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Sidebar podcast: Copyright Conundrum: Or Copyright Confusion?

Mike Masnick of TechDirt, generally pro-civil liberties and generally skeptical of copyright but not an abolitionist, just put up a podcast episode he appeared on discussing free speech versus copyright and the censorship copyright law causes. This was an episode of the podcast “Sidebar by Courthouse News” called Copyright Conundrum, and re-podcast on Techdirt by Masnick. The shownotes:

Would you believe us if we told you copyright law is the biggest regulation on free speech in the United States?

When you exercise your First Amendment right to paint a picture or write the next great American novel, your speech belongs to you. No one can take it and pass it off as their own.

But when all the power is vested solely in one person, the rights of others slowly begin to dwindle.

If you think copyright is just a term for media executives and lawyers, come along as we unravel its constitutional underpinnings.

In our fifth episode this season, we dissect this intricate balance that copyright law maintains between protecting creators and ensuring the public’s unfettered access to cultural treasurer, detailing the symbiotic relationship between artistic works and the fundamental right to speak freely.

Copyright is all around us because speech is all around us.

Special guests:

Jennifer Jenkins, a Duke University professor of law and director of the university’s Center for the Study of the Public DomainMike Masnick, writer and founder of TechdirtCorynne McSherry, legal director at the Electronic Frontier Foundation Keith Kupferschmid, CEO of Copyright Alliance This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.

I had to stop listening after about 15 minutes because it is so painful. None of these people, not even Masnick, have any principled opposition to IP. Not Masnick, not EFF. So therefore their complaints about copyright are always muted and confused. In this episode the hosts and guests get so many things wrong in their analysis here, because they buy into the myth that copyright is needed, but we need to “balance” blah blah blah against free speech/free press rights.

Here are few things I noted in the first 10 or so minutes (using the transcript from Youtube). I will fisk a few things then let this go because, following Brandolini’s Law, it would take me an inordinate amount of time to explain all their confusions and errors.

First, they note that the Constitution authorizes copyright, in Article I, but it also protects free speech and freedom of the press, in the First Amendment. What they do not mention is that the Copyright Clause was ratified in 1789, along with the rest of the original Constitution; but the First Amendment was ratified two years later, in 1791, but the next Congress. This has implications for which provision should prevail in case of a conflict: hint: the later one. (See my post “Copyright is Unconstitutional”.)

Second, they observe that Article I gives Congress the power to “regulate copyright,” whatever that means—the power is to create copyright, not to “regulate” it. If Congress had passed no Copyright law there would be no copyright and nothing to “regulate.” I don’t know why these people don’t get a lawyer to proofread this stuff. Then they say “the text directs Congress to quote promote the progress of Science and useful Arts by securing for a limited times to authors and inventors the exclusive right to their respective writings and discoveries”. No. It does not “direct” Congress to do this! It simply gives them the power to do it. There was and is no obligation of Congress to enact patent or copyright law. Congress would have the power to abolish

Next: The host, Kirk McDaniel, says this:


… speech is all around us because speech is all around us. When you are exercising your First Amendment right to paint a picture or write the Next Great American novel your speech belongs to you. No one can take your speech and pass it off as their own.

So he is here trying to somehow tie First Amendment rights to expression with Coypright, as if they are complementary. This is totally confused. First, copyright has nothing to do with “passing off speech as your own.” It has nothing to do with authorship, or being credited as the author. That is more in the domain of plagiarism (not a crime!) or fraud. Copyright law stops me from selling Harry Potter books even with J.K. Rowling’s name on the cover. Even if I am not “passing if off as my own.” So this guy is completely confused about what copyright is. Moreover, copyright applies to “derivative works” when the creator of the derivative work is not copying the original nor pretending he was the originator of the original. You do not need a copyright system to protect you, so that you have free speech rights. If there was no copyright law, you would have total freedom to say or print whatever you want. You don’t need copyright law to bolster your first amendment rights; far from it, the First Amendment and copyright law are incompatible, as the Supreme Court has recognized.

Moroever, notice the word “take.” This is often used to refer to copying, but copying it not taking. It’s not theft, stealing, “ripping off,” or “piracy.” This language is repeated later, e.g. “… that’s just one of many examples of what the public domain allows it allows you to take a work that’s no longer subject to copyright…”. No. you never “take” a work. You copy it, use it, emulate it, compete with it, build on it, learn from it, but you can’t “take” it. Others, including the “creator,” still “have” it.

Next, the guest, law professor Jennifer Jenkins, says “copyright law often interferes with free expression when the copyright owner is claiming that someone else’s protected First Amendment speech is illegal because it infringes the copyright owner’s protection…” This is absurd Orwellian nonsense. Copyright law does not “often” interfere with free expression; it always does. That is its purpose: to permit the copyright holder to block others’ speech and freedom of the press! Copyright law is literally book banning.1 It is not that it “sometimes” or “often” interferes with free expression rights. That is its very nature. Hellooo.2

Then McDaniel says this:



the First Amendment Industries like media entertainment, arts, and even technology, would look very different; but, without copyright, there would be no incentive for a writer to get that manuscript published, or a musician to get their song out there for the world to hear. They get credit and legal protections and we the public get the right to talk about build upon their work through fair use.

First, copyright has nothing to do with credit or attribution. We know who the author of Moby Dick was even though it’s not under copyright anymore. If you give credit to J.K. Rowling when distributing pirated copies of her books, it’s still copyright infringement. Second, he simply asserts, with no evidence at all, “without copyright, there would be no incentive for a writer to get that manuscript published, or a musician to get their song out there for the world to hear”. There are two problems here. For one, it assumes the purpose of law is to run around providing incentives. It’s not. It’s to protect property rights. For another, there is literally no evidence for this ridiculous contention. We have a world now where piracy is rampant, thanks to torrenting and digital and encryption technology; copyright is half-dead already. Anyone can get a copy of a song or novel or movie easily, for free. And yet we have tons of music and art and books and movies anyway. Moreoever, as I noted in my post Intellectual Property’s Great Fallacy, Eric Johnson points out:

Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied. This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.

See also Mark Lemley: The Very Basis Of Our Patent System… Is A Myth (July 29, 2011).

I can’t go further. This is too painful.

  1. Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth AmendmentReason: Copyright Should Last Half A Century. []
  2. See Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.