Excellent article by Internet and First Amendment lawyer Marvin Ammori in The Atlantic, Should Copyright Be Allowed to Override Speech Rights? Ammori, with the New America Foundation’s Open Technology Initiative, points out that the have courts recognized the potential threats to free speech posed by defamation law:
Defamation law, while necessary to protect wrongly tarnished reputations, raises well-known threats to freedom of speech. If you criticize a large company, powerful businessman, or public official, you can expect a well-paid lawyer to at least consider bringing a defamation lawsuit. These suits chill protected speech and discourage robust debate. Because of this threat, the Supreme Court has imposed free-speech limitations on defamation suits, most famously in the celebrated 1964 decision New York Times v. Sullivan.
I disagree that asserting that defamation law is “necessary” is a justification for it; in fact it is just another type of intellectual property and just as invalid as the others. Further, the Sullivan decision has problematic aspects, in that it applied the First Amendment, which was a limitation on federal power, not state power, to state defamation law (I disagree that the Fourteenth Amendment was meant to incorporate the Bill of Rights). A federal defamation law, by contrast, would be unconstitutional, for two reasons. First, it would be incompatible with the First Amendment. Second, there is no enumerated power granted to Congress to enact defamation law, so that such a law violates the 10th Amendment and the constitutional structure.
In any case, the thrust of the decision and Ammori’s remarks is correct: defamation law is incompatible with free speech, or at least a threat to it.
Ammori observes that until fairly recently, the courts and Congress also recognized the threat copyright poses to free speech, and thus provided exceptions like fair use and safe harbors to shelter ISPs and others from liability for defamatory or copyright-infringing conduct by users or third parties. But, Ammori argues, “Congress has become inconsistent in its sensitivity to free speech threats,” with new proposals such as SOPA, which threaten to chill or stifle speech on the Internet. Ammori urges Congress to take First Amendment concerns into account in crafting new copyright legislation:
Imagine if our nation, or another, had proposed legislation to punish any website for defamation committed by its users. Imagine also that enforcement against such sites — defined as “dedicated to defamation” — would include automatically cutting off advertising and credit-card processing, removing sites from search engines, and messing with the global Internet addressing system to shut them down.
We would all recognize such a law would lie on the wrong side of free speech. But Leahy, who was a champion of the SPEECH Act, sponsored the Senate copyright bill that would adopt these procedures. Many members of the House supported speech protections for defamation through that Act but fail to support similar protections when a law addresses copyright — even though the proposed laws would miss their mark and silence a lot of non-infringing speech.
Congress should have learned its lesson: the 1998 copyright safe harbor recognizes the lessons of the First Amendment. So does the SPEECH Act. Why can’t copyright legislation today?
As I mentioned in Copyright is Unconstitutional, one could make an argument that copyright in its current form is unconstitutional because it does, in fact, as Ammori observes (also Steven J. Horowitz in A Free Speech Theory of Copyright), conflict with free speech rights in the First Amendment. Unlike defamation law, however, the Constitution expressly authorizes Congress to enact copyright law. And if the First Amendment and the copyright clause were of equal stature, then the courts would have no choice but to try to balance these incompatible provisions. However, the First Amendment came two years after the Copyright Clause: 1791 versus 1789. Thus, if and to the extent there is a conflict, the later provision prevails. It’s as if the 1791 Bill of Rights partially overturned the Copyright Clause. Or as I argued previously:
Clearly copyright is form of censorship. Clearly the First Amendment prohibits federal censorship laws. So: the First Amendment later, and thus implicitly repealed the copyright clause. Or at least the copyright act–the way it’s implemented to permit books to be banned and movies burned.5
The more I think about this, the more I think it’s correct. There is a tension between copyright’s censorship, and the free speech and free press protections in the First Amendment (as there is a “tension” between antitrust and IP law). But since the free speech provisions came later, in case of conflict, they prevail. Copyright has to go. It is unconstitutional.
Update: see also Neil Netanel – Copyright’s Paradox for Freedom of Expression: Engine or Brake?
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Jake· 30 weeks ago
The warrent album you are refferencing, dirty rotten stinking…was released in 1989 not 1984.
I like the article by the way.
