Copyright Has A Real & Serious Free Speech Problem

from the something-needs-to-be-done dept

This week has been Copyright Week, put together each year by the EFF and others, giving lots of people and organizations a chance to weigh in on a variety of copyright issues. Each day has its own theme, and in the past, I’ve tried to participate each day — as (not surprisingly) I have thoughts about each of the topics. This year, unfortunately, I’ve been a bit busier than usual, meaning I haven’t had as much time to write. But, still, if you check out the Copyright Week site, you can see lots of great articles by others on various topics. This being the last day of Copyright Week, it hits on a topic that I think is the most important of all: copyright and free speech. Last fall, I gave a talk at Wikimedia in which I noted that copyright has a serious free speech problem, and we’re never going to fix what ails copyright until we address that simple fact.

What’s most striking to me is how many people try to completely deny that copyright could ever be used to stifle free expression. It seems intellectually dishonest to make such a claim. There are tons and tons of examples of copyright being used to stifle different forms of expression — from blocking derivative works to sending bogus takedowns and more. Copyright can be and is frequently used to stifle expression. That should be a concern.

On the flip side, many (including, at times, the Supreme Court) have argued that copyright itself is also an engine of free expression. This may also be true. Copyright can both be an engine of expression and stifle expression at the same time. The challenge, then, is to figure out how we can increase the engines of expression while minimizing the ability to stifle expression. And to do that, we need to break down a few different components to explore the competing factors. The first is to look at the question of whether or not copyright is necessary to accomplish the goals of promoting this kind of new speech. In many cases, it very well may be. But I find it difficult to believe that it is the only, or even the most important, tool for doing so. Yet, that is how it is mostly structured today. With copyright automatically applying to any new work created by a person, it doesn’t make much sense. Copyright should only make sense when it is the copyright itself that is the incentive for creation. If the work would be created no matter what, even absent the copyright, why is the copyright needed? Why, for example, do I need to get a copyright in every email I write? I can tell you that I have never been incentivized by the copyright system to write an email (other than, perhaps, to email with others about problems of the copyright system).

On top of that, what we’ve seen over the last few years, is that copyright is often not the best incentive for creating new creative content. In an age where we’re seeing lots of new business models develop, very few of them are actually dependent on copyright. It raises a serious question of why, by law, we naturally assume that copyright must be the grounding of every content business model, when time has shown it is quite frequently not the best nor the most efficient business model — and one that is often saddled with downsides and limitations.

Given that, it seems quite reasonable to ask why we don’t scale back the copyright system to cases where it clearly (or at least likely) is a key part of the incentive for that creation. Doing that wouldn’t (by definition!) harm any new creations, but it would take away the ability to abuse the excessive copyrights to stifle freedom of expression in other areas.

Similarly, we should look at the situations in which copyright is regularly abused to stifle free expression, and see how to minimize that. A major area for abuse (though hardly the only one) is in bogus DMCA takedowns. That is not to suggest all (or even most) DMCA takedowns are bogus. Many are perfectly legit and do exactly what they’re supposed to do. But an unfortunately large number of DMCA notices are used to try to take down content that someone just doesn’t like, but which is not in any way infringing. Here, there are a number of possible answers. I probably lean towards moving to a notice-and-notice system, rather than a notice-and-takedown, because that keeps the content up while the receiving party has a chance to counterclaim. Thus, you avoid even the temporary suppression of free speech. Others prefer a solution that puts real meat on punishing those who file bogus DMCA takedowns, which isn’t necessarily a bad idea, but could lead to other problems as well.

In short, we’ve designed our copyright system in a dangerous way: it’s one that actively encourages the use of copyright to stifle free expression, rather than to encourage it. And that’s not just unfortunate for free expression and the free exchange of ideas, it’s unfortunate for copyright as well. It’s that structure, so open to abuse, that leads people to not respect copyright at all, and to naturally assume it must be all bad, rather than just partially rotten. If the copyright system supporters were serious about bringing respect back to copyright, one area where they should start, and where we could all agree, would be to make these kinds of fixes to copyright law, that would align copyright’s incentives properly with encouraging new works, and to move away from the elements of copyright that make it such an easy tool for censorship and stifling freedom of expression.

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Comments on “Copyright Has A Real & Serious Free Speech Problem”

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SpaceLifeForm says:

Laws have loopholes that were not envisioned

Times change. Technology changes.
Printing presses were important.
Copyright was very solid in the
printing press era.
Then throw in other laws that have
unintended consequences, and what
was once solid, well thought out
law, can be used as an attack tool.
Extending copy rights to life plus
70 years is a good example.

