Category: Free Speech

Copyright and the Speech Right: Are They in Conflict?

It remains a popular talking point among copyright skeptics to say that copyright limits free speech.  When this refrain was played a little over a week ago on Twitter by ReCreate’s Joshua Lamel, I responded that those who keep saying it are “hair-splitting to the point of pedantry.”  Lamel replied with the assertion that everyone agrees with this trope—all copyright scholars across the spectrum of views, the ACLU, and the American Framers.  Responding to that allegation in order, there are definitely copyright scholars (I know some personally) who do not subscribe to the copyright-limits-speech premise; it is not worth anyone’s time to excavate what the ACLU allegedly thinks about this topic; and the Framers said nothing of the kind.

In fact, the Constitution’s authors leave behind a record so thin on the subject of intellectual property that one can hardly support any generalization beyond the clear, if broad, intent of the “IP clause” in Article I.  More specifically, it is absurd to engage in a 21st century debate about the relationship between copyright and the speech right by alluding to what the Framers allegedly thought during the Constitutional Convention—five years before the Bill of Rights was even ratified.  

What the Framers mostly thought during those tense, sweaty days in Philadelphia was “Holy shit, I hope this works,” meaning the Republic itself.  That many of those men also dreamed that the new nation might one day produce great authors and inventors is evident in the record, but the contours of copyright law, especially as we know them today, would only come to exist in a future the Founding Fathers could not possibly imagine.  This does not overlook the fact that the speech and press rights in particular were ratified with a clear understanding that our fragile democracy requires a literate, informed, and engaged electorate; and this fundamental principle certainly implicates a need to access works of authorship. 

But if we are going to talk about copyright and free speech, it is only sensible to have that discussion in context to the current law (the 1976 Copyright Act) and to contemporary speech rights doctrine, which is far more liberal than the Framers could have foreseen—or many would have thought prudent.  It took lot of time and struggle, well into the 20thcentury, for the rights enumerated in the First Amendment to apply to all Americans; and it is worth noting that, for instance, long before a woman could avail herself of those rights as a full citizen, she could own copyrights in works of authorship.  So, perhaps copyright and speech are more historically intertwined than the critics like to portray.  

The copyright-limits-speech theme persists because we generally agree that any limit on speech is bad, and thanks largely to the existence of internet platforms, many people subscribe to a very expansive definition of speech.  It is only in the last two years that many have begun to see the folly in defining all online conduct as a form of speech, let alone protected speech.  And while that is a very big topic on its own, it is necessary to consider, whenever someone identifies a limit on speech, exactly how expansively he or she defines speech.  With that in mind, what does copyright actually protect?

The copyright act vests three general types of rights in the author:  the right to make copies of a work; the right to make derivative works based on an original work; and four different means by which works can be made available to the public. 

§106(1) – The Reproduction Right

The right to copy, known generally as the “reproduction” right, is the oldest protection under copyright; and in order to argue that restricting verbatim copying of a whole work is a limit on free speech, one must embrace a concept of speech so broad that it encompasses plagiarism or outright piracy.  In what example could such conduct be considered speech, let alone protected or meaningful speech?  If I were to type out the entirety of Toni Morrison’s The Bluest Eye and put my name on it, you can bet that “copyright infringer” would be the least of the pejoratives I would justifiably be called.  

Long before the existence of modern copyright law, we have a cultural tradition of recognizing an ethical code which demands that a speaker either present some measure of originality in his speech; or that he make a limited use, with attribution, of the works of a prior speaker.  If breaking this rule can get a student kicked out of college without abridging speech rights, how does granting authors the right of “reproduction” chill those rights?  In this context, copying is cheating, and cheating is not speech.

Alternatively, if I were to print 10,000 bootleg copies of Morrison’s novel and sell them out of my car, this could only be an exercise in speech if the State were to ban the book and systematically destroy other copies?  There are those who say that unlicensed copying (piracy) expands access to works, and that this is a form of expanding the purpose of speech.  But in addition to the fact that the speech right does not extend to a right of free access to all content, this circular reasoning also presumes the existence of works without vesting copyright in authors in the first place.  

