Tag: Featured

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.

Trump Jr. Blasting Silicon Valley Is Unhelpful

In an op-ed for The Hill published on September 30, Donald Trump, Jr. rails against the power of the major internet platforms, saying that “free speech is under attack” by Big Tech.  His complaint, of course, is that the big internet platforms are censoring what he calls conservative voices, blaming “the technology giants that deplatform people at the behest of liberals and then justify the action as ‘combating hate.’” 

Don Jr.’s call to “break up” Big Tech is, ironically enough, a call for the industry to return to its pre-2016 policy of zero platform responsibility, to accepting revenue from any source while making little effort to mitigate hateful, violent, or illegal content—even if it happens to be paid for in Rubles.  Because of course without the babbling chaos that social media created in the first place, there would be no reality in which a patently incompetent and indecent man like Donald Trump becomes President of the United States.  Most real conservatives know this to be true and, I suspect, will be saying so in the relatively near future.

Seeking to align Trumpism with original patriotism, The Donald 2.0 extolls the virtues of a Reddit mob blasting Beto O’Rourke as if this kind of engagement were exemplary of the American Framers’ fondest ambitions for free speech and a free press. He writes …

“The free press that the founders envisioned looked a lot more like the Reddit users who roasted [Beto] O’Rourke than New York Times writers who misrepresent basic tenets of free speech and demand censorship to protect their friends from “online harassment.”  

There is nothing surprising about a Trump making a hash of history.  While Junior is perhaps correct to remind Americans that living in a society with free speech “…can be edgy, brutal, irreverent, and sometimes downright offensive,” he misrepresents the sensibilities of the Framers in a significant and telling way.  Even a digest version of the reading material makes one thing very clear about America’s key architects:  to a man, they were intellectual elitists who harbored few illusions about the hazards of democracy and the consequences of succumbing to the tyranny of the mob. Not even Jefferson, in his most Jacobean zeal, would likely view the average social-media skirmish with anything but contempt for the general abandonment of evidence-based reason in these discourses that so often devolve to threats and harassment. As scholar Mary Anne Franks writes in the abstract of her paper “Fearless Speech” …

“The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.”

Perhaps most relevant to Don Jr.’s twisted premise is that the Framers who were especially apprehensive about the too-passionate mob, men like Hamilton, are the progenitors of the American conservative tradition.  Those stuffy, patrician, and, yes, arrogant authors of the United States, who tended to display a bit too much anglophilia for the tastes of many of their contemporaries, also served as intellectual ballast in a nation that was born volatile and restless.  The men who wrote the Constitution were students of the Enlightenment, not an angry, pitchfork-wielding rabble.  That was the French Revolution.

The principle that the rule of law is a foundation of liberty spawned a conservatism grounded in reason, truth, and a moral context that was at least definable, if not universal enough to embrace America’s inevitable diversity.  In short, there is no historic or doctrinal link between the Federalists and the straightjacket ravings of someone like Alex Jones.  The Founders never hoped that the speech right would foster a circus, where evidence rooted in science would be trampled by popular consensus—let alone the kind of algorithmic sabotage at work in our politics of the moment.

As surely as MTV made Madonna, Twitter made President Trump—albeit not intentionally.  Where else, other than the miasma of the Twitterverse could a man whose political bona fides began with a racist conspiracy theory attain the highest office in the land?  Big Tech’s folly is not that some of its operators finally had the sense to remove an Alex Jones or a Daily Stormer from their servers, but that they initially promoted a doctrine of internet non-governance, which fostered the only medium in which neo-Nazis and sociopaths were somehow invited into tent of conservatism.  That anyone would tolerate, let alone defend, the President’s recent tweets about “civil war” (a literal incitement to violence and treason), is the apotheosis of Big Tech’s misguided ideologies and a grotesque aberration of the Federalist cause.  

Responding as a member of an unofficial society of Big Tech critics, I find Junior’s rationale for “breaking up” Google, Facebook, et al profoundly dysfunctional and unhelpful in a policy discussion that is already difficult to have.  While many of us are advocating platform responsibility, he wants to goad those platforms to resume hosting all material without restraint, to reinvigorate Barlow’s too-idealistic notion of a world where laws do not apply.  But of course that’s what he would do.  How else could the United States suborn a President who flaunts his contempt for the rule of law and unironically asserts “alternative facts”?  That is the internet ethos in spades, and Trump’s presidency is the Golem that Silicon Valley brought to life. 