Ninja (profile) says:

Re: Laws have loopholes that were not envisioned

I would argue that the life + 70 tidbit ‘unintended consequences’ are very intended considering who are the main drivers for the extensions (I’m looking at you Disney). Even the printing press saw its share of abuses. Because most of the problems we see in copyright are not unintended consequences of well intended points. They are intended consequences from ill intended points.

Before reaching the stage Mike is talking about we have to identify and get rid of the ill intentions. Otherwise these ill intended players will keep derailing the process.

Rapnel (profile) says:

Re: Re: Re: Laws have loopholes that were not envisioned

The RIAA and MPAA have to have a say. It just so happens that they seem to have all the say. Avoiding the public domain for all save pillaging is all that can happen while things remain so lop-sided. Until the public domain has a proper seat at the table copyright will only get more and more ridiculous. It is very much the joke that technology treats it as and that’s really unfortunate because there’s much more wealth to be had from the public domain than by perpetual copyright. It simply doesn’t make sense and it takes the form of pure greed, savage and unruly. It’s already eating into the fabric of the internet and molesting everything it its path. The only real option is to fork.

Jason says:

Copyright should only make sense when it is the copyright itself that is the incentive for creation. If the work would be created no matter what, even absent the copyright, why is the copyright needed?

I sympathize and mostly agree with the point you’re trying to make here (or at least the way I’m reading it) and I certainly do agree that the automatic-copyright-in-everything approach goes too far. But personally I don’t feel that it follows that copyright can only make sense if it’s the only reason you do something.

I’ve said before that I don’t think it’s unreasonable to provide an author (say) with some form of mechanism to control—over the near term—how their work is distributed, republished, altered, and what not. I’m not basing this on any legal principle, it’s just my own personal feeling on the subject. Trusting the market, or the public, to do "the right thing" (whatever that is) seems to me to be asking too much in some cases; maybe I just don’t have enough faith in the masses.

To be sure, I agree that the copyright system as it currently exists goes way, way too far and needs to be drastically reformed. But I’d definitely lean much further into the "reform" side of the spectrum than abandoning copyright entirely. I don’t believe you’re advocating for totally eliminating copyright, or at least it doesn’t seem that way, but I don’t think that restricting it down to the point where it applies only when it’s the sole motivation is necessarily the right answer either.

Thad (user link) says:

Re: Re: Re:2 Re:

One way to determine which creations are worth protecting would be through registration and renewal.

Wouldn’t that bias the system toward wealthy individuals and corporations even more than it already is?

If it’s not worth registering and renewing a copyright is it really worth protecting?

Dracula was never copyrighted in the US. Would you argue that it wasn’t worth protecting?

tanj says:

Re: Re: Re:3 Re:

Copyright is a civil issue. If you can’t file paperwork you can’t enforce your copyright. You could argue that all civil law is biased toward wealthy individuals and corporations, but I think that’s more of an inherent problem with the system without a straightforward answer.

Thad (user link) says:

Re: Re: Re:4 Re:

Well, I stand corrected on the popular urban myth about Dracula, then; I won’t use it as an example in the future.

However, I’m skeptical about your assertion that automatic copyright is unenforceable. I think that, for example, a great deal of free software relies on automatic copyright protections. While some major projects (including GNU) rely on copyright transfer and registration ( ), contributors to the Linux kernel retain copyright on their individual contributions ( ). That doesn’t seem to have prevented enforcement actions against, for example, GPL violators.

tanj says:

Re: Re: Re:5 Re:

I did not say that automatic copyrights are unenforceable.

What I’m saying is that if you can’t file paperwork you can’t enforce your copyrights.

Enforcement actions require filing paperwork in the form of a civil lawsuit. Lawsuits require much more paperwork than any registration and renewal would require. If you find registration and renewal to be an insurmountable obstacle how will you successfully pursue a lawsuit?

GPL violations are pursued through lawsuits. Lawsuits which involve lots of paperwork.

Thad (user link) says:

Re: Re: Re:6 Re:

Then I misunderstood you. Fair enough, then.

(But hey, I thought of a better example of a valuable work of art that wasn’t copyrighted: Night of the Living Dead. Granted, that’s because of the accidental removal of the copyright notice from the title card and not because someone failed to file the paperwork, but I think it still makes for a pretty good criticism of the old, stricter requirements for gaining a copyright.)

jupiterkansas (profile) says:

Re: Re: Re:7 Re:

It’s a fluke and an accident, so it’s not a pretty good criticism of registration, esp. when there are now thousands (millions?) of orphaned works for which the copyright holder can’t be found.

One movie slipped through the cracks of the old system, but thousands are slipping through the cracks of the new system.

tanj says:

Re: Re: Re:7 Re:

That’s an interesting example.

