November 27, 2020

Why Don’t Conservatives Care About Copyright?

By Daniel Takash
I’m certainly not the first
person (especially
on Techdirt) to point out that if conservatives are
really concerned about online censorship, they should be putting
copyright law under the microscope, rather than, or at least in
addition to, Section 230.

The New York Post debacle and
gating President Trump’s post-election tweets are the most
recent arrows in the quiver for anti-tech conservatives. It doesn’t
have anything to do with copyright (though Hunter Biden’s
emails, if they’re real, are eligible for copyright
protection). But whenever Section 230 is used as a synecdoche for the
more general laws that govern what private tech companies can and
can’t do on their sites, I cannot help but ask myself, “why
aren’t conservatives up in arms about copyright law?”

I haven’t done a full accounting
of all conservative run-ins with online content moderation policies.
Still, at least for the President, the only instances something he
has posted was taken down–not had a warning label
attached, but properly removed–were for copyright infringement.
In one case, Trump erroneously
blamed Twitter and Section 230 for the removal of a
video on copyright grounds.

Trump’s campaign has
also gotten into legal trouble by playing music to
which he doesn’t have the rights at rallies, and conservative
figures have been on the receiving end of clearly
bogus claims of copyright infringement. Of course,
this isn’t to dismiss other cases where content has been
removed, whatever you may think of them. My point is this: Put
yourself in the shoes of a right-winger online, and you’d think
copyright would get at least as much airtime as Section 230, or any
airtime at all. Yet such criticisms are nowhere to be found.

Why is this the case? I have a few
theories, though none are particularly satisfying:

One: Copyright is Private Property

I
am emphatically against this position, but many
conservatives subscribe to the belief that copyright is property and
deserves the same moral treatment as tilled land or gathered acorns
appropriated by mixing
one’s labor with it. My disagreements with this
position aside, it’s an idea that must be taken seriously on
the merits and, more relevant to this discussion, because it’s
a sincerely held belief.

From this vantage point, it’s
easy to see why the right isn’t up in arms about DMCA takedown
notices, automated copyright systems, or artists not allowing their
songs to be used at political rallies. If someone owns their
property, they have a claim against the world to exclude others from
its use. You’re under no obligation to host a political rally
(especially one supporting positions with which you disagree) on your
front yard. You can own content in the same way you own your land.
Thus you can restrict the use of your work.

This is a straightforward position, but
one which contradicts claims of unlawful or unjustified censorship by
tech platforms. Twitter and Facebook own their websites in the same
way I own my work or someone else owns their lawn. If preventing
someone from speaking by using one of these is censorship, they must
all be considered censorship.

Though the treatment of works protected
by copyright as property seems like an easy way to separate copyright
enforcement from content moderation, Twitter has just as strong a
claim to ownership of its website as a photographer does to a photo
or an artist to a song. Whether or not enforcing one’s
copyright constitutes censorship, both these views run into an
all-or-nothing wall.

Two: China

The terms “thief” and
“infringer” are often used interchangeably. Still, if if
you’re criticizing the unauthorized user of a copy who you
don’t like for other reasons, you’re more likely to call
them a thief due to the negative connotation associated with the
word. A thief deprives someone of the fruits of their labor, while an
infringer sounds like someone who forgot to check the right box on
form E-7A.

And that’s what the U.S. has done
in the case of intellectual property violations by Chinese actors.
Allegations of theft cover more than just copyright, extending to a
wide range of behaviors ranging from outright espionage to
strong-arming business partners into transferring technology. And,
while there’s no shortage of bootleggers operating out in the
open in China, those complaining about Chinese IP theft are more
concerned about patents and trade secrets than works protected by
copyright.

All that being said, when grievances
are aired about the Chinese government, complaints of intellectual
property theft inevitably come up alongside far more serious charges
against the regime. This tweet from Senator Pat Toomey (R-PA) best
illustrates this dynamic:

Or – and hear me out – the communist Chinese govt and its collaborators could stop stealing American IP, imprisoning religious minorities like the #Uyghurs, and trampling on #HongKong’s lawful autonomy and basic rights. Until then, strong sanctions for perpetrators are necessary. https://t.co/QHGhU3Yzij

— Senator Pat Toomey (@SenToomey) June 26, 2020

Whatever you think about the extent of
and damage done by these technology transfers, putting that next to
two egregious human rights abuses, one of which meets
the UN’s definition of genocide, is in extremely
poor taste and demonstrates a complete lack of perspective. Still, it
shows just how closely we associated IP theft with the other crimes
of the CCP.

