Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content

from the unrelated-to-creativity dept

Matt Schruers, over at the Disruptive Competition Project blog has a great post discussing the harm of the increasing pressure to abuse intellectual property law to do a variety of things that it was clearly never intended for. He calls this intellectual property's "immigration" challenge, noting that these uses have "at best, a tenuous relationship to 'promot[ing]... Progress.'" Why "immigration"? Plaintiffs are jumping into the copyright realm because it's more appealing than laws in other areas, even if what they're seeking to do has nothing to do with copyright. One popular misuse of copyright law these days is as an alternative means of dealing with revenge porn. You can understand why people gravitate to this tool -- especially when there appear to be limited other tools for dealing with such sites. But can anyone explain what using copyright to takedown revenge porn has to do with promoting the creation of new works?

As Schruers notes, a big part of the issue is that copyright law comes with such a giant club in the form of statutory damages, which make it quite a powerful tool in censoring content:
What is happening is that plaintiffs are migrating into IP territory. Why? In a word: remedies. When testifying before Congress on this subject in July, I briefly noted that IP remedies are so attractive that they attract plaintiffs from other areas of the law. Rather than forum-shop, potential plaintiffs jurisprudence-shop. Claimants come to IP seeking redress for concerns that they cannot vindicate elsewhere. In the physical world, immigration is usually an indication that the destination is more attractive. In fact, a large amount of migration occurs in search of better conditions, or opportunities, and the anecdotal evidence suggests that this “remedy immigration” is no different.

When it comes to remedies, intellectual property is the land of opportunity. Robust injunctions, sweeping doctrines of secondary liability allowing recourse against parties other than the wrongdoer, statutory damages, and the availability of rapid DMCA takedowns all encourage plaintiffs to reframe various misdeeds (or perceived misdeeds) as infringement complaints. In a world with a general uniformity of remedies, there would be little reason for plaintiffs to seek out greener pastures, but when the remedies are unmistakably stronger in another area of law, plaintiffs have a natural incentive to reframe their claims to take advantage of them.
He goes on to discuss the use of copyright law against revenge porn and the recent "celeb leaks," noting that many of the photos in question aren't really good targets for copyright law, since many are taken by others (selfies are the exception, generally). He compares that to the Garcia case, in which an actress was able to take down the entire (controversial) "Innocence of Muslims" video based on a highly questionable copyright claim. He compares that to another case, Monge v. Maya Magazines, in which a celebrity sought to suppress images of her secret wedding (which she did not take).
Both Monge and Garcia represent efforts to use post hoc IP claims to suppress information from the public. While the circumstances may make for sympathetic plaintiffs, no one seriously thinks the litigation is about authorship. This is why it is so odd that the weapon of choice to suppress content is a statute aimed, ironically, at encouraging publication.
Again, one can (and many probably will) argue that they sympathize with the folks making use of copyright in this manner. Perhaps because they are troubled by the situations all of them find themselves in, and the lack of what they feel to be appropriate remedies. But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.

A big part of the issue, frankly, goes beyond just the remedies aspect that Schruers highlights. It has to do with the fact that copyright has long been viewed as a First Amendment work-around. The conflict between copyright and the First Amendment is undeniable -- in fact, whole books have been written about it. Historically, the courts have brushed off these concerns however, arguing that things like "fair use" create a "safety valve." But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.

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  1. identicon
    Mr. Tldr Bu'Shood, 17 Sep 2014 @ 2:54am

    Re: Re: Re: Re: It may actually make sense

    Congress gets a say, yes, but really it is humanity as a whole whom decides what promotes the progress, or more accurately what is and isn't progress.

    I do agree about plurality. Beyond promoting progress and the useful arts, copyright was always meant to be a two way street between corporate and public interests as well. Business interests get something beneficial out of it (protection for a limited time) and in return so does the general public (via the pubic domain).

    Sadly, we keep seeing said business interests attempting (and usually succeeding) to shift this mutually beneficial 'contract' so that it mostly favors their party. Part of what makes this particularly sad is how copyright maximalists are unable to see how the public domain can actually help them in the long run, and in a number of different ways. The things Disney has done and profited greatly from is only a small part of it as it's reach goes well beyond basic entertainment.

    Proof of this is how certain industries, often (but not limited to) those surrounding entertainment, always have to be dragged kicking and screaming from the past into the present. It is a matter of historical fact that in pretty much every single case, they have profited greatly by this forced change. I feel it's their fear of the future and thus the unknown, especially as it relates to economics, that is to blame.

    This time around, however, we're seeing stronger than usual effects from too much wealth, greed, ego, and undue influence in government via means that could (and should) be considered bribery. It's allowed the industry to root themselves more firmly in the past than ever before. In a truly free market, where everyone played fair and corruption wasn't so rampant, they would have already changed their strategies by now from having been forced into finding new ways to monetize their goods.

    I firmly believe there is a path where the public and industry can both continue to profit the way they're supposed to, provided copyright laws remain fair and serve both like they're also supposed to. Part of what Techdirt is about is promoting the search for such paths and it's going to take someone much smarter than you or I to find it. I wonder if they'll win the Nobel Prize for economics? They should.

    Ok, so maybe I'm an idealist and there is no ideal solution in which everyone involved would benefit and live happily ever after, but does that really mean we have to keep having a go at each other as we have been for the past decade or so? All it's done is generate a ton of animosity on both sides, so much so that the solution could come along and end up being ignored/missed entirely given just how many people there are focusing on entirely the wrong thing. Sigh, human nature.

    What I do know for absolute certain is that so called "pirates" (i.e. not for profit file sharers) aren't simply cheapskates who want it all for free. Most of us are aware of what it takes for our favorite forms of entertainment to be made (fantasy, sci-fi and post-apocalyptic genres in my case - just say no to reality shows lol) and we really do want to support those whom make these things a reality for us. Even the most cash strapped among us do spend what little they're able to. We spend more on entertainment than the average consumer and this shouldn't even be in contention by now as it is a well proven fact (Google it).

    We are not the enemy, so please stop trying so hard to turn us into one! I also don't want to hear about how you can't compete with free because it's already been done loads of times. My personal favorite was AllOfMP3. If you hit the right price and deliver the right content in just the right way and in a timely fashion, people will buy it up like crazy. People prefer to buy legal alternatives because it means not having to continually stress out over the legality of it all. Get all those things wrong, however, and folks will prefer to take the risk.

    For sharers, it all boils down to risk versus reward pretty much. The copyright cartel has focused almost entirely on making the risk so high that nobody will file share ever again. The problem with this is that it doesn't work as has been proven many times over. Even the death penalty won't stop anyone. Get all those things I mentioned before just right though (price, quality, timely, etc), and I guarantee you'll not only make a fortune, but end 99.9% of piracy almost over night. If only ego, wealth, greed and undue influence in government weren't all feeding our nature and desire to fight and the copyright maximalists could see such simple, basic reasoning for the truth it bears... sigh.

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