§106(2) – The Derivative Works Right

It does seem, at least anecdotally, that many examples cited by those who believe that copyright limits speech tend to implicate the derivative works right.  I suppose one is free to opine that the author should not be granted the exclusive right to license spin-offs, sequels, translations, merchandise, etc., but I doubt this view would be popular as a matter of fairness, and guarantee it would vary dramatically according to circumstance.  Suppose, for instance, that White Supremacist Dude tried to publish a sequel to the aforementioned The Bluest Eye … 

Many reasonable people would be quite justifiably outraged if a court held that WSD’s speech right to publish a story about the great-granddaughter of Cholly Breedlove supersedes the right of the Morrison estate to prohibit this derivative work.  Yes, I am being provocative on purpose by including the element of race, but only to emphasize the original point that to call this prohibition a limit on White Dude’s speech right would almost certainly be an exercise in pedantry.  

Yes, as a quibbling matter, some amount of WSD’s speech would be proscribed; but what would in fact be limited by copyright would be his ability to both capitalize upon, and revise, the speech of Toni Morrison.  To come to the opposite conclusion would potentially amount to coerced speech if Morrison’s estate were forced to tolerate a use of her inventions in a form anathema to their meaning or purpose.  And copyright still cannot stop WSD from his right to evangelize racism by way of criticizing Morrison’s literature, if he were so inclined.

But what about thoughtful, respectful, or meaningful derivatives that may not be licensed?  In fact, there was a real litigation involving a kind of reverse example of the one I just invented.  When the case settled in 2002, Alice Randall’s novel Wind Done Gone was advancing a pretty solid claim as a parodic fair use—rather than an infringing derivative work—of Gone With the Wind.  In Randall’s favor was the fact that she commented upon Mitchell’s too-idyllic portrayal of slavery in her famous, mythmaking story.  So, limits like fair use, which are baked into the copyright law, do promote the progress of creative expression and free speech.

In response to the generalization that copyright limits speech, I would counter that copyright law often helps to separate the meaningful speaker from the lazy, crass opportunist or plagiarist.  The important point here is that such distinctions are always nuanced and can only be considered on a case-by-case basis.  For instance, one consideration in Randall’s favor is the historic setting of Gone With the Wind and the cultural influence of that particuar book as a kind of revisionist history, despite its being a work of fiction.  All of those factors would not be present in my hypothetical derivative work of The Bluest Eye.  

§106(3)(4)(5)(6) Making Works Available

The individual statutes here relate to the mechanisms by which different types of work can be made available.  I will not enumerate all four, but for instance, a stage play can be distributed in book form (§106(3)), and it can be performed on stage or as filmed public performance (§106(4)).  This bundle of rights can be thought of as the wholesale end of copyright, protecting the author’s right to enter into agreements to make her work available through various channels.

How protecting the exclusivity of those distribution channels is a limit on speech rights is a mystery.  Few reasonable people would support the idea, for example, that if a teleplay author licenses her series exclusively to Netflix that this infringes the speech rights of other parties who might want to perform the show via their platforms or networks.  Show me an accused infringer of making available rights, and I’ll show you a vested interest looking to exploit a work without paying for it—not someone exercising the speech right.

‘twas ever thus.  In the days leading up to the 1909 Copyright Act, the newspaper publishers tried (and failed) to argue before Congress that they should not have to pay to publish photographs, despite the fact that photographic works were protected by copyright.  Users of resources, especially commercial users, would rather not pay for materials if they can avoid it.  Today, it will be some tech company vying to exploit music, video, images, books, etc. without paying license fees, often cobbling together some convoluted legal defense to bob and weave through the copyright statutes; but those particulars aside, these users are no more speakers than a guy selling a trunk load of stolen whiskey is a distiller.  

If you saw the movie Yesterday, you’ll know that the tension for the protagonist hinges on the fact that, although he can get away with performing Beatles songs as though they are his own expressions, he feels like a thief.  In other words, even if we remove the copyright component, the ethical underpinnings of its boundaries remain.  And so does the speech right.

