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Blog October 12, 2016

Piracy, Copyright & Censorship: A Call for Clarity

When I lived in London as a young man, I spent a great deal of time at Speaker’s Corner in Hyde Park, listening to all of the many and varied voices with their many and varied opinions. I agreed with little of what I heard, but I was awfully glad for the public space to go and hear all that disagreeable, often hilarious stuff. I also thought it quite amusing that so many of the speakers brought their own little ladders, stepstools or podiums on which to stand – an extra bit of height lending their opinions a bit more authority, or so they thought.

Imagine now if someone brought one of those little stepstools right onto your front lawn, stood up on it and started loudly declaiming opinions in your direction. Just because the person on the podium is freely expressing himself, are you obliged to let him do so on your front lawn? If you tell the speaker to leave your property, are you censoring him? What if he walked right into your home and refused to leave until he got tired of speaking. Would calling the cops be censorship?

I would say no. Asserting one’s right against trespass is not censorship. As long as you don’t follow the speaker down the street to the public square and once again try to stop him from expressing himself, you are not a censor. Furthermore, it would be pretty silly to assert that the very right of property ownership is in itself a form of censorship, wouldn’t it? And yet, for those of us with a deep and abiding interest in the property rights recognized by effective copyright law, the charge of censorship is one we are challenged to answer far too often.

In my experience, professional authors as an industrial group[i] have two central concerns: the protection of freedom of expression in general, and the narrow protection of our own individual expressions through copyright law. Judging by many of the theoretical constructs and much of the populist rhetoric used to criticize copyright law these days, one might think copyright and free speech are terminally and forever opposed to each other. They are not.[ii]

A weak and misleading link between copyright law and censorship is such a common and pervasive meme these days, a quick Google search of those two terms together will bring you more references than you might need to come to the conclusion that copyright is the censor’s favorite tool. For a quick and fairly comprehensive look at how copyright law is frequently linked to censorship, I point readers to Five ways extreme copyright rules can be used to censor the internet, an article by Cynthia Khoo published all over the Internet on many different platforms. The link above is to a web-publication called Real Independent News & Film.

Note how the headline of that article suggests copyright can censor not just a specific bit of speech but, somehow, the entire internet. How would that work, exactly? Censoring or, even worse, flat-out breaking the Internet is now a standard charge against strong intellectual property laws, and yet the very architecture of much of the internet – the algorithms that determine search and connect us through social media – are probably the most secretive and protected bits of IP on the planet. Can copyright protect and break the internet simultaneously?

Let’s be clear, the active censoring of original expression online – or anywhere – is anathema to the writer’s project. Especially state-sponsored censorship. And misguided complainants can and do misinterpret many laws and mechanisms in an attempt to stop the spread of ideas they don’t like. This often happens with libel and defamation law, for instance, but it’s not confined to law. Arts funding, even artistic awards are regularly attacked by those who don’t like their results. Yet we don’t see the same kind of widespread “reform” action against these legal and support mechanisms that we do with copyright. That legislators and courts increasingly ignore the cost-savings and profit motives behind these reform calls is of particular frustration to artists who, frankly, have little earned income left to lose.

Copyright law as constructed is not about stopping expression; it’s about encouraging and protecting it. We risk critically weakening that encouragement and protection when we clumsily link copyright to censorship. Khoo’s article references a number of examples of copyright as censorship, so let’s take a quick look:

The reader is directed to a lawsuit launched by CanWest resulting from a parody version of the Vancouver Sun. This, apparently, is an example of how copyright is used “to suppress speech.” Except that case does not actually involve a claim of copyright infringement. CanWest’s claim appears to have involved the trademark inherent in the VS’s logo. Trademark and copyright law are not the same thing. Trademarks are about corporate identity and identifiers; copyright is about original expression (speech).

Khoo also references Russian attacks on government critics that used genuine software piracy concerns (from software giant Microsoft) as an excuse to censor and shut down dissent. Yet the article itself notes Russian officials targeted and confiscated computers “whether or not they contained illegal software.” What does that blatant oppression have to do with actual copyright law? Canada’s former government was widely accused of using tax law to go after critics with politically-motivate audits. Do we believe taxes are to blame for that activity? Why then blame a generally helpful global copyright system for one government’s obvious state censorship?

To be clear, I think the CanWest lawsuit was a frivolous attempt at censorship, and Russia’s raids were outright attacks on free speech. I also believe neither of them had much, if anything, to do with actual copyright law. And that distinction is hugely important to authors who depend on copyright to, in part, protect their ability to continue practicing free speech.

Copyright is as much about protecting the integrity of my free expression as it is about protecting my economic rights to that expression, and without that integrity I have trouble seeing my own speech as truly free. What’s more, copyright is pretty much the only firewall between a truly free citizen of the world and an often overlooked free speech issue – compelled speech. For me as an author, the right to not speak is integral with my right to speak freely.

