Copyright Is Free Speech
Using people's copyrighted material without permission is stealing
Posted May 2, 2016
I am a lawyer and I love movies. You may be thinking, “Of course. That makes sense what else does an attorney do to unwind?” While I do love zoning out watching other people’s lives unfold via movies, these two parts of my life have become connected in a manner I never would have imagined just a few years ago.
Complex conversations about the value of movies (and other creative works) in the digital age are rendered even more complicated when arguments arise over copyright and free speech.
Did I just put those two words in the same sentence? I hesitate to write “copyright” and “free speech” too close together for fear that I might unwittingly contribute to the work of those who attempt to confuse the two.
First, let’s get this out of the way: Piracy is not free speech. I repeat PIRACY is not free speech. As a matter of fact, piracy, plainly speaking, is illegal. It is a crime. Therefore, attempts to eliminate the for-profit digital theft of creative works is not an attack on free speech; it is prudent crime prevention.
When I first heard about CreativeFuture, I was inspired by the organization’s efforts to fend off the widespread theft of creative work via the internet. But I was equally compelled by their mission to combat the notion that this effort was in some way anti-technology, or even more far-fetched, anti-free speech.
These issues – and others – convinced me to become a member of CreativeFuture’s Leadership Committee. Part of my own mission is to help clear up some of the misinformation that, ironically, tends to proliferate best on the internet, where speech is so free that fact and fantasy commingle with an elegance that can render reality indistinguishable from opinion.
This brings me to another blunt fact: Those who want you to believe that the fight against piracy impinges on the right to free speech are doing so on purpose.
Some organizations, such as the Google-supported Electronic Frontier Foundation, take every opportunity to defend piracy at all costs and call any attempts to protect copyright a threat to free speech – even when those attempts include voluntary agreements between trusted stakeholders.
It is no secret that Google treats copyright as a nuisance. Time and again, the tech monolith lobbies Washington and foreign governments to water down existing law or to block any new initiatives designed to help curb rampant digital theft of copyrighted works.
They also criticize (directly and through organizations they underwrite) the various voluntary industry initiatives that can help take the profit out of piracy.
Article I, Section 8, Clause 8 of the U.S. Constitution was drafted with the intention to “…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This applies as much to an app as it does to a song. If this sounds like an assault on free speech, you need to get your head out of your (patented) virtual reality helmet.
The U.S. Supreme Court has written: “It should not be forgotten that the Framers intended copyright itself to be an engine of free expression.” (Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 1985.) In the same decision, the Court stated: “…copyright supplies the economic incentive to create and disseminate ideas."
Somehow, groups like the EFF always ignore the essential idea/expression distinction inherent in copyright law. The whole purpose of the First Amendment is to protect the ability to convey ideas no matter how objectionable those ideas may be to government or society. The First Amendment isn’t about trying to guarantee people’s ability to copy the particular fixed, creative expression of others. What free speech interests are protected or maintained by the wholesale infringement of full copyrighted works (e.g., piracy)?
We live in exciting times. The digital age has promised us a virtual utopia where information is freely available to all. Yes, there are bad actors that stifle free speech online and governments that censor the internet to eliminate thought or action that undermines regimes. Activism is noble and needed, especially in times of great change, to act as a check against overreach and injustice. But activists become victims if they are armed with misinformation. And make no mistake about it – calling the protection of copyrighted works a threat to free speech is misinformation.
If you agree with me and appreciate this argument, feel free to steal it. Share it on your preferred social media channels and spread the word. As its author, I grant you permission. See? That wasn’t so difficult, now was it?