I would classify the title card mix-up as a failure to comply with the relevant paperwork. Part of dealing with regulations is making sure that you are in compliance with them. The work was published out of compliance with the regulations.

It looks like part of the mix-up was caused by the original copyright notice being placed in a part of the film that was different from what the distributor was used to. If the notice had been placed at the end of the film a title card change would not have been so problematic.

If the biggest example of a work failing to be covered by copyright under the previous system is the first effort of a director which was followed up by a string of successful sequels it seems to me to be an indication that the system was mostly successful. With any fixed system there will be difficulty dealing with exceptions.

Here’s an article that goes into the copyright issues surrounding the film.

So that’s an interesting example of how the previous system failed.

Here’s an example of how the current system fails.

When a copyright owner is indeterminate that creates uncertainty which stops projects from moving forward.

From a free expression perspective I see these two failure modes and prefer the option that results in fewer restrictions on expression.

If we are going to grant exclusive rights to reproduce and make derivative works from a copyrighted work it is important to be able to determine who holds those rights.

Anonymous Coward says:

Re: Re: Re:8 Re:

If we are going to grant exclusive rights to reproduce and make derivative works from a copyrighted work it is important to be able to determine who holds those rights.

Unless you’re actually interested in suppressing ideas, then obfuscation becomes useful. Then you can tell just people that they can’t repeat things because they don’t have the “rights” to it. In other words, “shut up”.

cpt kangarooski says:

Re: Re: Re:3 Re:

Wouldn’t that bias the system toward wealthy individuals and corporations even more than it already is?

Let the fee be $1.

Or have a sliding scale based on factors such as how many copyrights are held by the entity (or its parent), net worth, etc. Though I feel this over complicates things.

The point isn’t to raise money, it’s to discourage mindlessly copyrighting everything in sight. If there’s a fee, even a small one, people will stop and think.

Dracula was never copyrighted in the US. Would you argue that it wasn’t worth protecting?

Yes. If the author can’t be arsed to secure a copyright, why should anyone else do it for him? This has nothing to do with the artistic value or objective after-the-fact economic value of the work. It’s purely about the author’s opinion, an initio, as to whether economic exploitation of the work is intended and if so whether it is worthwhile enough to even be worth the minimal but nonzero amount of effort and money it takes to get a copyright.

Remember: the goal of copyright is to encourage the creation and publication of works which, but for copyright, would not be created and published, and to increase the public domain as much as possible as soon as possible. If a work would have been created and published without copyright, it doesn’t deserve protection because the protection doesn’t accomplish anything for the public. Formalities are a good way to sort works that merit protection from works that don’t.

Eldakka (profile) says:

Re: Re: Re:5 Re:

To stop people copyrighting absolutely everything they create.

For example, an email. Currently with automatic copyright, every email that is written is under copyright.

However, if registration is required, then you’d have to submit a registration for every email you write if you wished to maintain copyright in your emails. Which would be pretty simple to do if there was no registration fee. An email client could be written to automatically submit the registration form with the authority every time you wrote an email. Which would flood the authority, creates massive amounts of records to search through to verify copyright, and so on.

If, however, there was a tiny fee, then you’d have to pay for each email. $1 is big enough to make it costly to automatically lodge registrations for every single email, forum post, IM message and so on that was written. And it’s low enough that if you did write an epic email or forum post that you think is fucking awesome and should be recorded for posterity, then you could lodge registration with your $1 fee with the authority for that piece of work.

jupiterkansas (profile) says:

Re: Re: Re:6 Re:

You realize when you register something, you’re supposed to give the Library of Congress a copy so they can verify if it’s been infringed. If you want to give them a copy of all your emails, go right ahead.

People are only going to bother with copyrighting stuff they feel needs a copyright – i.e. something they hope to make a profit on or at least consider worthy creative works.

I’d rather have some rules regarding abuse of the system than a mandatory fee, esp. since fees have a tendency to keep increasing over time.

And there’s no reason the whole system can’t be mostly automated.

Anonymous Coward says:

Re: Re: Re:

Copyright has never been about the creation of new works, but rather a means to protect the publishers investment in tile and materials when producing reasonably priced copies involved producing as many as they thought the would sell before they could sell the first copy. When copies are produced by such batch processes as printing presses and record/CD/DVD presses, having two publishers try to satisfy the same market results in the production of twice as many copies as can be sold in the market, which is a disaster for one or both of the publishers.
The reason that publishers like long copyrights is not for the few works that have a long commercial life, but rather to restrict the buyers choices to the few works that can sell enough for them to make a fat profit.
Copyright always is and always was preliminarily a means for publishers to control the market, and has little to do with the reason for create new works. The existence ofthe CC licenses, and site like YouTube, Jamendo, Podiobooks, Thingiverse etc. give lie to copyright being needed for the creation of new works.

