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. icon
    Mike Masnick (profile), 27 May 2011 @ 5:04pm

    Re: Re: Re:

    Masnick, the fact that you are OK with someone appropriating your work for their own profit is fine. But I believe (as does the law) that if you do not choose to allow someone to profit by copying your work, then the law should (and does) protect you.

    As expected. You don't apologize for making false statements, nor do you address the actual points I raised about protected speech.

    PROTECT IP simply extends this protection to foreign websites that are beyond the grasp of law enforcement.

    No, it does much more than that. Which is exactly what we're concerned about, and which you fail to respond to.

    Do go on. At least you didn't throw in a gratuitous insult this time.

    But guys a lot smarter than you

    Oh wait, you did.

    Like you have the right to share your stuff if you like, you should also respect the right of other creators of intellectual property to not share theirs freely, particularly when that right is protected by law

    I absolutely DO respect their rights to do so -- though I will point out that it is a fruitless effort and will not help them.

    What I do not respect is attempts to massively increase the power of those laws in such ways that it would have massive unintended consequences.

    In the meantime, I will note that you refused to answer my question about your role. I find that quite telling.

    Please admit to the audience your stake in the matter.

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