photo by DevonYu
Well, here we go. I’ve been waiting for this shoe to drop, and it looks like Josh Tabish, campaigns director for Vancouver-based OpenMedia, has decided to be among the first to throw a loafer. In an editorial for Wired, he warns that “the copyright barons” are coming now that Trump is in the White House.
It has a been a challenge, to say the least, to try to disabuse people of the notion that contemporary copyright enforcement really can coexist with a free and open internet and not stifle free speech. And that was while Obama was president—a left-of-center moderate who was very close with Google. But ever since Trump won, I’ve been waiting for the same anti-copyright narrative to dial the volume up to eleven because now we have a ballgame. Stand by for a litany of articles and blogs under the theme: See! All it takes is a draconian, right-wing president, and the copyright industry will get what they want and destroy the freedom-loving internet!!!!
So, let’s clarify one thing, in case it hasn’t been obvious so far. I neither like nor trust Donald Trump. I think he’s probably unhinged and that his agenda, opaque as it seems, may well pose a legitimate threat to the foundations of the United States. And certainly, there are bigger issues to worry about at the moment than copyright law. In fact, this is always true, which is one reason the IP Subcommittee of the House Judiciary used to be a legislative backwater gig that nobody really noticed. But now that internet giants have convinced millions of people around the world that copyright enforcement in cyberspace is tantamount to stifling everyone’s speech, copyright remains in the foreground of digital-age issues and, by association, it will be swept up in the broader narrative of whether or not the Republic itself is going to withstand the new administration’s brand of heterodoxy.
In response to a letter by The Copyright Alliance asking the president to support copyright law, Tabish cobbled together the standard narrative that a) copyright law is already too strong; and b) making it any stronger can only result in some form of censorship online. He trots out all the usual talking-points, including favorite hits like DMCA takedown is chronically abusive, no enforcement regime can mitigate piracy anyway, and beware the hidden IP agenda of trade deals. None of these assertions is sound—I’ve written extensively on all of them—and certainly none can be understood from a sentence or two in a short article. But I imagine we’ll be hearing a lot more of this “beware copyright” message now that the age of Trump is upon us. And I could not disagree with this premise more. Perhaps now more than ever.
Protecting Individual Rights
One of the reasons I defend copyright is that it is an individual right. IP is in fact the very first mention of an individual right in the Constitution, and copyright was among the few rights an American could exercise, even before he/she had other rights. Frederick Douglass registered his Narrative of the Life of Frederick Douglass, an American Slave in a Massachusetts Federal Court in 1845. At a time when he and his fellow Africans were literally considered property by half the country—and were none too welcome by the other half—Douglass could legally declare the work of his own genius as his property.
I happen to think that’s significant and believe people should recognize its significance. Today, the empowerment of copyright is almost certainly a core component in the career of your favorite activist, author, artist, or journalist. Or to put it another way, if you watched the inauguration concert, that’s a pretty good glimpse of what art looks like in certain countries without copyright laws. Kinda meh, right?
Copyright Is Non-Partisan
To be frank, most governance is non-partisan, and it’s unfortunate that the theater of mass media has aggravated our capacity to politicize even relatively neutral policy. But that’s another discussion. Copyright law is grounded in the earliest principles of the new nation, it has been wildly successful on balance, and it empowers some of our favorite products. There’s a reason copyright historically enjoys strong bi-partisan support and stands apart from other, far more contentious issues. If nothing else, amid the chaos and angst we’re now enduring on so many policy matters, copyright is actually kind of a nice legislative oasis where Republicans and Democrats can and should be friends.
Realistic Proposals to Amend Copyright Law are Not “Maximalist”
Despite the chronic repetition of the pejorative maximalist, and the declaration that rights holders are so eager to enforce copyright online that they’re willing to censor the web, this simply does not square with any of the real policy being discussed. Most of it is rather nuanced, and although some of the changes could cost Google or Facebook some of their not-so-hard-earned cash, it’s a stretch to imply that any of it can really affect the day-to-day use of the internet by most of us—least of all any discussion or sharing of substantive material that can arguably implicate the First Amendment. Naturally, these details and developments will be the subject of future posts.
Focus on the Real Concerns
Ultimately, if the real worry is about the correspondence of the internet and civil rights, remember that the creative copyright owners—least of all the independent artists out there getting clobbered—don’t own big web platforms. If you have real concerns about online censorship in the age of Trump, don’t follow the publishers, record labels, and movie studios, follow the evolving relationship between the administration and the owners of the web platforms. I’m not accusing those ISPs of anything here, but that just seems like common sense, no?
The simple reality is that every industry, regardless of internal political views, has to figure out how to work with the administration and the Congress we have. That includes the institutions represented by The Copyright Alliance, and it includes those represented by the Internet Association. The Copyright Alliance letter is a lot like all the other representatives who sent missives to the new administration from every industry in the country. It’s SOP and largely symbolic.
Politically motivated communicators like Tabish should recognize that his empowerment is not sustained by “free” internet conduits alone. That empowerment is financial and requires investment by organizations like Wired where his OpEd was published. These entities depend on copyright law to protect their investments, and this is no time for any professional author of anything to be shooting himself in the foot. Expect this rhetoric to get louder in the coming months and years, but that won’t make it more true.