Category: Information

Maybe Now, Copyright Critics Know What Censorship Looks Like

censorship

Twelve years ago, when I first engaged in copyright advocacy, I was surprised to discover how many critics argued that copyright rights conflict with the speech right. Initially, I thought this had to be a fringe, internet thing—a vibe cooked up in the adolescent blogosphere that no legal scholar or expert took seriously. It would seem obviously contradictory to believe that any creative professional opposes the speech right. But no. It became clear that the main theme underlying the anti-copyright agenda—from academia to “digital rights” organizations to Techdirt et al.—was the premise that copyright rights are a means of censorship that should be minimally tolerated, if they are tolerated at all.

To support this view, and especially with regard to enforcing copyright rights online, it was apparently necessary to vilify creators as elitist, greedy, lazy, and even untalented individuals who expected society to pay for their “hobby.” Artists are used to this kind of criticism, historically from ultra-conservative voices, but the allegedly “democratizing” promise of the internet convinced many traditional liberals, and liberal organizations, to parrot this same anti-creator rhetoric.

Those familiar pejoratives are being recycled today by AI developers claiming that their products are just too damn important to let elitist, greedy, lazy creators stand in the way of machine learning. But let’s pause the AI skirmish a moment and back up. Because we should not lose sight of the fact that the original premise—that copyright rights conflict with speech was 1) bullshit; and 2) dangerous bullshit.

I lost count of how many posts, blogs, articles, and academic papers I read and/or rebutted trying to claim that copyright enforcement was making information, criticism, or important new expression disappear. None of those claims have been borne out by evidence, but more insidious was the fact that those who advocated the copyright-is-censorship theme were obscuring what real censorship looks like and, worse, feeding the very mechanisms by which true censors might come to power.

And come to power they have. As the Trump administration and likeminded state officials attack a wide spectrum of both creative and informative speech, will the anti-copyright crowd acknowledge how ridiculous their claims were that authors and publishers were ever the censors? No they will not. Will they acknowledge that the rights of authors are among the constitutional rights being trampled in Trump’s stampede toward national illiteracy? No they will not. Because it ain’t the authors and publishers trying to “memory hole” history. And it was ridiculous to suggest that they ever were.

But worse than the absurd premise that creators’ rights were a meaningful tool of censorship is that the anti-copyright narrative was promoted with substantial funding by the same companies whose technologies were destined to be exploited by the civil rights-infringing kakistocracy that now holds power. This was not just foreseeable; it was almost inevitable. As cited in my last post about the book Careless People, Sarah Wynn-Williams’s description of various authoritarians, including Trump, using the Facebook algorithm to micro-target disinformation is as unsurprising as it is shocking. What the hell did anyone imagine was really financing these “free information” machines? Goofy memes and mash-up videos?

Every time Mark Zuckerberg rebutted the idea of content moderation by saying, “We don’t want to be the arbiters of speech,” he was masking the truth that Facebook would take anybody’s money and guide them to effectively aim any misinformation at any parties for any purpose. It didn’t matter if the narrative was Brexit, the CCP spying on its own citizens, rallying Buddhists into murderous rage in Myanmar, or amplifying every delusional, unconstitutional syllable in Trump’s slow insurrection against the United States. The mantra of yellow journalism was If it bleeds, it leads, but the mantra of social media is If it pays, it stays.

Not that the anti-copyright crowd would ever admit they had anything to do with the damage Trump is doing to the Republic, but at least they might now concede that their claims about copyright making “information disappear” were as unworthy of attention as they were unfounded in fact. As Justice Sandra Day O’Connor famously wrote in Harper and Row v. Nation Enterprises, “The Framers intended copyright itself to be the engine of free expression.” And so it has been. Meanwhile, the tech industry that opposes those rights has proven to be an engine of so many calamities the Framers dearly hoped Americans would avoid.

Photo by Treephwood

The Information Age Broke the Republic

information age
I recognize the psychological need to believe the American Republic will survive the coming four years, and I freely admit to being the biggest cynic in almost any room. But if the analogy is a shipwreck, we are already treading water with no ship or shore on the horizon. “Democracy lives in the people,” say the more hopeful pundits. Perhaps. But while it may be true that the spirit of personal liberty lives in the people, that is not the same thing as recognizing that the foundations of American democracy were rejected by the people.
 
Tomorrow, a man who showed violent contempt for the Constitution will repeat the oath to protect and defend the Constitution, and the flags decorating the very Capitol he attacked will lead many to think this is still the United States. It is not. Now begins the story of an ersatz America (an Idiots’ Interregnum) where the nation floats unmoored from the rationales for its own existence. The question, therefore, is not survival but revival. Can the Republic be restored after the electorate decides it no longer matters?
 
