How Absolutely Desperate Must You Be To Try To Claim That The Answer To 'Cancel Culture' Is Stronger Copyright?
from the copyright-eats-brains dept
Okay, I think I've found it: the absolute perfect specimen of how copyright maximalism eats the brains of its proponents. Last week we had a few discussions about the now infamous open letter in Harper's about so-called "cancel culture." I made my criticism of the whole saga quite clear, but even as someone who often sees how copyright impacts almost everything around us, I never would have ever thought that there was any kind of tie-in to copyright law. But, that's why I don't work for the Center for the Protection of Intellectual Property (CPIP) at George Mason University. CPIP, set up and funded by a combination of extreme copyright and patent maximalists, tends to be quite reliable as pushing out the most ridiculous takes possible in favor of copyright and patent maximalism.
But this latest from CPIP's new Executive Director, Sean O'Connor, reaches new heights of pure propagandistic nature -- arguing that somehow copyright is the answer to what concerns the signatories of the silly Harper's Letter. Why? I honestly can't tell you. I've read the piece a half dozen times and it never actually makes an argument. It takes, as a given, that cancel culture is a thing and claims (totally incorrectly) cancel culture itself responded to the letter. I don't even know what that means. Even if we assume that cancel culture is a thing, "it" doesn't "respond" to anything. The criticism to the letter wasn't from "cancel culture." It was from people who criticized the letter. Because the letter was lame, and used bland platitudes that could both be used to defend an open market of ideas and as a shield from criticism of truly awful ideas.
The article then goes on a weird and one-sided history lesson about the rise of intelligent discourse, which it associates with the rise of copyright, which is an ahistorical notion. The crux of the article, though, is that copyright is the reason why ideas get published:
The 1710 British Statute of Anne created a new deal that may well have tipped the balance for many authors. They could get strong exclusive rights in exchange for publishing and registering their writings. This was different from the private “copy rights” held by publishers in the Stationers Company guild, as well as from the ad hoc exclusive grants available on the continent.
Under the statute, copies also had to be deposited in university libraries so that the work would be permanently accessible, even if it went out of print. Our Copyright Act in the United States was largely modeled after the statute.
But, then it argues that... publishing means you "risk the tsunami of backlash." I've read this paragraph multiple times and I still don't get what it's trying to say:
And yet, the challenge for thoughtful authors remains the same. Distribute one’s thoughts privately or risk the tsunami of backlash enabled by a culture built on reality TV and social media — wherein sparking raw emotions and outrage is the coin of the realm.
Er. Wasn't the whole point of the original letter that counterspeech and the back and forth of ideas is what's important? And yet, here, O'Connor seems to be saying that counterspeech is bad, because it's an incentive against publishing. And... that's why copyright is necessary?
We need open, rational discourse more than ever. As Justice Sandra Day O’Connor wrote in Harper and Row v Nation Enterprises, “The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
I mean... what? First off, that Sandra Day O'Connor line has always been crazy. Copyright has never been an incentive or "the engine of free expression." Copyright is a tool -- a tool to create an artificial scarcity, that might allow an author (or, more likely, a publisher) to earn some money. And that money may be one incentive. But no one is writing because of the copyright.
And, if we're talking about the robust marketplace of ideas, then it's even less likely that the monopoly rights are the incentives. In the world of "deep thinkers," it's getting your ideas out there that is important -- getting yourself recognized and your reputation built up. That's got nothing to do with copyright.
The First Amendment protects us from government censorship. But it is only copyright – among laws – that incentivizes authors to make the effort to perfect their writings and release them to the public.
Um. No? I make my writings here available to the public and I dedicate all of it to the public domain. I don't need copyright to release my writings to the public and, in fact, the vast majority of communication to the public today is done without even the slightest care in the world for copyright.
O'Connor, at the end of this weird disjointed piece, finally admits that many authors write for reasons other than copyright -- despite saying otherwise earlier in the piece. But then insists -- without any support for the argument -- that we need copyright to fight off "backlash" from ideas:
Authors write for any number of reasons, and many of them do so without copyright serving as a direct incentive for them to do so. But what they choose to do with those writings is another matter. It is essential that we maintain a robust copyright system to incentivize thoughtful individuals to take the risk of overwhelming backlash and publish their ideas for the benefit of our civic discourse.
You need copyright to help fight the backlash? Huh? But don't the writings criticizing the original writings also get copyright too? And, again, why does copyright even matter here. It seems that Sean O'Connor has a pretty simple hammer in his hand and is going to turn absolutely nothing into a nail no matter what.