Jake
2 replies · active 30 weeks ago
bylund37p· 30 weeks ago
Daniel Hewitt· 30 weeks ago
Freudian slip. You were thinking of Van Halen’s 1984? That one was a classic too.
Ah, good times.
stillbjorn· 30 weeks ago
4 replies · active 30 weeks ago
bylund37p· 30 weeks ago
Joshua Gonzales· 30 weeks ago
Per,
I would not say that the illegally downloaded music is totally free. There is the opportunity cost of bandwidth is one consideration. Another would be a selection amongst the various hosts with what seems to be identical content (i.e. the same Dokken album) with some uncertainty about the quality of the file or even the authenticity.
Now I do agree with what you go on to say and that is that the existence of P2P or torrent networks which have no cost other than the ones I describe above, would in a unregulated market, drag down the price of a download from a site like amazon. However, do you think that in that market there is still a place for those who would charge some money price for downloads? They would offer safety, security and authenticity to their customers in exchange for a small (much smaller) fee.
bylund37p· 30 weeks ago
Joshua, I am not sure what you are saying that I am saying. If you re-read my comment, you will notice that I do not say that “illegally downloaded” music is free. In fact, I state that it can be considered downloadable “for a very small cost.” So I am not sure to what you are reacting – to my statement that a completely free good is not an economic good?
As for the rest of your comment (which I do understand), I do think that there is a market for downloadable music for a (small) fee. I’m not sure exactly how the market would offer this product in a freed market, but it is possible that downloadable music is bundled with discounts, VIP status (or something like that) that is somehow offering value in the purchase of new music, apparel, or whatever. Amazon is doing this small-scale as it is, since they – as I mention in the article – offer download credits if you buy the album (which comes at something like half the cost of downloading the same songs!).
Most of the income for record labels (and artists) is through radio, merchandise, and tours anyway. Perhaps music would be seen as part of an artist’s marketing mix in a freed market? Let’s hope we will find out in time.
wildberry· 30 weeks ago
Your economics is a littel one-sided, and you seem to have a misunderstanding of the operation of property rights and the difference between the interests of the consumer, the artist, and the copyright holder (which may be three different people).The failure of the market here is to figure out a business model to give consumers what they want, rather than force them to buy something they don’t want (the whole album) to get what they want (a song).
Also, artists sell their copyrights to others, who have a right to protect their property rights,but often in ways that are not helpful to artists or consumers. Artists have now have the right, and do offer their work for free. Nothing in copyrights prevents that from happening today.
Your real problem is that your favorite artists sold their rights to some corporation, who is holding your musical preferences hostange, thereby encouraging “pirate” operations.
KelThuz· 30 weeks ago
bgm· 30 weeks ago
The fact is that where the glam rock bands made their profits back in the day is different from where the modern superstars make their bucks. Glam rock existed in a golden age of music. This was the 60 years or so spanning roughly from the early 50’s (really taking off around The Beatles era) to the end of the 90s Britpop scene. Anyone who was lucky enough to release records in that time (artists and labels alike) would on average have made a large proportion of profits from record sales. This golden age was a freak occurrence. Before this most music was sold as sheet music and could be easily replicated and passed on through public conscience. After this time the digitization of music coupled with the spread of technology enabled a similar thing to occur bringing an end to the good times when you could sell a piece of plastic for a hugely inflated price through the magic of marketing and supplying in demand products to the market.
Modern super stars now make their cash on live touring, merchandise, media deals, publishing etc. The music they sell is simply an advert for this and the money they make selling CD’s and downloads is minimal in comparison. The reason GaGa will sell music either atomic release or digital for an inflated price is to give it some sort of credibility through price which is what we use as a method for gauging quality these days. Also the distributors know full well that they can’t make the sort of profits they used to with any artist so this has a factor in setting the price but is not the only factor. The fact that a new release will quickly be re distributed for free has been turned into an advantage.
I also suspect that the reason we are starting to see bands reforming is to take advantage of the live scene in the same way. However as their market is more lightly to be loyal fans who are prepared to spend money on re stocking their collections along with the fact that the money has already been spent on creating the recordings and creating an image. It is now easier to justify selling hard copies of albums at a lower price as the cost of pressing CDs is very low in comparison to the cost of creating a new work from scratch. This could also be seen as an incentive to buy tickets to a future gig as if you are willing to take the risk on buying a reissued CD you are then more lightly to follow-up your investment with a ticket to their Gig.
