Why Don't Conservatives Care About Copyright?
I'm certainly not the firstperson (especiallyon Techdirt) to point out that if conservatives arereally concerned about online censorship, they should be puttingcopyright law under the microscope, rather than, or at least inaddition to, Section 230.
The New York Post debacle andgating President Trump's post-election tweets are the mostrecent arrows in the quiver for anti-tech conservatives. It doesn'thave anything to do with copyright (though Hunter Biden'semails, if they're real, are eligible for copyrightprotection). But whenever Section 230 is used as a synecdoche for themore general laws that govern what private tech companies can andcan't do on their sites, I cannot help but ask myself, whyaren't conservatives up in arms about copyright law?"
I haven't done a full accountingof all conservative run-ins with online content moderation policies. Still, at least for the President, the only instances something hehas posted was taken down-not had a warning labelattached, but properly removed-were for copyright infringement.In one case, Trump erroneouslyblamed Twitter and Section 230 for the removal of avideo on copyright grounds.
Trump's campaign hasalso gotten into legal trouble by playing music towhich he doesn't have the rights at rallies, and conservativefigures have been on the receiving end of clearlybogus claims of copyright infringement. Of course,this isn't to dismiss other cases where content has beenremoved, whatever you may think of them. My point is this: Putyourself in the shoes of a right-winger online, and you'd thinkcopyright would get at least as much airtime as Section 230, or anyairtime at all. Yet such criticisms are nowhere to be found.
Why is this the case? I have a fewtheories, though none are particularly satisfying:
One: Copyright is Private Property
Iam emphatically against this position, but manyconservatives subscribe to the belief that copyright is property anddeserves the same moral treatment as tilled land or gathered acornsappropriated by mixingone's labor with it. My disagreements with thisposition aside, it's an idea that must be taken seriously onthe merits and, more relevant to this discussion, because it'sa sincerely held belief.
From this vantage point, it'seasy to see why the right isn't up in arms about DMCA takedownnotices, automated copyright systems, or artists not allowing theirsongs to be used at political rallies. If someone owns theirproperty, they have a claim against the world to exclude others fromits use. You're under no obligation to host a political rally(especially one supporting positions with which you disagree) on yourfront 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, butone which contradicts claims of unlawful or unjustified censorship bytech platforms. Twitter and Facebook own their websites in the sameway I own my work or someone else owns their lawn. If preventingsomeone from speaking by using one of these is censorship, they mustall be considered censorship.
Though the treatment of works protectedby copyright as property seems like an easy way to separate copyrightenforcement from content moderation, Twitter has just as strong aclaim to ownership of its website as a photographer does to a photoor an artist to a song. Whether or not enforcing one'scopyright constitutes censorship, both these views run into anall-or-nothing wall.
Two: China
The terms thief" andinfringer" are often used interchangeably. Still, if ifyou're criticizing the unauthorized user of a copy who youdon't like for other reasons, you're more likely to callthem a thief due to the negative connotation associated with theword. A thief deprives someone of the fruits of their labor, while aninfringer sounds like someone who forgot to check the right box onform E-7A.
And that's what the U.S. has donein the case of intellectual property violations by Chinese actors.Allegations of theft cover more than just copyright, extending to awide range of behaviors ranging from outright espionage tostrong-arming business partners into transferring technology. And,while there's no shortage of bootleggers operating out in theopen in China, those complaining about Chinese IP theft are moreconcerned about patents and trade secrets than works protected bycopyright.
All that being said, when grievancesare aired about the Chinese government, complaints of intellectualproperty theft inevitably come up alongside far more serious chargesagainst the regime. This tweet from Senator Pat Toomey (R-PA) bestillustrates 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 ofand damage done by these technology transfers, putting that next totwo egregious human rights abuses, one of which meetsthe UN's definition of genocide, is in extremelypoor taste and demonstrates a complete lack of perspective. Still, itshows just how closely we associated IP theft with the other crimesof the CCP.
Were conservatives to confront theserious drawbacks associated with aggressive enforcement ofcopyright, they would admit that infringement (theft")is something we should be less concerned with.Perhaps we should evenchange the scope of what is covered by copyright, i.e., say what wasonce stealing" shouldn't be.
Decrying Chinese IP theft is mostcertainly bipartisan, and the beating of this drum helps cement theassociation of IP theft with the baddies." But asubconscious association still doesn't explain the indifferenceto the issue. Most of the conservatives' copyright-relatedcensorship doesn't deal with the wholesale piracy associatedwith China, and the PRCis a lucrative export market for works protected bycopyright. And all that aside, this train of logic is probably tooclever by half.
Three: Stronger CopyrightEnforcement Hurts Big Tech
Notice-and-stay-downrequirements, expandedreach of ContentID and similar systems, linktaxes, or any other measures that (implicitly orexplicitly) shift the costs of enforcement from the latter to theformer most certainly harm the bottom line of tech companies.
I should point out, of course, thatwhile Google or Facebook can afford to sink tens of millions intocopyright filters, this requirement would be crippling to smallerwebsites and a serious barrier to entry for would-be rivals to theselarger platforms. These things matter for competition.
Whether or not these rules make iteasier or harder for an upstart to dethrone current dominantplatforms, these added costs--either through compliance costs orcosts associated with litigation--will most certainly harm big tech'sbottom line. Throw Google v. Oracle into the mix, and it'seasy to see how stronger copyright enforcement is viewed as a way togo after big tech.
A better explanation, then, centers onthe political dynamics of techlash. Big tech companies are ineveryone's crosshairs, set up a clear corporate Goliathinterfering with democracy" narrative, and are easier to stayfocused on than whichever rights holder objects to their contentbeing used online. Anyone can lay out a laundry list of offensesagainst big tech companies (some more justified than others), butthis or that rights holder (or person claiming to be a rights holder)taking down an infringing image doesn't lend itself to a cleannarrative.
Four: Copyright Isn't Cool
Whenever someone tells me copyrightisn't sexy, my immediate response is if that'strue, then whydoesporncomeupsomuch?"But my personal feelings aside, there comes a time when everycopyright nerd must accept one hard truth: copyright law isn'tcool.
For any question of the form whydoesn't [politician or political body] talk about [issue]"the easy answer is they don't care." Saliency andelite opinion matter. If headlines about an issue won't drawviews or elites can't be bothered to care, it won't seethe light of day.
But here's the problem with thisnarrative: when you get down to it, Section 230 also isn'tparticularly cool. Laws that determine who is liable for what onlinearen't particularly interesting. Of course, Section 230 is inthe news, but I think that's because it's beenerroneouslycoupled to the cooler issue of free speech (or at least coupled in away which misstates the dynamic), aboutwhich everyone has an opinion.
Section 230 probably became a buzzworddue to the debate surrounding sex trafficking and SESTA/FOSTA, andthe momentum has carried over into other issues while sucking theoxygen necessary for a productive debate around copyright. Let'sreturn to the tweet flagged for copyright infringement, theremoval of which Trump blamed on Section 230. Nobodyhas ever accused the President of being detail-oriented. Still, hisbeing exactly wrong on this issue is the product of the fact thateveryone is talking about Section 230 but (virtually) nobody wastalking about copyright.
From this angle, the answer for whycopyright doesn't get the attention that Section 230 does is assimple as it is unsatisfying: because Section 230 got more attention.
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All of the above explanations havetheir shortcomings. This is just an exploratory look at whyconservatives have ignored the role copyright plays in currentdebates surrounding online censorship, which is a fancy way of sayingI don't have an actual conclusion. Even so, there's somevalue to be found in examining why certain policies aren'tscrutinized, even if that value is only therapeutic.