from the something-needs-to-be-done dept
This week has been Copyright Week, put together each year by the EFF and others, giving lots of people and organizations a chance to weigh in on a variety of copyright issues. Each day has its own theme, and in the past, I’ve tried to participate each day — as (not surprisingly) I have thoughts about each of the topics. This year, unfortunately, I’ve been a bit busier than usual, meaning I haven’t had as much time to write. But, still, if you check out the Copyright Week site, you can see lots of great articles by others on various topics. This being the last day of Copyright Week, it hits on a topic that I think is the most important of all: copyright and free speech. Last fall, I gave a talk at Wikimedia in which I noted that copyright has a serious free speech problem, and we’re never going to fix what ails copyright until we address that simple fact.
What’s most striking to me is how many people try to completely deny that copyright could ever be used to stifle free expression. It seems intellectually dishonest to make such a claim. There are tons and tons of examples of copyright being used to stifle different forms of expression — from blocking derivative works to sending bogus takedowns and more. Copyright can be and is frequently used to stifle expression. That should be a concern.
On the flip side, many (including, at times, the Supreme Court) have argued that copyright itself is also an engine of free expression. This may also be true. Copyright can both be an engine of expression and stifle expression at the same time. The challenge, then, is to figure out how we can increase the engines of expression while minimizing the ability to stifle expression. And to do that, we need to break down a few different components to explore the competing factors. The first is to look at the question of whether or not copyright is necessary to accomplish the goals of promoting this kind of new speech. In many cases, it very well may be. But I find it difficult to believe that it is the only, or even the most important, tool for doing so. Yet, that is how it is mostly structured today. With copyright automatically applying to any new work created by a person, it doesn’t make much sense. Copyright should only make sense when it is the copyright itself that is the incentive for creation. If the work would be created no matter what, even absent the copyright, why is the copyright needed? Why, for example, do I need to get a copyright in every email I write? I can tell you that I have never been incentivized by the copyright system to write an email (other than, perhaps, to email with others about problems of the copyright system).
On top of that, what we’ve seen over the last few years, is that copyright is often not the best incentive for creating new creative content. In an age where we’re seeing lots of new business models develop, very few of them are actually dependent on copyright. It raises a serious question of why, by law, we naturally assume that copyright must be the grounding of every content business model, when time has shown it is quite frequently not the best nor the most efficient business model — and one that is often saddled with downsides and limitations.
Given that, it seems quite reasonable to ask why we don’t scale back the copyright system to cases where it clearly (or at least likely) is a key part of the incentive for that creation. Doing that wouldn’t (by definition!) harm any new creations, but it would take away the ability to abuse the excessive copyrights to stifle freedom of expression in other areas.
Similarly, we should look at the situations in which copyright is regularly abused to stifle free expression, and see how to minimize that. A major area for abuse (though hardly the only one) is in bogus DMCA takedowns. That is not to suggest all (or even most) DMCA takedowns are bogus. Many are perfectly legit and do exactly what they’re supposed to do. But an unfortunately large number of DMCA notices are used to try to take down content that someone just doesn’t like, but which is not in any way infringing. Here, there are a number of possible answers. I probably lean towards moving to a notice-and-notice system, rather than a notice-and-takedown, because that keeps the content up while the receiving party has a chance to counterclaim. Thus, you avoid even the temporary suppression of free speech. Others prefer a solution that puts real meat on punishing those who file bogus DMCA takedowns, which isn’t necessarily a bad idea, but could lead to other problems as well.
In short, we’ve designed our copyright system in a dangerous way: it’s one that actively encourages the use of copyright to stifle free expression, rather than to encourage it. And that’s not just unfortunate for free expression and the free exchange of ideas, it’s unfortunate for copyright as well. It’s that structure, so open to abuse, that leads people to not respect copyright at all, and to naturally assume it must be all bad, rather than just partially rotten. If the copyright system supporters were serious about bringing respect back to copyright, one area where they should start, and where we could all agree, would be to make these kinds of fixes to copyright law, that would align copyright’s incentives properly with encouraging new works, and to move away from the elements of copyright that make it such an easy tool for censorship and stifling freedom of expression.