My_Name_Here says:

The copyright versus first amendment issue has been asked and answered as they say. One of your heros tried to use it as an argument in court, and got slapped silly for it.

Copyright is not an unreasonable limit of free speech because it does not stop any free speech. You can talk about a book, you can talk about a movie, you can describe an image. What you cannot do is give someone a copy of them.

Handing out copies of someone else’s work is a loss of free speech that is so minor compared to the benefits that are encouraged by copyright. There is no legal argument that can get around that. It’s pretty simple, a concept you will perhaps one day grasp.

Anonymous Coward says:

Re: Re:

That you do not see abuses of the DMCA designed to quell critics and hide embarassing speech as an speech-infringing abuse of copyright says a lot about how you think of free speech and copyright.

Oh, and there is only one specific benefit of copyright: A (supposedly) limited monopoly on distribution. The only reason copyright exists is because creators could make works, but could not fully control the distribution of said works to make money. But the intent of copyright was to strike an implicit bargain between the creators and the general public – the creator controls distribution for a period of time, then their work falls into the public domain, where it can be used to expand knowledge and enrich culture for generations to come. That bargain has been destroyed by the lengthening of copyright terms and the subsequent erosion of the public domain.

Think of all the musicians who died in 2016. Assuming copyright terms are not given another extension, we will need to wait until 2086 for the works of David Bowie and Prince to fall into the public domain. Think about that: Rather than automatically becoming public domain (and fuel for new expressions of ideas), those works will remain locked up in copyright until practically everyone who was alive in 2016 is dead. And for what – to help the estates of those artists make more money?

Think about all the works from seventy years ago that could be saved and distributed for future generations were it not for the fact that copyright stops the average person from doing that. Think about how we could use those works to create new works and enrich our current culture. Now think about how we cannot do that – how we cannot save culture, restore culture, build on top of old culture to create new culture – because Disney did not want Mickey Mouse falling into the public domain.

Copyright inherently conflicts with the First Amendment’s promise of free expression. To pretend otherwise is to all but deny reality.

Anonymous Coward says:

Copyright isn't all bad.

Neither was slavery. I mean, look, it provided work to many people who might otherwise have had difficulty finding productive work. Were there abuses? Sure there were. But that was no reason to completely abolish it. It just needed to be reformed. You don’t throw the baby out with the bathwater, do you?

Zippydsmlee (profile) says:

Open IP

You can’t make copyright work like physical property, stagnating every other thing/industry for the sake of profit for a few groups that own everything is assbackwards. About all you can do is protect the IP creator/owner via ensuring they get a cut off any profit made off the IP in question. Owner conglomerates should even get less of a cut. Now if you can work out a license that’s fine if not it should be a free for all with a default cut going to the IP owner/creator. Thats about the only way you can balance the system in these digital days of idea sharing/expanding unless you want fascist control’s on the flow of information, education, inspiration….

jameshogg says:

Ownership of expression is not compatible with freedom of expression. And not possible.

Take for example the many ways religions have tried to claim ownership of who can express their holy books and in what way, even reproduction of holy books without “permission”, yet the Reformation still happened. It’s no good saying that people put lots of work into those stain-glass windows, cathedrals and paintings and therefore all appropriation (i.e. blasphemy) and piracy is off limits – in the end they all get copied, and quite rightly.

Can you imagine the ridiculousness of saying the King James Bible should never have come into existance because it was an infringement?

Or that famous works of literature should be banned from other countries’ languages based entirely on the whims of the copyright holders? How much more anti-free-expression can it get than that? Denying the rights of people to read a book if they speak the wrong language. And insisting this power to do so should have a place in civilisation.

Freedom of expression isn’t just about the right to speak your mind remember: it is also the right of everyone to read and listen.

Eldakka (profile) says:

How about mixing the old and new systems.

If some sort of copyright system was to be implemented, how about a compromise?

Grant automatic copyright as now, but that duration is only small, like, for example, 5 years (or 1 year or 3 years or 10 years or something – waaayy less than currently).

And also allow copyright registrations, perhaps along the lines of the old system, 25 years + a 25 year extension.

So, if during the short automatic period you decide it is worth copyrighting, then if you want to maintain that copyright you then have to register. So, if we take 5 years as automatic, you could get 5 years automatic + 25 years on registration + 25 years extension = 55 years.

Actual numbers subject to variation, but follow the system:

short automatic + longer registration (potentially requiring fees, increasing with each renewal).

For example:

1 + 50
3.141516 + 15 + 15 (can I have pie with that?)
7 + 20 + 20 + 20 + 20 (seven and four score…)

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