Whatever you think of cancel culture, the Harper's Letter, or any of that discussion, rest assured, copyright has fuck all to do with any of it. And anyone telling you otherwise is trying to sell you nonsense.
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Filed Under: cancel culture, copyright, huh?
Reader Comments
The First Word
“Copyright is censorship
The argument actually makes sense, if only you remember that copyright is censorship. S.O. wants stronger censorship, assumes censorship will side with his preferred speech.
Originally copyright was a publishing privilege: the King didn't want any ideas to be printed unless He liked them, so He outsourced the job of censorship to a cartel of publishers (the Stationers' company). S.O. wants to go back to that. If the King has more money and power, the "good" people will get to distribute their ideas and the others not. S.O. sides with the King, "cancel culture" is whoever opposes the King. Of course nowadays the King is just the sum of the rich and powerful corporations which control the levers of copyright.
An example of this extreme permission culture is article 17 of the 2019 copyright directive. The basic original objective was to make sure that only works licensed by the copyright cartels can be distributed on the (mainstream) Internet; that was a bit watered down in the end, but this is what "upload filters" are. If everything is blocked unless pre-authorised by a central authority, the Internet can finally be turned into broadcast TV, only regulated more tightly and controlled by even less corporations. If you're rich and can spend years in court paying a fortune to lawyers, you can still distribute your ideas outside the preauthorised channels.
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Nothing to do with Copyright
Absolutely. I'm a college professor. I have to publish or perish. Copyright is absolutely not an issue for me. In fact, when I have something published, the copyright does not even below to me but rather the publisher.
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Re: Nothing to do with Copyright
"belong" not "below"
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Re: Nothing to do with Copyright
"Copyright is absolutely not an issue for me."
Unless Elsevier locks your work behind a paywall increasingly scorned by academic institutes everywhere, of course.
At that point copyright does indeed become an issue for the college professor.
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Re: Re: Nothing to do with Copyright
Not even then. I'm at a public university and we publish all pre-publication versions to our own website.
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Re: Re: Re: Nothing to do with Copyright
"Not even then. I'm at a public university and we publish all pre-publication versions to our own website."
Congratulations. More and more universities are abandoning Elsevier's iron grip lately, it seems.
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Man, copyright really is a form of voluntary brain damage.
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Re:
Maybe somebody found a way to distill it down to a consumable substance, and what we're seeing the effects of prolonged exposure.
/s
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Re:
Rubbish. Copyright is actually an infectious disease that causes it's victims to stumble around groaning "brains ... brains ... brains" - err, I mean "rights ... rights ... rights". Whats worse, there is almost no known way to make them lie down and be good copyright maximalists...
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Re:
Copyright maximalism is more of a parasitic brain infection not unlike hairworm, toxoplasmosis, or cordyceps.
I've seen some infected i dividuals who are able to function normally in most situations, until the barest mention of copyright tra sforms them into drooling shitwits.
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Re:
"copyright really is a form of voluntary brain damage."
Call it for what it is - a religion. Nothing more than a cult where the priesthood are all in on the grift and the clueless sheep in the congregation all get told the reason money isn't raining from the skies on them is because not enough heathens have been converted to holy copyright.
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Cancel culture is toxic. So is copyright. I shouldn’t have to explain why. But the last time I checked, two wrongs don’t make a right. Using copyright in some headache-inducing way to stop an author from being “canceled” makes as much sense as the fire department pouring gasoline onto a house engulfed in flames.
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Your analogy is flawed. Using copyright to prevent “cancellation” is more like an entire police department smacking around one peaceful protester to stop that protester from saying “defund the police”.
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Re:
No, your analogy is flawed. Using copyright to prevent "cancellation" is more like calling out the national guard to prevent unicorn farts.
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Re:
Actually, it’s more like the entire police department smacking around one peaceful protester (protesting against some dumb law or war or something) to stop a completely different peaceful protester from saying “defund the police”. By which I mean that it would both be overkill and would do absolutely nothing to solve even the perceived problem, and it makes absolutely no sense why they even thought that it would work or be a good idea to begin with.
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Re:
And copyright actually is the best thing the "cancellers" can use to stop the spread of ideas.
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"But it is only copyright – among laws – that incentivizes authors to make the effort to perfect their writings"
LOL, it's like saying we drive cars just because we have traffic laws. We go to restaurants just because we have food poisoning laws.
