Free Expression vs. Copyright in the Digital Age

Here’s a “sneak preview” that was excerpted [when this item was first posted] from a paper to be delivered at Emory University’s Conference on Free Culture & the Digital Library in October 2005.  The Free Expression Policy Project. We get a little mention. The article, credited to the Free Expression Policy Project (FEPP) at the Brennan Center for Justice at NYU (no individual author appears to be named — that must be an oversight) is pretty darned interesting, too. Its conclusion:

Although FEPP’s research methodology was not scientific, and those contributing to the Chilling Effects database or participating in our survey, interviews, and focus groups were to a large extent self-selected, we can nevertheless draw some significant conclusions from the research.

First, whatever the precise percentage of meritless cease and desist letters may be, substantial numbers of them do state weak-to-nonexistent claims, or seek to suppress material that would qualify for a fair use or First Amendment defense. Recipients who do not acquiesce in the demands in these letters are often successful, and are not sued. Even without legal representation (and we found no strong correlation between legal representation and refusal to acquiesce in a copyright or trademark owner’s demands), a non-acquiescent response often ended the controversy. But despite the fact that cease and desist letters are often empty threats, many recipients are cowed into acquiescing, and the validity of their fair use or First Amendment defense is never tested.

Section 512 letters have markedly different effects. By conditioning immunity from suit on compliance, the statute creates very strong incentives for ISPs and search engine companies to remove material merely on the “good faith” representation that it is infringing. As Google’s experience with Scientology reflects, §512 has tremendous potential as a censorship tool for anyone seeking to suppress criticism. We saw other examples of this phenomenon in the take-down letters targeting the New York Times parody correction page, Durango Bill, Roger Loomis’s Mormon discussion site, the Chick cartoons parodist, and newsgroup postings about Star’s Edge International. The mere fact that in our typical year (2004), take-down letters greatly outnumbered cease-and-desist letters on the Chilling Effects site suggests how pervasive their use has become.

Increased community support and pro-bono legal assistance are also needed. The experiences of painter Joy Garnett, the National Debate blog, and fan sites such as Caroline in the City suggest that online communities can be critical in helping those targeted by cease and desist or take-down letters.

Accurate knowledge of fair use, awareness of its importance, and determination not to let it wither despite its unpredictability are essential elements of free culture, especially in the digital age.

I was not previously familiar with FEPP. Naturally, I liked this article; I’m very big on fair use.  Unfortunately, a look at their website is disappointing. They appear, like certain people we know, to be “First Amendment absolutists” — here objecting righteously to those who object to a “balanced” presentation of terrorism at the World Trade Center site, hysterically arguing that the exercise of editorial discretion with respect to an exhibit there amounts to “the stifling of all free expression at Ground Zero, ironically, [which] would accomplish just what the terrorists sought – a trampling of the very freedoms that form the foundation of our democracy.”

So, throughout the site, the theme is the old “censorship is bad; information wants to be free” theme you’d expect from the “Brennan Center” at NYU, without knowing anything else about it. Okay, so these guys are “copyfighters,” right? Well, not exactly. Also like certain people we know, my freedom to play with your copyrighted works — which is to be extended, for example, to those who sample music , or just plain steal it. This, however, doesn’t extend to the politically incorrect private use of copyright, such as in the case of the Family Entertainment and Copyright Act. That is to be opposed, not on copyright grounds, but because “”censorship under the guise of child protection has traditionally been, and continues to be, a convenient excuse for not educating children – about media, critical thinking, and moral values.” Not surprsingly, Internet filtering — almost reactively — is also objectionable.

Censorship? This is my house! The First Amendment has nothing to say about what I show my kids. Would the Brennan Center also object if I TIVO-fast-forwarded through the commercials to spare my six year olds exposure to Madison Avenue’s never-ended sexathon o’ salesmanship? Or is it an even bigger problem that (in fact) I don’t even have a TV in my house?

Disappointing, but not surprising. And while I disagree strongly with the silly “de-link Instapundit” movement (conservatives don’t believe in that sort of nonsense), it’s not hard to understand why a lot of people are sick and tired of the hypocrisy of this Greenwich Village brand of whose-ox-is-being-gored, would-be First Amendment “zealots.”

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Author:Ron Coleman

I write this blog.

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