There is an inherent tension between copyright law and the First Amendment. The promise of exclusivity creates a financial incentive to produce works, such as reporting, photography, and commentary, that allow freedom of speech and freedom of the press to thrive. But as a claim against the world to stop someone from using those works, copyright restricts what others may communicate. 

Over the summer, events not obviously related to copyright law have been tied to the issue, best exemplified by these two op-eds on coverage of the George Floyd protests and the “Harper’s Letter.” The arguments made serve to push for efforts that would strengthen screening for infringing content—and against any attempts to increase access to protected content.

One could criticize these pieces as attempts to shoehorn a pet policy into the discourse surrounding broader—and arguably more important—issues facing American society. I do not share these criticisms. A plurality of viewpoints and areas of expertise is essential when looking at problems from every angle—even those that do not appear obvious or relevant. But presenting copyright as an unalloyed good for a free press and free expression is an oversimplification that ignores the real damage exclusive control of ideal objects can do.

Both articles echo the general form of the argument for copyright: rampant copying would make it impossible for those reliant on works for income to support themselves. These works promote free expression, especially in the context of a free press or open debate, and thus their copyrights must be protected, QED.

This argument is neat, simple, and—while not wrong—severely lacking in nuance, as it ignores the harms associated with zealous enforcement of copyright protections.

Let’s take the case of photojournalism. Infringement will, in theory, reduce the returns on a given photograph. But does it diminish it so much that these works won’t be produced in the first place? Based on the extensive coverage we have seen of BLM protests across the country, it is fair to say no, or at least have serious doubts about the claim.

This may apply to professional photojournalists, but what about attendees of these demonstrations with their own high-quality cameras (which is almost all of them)? It is difficult to believe that these ordinary people document historic moments due to the promise of life plus seventy years of exclusivity. Essential as such media is, overly aggressive enforcement of their copyrights would do serious harm to the proliferation of information that’s vital for the functioning of a democracy.

Indeed, copyright filters and DMCA takedown notices have removed content essential to understanding the protests and the issue of police misconduct more broadly. Live streams of protests have been removed due to music playing in the background, and uploads of police manuals are hit with takedown notices. 

Some examples are best understood as bugs in the way allegedly infringing content is policed online–even public domain content can be flagged. They’re inconvenient and can seriously hinder the proliferation of relevant news online, but they’re (usually) not a sign of anything malicious. Unfortunately, copyright law creates opportunities for bad actors to abuse the system in a way more damaging than “cancel culture” can, as the force of law backs copyright infringement claims.

Despite presidential and congressional Republican hand-wringing about online platforms’ censorship, the only instances where something the president posted online was removed and made unavailable for consumption were those when someone (erroneously or in bad faith) flagged them for copyright infringement. I am deeply skeptical of the extent of alleged claims of anti-conservative bias on the part of big tech, but these incidents are entirely beyond Twitter or any other platform’s control. Any rightsholder can use their copyright to stop speech they don’t like, which is what happened in these cases.

In the 1970s, Disney used copyright law to cancel the parody Air Pirates Funnies comics critical of the corporation’s classic characters. Criticisms of Ellen Degeneres’s friendship with George W. Bush were taken down for alleged infringement. It’s possible to bounce back from cancellation, as a work that infringes on acceptable opinion may still find supporters somewhere. But it’s much harder when the law can be weaponized due to someone’s distaste for your views.

My thesis is not that copyright is a threat to free speech everywhere and anywhere. The economic incentive to create is important, though overstated. Instead, I implore those uncritically advancing an agenda for copyright as the sinequa non of free speech to temper their enthusiasm and recognize how the institution can be harmful.