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
    Call me Pierre if you wish, 24 May 2011 @ 2:43pm

    Re:

    "My example addressed a specific comment by someone else. So I'm interpreting yours as an analogy for removing infringing sites from the DNS."


    The article and Mr Schmidt's comments concerned removing sites from the DNS - apologies for being on-topic

    "There are lots of obvious flaws. First of all, those American wines cost money to produce. So French wines are not competing with free."


    It was a hypothetical example but in reality there are plenty of sites selling rip-off items which also cost money to produce. Louis Vuitton is not competing with free.

    What is the relevance of 'Free' here? Only an RIAA/MPAA shill would think the discussion only concerned 'Free'. Unless, of course you are thinking of free as in speech as opposed to free as in beer. Nah - if you thought that way you could only support Mr. Schmidt's comments.

    "Second, as American wine producers are legitimate, static enterprises there are remedies at law for any claims against them."


    Remember - as you mentioned above - this concerns removing sites from the DNS. Is there any evidence that the sites recently cut off by removal from the DNS had the chance to answer their accusers? The remedy at (bought-and-paid-for) law did not demonstrate much due process.

    "Third, France itself has laws regarding infringing content."


    Absolutely. And your point was?

    "Fourth, France would only be able to banish American wine producer from French search engines. American wine producers websites would still exist, as will those rogue websites. "


    Here is where you seem to be the most confused. Both the article and Eric Schmidt's comments concern removing sites from the DNS. Even you mentioned it above. I could also point out that Google is not a registrar and does not manage a top level DNS. Contrary to the RIAA and MPAA bogus comments quoted in the article, Google could not place themselves above the law because to do so they would have to be able to manage a top level DNS. However they are at liberty to see the bigger picture and fight by legal means (lobbying, publicity campaigns) to oppose a law they believe to be oppressive and unconstitutional. Taking a lesson from the RIAA/MPAA school of commentary I am curious to know how the many brave American soldiers facing death in foreign countries feel. Is preservation of the freedoms enshrined in the constitution as important to them as is maintaining the cash flow into the MPAA/RIAA and the companies they represent? I think we should be told.

    Back on topic - These sites would disappear globally. Just like the rogue websites, American wine producers would have to re-register under a different domain name and spend time and money returning their web presence to its original level. I understand Firefox has a handy add-on for that.

    Here I should declare an interest. I am probably more respectful of copyright than most people. If I really want to listen to commercial music I listen - occasionally - to the radio. I run Linux from choice and despair when I meet people - all Windows users - who tell me they have Terabyte disks full of downloaded movies (and expect me to be impressed). It's only because I find your attitude so appalling that I am bothering to write this. That's not intended to be a personal attack - just my opinion.

    But what annoys me even more is the American attitude that their law overrides anyone else's. Whether it is black ops in Pakistan or removing a foreign business from the internet because they annoy an American corporation.

    I was hoping you might stop to think how you would feel if a foreign country could unilaterally remove an American company from its source of income, but perhaps I over-estimated your imagination.

    If your gut response is "that could never happen because America owns the internet" then watch while the rest of the world routes around the speedbump called America.

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