Thanks for the thought provoking article.
macsnafu· 30 weeks ago
Friedrich· 30 weeks ago
The other week, a friend of mine intended to download the Bjork-Track Army of Me from the Sucker Punch movie (that movie sucked big time btw). Funny thing was, that it was only possible to download that song if you bought the entire album 0_o
That said, searching or a viable download reduced his cost to get the track to zero eventually. Contentmafia screwed up big time, I think, especially as he got access to tons of other desirable downloads for free that way.
heathroi· 30 weeks ago
The vinyl or Cd versions are going to be much pricer. also (possibly a good thing) there wouldn’t be Lady Gaga Album produced like it is currently on a shelf or server. In fact i would go as far as to say the studio album would be extremely rare without copyright simply because who would go into the studio for six months or so with all the production, missing out on touring income when the record company (if such a thing existed)is not advancing you cash
I woulod i like to point out that I would like to see copyright cease as it would be a lot more innovative, just that it would be very different. than the higher or lower cost case suggested by the author.
Otto· 30 weeks ago
Beefcake the Mighty· 30 weeks ago
First of all, glam metal sucks out the ass. Warrant, say, will never be as good as GWAR! or Ministry.
Second, where’s Kinsella been? Has he suffered the same fate as Tucker?
3 replies · active 30 weeks ago
wildberry· 30 weeks ago
What gives?
Dagnytg· 30 weeks ago
Beefcake and Wildberry,
Boy, I can’t think of two people more juxtaposed but then you’re the only two left that have laid down some prose on this site so you at least know what I’m talking about.
You can read my rant about Tucker here: http://blog.mises.org/19375/jeff-tucker-on-occupy…
Beefcake… your Yagoda and Yezhov reference is so apropos because it is almost as if Jeffrey never existed at LvMI.
So where is Jeffrey? At the Cato Institute or the Independent Institute…maybe working for the Ron Paul campaign? Nooooo…he’s in the Siberia of libertarian websites. He’s slaving away (literally…he’s been cranking out an article a day most weeks) for Agora Financial whose business model is to get your email address and spam you with investment/trading newsletters. (I made the mistake of joining the Daily Reckoning back in 03.) Poor Jeff gets about 5-8 comments per article of which 2-3 are contrived responses from trading websites. The situation would be comical if it wasn’t so pathetic.
Where’s Kinsella? His last post was October 30th. (Tucker’s November 3rd) Is it coincidence? Maybe he’s on vacation or maybe he died (and like Jeffrey Tucker, LvMI doesn’t think it’s worth mentioning).
All I know is Kinsella (like Tucker) was passionate about this site and posted articles and commented on other threads almost daily…and then…nothing…it’s like he never existed.
Then there is S.M. Oliva…he disappeared before Tucker and Kinsella.
So Wildberry …the days of long debates with Kinsella are over. Furthermore, without the email alerts (discontinued around the time Jeffrey disappeared) your long debates with Peter Surda are over…unless you want to click back twenty blog pages (and counting) everyday and find the post. Hell, without email updates I can’t even follow the discussion. (To add insult, I don’t even get email updates from IntenseDebate.)
There’s not much left on this site. They lost their most passionate thinkers and writers. They lost most of their passionate bloggers (when they discontinued the ability to follow and reply to comments). The IntenseDebate format sucks. They’re begging for writers (apparently, top libertarian and economic writers don’t want to contribute anymore). And you wonder why they’re begging for money?
Note to Lew: Read Mises…the part about consumers voting with their money…
wildberry· 30 weeks ago
Timing is good for me, because I have my head down on something important through Feb, but by then, Mises.org will be but a cyber-whisper, it appears.
Even Surda, who always insists on the last word on every subject, has been absent. Imagine!
Dokken· 30 weeks ago
Here are some resources for glam/hair metal fans: http://theglamnationnetwork.com/
At http://www.live365.com: genres -> metal -> glam or pop metal/hair
Although this is a pay site, if you go to the page for each broadcaster, most have outside websites and some of them offer free listening.
Enjoy.
Anthony· 30 weeks ago