If the right to the integrity of one’s speech doesn’t sound immediately important, consider the war correspondent who unknowingly has the intended meaning of her writing changed while she is still in the field. That integrity can be the difference between life and death. We most often think of censorship as the outright suppression of expression – the hand over the mouth – but subtler and more diabolical forms of censorship lurk in attacking the integrity of an original expression. For more on copyright, integrity, and compelled speech, read this fascinating paper by legal scholar Abraham Drassinower. Dr. Drassinower calls copyright infringement “ventriloquism practiced on an unwilling subject.” I invite you to let that image sink in a bit. The hand is not over the mouth in that instance; it is working the mouth from inside the body.

The enforcement of copyright online most often manifests as a takedown request. The US Digital Millennium Copyright Act gives what is known as a “safe harbor” from infringement action to internet service providers as long as they properly comply with notices from rightsholders who have found their work online in unauthorized contexts. Takedowns are most often aimed at blatant, economically motivated piracy. And, yes, the term “takedown” is supposed to mean that pirated content is actually removed by the ISP. Of course that in no way means that original speech is being suppressed.

Any working artist with experience of this kind of parasitic infringement knows that DMCA notice and takedown rules may sound good, but in practice they are ineffective against a now entrenched piracy culture that sees content shifting from site to site, circumventing actual takedown with the ease of a few mouse-clicks. That in itself is discouraging for artists, but more frustrating still is the suggestion that a takedown request is an attack on free speech.

The absurd definition of pirated content as a new and unique speech-act lends credibility to other ridiculous speech-act extensions, like the 2010 Citizens United decision at the US Supreme Court that has all but destroyed the chance for meaningful campaign finance reform in that country. Calling what a content pirate does “speech” is offensive enough. Accusing the original rightsholder of censoring the pirate who infringes her rights is outrageous. It’s the equivalent of blaming a mugging victim for the damage prosecution does to her mugger.

Just as libel law allows for standard and compelling defences against abuse, copyright law contains within it all the necessary mechanisms to keep it from being an effective censor’s tool. U.S. copyright expert Terry Hart explains this from the American context:

The two major “built-in free speech safeguards” in copyright law are the idea-expression dichotomy and fair use.

Under Canadian law, we similarly respect the idea-expression dichotomy, and fair dealing is our version of the US fair use provision. Hart explains these concepts in detail:

Copyright protection doesn’t cover ideas, only the expression of those ideas. This distinction between ideas and expression has been called a “definitional balance” between free speech and copyright interests — a line between what is covered by the first amendment and what is not. Copyright provides an incentive to create and disseminate expression. By extension, the ideas expressed are also disseminated, benefiting the public. But protection ends where expression ends, and anyone is free to use the ideas in any given work.

The fair use doctrine recognizes that some uses of copyrighted expression without the permission of the copyright owner are beneficial. … fair use has come to be seen as the primary mechanism for resolving any conflicts between free speech and copyright.

As the courts are more and more asked to rule on questions of copyright and intellectual property rights, we will undoubtedly see more and more claims of free speech used in defence of both piracy and the tools that support it. Canada currently awaits just such a ruling, and I anticipate loud claims of censorship that will muddy the waters for genuine free speech champions. The case of networking device manufacturer Equustek Solutions Inc. has taken an intriguing turn into the area of online enforcement against piracy. The Supreme Court of Canada will now rule on whether or not search engine giant, Google, not even a party in the original legal complaint, can be compelled to remove worldwide search results that lead to Equustek’s pirated property. As one analyst explains it:

“No one alleges that Google has done anything unlawful or illegal. It is not a party to the lawsuit. But the algorithms in its search engine provide people with hyperlinks to websites operated by defendants in violation of IP or other rights, or in breach of a court order.”

Expect to see a forceful claim that search results are speech acts, and that a worldwide removal order would therefore be a form of censorship.

The idea that algorithmically determined search results are in any way a form of free speech is deeply problematic. There is nothing free about the way search results appear from a given engine. They are corporately designed for maximum profit. Furthermore, such results do not come from a human author, and one would have to go to absurd contortions to have them considered original expressions along the lines of true speech. Sadly, I expect our courts to be subjected to those contortions, which could result in willful infringement and its enablement finding a measure of legal shelter online.

[i] For the purposes of this discussion, I leave aside the artistic concerns of authors, which often veer far from industrial concerns, making them much more fun and satisfying. Nevertheless, we live in a market economy and professional authors are engaged not just in creating characters and plots, but also in making a living.


[ii] I recognize this opinion probably puts me in conflict with some of my fellow bloggers here at the Centre for Free Expression. But that’s one of the wonderful things about free expression, isn’t it? All opinions welcome. Everyone goes home happy.

October 12, 2016
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