Were conservatives to confront the
serious drawbacks associated with aggressive enforcement of
copyright, they would admit that infringement (“theft”)
is something we should be less concerned with.Perhaps we should even
change the scope of what is covered by copyright, i.e., say what was
once “stealing” shouldn’t be.

Decrying Chinese IP theft is most
certainly bipartisan, and the beating of this drum helps cement the
association of IP theft with “the baddies.” But a
subconscious association still doesn’t explain the indifference
to the issue. Most of the conservatives’ copyright-related
censorship doesn’t deal with the wholesale piracy associated
with China, and the PRC
is a lucrative export market for works protected by
copyright. And all that aside, this train of logic is probably too
clever by half.

Three: Stronger Copyright
Enforcement Hurts Big Tech

Notice-and-stay-down
requirements, expanded
reach of ContentID and similar systems, link
taxes, or any other measures that (implicitly or
explicitly) shift the costs of enforcement from the latter to the
former most certainly harm the bottom line of tech companies.

I should point out, of course, that
while Google or Facebook can afford to sink tens of millions into
copyright filters, this requirement would be crippling to smaller
websites and a serious barrier to entry for would-be rivals to these
larger platforms. These things matter for competition.

Whether or not these rules make it
easier or harder for an upstart to dethrone current dominant
platforms, these added costs–either through compliance costs or
costs associated with litigation–will most certainly harm big tech’s
bottom line. Throw Google v. Oracle into the mix, and it’s
easy to see how stronger copyright enforcement is viewed as a way to
go after big tech.

A better explanation, then, centers on
the political dynamics of techlash. Big tech companies are in
everyone’s crosshairs, set up a clear “corporate Goliath
interfering with democracy” narrative, and are easier to stay
focused on than whichever rights holder objects to their content
being used online. Anyone can lay out a laundry list of offenses
against big tech companies (some more justified than others), but
this or that rights holder (or person claiming to be a rights holder)
taking down an infringing image doesn’t lend itself to a clean
narrative.

Four: Copyright Isn’t Cool

Whenever someone tells me copyright
isn’t sexy, my immediate response is “if that’s
true, then why
does
porn
come
up
so
much?”
But my personal feelings aside, there comes a time when every
copyright nerd must accept one hard truth: copyright law isn’t
cool.

For any question of the form “why
doesn’t [politician or political body] talk about [issue]”
the easy answer is “they don’t care.” Saliency and
elite opinion matter. If headlines about an issue won’t draw
views or elites can’t be bothered to care, it won’t see
the light of day.

But here’s the problem with this
narrative: when you get down to it, Section 230 also isn’t
particularly cool. Laws that determine who is liable for what online
aren’t particularly interesting. Of course, Section 230 is in
the news, but I think that’s because it’s been
erroneously
coupled to the cooler issue of free speech (or at least coupled in a
way which misstates the dynamic), about
which everyone has an opinion.

Section 230 probably became a buzzword
due to the debate surrounding sex trafficking and SESTA/FOSTA, and
the momentum has carried over into other issues while sucking the
oxygen necessary for a productive debate around copyright. Let’s
return to the tweet flagged for copyright infringement, the
removal of which Trump blamed on Section 230. Nobody
has ever accused the President of being detail-oriented. Still, his
being exactly wrong on this issue is the product of the fact that
everyone is talking about Section 230 but (virtually) nobody was
talking about copyright.

From this angle, the answer for why
copyright doesn’t get the attention that Section 230 does is as
simple as it is unsatisfying: because Section 230 got more attention.

——–

All of the above explanations have
their shortcomings. This is just an exploratory look at why
conservatives have ignored the role copyright plays in current
debates surrounding online censorship, which is a fancy way of saying
I don’t have an actual conclusion. Even so, there’s some
value to be found in examining why certain policies aren’t
scrutinized, even if that value is only therapeutic.

Source:: https://www.techdirt.com/articles/20201113/14561845707/why-dont-conservatives-care-about-copyright.shtml