January 18, 2014 | By Mitch Stoltz

Copyright Shouldn't Be Free Speech's Blind Spot

In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and and what we need to do to make sure the law promotes creativity and innovation. We've put together a page where you can read and endorse the principles yourself. Let's send a message to DC, Hollywood, Silicon Valley, Brussels, and wherever else folks are making new copyright rules: We're from the Internet, and we're here to help.

Defenders of the arts and media have long been some of the staunchest defenders of free speech. That's partly why media executives and lobbyists reacted so bitterly to the millions of people who stood up two years ago to say that the SOPA and PIPA bills would have created a new form of censorship. What was probably going through their heads was, how could the heirs of the Hollywood Ten, who faced persecution from the U.S. government for expressing themselves in film, ever become the censors?

It's hard to look in the mirror and see what you fear. It's easier to deny it or try to explain it away. That's why many supporters of ever-more-restrictive copyright law insist so emphatically that copyright never suppresses speech. Copyright rewards and enables speech, they say, therefore it cannot be a tool of censorship.

This is a little like saying that because X-rays are used to treat cancer, they can never cause cancer. Of course, X-rays can both treat cancer and cause it, depending on the dose and accurate targeting. Copyright is likewise: well-crafted, appropriately limited, it may reward and strengthen creativity. Applied carelessly and indiscriminately, it punishes and suppresses creativity.

In the American legal tradition, there are only a few narrow categories of self-expression that are not protected by the First Amendment's guarantee of free speech, and those categories are not permitted to grow. Yet when the mouthpieces of Big Media insist that our guarantees of free speech do not limit the scope of copyright law, they are inviting the creep of censorship that so many creative people have fought against. It's dangerous to treat copyright as a special exception to free speech, no matter how passionate and heartfelt the cries of "piracy!" Those who would use the law to silence speech that they call libel, sedition, blasphemy, hateful, hurtful, disquieting all make passionate cases for why they need special treatment. They argue that suppressing "bad" speech promotes harmony, order, happiness, and even prevents violence, arguably the most important function of any government (not that censorship actually prevents violence, but that's the argument and it's appealing to many). Copyright is no different. The Russian government has used claims of copyright infringement to silence the independent press. People the world over misuse the U.S. Digital Millennium Copyright Act to make others' political viewpoints disappear.

Big Media wants to claim the power to say what can be on the Internet and what can't, whether through SOPA, domain seizures, or "voluntary" arrangements with Internet gatekeepers. That's the power of censorship whether you call it copyright or not. Censorship is about deciding who can speak, and what people can hear. Government shouldn't have that power, and large corporations with the ear of governments shouldn't have it either. Claiming special privileges to control what people see and hear is what dictators do.

Copyright is, and must be, constrained by free speech. The Supreme Court has said that fair use is a vital safeguard for the First Amendment's guarantee of free speech. That means that when the protection of fair use is taken away, through abuse of DMCA takedowns, by litigation costs, the threat of ruinous legal penalties, or through the use of digital locks (DRM) backed by still more penalties, our freedom of speech suffers. People are threatened with lawsuits or even locked up for speaking about their academic work. Political commentaries are made to disappear in the midst of election season. Artists whose work challenges the messages of popular media are commanded to advertise the very companies they criticize. All of these are violations of the freedom of speech, enabled and perpetuated by copyright.

The only way for Big Media and its apologists to maintain their insistence that copyright is never an instrument of censorship is to deny or trivialize these abuses. Often it takes the form of implying that amateur artwork, work shared with the world on platforms like YouTube, and works of remix are inferior, and that only music from an established label, books with a major publisher, movies in wide cinematic release - or other works by a self-crowned elite class of "creators" - is worth the full protection of the law. The defense of free speech, by the historic champions of the First Amendment, devolves into crass artistic snobbery. Thus the MPAA defends the right to make fair use of a copyrighted Baltimore Ravens emblem in movies by the major studios, while TV studios try to sue the Internet video platforms used by tomorrow's filmmakers out of existence. Free speech for me, but not for thee.

But these free speech elitists can't deny the powerful visual commentary of video remixers like Jonathan McIntosh, the cultural influence of "unauthorized" music blogs like dajaz1.com, or the way that fan fiction gives marginalized communities a way to "talk back" to mainstream culture. And the protections of the First Amendment (and of copyright) don't vary based on artistic merit to begin with.

It really can't be denied: while copyright may encourage and reward some speech, overbroad and abusive copyright law tramples on the freedom of speech—for everyone.

Major media companies, large and powerful Hollywood studios and their legions of lobbyists, venerable publishing houses, and major-label musicians should be the natural allies of all people who fight for freedom of speech, as this fight has been part of their historic role since long before there was an Internet. But copyright remains the blind spot in their commitment to free speech, turning the enemies of censorship into the censors. And that's a truth we need to remind our politicians and policymakers about whenever copyright is on the agenda.

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