How Might Copyright Threaten Free Speech? Let’s Count the Many Ways

On Techdirt recently Timothy Geigner wrote about David Newhoff’s guest posted on the blog of DC lobbyist outfit The Copyright Alliance. The crux of his argument is this: some people feel that existence of a stranger’s gay marriage threatens their own straight marriage. Similarly, some people (the “copyleft,” which is actually a type of licence, not a person or political party but I think he means people who are for a more reasonable copyright policy) feel the existence of someone’s copyright threatens free speech of others. Newhoff disagrees with both assertions, and so do I. After Techdirt wrote about his strange comparison of the issues Newhoff then responded bizarrely by promoting something cool he found on the internet to “Techdirt fans” to show he is not all “anti-Web” and stuff. He is essentially saying “Look, I don’t think copyright law can have a negative impact on free speech because I’m pro-web and I found a video about how people are helping others in the third world. And it’s on the web!” I’m sure it’s a great thing. But it is no defense of your position.

Most of the well-connected and most read people who are for copyright reform being less draconian are not making this claim that the mere existence of copyright threatens free speech. Not Mike Masnick, Lawerence Lessig, or Cory Doctorow. They all believe copyright has its place. They recognize the spirit and intent of Article I Section VIII of the Constitution. “The Congress shall have Power 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…” For the sake of our argument it says Congress grants exclusive rights to authors since they are promoting the Progress of Science and useful Arts. They are promoting it to the public. Authors and Inventors have the exclusive rights for a limited time. Anyone with two brain cells would agree this is a fair deal. We have copyright so that we have the opportunity to do something with what we make. We can go after people who appropriate, and plagiarize. Creators have that right. After creators create they spend their “limited time” to figure out a way to get people to buy, and then people buy. That is acceptable. But that is not mentioned in the Constitution. There is no right to be paid for what you make. The market decides the value of your works. There is only the granting of an Exclusive Right. Our Founders were noble men, not capitalist maximalists. They fought the Revolutionary War against an Imperialism that was not too far off the mark from modern day capitalist extremism. Cultural wealth for the people, not monetary wealth of the few was embodied in the spirit of Article I Section VIII.

But in the last century, and increasingly in the last few decades, just like the anti-gay bigots who stretch the definition of “religious freedom,” the craftiest of middlemen (some book publishers, record labels, movie studios, TV producers and software companies) who place their lust of high profit margins above anything else have gone on to stretch the definition of “limited time.” They pay creators as little as they can get away with and then sell copies for as long as they can for as much as they can. Then these lazy, rent seeking middlemen who hate competition invest in means that allow for their tendency for greater monopoly power. In the US, since its founding, copyright terms have been extended at least 7 times. It started at 14 years with 14-year renewal. Then 28 years with 14-year renewal. Then 28 years with 28 year renewal. Then 75 years or the life of the author plus 50 years. Then they removed the requirement to renew. Then for person author life plus 70 years and for corporate authors 120 after creation or 95 years after publication. Then they retroactively extended the one that was 75 years to 95 years. Then they made it possible to have works taken down at mere accusation and put the burden of proof on the accused with no real penalty for false accusations and they made it illegal to do some things with things you legally bought know as anti-circumvention. Do you notice a pattern hear? Copyright gets longer and longer with more restrictions on making use of works by people and easier for the middlemen to implement. It is well known that Disney lobbied strongly for at least one, if not most of the extensions so that Mickey Mouse would not go into the public domain.

For most of the history of copyright, copyright made it possible for companies to licenses and then sell copies of works from other companies. But now, regular people want to make use of works. They don’t have teams of lawyers standing by to advise them on the legalities of the background music that happened to be on their YouTube video or know the complexities of licensing. And the media companies don’t even want to create an affordable licensing scheme for such use. The thing is, they shouldn’t have to, it’s fair use. People just want to share and remix, mostly in a non-commercial form, for fun. But now laws historically intended to stop or punish commercial mass reproduction is being applied to people. The people now have their own printing press, their own record press, their own ability to make film prints, and their own fleet of trucks and planes, all metaphorically, to distribute works to destinations all over the world via the internet.

One favorite assertion made by copyright maximalists is that everybody has lobbyists, not just the content lobby and that the Silicon Valley lobby showers much more money on Congress critters than the media companies. But according to my research on Opencongress.org from 2009 to 2010, companies in the Online Computer Services sector gave $466,926 to Congress members while the Entertainment Industry/Broadcast & Motion Pictures sector gave $524,243. OpenCongress.org also breaks down other similar sectors. Cable and satellite TV production and distribution gave $934,077, TV Production and Distribution gave $224,650, Movie Theatres gave $33,050, Commercial TV and Radio Stations gave $382,000, Bands, Orchestras & other Live Music Productions gave $45,750. Now I am not going to add all of those sectors up and pit them against the Online Computer Services sector because I don’t know if the media sectors have any overlap with each other. And this is only what Congress is reporting, much is left out. But the Online Computer Services is known for not really wanting to play the “influence for money” game, and it is only recently that they have decided to play catch-up because they are the ones who are being outspent and out-influenced. I am open to being shown more evidence of this conspiracy that the Hollywood’s faith based lobby (Newhoff is an athiest, so I know this one will get to him) is outspent by the Silicon Valley’s evidence based lobby. Maybe it is outside of Congressional camping contributions.

