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, 27 May 2011 @ 12:31pm

    Re: Re:

    "The Protect IP Act's 1st Amendment issues has been thoroughly vetted by the leading constitutional scholar in the country. Yet you somehow think you know better, or he has somehow sacrificed his impeccable reputation in order to satisfy a client's objectives?

    It should be noted that his report *was* at the behest of the industry -- and that in a later report he started to back down from his earlier claims, and did warn that as written there could be first amendment questions."

    The report was also at the behest of the unions. And the report was commissioned because this group (including the MPAA) respects the First Amendment and sought the opinion of the foremost expert in the world on the First Amendment.

    "But, yes, on this one, I think he was wrong, in part because he doesn't understand the technology. While I respect him quite a lot, he has been getting sloppy of late, as was witnessed with his horrible editorial on Wikileaks that was based on multiple incorrect facts."

    Are you even a lawyer? A first amendment scholar? Please Masnick, you are unworthy to carry the man's briefcase and you characterize him as "wrong" and "sloppy"/ You are absolutely out of your mind.

    "Interesting how you claim these rogue sites don't make much money and in another breath oppose cutting off access to US-based ad and payment processing services.

    I'm not sure what one has to do with the other. Just because they don't make much money, does it mean that they should be cut off from their ability to make money? I'm not following your logic."

    The point is if there isn't much ($) at stake what's the big deal with cutting off access to US-based enablers? There are alternatives. But in any event, I find it indefensible that that someone profits from the work of another. Try to remember we're not talking about a couple of kids swapping a movie file. These are websites that wrongfully distribute copyrighted content of another for personal profit. I don't find that free speech nor to I believe they have a "right" to be abetted by other US corporations.

    "I definitely take issue with the this. There are non-US payment processors and likely non-us ad networks. Granted that they are less convenient but a determined rogue operator has alternatives

    And what about a non-rogue site that has been deemed rogue by industry players who just don't like the competition?"

    This is usually where you cite a takedown of YouTube, which is bullshit fear-mongering. There are thousands of foreign websites that monetize the copyrighted content of others for personal profit. That is their sole purpose for existing. To suggest that Netflix will use this tool to squash the competition is laughable.

    "Finally, please explain how the disappearing of a site that is dedicated to infringing activity from Google, and cutting off ad revenue and payment processing "tramples over peoples rights".

    There's a little thing called the First Amendment. The jurisprudence on it is clear: if you are to censor speech, it needs to be narrowly tailored to block only the offending speech and not other speech."

    Floyd Abrams apparently disagrees with you.

    "Still waiting for a proposal on a alternative plan to curtail infringement by foreign-based rogue sites.

    How about you stop worrying about something that has no impact, and focus on actually creating a smarter business model?"

    Do nothing, let the freeloading continue and allow the unjust enrichment of rogue site operators. Great idea Masnick, exactly what I expect from an apologist.

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