Anyone Who Says Copyright Cannot Be Used For Censorship Has No Credibility

Say That Again

from the sorry-adam dept

Adam Mossoff is a law professor at George Mason University. I’ve come across some of his previous writings in the past, and have been repeatedly impressed at just how disconnected from reality they tend to be. However, his latest piece, for the Austin American-Statesman takes the cake, entitled simply: Copyright doesn’t limit online speech. Of course, this is empirically false. Anyone who is even remotely intellectually honest admits that copyright can (and has) been used to limit speech. Just ask the operators of a hip hop blog who had the site seized for over a year based on nothing other than an unsubstantiated claim by the RIAA.

Or, how about the Russian activists who were shut down after the Russian government used copyright claims to seize their computers?

So how does Mossoff get around that? Simple. If you can’t argue the facts, just make up a scenario that works in your favor. He sets up a perfect strawman, insisting that those who argued against SOPA and PIPA claimed that all copyright violates the First Amendment:

The argument that copyright violates the constitutional right to free speech seems to have particular force on the Internet, because, in the words of one federal court decision, “The Internet is a communications medium.” Copyright owners seem to squelch this communication: They compel websites to take down infringing videos, music and writings. The music industry successfully sued widely used peer-to-peer services such as Napster and Grokster, and it continues to use automated programs called bots to track what music people download and from what websites. SOPA expanded copyright owners’ legal rights to block websites containing infringing content, in effect relegating these websites to digital purgatory. As a law professor stated at a conference over the summer: “Copyright is the engine of censorship.”

But Mossoff then claims this is crazy talk, because he has bought into the view that copyright is not the monopoly privilege that it is but that it’s “property.” Of course, that’s hogwash. The purpose of “property” is to best allocate scarce resources. “Property” does not make sense either intellectually or economically for things that are not scarce, such as content. Copyright is not a property right, no matter how many times maximalists incorrectly insist it is. However, even if we accept Mossoff’s incorrect assertion, he then layers on the ridiculous by claiming that copyright has no impact on speech other than that which is covered by copyright:

Thus, copyright law secures the fruits of creative labors, but only those specific fruits — the value in the specific text, picture or song created by the artist.

The right to free speech is the right to express one’s thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.

Okay. So what about all the original content created on the blogs that the government took down using copyright law? Or the speech of those Russian activists? This is where Mossoff appears to have a total blindspot, common to someone in academia with no experience in the real world. Copyright is not used just to protect the rights granted under the Copyright Act. It is used regularly to shut down other expression.

Copyright claims took down the official DNC livestream. Bogus copyright claims took down the official Hugo Awards live stream. Bogus copyright claims took down a negative review of a Universal Music album. Questionable copyright claims took down parody commentary by Dan Bull, expressing his opinion on another copyright lawsuit (while the copyright holder left up tons of other versions of the song). Copyright claims were used to suppress an unflattering photo that some rich dude didn’t like. A bogus copyright claim was used to take down a totally unrelated news article, after Fox thought it was about a movie which it wasn’t.

And that’s all just from the past few months. Anyone who insists that copyright has nothing to do with censorship because it only protects the rights established under the Copyright Act seems to have no credibility on the subject.

Mossoff then further expands his thesis by claiming that copyright doesn’t violate the First Amendment… because there are some limits on the First Amendment. Of course, that argument makes no sense either. Yes, there are some limits on the First Amendment. That doesn’t mean that any restriction on speech is okay under the First Amendment. This is basic logical fallacy territory. Just because there are some exceptions, doesn’t mean that all exceptions make sense or are legal — but Mossoff honestly seems to be making that argument.

If you actually want intelligent and nuanced views on the conflict of the First Amendment and copyright law, rather than the ridiculous claims from Mossoff, I recommend Neil Netanel’s Copyright’s Paradox or David Lange and Jefferson Powell’s No Law. Both books involve careful and detailed analyses of how and where copyright law and the First Amendment come into conflict.

Mossoff just brushes all that off, saying that since both copyright and the First Amendment are in the Constitution, there’s no conflict:

In fact, both copyright and the right to free speech are based in the Constitution — in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

Of course, that’s neither accurate nor “strange.” First off, free speech is a right in the Constitution. Copyright is not. It troubles me that a “law professor” would make such an obviously false claim. The Constitution’s Article I, Section 8 only grants Congress the right to create a copyright law — explicitly for the purpose of “promoting the progress of science” (the “useful arts” stuff was about patents). To suggest that the Constitution establishes copyright as a right is simply false.

Second, there is nothing “strange” at all about the concerns people have raised about copyright law. Even if we assume that Mossoff’s initial suggestion that both come from the Constitution is accurate, what he ignores is just how massively copyright law has changed since it was first created. In 1976, the US completely overhauled its copyright system, making it so pretty much anything new put in a “fixed” form was automatically granted copyright for life plus 50 years (later expanded to 70 years, thanks to Disney and Sonny Bono). To pretend that copyright law we have today couldn’t possibly conflict with the First Amendment because we also had copyright law in 1790 is ignoring that copyright law today looks nothing like copyright law in 1790.

Mossoff, ridiculously, acts as if they’re basically the same thing.

It really makes you wonder how anyone can take these claims seriously when they’re so uninformed. Mossoff is apparently appearing this week at UT Austin for a discussion on free speech and intellectual property. Thankfully, one of the other people appearing at the same event is Neil Netanel, the author of Copyright’s Paradox, mentioned above. Mossoff would do well to actually pay attention to what Netanel has to say.

Let’s make this simple: is copyright automatically censorship? No. But can it be used for censorship? Absolutely. I don’t see how anyone who is even remotely intellectually honest can deny that. Copyright maximalists are free to suggest that the censorship “costs” are minimal or can be minimized. Or they can argue that this is collateral damage that is “worth it” for the supposed benefits provided by copyright law. But to argue that copyright law is entirely unrelated to free speech violations is simply not a supportable position. Yet it’s the one Mossoff makes. And for that reason, he has no credibility on the subject.

Filed Under: adam mossoff, censorship, copyright, pipa, property, sopa