HJC is Right to Want Internet Safe Harbors Out of USMCA

Remember the Trans Pacific Partnership?  The twelve-nation trade agreement that became an eleven-nation trade agreement when the U.S. pulled out?   As a general opinion, I will propose that when both a Bernie Sanders and a Donald Trump want to thrash a Fair Trade Agreement (FTA), it’s a pretty good indication that diametrically opposing ideologies have come to the same naïve conclusion.  Whether one’s anti-globalism is steeped in anti-corporatism or ultra-nationalism matters very little when the self-defeating result is not the abandonment of the world’s largest trade deal, but a decision that the United States will not have a seat at the table.  

But the reason I’m trotting out that diplomatic fiasco in this post is to remind readers why “digital rights” groups like the EFF, PublicKnowledge, ReCreate Coalition, et al campaigned so energetically against the TPP:  because they said it would “entrench” the status quo of copyright law, particularly the duration of copyright terms.  “One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations,” began a typical EFF blog post in 2017,  “is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years.” While this post presents the urgency of six new countries adding 20 years to their copyright terms, I do not believe the duration of copyright in Brunei was the focus of the organization’s agenda.

Regardless of how one feels about term length, it was profoundly disingenuous to imply in that post, and others, that the USTR was working at the behest of major rightsholders to entrench the life-plus-70-year standard through an FTA. Further, in my view, this post was written to suggest that, if the U.S. did not ratify TPP, we just might to roll back our terms to life-plus-50 years. But that regime was already a global standard when the U.S. joined the Berne Treaty a century after it was first created; and the increase from 50 years to 70 in 1996 was the result of the U.S. matching its terms to those adopted by the new European Union.  So, there was never any logic to the implication that by withdrawing from the Pacific trade deal, this would have loosened the bolts on U.S. copyright policies, which are based largely on the history of Euro/American trade in copyrightable works.

With that preamble in mind, be prepared for much wailing and gnashing of teeth from the “digital rights” groups if the U.S. Trade Representative concedes to a request by the House Judiciary Committee to remove language from the USMCA (new NAFTA) mirroring the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA).  

Also referred to as Section 512, these are the provisions under which internet service providers (ISPs) are held immune from liability for hosting copyright infringing material that is uploaded by users; and safe harbor language has been echoed in FTAs since passage of the DMCA in 1998.  Why the change in doctrine?  In its September 17 letter to the USTR, the Committee stated …

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015.  Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate.  Without taking a position on that debate in this letter, we find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing.”  

Quite simply, the DMCA has been under review for several years because it is not exactly working as intended.  In fact, neither of the two internet liability shields—neither Section 512 nor Section 230—has resulted in platform operators taking adequate voluntary action to mitigate harm on their platforms.  To the contrary, absolute immunity for web platforms fostered a culture of smug, self-important rationales for irresponsibility.  

Until major Silicon Valley executives had to start answering questions about data breaches and trust violations, they were the self-proclaimed  “fast movers and thing breakers,” insisting that if we all want progress (see innovation), we gotta let them break a few eggs, right?  Except those eggs were privacy; civil liberties; personal safety; decency; the rights of authors and inventors to protect the fruits of their labor; other labor rights while we’re at it; and the foundations of democracy itself.  Small price to pay for Facebook and YouTube, I guess.

In contrast to the ginned-up fears of “entrenching” century-old copyright regimes in trade agreements, the “digital rights” groups will no-doubt recommend entrenching law through FTAs with a much shorter and dodgier pedigree.  It took less than 20 years after passage of the DMCA to recognize that ISPs will use their liability shields to avoid taking adequate voluntary measures to mitigate harmful or illegal conduct on their platforms.

The logical conclusion many constituencies are now coming to with regard to internet service providers—and this is hardly a revelation—is that tech corporations, like any other, will avoid incurring costs, either direct or opportunity, unless the potential liability will be even more expensive.  The House Judiciary Committee is right to put the brakes on safe harbor provisions in FTAs in order avoid calcifying demonstrably flawed policy.