Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Your rights are in my freedom.

It’s another Independence Day weekend, and I can’t help but notice that we find ourselves this year grappling with some unfortunate consequences of liberty run amok.  We’ve got open-carry nuts sporting assault rifles in department stores and coffee shops to prove how free they are; and we’ve got the supreme court granting business owners the right to discriminate against employees on the grounds that said discrimination can be considered the free exercise of religion.  These real-life manifestations are borne in the logic of narcissism in which the self-righteous individual believes in liberty that is not bound by the limits imposed by the rights of others. It is the same logic that says legalizing a same-sex marriage is an infringement on religious exercise.  And like it or not it is the same logic that attempts to absolve many sins of the digital age in the name of free expression.

It sounds good on paper, but in reality, freedom without limits isn’t freedom for anyone but the powerful, whether that power is derived by wealth, political influence, technological prowess, or violence.  On July 1, a debate was held at the American Enterprise Institute on the matter of intellectual property rights during which Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:

“If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.”

The underlying question in that debate was whether copyrights are a right or a privilege, but it is instructive that even in this academic forum on intellectual property, Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want.  One of the reasons I began writing about digital age issues and intellectual property is that many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression was being stretched beyond reason in ways that mirror the aberration of free religious exercise we saw this past week with the Hobby Lobby case.

Do women have a right to comprehensive health care, including contraception?  Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code.  Many of us are hopping mad about this, and we should be, both in practice and in principle.  It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.

But what about my colleague Mark Schultz debating copyrights with academic libertarians like Jerry Brito of the Mercatus Center at George Mason University, who want to recast this longstanding right as a government granted privilege?  Copyright is less emotionally charged (and ultimately less critical) than the health of American women, but the false logic being applied is very similar, as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers.

Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression.  This is similar backward reasoning to “your right to contraception violates my right of religious expression,” and again it is an idea based in narcissism and backed by corporate interests.  We all are entitled to the right of free expression and the right of intellectual property protection, if we want the latter; so why give up either right when we can have both?  It’s as much a false dichotomy as religious freedom vs birth control.  It’s what happens when we can’t tell the difference between freedom and a free-for-all.  And in a free-for-all, the biggest bullies usually win.

Fish Gotta Sing

If you’re a songwriter frustrated by our music licensing system (which is to say a songwriter), then maybe it’s time to craft a ditty that sounds funny coming out of a fake animal.

In all seriousness, last week saw the passing of Memphis legend Mabon “Teenie” Hodges, guitarist and songwriter, who created several hits in collaboration with singer Al Green.  Among these is “Take Me to the River,” written in 1974 and subsequently covered by many artists including Talking Heads. But from the concluding paragraphs in the Hodges’s obit from The Washington Post, we learn that he only first had publishing rights with this particular song, and that most of the revenue he earned from the hit came from sales of the novelty item Big Mouth Billy Bass — a mounted, mechanical fish that wriggles and sings “Take Me to the River” or “Don’t Worry Be Happy” at the push of a button.  The obituary does not cite how much Hodges’s faux fish fortune was worth, but the singing bass did reportedly sell over 40 million units worldwide; Bill Clinton apparently gave one as a gift to Al Gore; and a February 2014 story in The Wire reports that a motion-activated Billy Bass scared a presumptive robber from a Minnesota bait and tackle shop.

Well, it’s one way to be immortalized.  RIP Mr. Hodges.

Hobby Lobby: The Principles of Principals

There are certainly many troubling aspects of yesterday’s Supreme Court ruling in the Hobby Lobby case.  That the majority opinion rests on upholding the 1993 Religious Freedom Restoration Act has been rightly criticized, particularly by democratic authors of that bill. The protection of religious freedom for individuals was never intended to extend to for-profit corporations, they say; and certainly this expansion of the RFRA has implications that go well beyond the sphere of a couple of franchises.  I am sure that I’m not alone in feeling that SCOTUS has awarded corporate owners far too much latitude to engage in discriminatory practices, but I also feel it’s worth noting that this decision comes at a terrible time, when some of the wealthiest and most powerful corporations trade in a new commodity comprised of personal information.

If under the 1993 RFRA, an employer can refuse to pay for coverage of contraception for female employees, why does it not allow an employer to simply fire a woman for some other sin against said employer’s religious beliefs?  After all, the employer supports his employees with a salary, so why should he not be allowed to sever that support upon learning that a woman in his employ is pregnant out of wedlock or has terminated a pregnancy while in his employ or has bought contraception on her own — with the money he pays her dammit!  Sound crazy?  Well, this is a ruling predicated on crazy, and if RFRA can trump one federal law, why can’t it trump another?

If in fact this is the slippery slope on which we now stand, how long do we think it will take for employers (sincerely or insincerely “religious”) to acquire the kind of personal information that is implicitly now part of their purview?  The answer to that is no time at all.  Google, Facebook, Twitter, et al have been bundling whatever personal information we share into commodities bought sold by data brokers. Bought and sold by which entities?  Searchable according to what organizing principles?  I know from experience that, even pre-Internet, it took various companies about ten minutes to know my wife was pregnant with our first child and to start sending us coupons and other offers for baby products.  How long before networked systems and social media reveal a woman’s pregnancy termination or some other physiological, social, or sexual information that is none of an employer’s damn business?

Incorporation provides a number of opportunities and establishes a number of responsibilities, all of which are predicated on the fact that the business becomes an entity separate from its principals.  This ruling on Hobby Lobby invests non-human entities with the right of religious freedom while disenfranchising actual human beings from a newly enacted right to healthcare. That this event coincides with the loss of privacy and the commoditization of personal data ought to scare the hell out of everyone.