Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'
from the copyright-insanity dept
So, as we’d been discussing, Congress recently had a hearing about copyright reform that was supposed to be about the “content creators'” view of copyright — but which actually mostly presented the views of the legacy industry which makes money off the backs of creators, rather than hearing from any creators themselves. The hearing was about as silly as you might expect, with Parker Higgins from EFF presenting a good run down of the problems, including the claims that it’s copyright that enables free speech, that copyright is good because it’s “about control” and that “fair use creep” is dangerous. Of course, if you want a funny, and nearly totally wrong counterpoint, you can read the overview from Tom Giovanetti, who runs a “think tank” that is a favorite of copyright maximalists. Let’s compare and contrast, and add some reality.
Giovanetti insists that copyright should be about “control.”
Several Twitter critics insisted that, while copyright no doubt has economic benefits, it also functions as “an instrument of control.”
But of course copyright involves control, and rightly so. Control is implied in all property rights. Without some degree of control, you cannot enter into contracts, you cannot license, and copyright becomes impotent—little more than a credit or an attribution. But a credit alone does not incentivize creation, innovation, and distribution of new works. Ownership always involves a degree of control.
Except, as Higgins noted, the purpose of copyright has never been about “control.” It has always been to “promote the progress of science” for the benefit of the public.
Most striking was the repeated assertion that copyright should be understood primarily as a mechanism of control. Testimony from Sandra Aistars, the director of the Copyright Alliance, was explicit on this point. That’s funny, because we thought it was supposed to be a mechanism to promote new creativity. Ironically enough, Aistars also claims that copyright “is about choice” and “freedom.” Choice and freedom for some people, that is: under her construction of copyright, a grant of copyright is designed to concentrate all of the choice with the copyright owners, at the expense of the public.
Of course, Giovanetti’s claim that “property rights needs control” is misleading for a whole variety of reasons. First off while the actual copyright itself might be a form of property in that it can be bought and sold, the underlying content is not. That’s an important distinction that often gets lost in the mix. Furthermore, while it’s true that for true property part of the point of property rights is to “control,” when you’re talking about speech and expression — things that are in abundance — it makes no sense to use it as a tool for control, for a variety of reasons. The reason you want control of tangible property is to avoid having someone else claim it. But copyright is not about that at all. It is, according to the Constitution, solely a tool to promote the progress of knowledge and information. Furthermore, we already have aspects of copyright law today that recognize it’s not about control — including things like compulsory licenses.
Then Giovanetti makes a patently ridiculous statement that copyright holders never want to censor anything:
Several others made the ridiculous assertion that copyright is used to “censor.” But as Sandra Aistars of the Copyright Alliance noted in her statement, copyright is “core to protecting our First Amendment rights of freedom of expression.” Copyright holders are champions of the First Amendment, have every incentive to see their work disseminated as widely as possible, and have no reason to censor anything. It’s a preposterous charge, manufactured by ideologues to create a false premise that copyright is somehow in tension with consumer interests.
Oh really? So, KTVU wasn’t trying to block the video of its newscaster (accidentally, stupidly) using racist slurs about the Asiana Air pilots? NBC wasn’t trying to censor Senator Warren when it pulled a clip of her schooling CNBC news anchors? St. Louis University wasn’t trying to censor a faculty member when it threatened him with copyright infringement for daring to send a survey to other faculty members? The government didn’t censor a hip hop blog after seizing it and shutting it down for an entire year on bogus claims of copyright infringement, which it never had any evidence to support? The Russian government didn’t use copyright to censor activists by raiding their offices and shutting them down with bogus claims that they were using infringing copies of Microsoft software? Copyright wasn’t used to block the livestream of the Democratic National Convention? Or the official livestream of the Hugo Awards? Universal Music didn’t use copyright to censor a negative review of Drake’s album? Musician Dan Bull wasn’t censored when copyright was used to block his commentary video about a different copyright infringement case? A Miami business man wasn’t using copyright as censorship when he used copyright to sue a blogging critic because she posted an “unflattering photo” of him? A TV station didn’t use copyright to censor Free Press after it got upset about claims about its actions? Copyright wasn’t used to silence a blogger after a blog fight over birthing methods? Some filmmakers didn’t censor a Berkeley professor’s documentary about how they portrayed Asian women in films with a copyright claim? Howard Hughes didn’t use copyright to censor a biography he didn’t like? The James Joyce estate wasn’t censoring Kate Bush by refusing to let her quote Joyce in a song lyric? Or when it used copyright to stop a professor from writing a biography on Joyce?
All of that is impossible according to Giovanetti. It makes you wonder if he’s even remotely familiar with modern copyright law and how it’s used. The paragraph above is just a very short list of examples.
And, in fact, it’s why it’s so troubling that, in the same hearing, a few of the witnesses tried to hit back against fair use, arguing that “fair use creep” was dangerous. As Higgins notes:
On multiple occasions, the expansion of fair use, or “fair use creep,” was trotted out as a bogeyman undermining the business models that have traditionally worked for the content industry. Of course, fair use is both legal and critical for copyright to co-exist with real freedom of speech, especially given that copyright can cover works that are many decades old and part of the fabric of history. Moreover, fair use has been under assault for decades, thanks to laws like Section 1201 of the DMCA, which makes it illegal to bypass a technical protection measure under most circumstances even if your conduct is an otherwise lawful fair use.
In fact, the courts have pointed out that fair use is a key “safety valve” in preventing copyright from being used for censorship — clearly recognizing that (contrary to Giovanetti’s ridiculous and unsupportable claim) copyright can be and is used for censorship and to stifle free speech all too often. And yet, the panelists now want to limit that already extremely narrow safety valve? And they don’t expect even more censorship to occur?
There are plenty of things to debate about copyright law today, but the debate needs to live in reality. That means that it needs to recognize the actual basis for copyright law: promoting the progress, not giving creators a tool for censorship. And it needs to recognize further the reality of today, which is that the tool can be too blunt and is all too frequently used to censor and stifle free speech.