Milton Never Said a Damn Thing About the Internet

I’ve been traveling and am, therefore, late to mention that the hotly-contested EU Copyright Directive passed last week. Not surprisingly, the usual critics have spared little hyperbole referring to the new legislation as the “end of the open internet” and a “disastrous decision.” Meanwhile, many of the copyright proponents I know view the directive as having had the teeth negotiated out of it while Chris Castle has opined that, for instance, YouTube will actually comply with the Directive shortly before Hell freezes over … 

One goal of the Directive was to have very large platforms, like YouTube, pay license fees to the copyright owners whose works contribute substantially to their revenue models. Thus, Article 13 (now 17) requires these large sites to develop technical measures to prevent and mitigate infringing uses, and this has been interpreted by many to mean that these platforms will implement filtering algorithms to identify protected works at the moment when a user initially uploads a file.*

For copyright owners, the proposal represents an important reversal of the current paradigm in which their works are chronically used without license, and they try to respond to every infringing use, one-by-one (a.k.a. the whack-a-mole problem), which is virtually impossible for a small, independent rightsholder. For the critics of the Directive, the assumed filtering at the point of user upload has been characterized as censorship because this would inevitably stifle all manner of legal uses before they are even published. One way or another, it should to be obvious why the status quo has been beneficial to YouTube and why the company used its platform to promote the censorship narrative against the legislation. 

In that regard I tend to agree with friends and colleagues who view passage of the Copyright Directive as at least a symbolic win for the democratic process itself. Certainly it is a refreshing change that the European Parliament was not bullied by Silicon Valley and was able to cut through a lot of the standard fear-mongering noise that was so effective against the SOPA/PIPA bills in the United States in 2012. Perhaps screaming #SaveYourInternet! is an exaggeration that has finally reached its limit.

But because I think the manner in which policy is debated is actually rather important, that brings us to the title of this post and the fact that it is apparently necessary to clarify that the 17th-century, English poet John Milton never said or wrote a bloody word about the internet. That may seem obvious to most, but not so much to history professor and novelist Ada Palmer, writing for the venerable Boing Boing.  In her post of March 24, she alleged that Article 13 of the EU Directive is comparable to European censorship of books in its ancient past.  She begins …

The EU Copyright Directive rekindles the oldest fight in the history of free speech debates, first waged by John Milton in 1644.  Then, like now, policy-makers were considering a radical change in censorship law, a switch from censoring material after it was published to requiring a censor’s permission to publish in the first place.

Nobody with the words professor and history next to her name should be allowed to write anything that misleading without rebuttal. And not wanting to bury the lede here, the most rudimentary response to articles like Palmer’s is that we cannot responsibly compare any proposal to require licensing of works by a for-profit corporation to a state’s authority to allow or disallow publication of works in the first place. There is simply no ideological or practical relationship between those two paradigms, let alone any relationship that spans from Milton’s role in the early phases of the English Civil War of the 1640s to the need to address various effects of internet companies in the present.

I’ll spare readers an attempt at historic summary, but England’s narrative vis-a-vis publishing, censorship, religion, and politics was—especially from the time Henry VIII broke with Rome—a schematic drawn by a psychopath. To give you some idea of what I mean, the fundamental language of the printing laws, beginning no later than 1557, hardly changed from iteration to iteration while the religious, social, and political postures of the state vacillated wildly for nearly 200 years.  

Hence, the 1643 proposal to end “great late abuses and frequent disorders in printing many false, forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets, and books to the great defamation of religion and government” was not new language, but it had very different implications in Cromwell’s Parliament than it did under each of the precedent reigns of Mary I, Elizabeth I, James I, and Charles I before he was beheaded in 1649. 

So, Palmer is simply incorrect to call Parliament’s Printing Act proposal of 1643 a “radical change in censorship law.” To the contrary, it was a continuation of the same censorship laws being adopted under new management; and this was central to Milton’s complaint when he published his treatise Aeropagitica in 1644.  As both a literal and literary soldier for the cause of the Commonwealth, Milton saw the renewal of state publishing licenses as a needless reiteration of the royal prerogative to censor books (i.e. anathema to the anti-royalist cause itself). Notably, it was John Locke, father of the labor theory grounding one pillar of intellectual property, who inveighed against yet another renewal of almost the same law in 1694.

