Lawrence Solum reports on a panel discussion at the American Association of Law Schools conference. It’s an interesting discussion, and everybody seems to agree that there are significant and increasing conflicts between copyright and free speech.
In her presentation, Jessica Litman used my experience as an example of the chilling effect of the DMCA. Somehow this reminded me of the caption (but not necessarily the title!) on this classic despair.com poster: “It could be that the purpose of your life is only to serve as a warning to others.”
20th Century Fox wanted $10,000 for the clip. So Homer Simpson was digitally removed from the documentary. This is a frequent problem for documentary filmmakers.
The examples show that there is a conflict between the first amendment and freedom of speech, but some courts have gone so far as to state that copyright is categorically immune from first amendment challenge.
If people were honest, copyright could be enforced by contract. When you bought something you’d promise not to share copies, as a condition of the purchase. (Of course, this would be at the discretion of the content creator or seller; nothing would prevent anyone from giving away their works with fewer restrictions, or with no limitations at all.) Given that you were honest, you would abide by your promise, not share the data, and the copyright would be preserved.
But unfortunately, people are not honest, as the success of first Napster and now Kazaa demonstrates. Every one of those copyrighted files was originally shared by someone who at least implicitly agreed to honor the request of the creator not to republish them. The entire P2P file sharing phenomenon is built on a foundation of lies and broken promises.
This is where DRM comes in. It tries to get people to behave as if they were honest, to truly honor the promises they make in exchange for being offered content that is of value to them. Unfortunately, the prospect of actually having to behave honestly, to keep your promises and live up to your word, is anathema to many in the online community. Thus the ongoing content wars.
Nevertheless I find it interesting that among honest people, copyright and free speech are perfectly compatible. You are only restricted in what you say by your prior agreements, into which you entered voluntarily for valuable consideration. Any restrictions on your speech are therefore self-imposed and speech is fully free.
Hey, that’s better than my demotivator, "Sacrifice"
“Your role may be thankless,
but if you’re willing to give it your all,
you just might bring success to those who outlast you.”
[“Perfect for: Pawns, human and otherwise …”]