The first time Trump was elected, I argued that this represented a vote of no confidence in the Republic, and not only would I double down on that assessment today, I believe that same faithlessness has long been evident on the far left and the far right. MAGA claims to defend the Constitution and lies about its meaning while many young Progressives shrug at the Constitution as an anachronism not worth defending. Driving both sentiments is a dangerous level of constitutional illiteracy amplified by the so-called information age and weaponized by masters of the technology. When Madison et al. studied the fates of republics and democracies to learn what makes them fail, they could not have imagined a technology that would one day confound reality itself at the speed of light.
 
It is difficult in any society to distinguish policy from political theater, but the phenomenon is acutely frustrating in a nation this important, where the population knows more mythology than history. Trump personifies that illiteracy—a consequence of both classic illiteracy (i.e., a failure to teach) and cultural illiteracy (i.e., a loss of faith in core principles). In combination, these traits make a mockery of our sacred words, and when Trump takes the oath he already violated, the promise he apes back to the Chief Justice will be purely performative. If the President’s Oath of Office is just for show, whose oath matters? The implications, rippling out to the clerk of the smallest town in the smallest county, are toxic to a nation that was literally invented with words and kept by generations of Americans vesting those words with meaning.
 
The United States has always been a work of paradoxical genius. More than any nation, its identity is an idea expressed in highly intellectual terms securing the right of every citizen to remain blissfully ignorant about the underlying principles of that idea. The First Amendment, the Progress Clause, and the writings of the key founders all express a foresight that upholding the Constitution would require a broad literacy not easily attained by a whole nation. Today, that original paradox is manifest in the fact that immigrants seeking citizenship get better civics educations than most natural born citizens.
 
For the native citizen, we instill constitutional illiteracy at an early age with flashcard concepts that rarely mature as our students do. For instance, the short answer to the 2nd Amendment flashcard has always been “the right to bear arms,” a textual redaction eliding an important national security debate at the founding period that, if taught, would inform a richer understanding of history and the Bill of Rights. This needlessly controversial example begs the question as to whether Americans could ever have achieved core constitutional literacy without condemning that education as either “liberal indoctrination” or “white colonialist values.”
 
Not every American—indeed almost no American—is inclined to spend hours with The Federalist or comb through Elliott’s Debates or deep-dive into the classical education that informed the framers. But basic civics literacy does not require so much academic rigor. A fourth grader can understand, for example, the difference between the state censoring speech and a private party rejecting speech. But in recent years, law school graduates serving in Congress or working at “digital rights” organizations have willfully alleged speech censorship in contexts that are aberrations of the constitutional right.
 
Of course, we Americans often overstate ourselves with words like “patriot” or “traitor” when what we really mean is political agreement or disagreement. Occasionally, an adult steps up, as Senator McCain famously did during the debate with Senator Obama to correct a woman who called Obama a traitor. But that kind of dignity is now either forgotten or scorned. We have thrown open the Overton Window, defenestrated patriots like McCain, Gore, Pence, Liz Cheney, et al. in favor of seditionists, felons, lunatics, and the patently unqualified. And I will die on the hill arguing that the catalyst of this clusterfuck is the information age—not merely driven by profit, but by a mad, narcissistic ideology sold to the public as “freedom.”
 
The words that define and shape the United States are now about as meaningful as the hashtags and memes that have diluted both denotation and connotation in that “sea of irrelevance” called social media. For more than a decade, often “liberal” tech-utopians insisted that a wall of separation protected real life from the “Wild West” of cyberspace, assuring us that the worst aspects of the latter would not have any tangible effect on the former. To say otherwise was to earn the name “Luddite,” and there will be no apology from Big Tech’s evangelicals at EFF et al. A few Silicon Valley refugees offered their mea culpas the first time they noticed the experiment escaping the lab circa 2017, but those voices, like real Republicans, have been marginalized. 
 
Now, the destruction wrought by the information age is holistic. With Senate confirmations of dangerously unqualified political hacks like Hegseth, Bondi et al., the disease of constitutional illiteracy is now its own mandate. Yes, the former GOP (whatever one calls it) is craven and cultish, but it could only have been led there because the idea of American democracy is indeed not alive in quite enough of the people. And because all death is brain death, the idea of America dies when too many people applaud empty slogans like “warrior culture,” rather than engage in adult conversation about what the military, or any department, actually does. This is where the digital revolution has led a great nation.
 
Real life now mirrors cyberspace, where fools become kings. And so, we are a silly, childish nation playing with dangerous toys. America is running with scissors, and the information age that brought us to this moment offers little more than a video clip of the toddler about to impale himself. If there had truly been an information revolution, then Trump would have been the civics lesson America needed instead of the civics test America failed. It was an easy test — i.e., don’t elect people who tried to overthrow the Constitution. But that’s what happened. And the fact that tens of millions of Americans don’t believe, or perhaps don’t care, that it happened is because the information age broke the Republic.

Truth Dies in Broad Daylight

Democracy dies in darkness according to the motto of the Washington Post, and this is, of course, just one of many phrases reciting the axiomatic theme that credible and responsibly reported information is the blood of a democratic society like the United States. If true, then why has the “information age” brought democracy itself to the brink of destruction?  There are many answers, including from those who would say that the question itself is alarmist—that, for instance, the “democracy in peril” narrative is a talking point of the political left with no foundation in evidence. But ain’t that the rub? Have we not crossed the event horizon of an epistemic crisis?