I have counted the number of times Congress has extended copyright. Now lets count the number of ways IP law is abused. Sometimes it is to grab cash, injure competitors, or just bully, but other times it is to squash free speech. And it’s always in the name of IP.

In California we have the anti-SLAPP law (strategic lawsuit against public participation). Why? Because people with lawyers like to sue people they don’t like to make them stop what they are legally allowed to do. We have this law because clearly people like to use the legal system to bully weaker opponents. One example is Frank VanderSloot, a Romney finance co-chair who threatened bloggers with copyright infringement for mentioning VanderSloot’s political position on gay rights, of all things. His attorneys tactics included sending copyright certificate to the bloggers’ web host and suing to reveal blogger’s identities. Unfortunately, not all of his targets are in California.

Next, we take a look at a company called Bridgeport Music which forged George Clinton’s transfer of copyright to themselves solely so they can sue hip hop artists that sample George Clinton’s music. The don’t pay Clinton. They don’t represent any artist interests, they don’t make art. It is simply a way to use the legal system to grab cash. They also license music to anyone that can afford their high fees. Again, they are just copyright trolls, not musicians.

There is a entity called Lodsys that holds patents by inventors that never intended to have them used in the way they are: to sue independent mobile application developers that dare to include the “novel idea” of in-app payments. Most independent developers are one or two man entrepreneurial ventures that can’t afford to pay a license for what most software developers agree is an obvious idea. Luckily, some bigger names like Oracle and Apple are standing up to this patent troll.

Next we have the trademark toll, Monster Cable that is extracting money from just about anyone who uses the word Monster in their name from the employment website Monster.com to Pixar’s film Monsters Inc. to Monster Energy Drink and most notably a small, family run business Monster Mini Golf. These products are wholly unrelated to audio, video, or power cables. But since Monster’s CEO and lawyers are bullies, they abuse their power and extract money.

Google recently released DMCA take-down filings made on behalf of rights holders. We can see patterns of abuse or neglect as well as take-downs that appear to be anti-competitive (taking a competing webpage out of Google search). Even Microsoft requested that Google take down allegedly infringing search results pages while leaving them up in its own search engine, Bing.

And lastly we have Rightshaven, a couple of lawyers who went after bloggers and news organizations who dared to make fair use quotes from the Las Vegas Review-Journal. After a series of blunders and having their operation declared illegally they were ordered to pay a defendant’s legal fees, failed, now their assets are subject to confiscation by the US Marshals Service. It’s good to see there is some justice in the world.

No one is saying copyright by itself threatens free speech. It is copyright’s mission creep aided by the middlemens’ lobbyists that are making it more difficult, expensive, and dangerous to simply create, share, invent, or be entrepreneurial. It is the potential for abuse in the name of precious copyright that has the power to threatens free speech. And when it comes down to it, free speech is more important then an artist’s right to make a living. But the pro-free speech fold are not syaing they don’t want artists to make a living. This is an extreme stretch of logic that the copyright lobby constantly makes because it sounds like such a zinger. It’s such a great sound byte. But nothing could be further from the truth. We don’t need tougher laws with more and bigger forms of oppressive punishment for violations described in TTP, ACTA, SOPA, or PIPA to keep creators employed. The eventuality of S.W.A.T. teams descending on our homes just because our kids committed a small commercial transgression is where we are headed. It has recently been shown that in North Korea the threat to one’s life for sharing contraband media is not even a deterrent. So while three strikes, financial penalties, or maybe even jail is not enough to stop behivor in the West, some will risk their lives. It’s the responsibility for the creators and middlemen to come up with a business model that works and does not create a generation of copyright hating criminals who are supposedly the creators’ customers.

The pending and horrendous Trans-Pacific Strategic Economic Partnership (TPP) which would requires legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials. This mean that for ISP and cloud storage services, when in doubt, take it down to save your own ass.

I have laid out multiple examples of ways in which bad people and bad corporation abuse the law to silence critics, attempt to profit off people who cannot afford to fight unfair suits or to discourage competition. I won’t even go into the attempts by foreign and domestic governments who try to silence or censor decent. In the last few years there has been at least one news headline a month on this topic (Occupy Wall Street, China, Egypt, Iran, Wikileaks, etc). George Orwell famously went into this scenario in its extreme form his his book 1984. Already we are seeing China and Russia squash dissenting speech by using copyright law to appease Western countries and it seems this behaviour will only get worse. So, on the topic of abusing copyright to silence speech either by governments or corporations, the pattern is clear. When governments or corporations can afford and/or get away with abusing or violating laws to protect their power positions, and there is no check on this power, they most certainly will abuse it. And it does not take a contortion of logic, a vibrant imagination, or paranoia to make this conclusion.

So summarize: copyright alone does not threaten free speech. But growing, uncheck power in the hands of a few, and in name of preventing copyright infringement is ripe for abuse by governments and corporations seeking to protect their power, influence, and money. The growing of this weapon is unwarranted and it’s wielding will not make people buy more creative works. To use a Newhoff’s favorite style of Kantian quip: His right to “protect” his works ends where my liberty begins, and I won’t get off your lawn. Good luck with your filmmaking.

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