuture, I was inspired by the organization’s efforts to fend off the widespread theft of creative work via the internet. But I was equally compelled by their mission to combat the notion that this effort was in some way anti-technology, or even more far-fetched, anti-free speech.

These issues – and others – convinced me to become a member of CreativeFuture’s Leadership Committee. Part of my own mission is to help clear up some of the misinformation that, ironically, tends to proliferate best on the internet, where speech is so free that fact and fantasy commingle with an elegance that can render reality indistinguishable from opinion.

This brings me to another blunt fact: Those who want you to believe that the fight against piracy impinges on the right to free speech are doing so on purpose.

Some organizations, such as the Google-supported Electronic Frontier Foundation, take every opportunity to defend piracy at all costs and call any attempts to protect copyright a threat to free speech – even when those attempts include voluntary agreements between trusted stakeholders.

It is no secret that Google treats copyright as a nuisance. Time and again, the tech monolith lobbies Washington and foreign governments to water down existing law or to block any new initiatives designed to help curb rampant digital theft of copyrighted works.

They also criticize (directly and through organizations they underwrite) the various voluntary industry initiatives that can help take the profit out of piracy.

Article I, Section 8, Clause 8 of the U.S. Constitution was drafted with the intention to “…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This applies as much to an app as it does to a song. If this sounds like an assault on free speech, you need to get your head out of your (patented) virtual reality helmet.

The U.S. Supreme Court has written: “It should not be forgotten that the Framers intended copyright itself to be an engine of free expression.” (Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 1985.) In the same decision, the Court stated: “…copyright supplies the economic incentive to create and disseminate ideas.”

Somehow, groups like the EFF always ignore the essential idea/expression distinction inherent in copyright law. The whole purpose of the First Amendment is to protect the ability to convey ideas no matter how objectionable those ideas may be to government or society. The First Amendment isn’t about trying to guarantee people’s ability to copy the particular fixed, creative expression of others. What free speech interests are protected or maintained by the wholesale infringement of full copyrighted works (e.g., piracy)?

We live in exciting times. The digital age has promised us a virtual utopia where information is freely available to all. Yes, there are bad actors that stifle free speech online and governments that censor the internet to eliminate thought or action that undermines regimes. Activism is noble and needed, especially in times of great change, to act as a check against overreach and injustice. But activists become victims if they are armed with misinformation. And make no mistake about it – calling the protection of copyrighted works a threat to free speech is misinformation.

If you agree with me and appreciate this argument, feel free to steal it. Share it on your preferred social media channels and spread the word. As its author, I grant you permission. See? That wasn’t so difficult, now was it?

The FB commentary followed:

Liza Moon

Liza Moon may i quote you on that? and if so. as owner of an often pirated property ( google the word “daredoll”, – we are the fully clothed options – the current pirate on spankbang sells our work for higher prices than we do?

Like · Reply · 2 · May 2 at 8:49pm

 

Dean Lach
3 Replies
Ted Folke

Ted Folke When Hollywood and the music industry have been robbing artists for decades, this strikes me as a bit disingenous. American copyright laws are out of date – please see Lawrence Lessig for more!:)

Like · Reply · 1 · 22 hrs

 

Jonathan Boose

Jonathan Boose Lessig is a tool of Big Tech, which has been doing more to rob artists than Hollywood or the Music Industry ever did.

Like · Reply · 1 · 19 hrs

 

John Kawakami

John Kawakami Copyright is increasingly obsolete because the technology of speech has changed. With computers, you make perfect digital copies. (It’s harder to make them imperfect!) With the internet, you have the ability to track all downloads, of a work, and with decryption or digital rights management, the ability track all uses of a work.

On the one side, you have a space where intellectual property can’t really exist – it’s a property that quickly becomes a public good, part of a commons.

On the other side, you have a space where intellectual property has more “private-property-like” qualities than it ever did when it was published as books or analog recordings. It’s actually invading your privacy; it’s property that can probe into your private life more than the government can (unless they get permission from the courts). Intellectual property becomes a kind of wedge that can drive privacy-invading contracts into your life.

There are different ways around this polarization. CC is one way – it preserves copyright by adapting it to the new reality of perfect digital copies and the internet. (And, Lessig is not a tool – he’s a moderate liberal reformer.) DRM with extensive “sharing” features is another way, because it incorporates “internet-like” features into the privatized surveillance system. This is in the tradition of neoliberal privatization of public space, analogous to things like shopping malls.

 

Mark Grady

Mark Grady John, are you kidding me? Why shouldn’t someone who spends weeks or years working on a book or film have rights associated with that work? This “public good” argument is a silly one. It reminds me of the people who want to legalize pot, so they can use it. There is only one reason people are fighting intellectual property laws – because they want something for nothing.

Like · Reply · 1 · 17 hrs · Edited

 

John Kawakami

John Kawakami I’m not advocating for piracy. I’m just saying the world has changed fundamentally and we need to work with it. My general feeling is that the privatized spaces need some regulations to protect privacy because drm is totally invasive. I think they ineSee More

Like · Reply · 12 hrs · Edited

 

Dean Lach

Dean Lach Mark Grady right on

Dean Lach
Dean LachUggh, regarding hollywood robbing artists, etc etc, this is the kind of rational that we’re talking about. Really, if we all take the law in our own hands, and use subjecture to justify theft, then were will we be? In mean, I love the idea of a Star Trek dystopian future wherein we don’t apply ownership to stuff…but it’s not time yet — the Universe isn’t ready.
=Dean with the “permission of CreativeFuture.org
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