Oh, where to begin with this one. Once upon a time, in an internet far, far away, there was a Facebook page
and a blog (that barely anyone paid attention to) masquerading as some kind of grass roots upheaval in favor of the copyright cartels. It was called Creative America, and man was it terrible. But, as does occasionally happen, this silly land of false statistics
and incomprehensible logic
bred some interesting discussions between folks on either side of the copyright argument. One of the participants in favor of copyright was filmmaker David Newhoff, someone who I generally thought represented his ideas and opinions with sincerity and class.
Well, to hell with sincerity and class. Apparently you damned pirates and copyleft people are just like homophobic anti-gay-marriage zealots...or something.
It all starts off innocently enough on Newhoff's guest post
for The Copyright Alliance (Does that make us the Pirate Empire? But wasn't Han Solo a pirate? I'm so confused). We've got everything you'd expect from someone supporting current copyright, from the wilfully ignorant claim that "Copyright and Free Speech coexisted peacefully for the entire history of the Republic", to the invocation of names like Lewis Black as champions of free speech and free enterprise because Black is "entitled to make a pile of cash" because he's a master at speaking out against the government. Nowhere do we see any actual statistics to back up these claims, of course. There's no long-form history of copyright with big blinking letters saying "No problems here, people". Nor do we have any actual financial data on where Lewis Black has made his money. Was it from the real copyright product, royalties from album sales? Or was it his live performances, tours, and appearances? I certainly don't know, because I don't have that data. And if Newhoff does
have that data, he isn't sharing it.
But no matter, because these opinions-as-facts are merely the foundation for one hell of a whopper of a claim: anyone who thinks copyright can threaten free speech is exactly the same as a homophobic bigot. Don't believe anyone could conflate two completely separate issues so badly? Read on, my sweet, naive little zealots:
"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."
Here's the setup for the false analogy. You have a foundation of law driven by the Constitution, the "pursuit of happiness", mixed in with a little literal
"get off my lawn" attitude, and a cool ATV thrown in to keep the kids happy. Just keep this setup in mind, because we'll get to the problem in a moment.
"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...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."
And here's where this argument shows itself to be flawed. First, note the attempt to conflate copyleft and bigotry. This is all about setting up good guys and bad guys in the equation, and if you have a problem with copyright, it's "thinly veiled bigotry" and "reverse descrimination". Creators, apparently, are to be lumped into the same boat as other victims of bigotry, and if we can draw a direct line to homosexuals who have been descriminated against, it's an extremely
short jump to slavery, interned Japanese Americans, or Jews in Nazi Germany. To borrow (INFRINGE!) a line from Newhoff's own piece, "this sounds dumb because it is". This is a discussion about economics, not bigotry.
Which is where we can point to the clear flaw in Newhoff's argument: yes, there's an argument that the "pursuit of happiness" should apply to all peoples, including the allowance of marriage. And it's also true that the "pursuit of happiness" can prevent me from driving an ATV onto David's well-manicured lawn. But unlike intellectual property, the "pursuit of happiness" was not specifically constructed and even denoted
in the Constitution as having its key purpose be the benefit of society at large. The "pursuit of happiness" is personal. Conversely, copyright is supposed to chiefly benefit the public. Mixing these two aspects of our law is disingenous and the attempt to simply label the folks who don't agree with you as bigots is downright distasteful.