Being Concerned With Free Speech Implications Of PROTECT IP Does Not Mean You Think You're Above The Law

from the oh-come-on dept

Wow. In the legacy entertainment industry's latest "you're either with us or against us" mentality, it appears that expressing concern about the free speech implications of bills like PROTECT IP means you're a horrible, horrible person. Both the MPAA and RIAA are quite upset about Eric Schmidt coming out against PROTECT IP and saying that the impact on free speech would be disastrous. Both responses are so sickeningly disingenuous, it really makes you wonder how out of touch they are.

Let's start with the RIAA's statement:
"This is baffling. As a legitimate company, Google has a responsibility to not benefit from criminal activity. In substance and spirit, this contradicts the recent testimony of Google's General Counsel that the company takes copyright theft seriously and was willing to step up to the plate in a cooperative and serious way."
Um. Except that nothing in what Schmidt said actually contradicted Kent Walkers speech, nor did he say they don't take copyright infringement (not theft guys) seriously. He was expressing very legitimate concerns about the free speech implications.

On to the MPAA's statement, which echoes the RIAAs, but is a little more fleshed out:
In April, Google senior vice president and general counsel Kent Walker testified before Congress that 'Google supports developing effective policy and technology tools to combat large-scale commercial infringement.' Thatís exactly what the PROTECT IP Act is designed to do -- it creates a narrowly-drawn, carefully constructed solution to the threat to American jobs and America's economy, a solution that protects and strengthens our right to free speech. As constitutional law expert Floyd Abrams wrote, '[c]opyright violations are not protected by the First Amendment.'
This is really shameful how the MPAA twists the debate. First of all, the PROTECT IP does not effectively combat large-scale commercial infringement at all. That's just wishful thinking. The actual infringement will continue. Second, there is no evidence that it will support American jobs or the economy. In fact, the reverse is almost certainly true, as these kinds of laws will harm large parts of the internet that enable new jobs.

But the really sickening part is the Floyd Abrams quote. While it is entirely true that copyright violation is not protected by the First Amendment that's not what Schmidt or anyone else raising these issues are concerned about. No one -- not Schmidt, not us -- is arguing that copyright infringement is protected by the First Amendment. We're saying that this tool will be used against non-infringing and perfectly legal speech. And that's not a theoretical concern. We've already seen it happen multiple times with the existing ICE domain seizures, in which blogs and sites that were not violating the law were seized.

That's the concern.

Furthermore, as Schmidt made clear in his statement, he was also noting that once you justify the censorship of some speech just because you're trying to stop infringement, you open the door to much more censorship of speech. Traditionally, the First Amendment caselaw has been clear: if you're going to strike against illegal speech, you have to very narrowly focus on just that speech. PROTECT IP does not do that. It casts a wide net. But, once you have that door open, saying that it's okay to shut down some legitimate speech in an effort to stop some others, that will only expand.
Is Eric Schmidt really suggesting that if Congress passes a law and President Obama signs it, Google wouldnít follow it? As an American company respected around the world, itís unfortunate that, at least according to its executive chairmanís comments, Google seems to think itís above Americaís laws.
Oh, come on! Of course that's not what Schmidt is saying and the MPAA is being obnoxiously disingenuous in suggesting otherwise. He's not saying they're "above America's laws." He says that the RIAA/MPAA-written laws should not be above the Constitution. That is, these laws should not violate the First (or in other cases the Fourth) Amendment. By saying that Google would fight, he doesn't mean ignore, he means challenging the Constitutionality of these laws in court.

Sad that the MPAA has so little actual substance behind its arguments that it's forced to blatantly mislead like that. Typical, but sad.

Filed Under: copyright, eric schmidt, free speech, protect ip
Companies: google, mpaa, riaa


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  1. identicon
    Anonymous Coward, 21 May 2011 @ 9:43am

    Re: Re: Re: Re: Re: Re: Re: Re:

    "I don't see how you have a moral (or legal) defense for that."

    I don't need one, just like I don't need a moral defense to breath air or drink water. Not everything needs a moral defense.

    "Air is a natural resource, not creative output of human beings. "

    and?

    "Are you so desperate to freeload?"

    IP doesn't exist to stop freeloaders, it exists to promote the progress. If the law is designed to stop 'freeloaders' by impeding on my natural right to copy then this law should be abolished.

    If you view something as freeloading then simply don't release your work to the public. But don't expect others to spend the time and effort and money to enforce and abide by your monopoly desires. Forcing others to incur the expense and inconvenience of enforcing your business model is freeloading. Copying one another is not freeloading.

    "The founding fathers put copyright protection in the Constitution because they realized that in order to promote creation, creators need a period of exclusive use in order to profit from their innovation."

    They thought that it would promote creation, but notice how they did not put it in the constitution because to prevent 'freeloaders' from freeloading. It was to promote the progress and expand the public domain. The founding fathers were very skeptical of IP but eventually thought it was OK if it be very limited in nature. But what we have now is nearly as limited as what the founding fathers had (ie: length, coverage, penalties of infringement vs penalties of falsely claiming privileges over something one has no privileges on, IP being opt out and potentially requiring a psychic to know what's infringing, etc...).

    "Funny how you apologists jump up and down waiving your copy of the Constitution about due process and free speech and when it comes to Constitutional provisions for copyright seem to have a convenient memory lapse. That's called hypocrisy."

    The constitution does not provide anyone with copy protection laws, it provides congress with the ability to grant these laws if it chooses to, but only to promote the progress and they can only last a limited time. Congress doesn't have to grant these monopoly privileges if it chooses not to and I urge congress not to.

    and the founding fathers were very skeptical of IP laws and I think their initial skepticism was correct. The constitution got this wrong and I think the constitution should be modified in this regard to explicitly ban IP laws federally and to put a reasonable blanket limit on copy protection lengths on a state level so that states have the freedom to pass such laws if they chose but the lengths shouldn't exceed a reasonable and specified number of years.

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