Or what if we changed the subject. Instead of authors, what about builders? Do they make buildings just because there's a building code, and not because they want better places for people to live in?
Are wood makers not incetivized by the quality and design they create and the reputation they gain, but only by the contract they sign with their clients?
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Re:
Excellent point. I make music because I want the world to enjoy it and listen to it, not because it is copyrighted. I mean, I'm glad it's copyrighted, but the scope is too large, so I used Creative Commons to pare the scope to what I want it to be: all my original music (and some Jonathan Coulton covers and medleys as well as public domain covers) is BY-NC 3.0 US. You can download it here on bandcamp.
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Makes sense, I mean when you think of copyright and the internet the first connection that comes to mind is how absolutely great copyright is at keeping stuff online.
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Um, Mike? Since a notice is not required for works published after March 1, 1989, your blog posts implicitly fall under copyright, with or without an official notice.
You say here that dedicate (your works) to the public domain is your own practice. What of your co-authors? What of guest posts, original or reproduced with permission from other sites?
And in that lawyerly fashion, saying that you do something isn't necessarily the same as actually doing it.
I was unable to locate a copyright policy on the site specifying what works are or are not covered. So while I might trust you not to sue me over copyright, at least on this post, I have no assurances about any other bit of Techdirt, even other of your posts.
Ain't copyright laws wunderful?
Yup, for the vast majority of it. Then there's that miniscule fraction of a percent that is the exception that proves the rule. Yay, nibbled to death by nuisance suits, that's just the thing I want.
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Re:
Pretty sure the point was that while everything might be covered by copyright thanks to the wonderful 'copyright by default' system copyright itself has absolutely nothing to do with his act of writing and posting any of it, in stark contrast to the utterly insane idea that they are proposing that it is copyright that enables, encourages and allows people to create.
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Re: Re:
"...the utterly insane idea that they are proposing that it is copyright that enables, encourages and allows people to create."
I don't know what is worse. The fact that copyright has become a religion in itself, or that said religion is one which claims that without the presence of a strong church and clergy their Godhead couldn't exist...
...or that people are still falling for that monumental fraud.
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Re:
Works getting automatic copyright is ancillary, not a motivator. Further, that copyright cannot be used in a legal action, a work must have been registered prior to any putative infringement taking place in order to act upon it.
Mike's copyright policy has been frequently stated as "wtf ever" (my summarized paraphrasing).
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it is not as though there were no published authors before the statute. Indeed, an authors manuscript could be a valuable commodity, as after all, those publishers needed works to publish if they were to remain in business. Indeed they could be better off, as it was money up front to get the manuscript, rather than a promise of a share of the profits, with all the Hollywood accounting that was and is used to limit the authors share of the profits.
The idea that copyright drives creativity is a myth put about by publishers as they want to preserve the mechanism by which they gain control over works and make their fortunes. What they do not publicize is the ratio between submitted works and published works, as that would show that under their system most authors never get published, and so never make any money.
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Re:
"it is not as though there were no published authors before the statute."
Indeed. In fact Germany, with no copyright laws to speak of, was prolific in book production and new works during this time - far more so than the UK. The UK itself exploded with new works in the period between Queen Anne's original statutes expired and the publishers lobbied copyright into existence. France has had several well-documented periods of copyright laws which always resulted in way less published content.
The progression of science and the arts is not now and never was furthered by copyright protections.
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The best thing about copyright is the public domain
While it is obvious that Sean O'Connor wants not only for authors to get enormous incomes, forever, and wants to protect whatever is written from anything that might be a discredit either real or imagined, he leaves out the most important thing about copyright. It's end and the product entering the public domain where authors of merit are enjoyed and discussed for decades and centuries while the meritless are soon forgotten, if they haven't already been forgotten after the first five to seven years, let alone the life of the author plus a century.
The worst thing for any content creator is to be ignored or forgotten. They want people talking about them, it makes for more sales. O'Conner's attitude about 'cancel culture' is weird because it would inherently shut down discussion of authors works.
To that end, here is yet another source of some good writing and in this case the publishers have taken some extra steps to make quality publications. They do use Project Gutenberg as a source, but go a bit further.
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The Standard Ebooks style guide provides one hell of a good resource for formatting one’s own ebooks, too.
