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