While it is true that Milton’s Aeropagitica is widely recognized as one of the most beautifully articulated defenses of free speech in our political heritage, it must remain in a context that is a very great distance from our modern conception of speech. For instance, Milton advocated allowing heterodox books et al to be published so that virtuous men would recognize the difference between good and evil; and while this is solid Puritan reasoning, it is not the underpinning of speech rights today—to say nothing of how far removed, say, “Paradise Lost” is from the average YouTube video.

Palmer makes a mistake common among academic critics when she draws straight lines between ancient Europe (usually England) and modern copyright. In fact, these lines are not only serpentine but highly fragmented. It would take a very long post to unpack all the moving parts, but just as Milton’s Aeropagitica should be seen as one ingredient in a philosophical soup that is many years away from tasting like the Bill of Rights, that’s more or less how we must view the practices of the English book publishers (the Stationers Company) and their relationship to the volatile English state between roughly 1557 and 1774.  

Simply put, only the state had the authority to grant (or not) permission to publish a work, while the Stationers’ monopoly on publishing was akin to the monopoly every other London guild—there were more than a hundred—enjoyed over its trade.  While there was intermittent correspondence between the publishing monopoly and state censorship, that narrative is a crazy quilt of inconsistency and has almost nothing to do with modern copyright law, which vests ownership in the expressions of individuals.

Yet, by invoking Milton, and even sprinkling the word Inquisition throughout her article, Palmer would have readers believe there is a through-line in the narrative—a kinship between copyright enforcement among private entities in the 21st century and government censorship of publishing in the 17th. There is not. And frankly, I am not sure which is a greater threat to rational public discourse—the hashtag that distills a complex issue into a lame bullet point, or the erudite article that sounds reasonable but is fatally inaccurate.  For sure, the democratization of the internet has given both more room to roam than either deserves, which does beg the question as to what this fight is really about.

* This is not mandated by the new statute and may in fact be how the platforms respond, but that’s a topic for a different post.

Speech Maximalism on SESTA is Madness

This refrain keeps playing over in my head lately:  The EFF and its sister organizations are to cyberlaw as the NRA is to rational gun policy in America.  That seems like a pretty harsh thing to say about a bunch of progressives (and one must even include the ACLU in this discussion), but in the context of policy debate, the maximalism with which these organizations continue to defend the liability shield (Sec. 230) of the Communications Decency Act (1996) on behalf of a single multi-billion-dollar industry is logically comparable to the maximalism with which the NRA has marketed so much ahistorical nonsense about the Second Amendment on behalf of gun manufacturers.

While it’s hard to look away from the circus playing round-the-clock at the White House, it is certainly necessary to look beyond it.  The story of where American democracy is heading is not Donald Trump, though it may be (metaphorically speaking) Elon Musk.  The fact that Musk announced he could power Puerto Rico in response to official U.S. dithering is both intriguing and generous, but it is also a frightening commentary on the condition of the American state.  Even as an idea, Musk’s offer is a subtle harbinger of the tipping point I fear we may be approaching—that the state becomes so dysfunctional, the people turn to the oligarchy of technologists and say, “save us” from ourselves. At that point, American democracy will come to an end. Cue 21st-century American feudalism.

Before we head quite that far into a sci-fi thriller, though, we are truly at an inflection point when the fate of a couple of bills in Congress will say a lot about how much power and influence Google and the other major internet players have in Washington.  H.R. 1865 and S. 1693 (SESTA) would amend Section 230 of the CDA to explicitly prohibit online support of trafficking minors in the sex trade and thus open pathways to both civil and criminal prosecution.  These bills are largely a response to allegations stemming from investigations into Backpage, which the National Center for Missing and Exploited Children estimates is how 73% of all children trafficked in prostitution are bought and sold.

I am told by various contacts in D.C. that Google’s lobbyists—parent company Alphabet now ranks among the top five spenders in the country—have been out in force to kill these anti-trafficking bills in committee. Meanwhile, the EFF and other Google-funded organizations have the unenviable task of telling the American people—once again—that free speech on the web will suffer if we pass legislation designed to help protect children from sex-trafficking.  As explained in a previous post, SESTA proposes a change in the Section 230 statute that is so narrow it could never affect the vast majority of internet users.