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Re: The best thing about copyright is the public domain
"The best thing about copyright is the public domain"
Well, apart from the part of modern copyright that has on multiple occasions allowed corporations to retroactively remove works from the public domain and make the period before the public domain actives so long that nobody will see a work made within their own lifetime enter into it. You're crazy if you think that maximalists aren't still working on getting it revoked completely.
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Re: The best thing about copyright is the public domain
Not even that. If copyright simply didn't exist corporation would lose their ability to lock away works from the public completely. The public domain is only a necessary concept because copyright exists at all.
Your comment title uses the same logic as "The good thing about fraud is that there is police".
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I twisted my ankle while jogging earlier. As I limped to go sit down, I couldn't help but feel that it that never would have happened with stronger copyright laws in place and suffering is nothing compared to those of authors whose works might be looked at by people who haven't paid full price.
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Re:
That's rediculous. Copyright is already quite strong enough to prevent ankle injuries. The problem is that you just don't understand the current laws well enough to make effective use of them.
Now, if you were suffering from a cancer, then tougher copyright laws would definitely be needed.
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Re: Re:
"Now, if you were suffering from a cancer, then tougher copyright laws would definitely be needed."
Hear, hear. It worked on the black death after all, which today is only a problem among in areas where holy copyright is disrespected or ignored.
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"he criticism to the letter wasn't from "cancel culture." It was from people who criticized the letter."
but people criticizing stuff is what they call cancel culture.
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Re:
'People telling me I'm wrong is cancel culture' does seem to be the mindset at times, yes.
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I Get It
I think that I understand the article. I'm not saying that I agree with their solution, just that I understand what they want.
Around the 1400s to 1600s, people were afraid to publish certain controversial ideas, because governments might get upset, patrons might get angry and cut off your funding, or people who know nothing about the subject might engage in malicious gossip. Sounds like Cancel Culture today!
Thus, a dual system emerged. One was through semi-private, unpublished letters. The other was for publicly published works, which could potentially earn you money. While you couldn't get in trouble for the unofficial, off the cuff remarks that you make through the unpublished network, you probably couldn't make a career out of this aspect. Only through your officially endorsed publications.
The copyright maximalists dream of a world where individuals can charge money for others rebroadcasting their ideas. They wish that if person x says "omg person y said blah blah blah", then somehow person y could silence person x, unless it was the official publication stuff, and they're paying money to do so.
This would re-establish the old Republic of Letters system for unofficial communication, which doesn't get rebroadcasted, and avoids potential controversy. People who want to be an online personality can possibly make a career with their official published works, while still sending unofficial messages unfit for public consumption. Meanwhile, those who don't desire publicity are obscure such that their online commentary doesn't bleed over into real life.
Personally, I don't see how such a system could be implemented in today's day and age of social media. It seems like a money grab to me. So I find it impractical and ridiculous to add a copyright layer onto the modern internet in an attempt to enforce an unofficial commentary system, but I think that's the system they imagine.
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Re: I Get It
It's still trivially easy to send private messages to specific people just like the letters of yore. I don't think the problem is the one you describe.
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Copyright is used to take down many audio clips, and videos using the tool of dmca . Writers write, musicians made music before copyright existed.
I think he means in some way writers could use copyright to have more control so people would need permission to qoute their work.
There's 1000s of people who write on forums or social media or blogs to discuss many subjects or get their opinion across. They get no payment for this , their writing is free to anyone who has an Internet connection.
Copyright is mainly used by big company's to claim ownership over content so it can be sold or licenced.
Eg if you wanted to make a film featuring spiderman you need to pay Disney X per cent of the revenue and a large licensing fee.
For pro writers they might get a fee for writing an article,
unless they are popular and can write a book that sells copyright is not really important to them.
99 per cent of articles in papers are forgotten after
a few days, no one wants to buy last week's newspaper.
Writers are equal to some extent on the Web and twitter, if you say something racist or sexist on twitter you will get criticised.
No matter how famous you are.
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Read between the lines
Maybe I'm just too cynical, but I think I know exactly where this is headed... somehow whatever 'improvements' are suggested will somehow allow for an 'authorized copyright holder' to control speech on the topic they have written... how else would that nonsense of 'incentivize thoughtful individuals to take the risk of overwhelming backlash' even be a part of the conversation...
It's ridiculous to think that just because someone publishes an idea that they should somehow be protected... and what does it mean to be 'thoughtful'? (ie. does that mean you are: white, male, american, rich like that mostly means now)
If you don't want to deal with the backlash of your writings, then don't write... or ignore those whom you disagree with... my personal favorite is to write more, but that's not always the right answer (right Rowling?)... but trying to say that a censorship attempt is 'protection' is just down right uncreative...