It bears repeating that a healthy democracy not only tolerates, but requires, a debate of competing ideas; but thanks largely to the major internet platforms, society has devolved to a shouting match of competing realities. No technological singularity required. We have already carved out a point in our little corner of spacetime that is dense enough to prevent truth from escaping. It may be self-evident that truth dies passively in silence, but truth can also be trampled to death by noise, and how could “democratizing information” ever have produced anything but a cacophony?

In a recent editorial for the Los Angeles Times, Anita Chabria asks Why is it OK for rich guys to steal my work? She writes…

Retail theft is causing a civic meltdown and inspiring a ballot measure to incarcerate repeat toothpaste thieves.

But billionaire tech bros dismantling democracy for profit, stealing thousands of times a minute by selling advertising against something they don’t own? That barely gets a shrug, even as more media professionals are laid off, more publications close, and reliable information becomes so scarce and hard to spot that truth itself has become political.

Some might argue that news organizations have lost so much credibility that it hardly matters, and I cannot deny that I have read my share of careless articles under the imprimatur of respected brands, including the WaPo. But notwithstanding cultural and social changes that ebb and flow through any industry, the bottom line is that good investigative journalism is expensive, highly skilled, and time consuming, and the internet industry has only served to make those obstacles larger, if not insurmountable.

First, social media fostered, and still perpetuates, an illusion that “citizen journalists” and raving pundits consistently uncover hidden truths which are obfuscated by the mainstream media. Second, social media demands feeding the beast 24/7, which forces the traditional news organization to prioritize speed over quality, thereby often fulfilling the prophecy that mainstream news is untrustworthy. And finally, the major social platforms resist paying for the news material they exploit for profit. In combination, how can these forces not cause a downward spiral in professional journalism, including the layoffs now being reported? And that’s before we truly see AI alter the landscape.

While it is impossible not to point to Trumpism as the paradigmatic—and potentially fatal—symptom of rampant conspiracy-mongering, the folly of democratizing information is shared across the political spectrum. The internet industry told the world that their platforms were the antidote to media conglomerates—the proverbial “gatekeepers,” who controlled, and even buried, the information to which people are entitled. And thus, Big Tech’s assault on copyright law often rode atop the half-baked slogan that “information wants to be free” in both senses—liberated and gratis. And everyone—nearly everyone—believed that bullshit.

Although copyright is commonly associated with creative and entertainment material, it was nonfiction works, including journalism, that were at the center of the constitutional framers’ attention when they drafted the “progress clause” in Article II. There’s a reason why that clause says, “to promote the progress of science,” and in one of my favorite papers about the adoption of copyright at the founding period, Professor Jane Ginsburg notes, “Petitions to Congress before enactment of the first copyright statute sought exclusive privileges for works overwhelmingly instructional in character.”

A century later, copyright protection would encompass a broad range of creative and performing arts, but at the outset, the framers understood that the Republic would fail in persistent darkness. Thus, the speech right, the press right, and copyright can be seen as working in concert toward the hope that future generations would have the “science” necessary to sustain the American experiment. Now, just over 230 years since the first Copyright Act and the Bill of Rights, I am hardly alone in wondering whether that “science” is lost, symbolized by the fourth estate shedding 500 jobs in January alone.

In 2021, Senator Klobuchar first introduced the Journalism Competition Protection Act (JCPA), which would provide a limited exemption to antitrust prohibitions against collective bargaining among news media organizations. Passage of the JCPA would enable news media companies to negotiate terms with giants like Meta, Google, et al. for licensing news content shared on those platforms, and Chabria cites a study from the University of Houston, which states that, with passage of the JCPA, the major platforms would owe news organizations between $11.9 billion and $13.9 billion per year. So, of course, the tech giants have used their lobbying power to block the bill.

Meanwhile, Big Tech continues to argue that they should not pay news organizations anything because their platforms “drive traffic” to the news channels. Artists will recognize this as the “exposure” rationale for piracy, and it takes some chutzpah to keep peddling this nonsense against a backdrop of layoffs and closings. Because it doesn’t take an economist to know that traffic alone does not pay for overhead and salaries—and that’s even if Google et al. actually increase traffic relative to pre-internet readership.

What we know for sure is that a democracy without a robust and free press is in danger of no longer remaining a democracy, and we know that news organizations have historically struggled to be financially sustainable. As the internet industry has done with music, motion pictures, literary works, etc., they sold the promise of access to news and information while siphoning the revenue that pays people to produce that material in the first place. And as we are witnessing in real-time, the vacuum is filled with charlatans, liars, cowards, and thieves. Thus, the proverbial “sunlight” promised by Big Tech is not a disinfectant, but a poorly made pesticide that animates the weeds and kills all the fruit.

Photo source by: Mediaphotos