Your site would have to be a lot like Backpage, or would have to be as big as Google or Facebook just to be in the orbit of potential liability under SESTA.  Even a pornography site that might inadvertently host video depicting sex acts with trafficked minors (and that’s a big hypothetical) would not necessarily be liable under SESTA because, depending on what actions the site owners were to take, they could still qualify for the safe harbor provisions of Section 230.  Any implication that the vast majority of us who do not run globally substantial sites, or who do not use the web to conduct transactions in the sex trade, will somehow feel a tremor in the force of free speech is rank hysteria.

But Google, with all its wealth and influence, would rather not have so much as a pinhole of liability pierced into the CDA shield—even if it means providing a modicum of legal remedy for victims of sex-trafficking by prosecuting individuals who have nothing whatsoever to do with Google. I can only imagine there must be a few members of the EFF who are either experiencing moral crises over this issue, or downing 10 a.m. shots just to quiet the cognitive dissonance because they’ve got to know their free speech arguments against SESTA are complete hogwash.

Overcoming Free Speech Maximalism

In the same way that the NRA markets a message that guns create freedom, the internet industry has sold a very similar maximalist view that the First Amendment is perpetually strengthened by the immeasurable volume of interactions on the internet.  Just as the American who owns ten guns is not ten times freer than the American who owns one gun, the American who tweets a hundred times a day is not freer than the American who doesn’t have a Twitter account at all.  Nevertheless, when one reads the declarations insisting that every peep uttered in cyberspace is sacred, it is hard to miss the rhetorical similarities between the NRA and the internet activist organizations.

Like anyone with a maximalist view—or a financial stake in espousing one—both the NRA and the EFF reveal a callous disregard for the harm being done by the policies they endorse.  The EFF hasn’t explicitly said “child sex-trafficking is the price we pay for freedom,” but that’s effectively the argument they’re making with their overplayed appeals to the First Amendment in context to SESTA.  Adding further to this irony is a complete disregard for the fact that the internet as we know it is actually making quite a hash of the democratic principles which the protection of speech is meant to serve.

In almost the same manner in which Citizens United undermines the intent of speech by giving a louder voice to financially empowered corporations, the economics of the web do the same thing more broadly and more insidiously.  If it is fundamental to American democracy that the population has access to relevant and accurate information, it is no surprise that the economics of attracting and monetizing web traffic fails to serve this purpose. (Or have I missed something and American democracy is healthier than ever?)  Journalism (i.e. information) is supposed to be the practice of telling people what they need to know while the design of the web we have is fundamentally built to tell people what they want to hear.

Adaptive algorithms that anticipate our interests, biases, and desires are relatively innocuous, perhaps even beneficial, if we’re shopping for toasters; but these designs can be toxic to democracy when we’re “shopping” for news.  In a solid, concise OpEd for Forbes about the folly of current support for Obama-era net-neutrality policies, Fred Campbell calls the internet as we know it “a mess.” “Policies that net neutrality advocates are clamoring to preserve have facilitated the internet’s roles in undermining fair elections, providing a safe haven for sex traffickers, destroying privacy, nurturing the world’s largest information monopolies (e.g., Google, Amazon), subverting free speech, and devastating publishing industries,” Campbell writes, suggesting that we should let the internet be overhauled because it’s hardly living up to the vision of its founders in the 1960s.

Campbell cites a paper by Professor Shoshana Zuboff of the Berkman Center for Internet & Society; Harvard Business School (an organization typically aligned with internet industry views), who calls the current economics of the web surveillance capitalism.  “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” Zuboff writes.  That description certainly rings true with experience and hardly seems to jibe with the foundational assumption that the internet is “the greatest tool for democracy ever created.”

In 1783, in the uncertain period between the end of the American revolution and the establishment of the United States, Alexander Hamilton wrote to John Jay, “It is hoped when prejudice and folly have run themselves out of breath, we may embrace reason and correct our errors.”  He was referring to the many competing forces driving people away from the establishment of a unified nation.  Today, Hamilton could easily be talking about Facebook and Twitter because it would be hard to make the case that the internet is not, on balance, having a centrifugal effect on the electorate.  As such, free speech maximalism is  not only specifically immoral as a response to a bill like SESTA, but it is also generally untenable as a premise for broader debates about cyberlaw.

Image by stawy13