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Re: Read between the lines
That may count as cynicism but as far as I can tell it's also the only real way to read the argument and have it make any sort of sense.
People don't need copyright to create or publish, so stronger copyright on those terms wouldn't do anything about 'cancel culture', but if people were able to prevent others from using their words(like say quoting them to highlight what they got wrong) via copyright that actually would do something about the 'problem' that is free speech- I mean 'cancel culture'.
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Re: Re: Read between the lines
The only thing is, anything they want to control according to the "expression, yes, but let's also copyright not just ideas, but vague ideas" theory, is that... there is practically nothing they could ever write for which there is not a ton of prior copyrighted art.
But then, these are the sort who like rules which apply onlt to benefit them, and definitely not anyone in the past or future.
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The way "stronger copyright" has been used lately is to disappear things off the Internet.
If people advocating against "cancel culture", a phenomenon of disappearing things off the Internet, sincerely believe that copyright - an enforcement system aimed at disappearing things off the Internet - is the solution, I don't know what to tell them.
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'Don't open that box, you won't like what's in it.'
Oh that's easy, 'You think you have it bad now you really won't be happy when people take that idea and run with it, filing copyright claims against your stuff simply to see it gone and/or mess with you, knowing that with the current laws they face no penalties for doing so.'
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but what about...
Well, unless you count indirectly... if 'copyright' weren't a thing, we wouldn't be having this written discussion about it :p
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Copyright is censorship
The argument actually makes sense, if only you remember that copyright is censorship. S.O. wants stronger censorship, assumes censorship will side with his preferred speech.
Originally copyright was a publishing privilege: the King didn't want any ideas to be printed unless He liked them, so He outsourced the job of censorship to a cartel of publishers (the Stationers' company). S.O. wants to go back to that. If the King has more money and power, the "good" people will get to distribute their ideas and the others not. S.O. sides with the King, "cancel culture" is whoever opposes the King. Of course nowadays the King is just the sum of the rich and powerful corporations which control the levers of copyright.
An example of this extreme permission culture is article 17 of the 2019 copyright directive. The basic original objective was to make sure that only works licensed by the copyright cartels can be distributed on the (mainstream) Internet; that was a bit watered down in the end, but this is what "upload filters" are. If everything is blocked unless pre-authorised by a central authority, the Internet can finally be turned into broadcast TV, only regulated more tightly and controlled by even less corporations. If you're rich and can spend years in court paying a fortune to lawyers, you can still distribute your ideas outside the preauthorised channels.
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Ah, how people forget...
"Okay, I think I've found it: the absolute perfect specimen of how copyright maximalism eats the brains of its proponents."
No, Mike. Sorry, but do bear in mind that previous copyright maximalists have tried to link strengthening copyright and its enforcement to fighting pedophilia, terrorism, and drug cartels.
O'Connor is being a complete idiot and a shameless grifter for trying to put copyright (a private censorship scheme) up as the cure for cancel culture (largely free speech consequences of free speech). But unless he also tries to claim copyright cures scrofula and cancer he's still nowhere close to reaching the deranged heights of past implied lunacies thrown into the ring by copyright maximalists.
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Let’s see. An article about cancel culture that doesn’t even understand what cancel culture is. Nice!
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Re:
Let's see. A comment saying that the fundamental point of an article is wrong, but can't be bothered to explain why. Nice!
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Re:
[Projects facts not in evidence]
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Re:
Indeed, Sean O'Connor really should have done some research into the subject before he wrote an article showing that's he either talking about a subject he is grossly ignorant of or blatantly dishonest about.
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What a stupid fucking letter
Let me just respond to this bit:
And you know what happened to those copy-rights? They fucking expired. Not after the life of the author with an extra seventy years on top of that. Not after five years short of a century. I mean they expired after 56 years (which I think is the perfect maximum term), or if they didn't want to copyright it again for a second time, 28 years. Or maybe they didn't want to copyright it at all, rather than force everything to be copyrighted whether they liked it or not (thanks a bunch, Berne Convention, Sonny Bono CTEA, and other bullshit maximalist legislation and treaties).
If Sean O'Connor thinks copyright is the answer to "Cancel Culture", call Sean O'Connor what he is: a censor. I think Stephen T. Stone will agree with me on this one.
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