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.
Filed Under: cancel culture, copyright, huh?
