This is a piece I wrote as a guest post for The Copyright Alliance. It got the folks over at TechDirt into a lather, but I suspect that’s because it wasn’t read or read very carefully by most of them.
Not only have Copyright and Free Speech coexisted peacefully for the entire history of the Republic, but I would go so far as to suggest that Copyright is both literally and figuratively the money where our proverbial mouth is when it comes to the power of the First Amendment. Think about it: we are not only free to criticize our government, but if we’re really good at it (like Lewis Black), we’re entitled to make a pile of cash doing it. How cool does that make America? I say pretty cool, but there are those who seem to think the enterprise piece of the equation somehow diminishes the freedom part. Au contraire.
If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet. I believe it is no accident that we grant special rights of enterprise to those who exercise free speech in the form of books, music, and the performing and visual arts. After all, the First Amendment guarantees the right of anyone on U.S. soil to speak, but it in no way guarantees that everyone has something to say.
I know this may be hard to believe in the age of Tweetdecks, blogs, and threads; but all speakers are not created equal. Those who speak well enough to do it for a living have benefitted society in precisely the way intended by Article I Section VIII of the Constitution; and while you may quarrel with a particular form of expression, you can’t quarrel with the trillions of dollars in economic activity derived collectively from all works. Still, the mental contortionists of the copyleft claim that copyright, in the magic wonderland we call The Digital Age, now threatens Free Speech. And their position reminds me of another First Amendment stumper: that same-sex marriage threatens the Freedom of Religion.
As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws. In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden. Strangely, though, we often encounter folks trying to argue this principle in reverse — i.e. that my right to restrict trespassing infringes on your right to drive an ATV wherever you please. Yeah, this sounds dumb because it is; but the logical construct is applied by religious zealots regarding same-sex marriage and by copy zealots (they actually have a religion now) regarding copyright.
The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom. Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry. Same-sex marriage can only be a threat to religious freedom if we agree that the zealot’s belief that homosexuality is a sin should implicitly influence our legal definition of marriage. There is no way to cut through this logical Gordian Knot without concluding that all marriage would have to be religious (and ultimately Christian) in order to be legal in the U.S. And that would violate the definition I believe most of us apply to religious freedom.
Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion. Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property. But we haven’t agreed to this for the same reason we don’t agree that you may drive an ATV over my lawn in the pursuit of happiness. Freedoms have boundaries defined by the harm done to others; and free speech has managed to survive just fine despite the fact that it does not grant permission for plagiarism, perjury, libel, vandalism, disturbing the peace, hate crimes, or, indeed, theft of intellectual property.