This piece was originally published by techdirt on November 18th, 2020.
I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.
The New York Post debacle and gating President Trump’s post-election tweets are the most recent arrows in the quiver for anti-tech conservatives. It doesn’t have anything to do with copyright (though Hunter Biden’s emails, if they’re real, are eligible for copyright protection). But whenever Section 230 is used as a synecdoche for the more general laws that govern what private tech companies can and can’t do on their sites, I cannot help but ask myself, “why aren’t conservatives up in arms about copyright law?”
I haven’t done a full accounting of all conservative run-ins with online content moderation policies. Still, at least for the President, the only instances something he has posted was taken down–not had a warning label attached, but properly removed–were for copyright infringement. In one case, Trump erroneously blamed Twitter and Section 230 for the removal of a video on copyright grounds.
Trump’s campaign has also gotten into legal trouble by playing music to which he doesn’t have the rights at rallies, and conservative figures have been on the receiving end of clearly bogus claims of copyright infringement. Of course, this isn’t to dismiss other cases where content has been removed, whatever you may think of them. My point is this: Put yourself in the shoes of a right-winger online, and you’d think copyright would get at least as much airtime as Section 230, or any airtime at all. Yet such criticisms are nowhere to be found.
Why is this the case? I have a few theories, though none are particularly satisfying:
One: Copyright is Private Property
I am emphatically against this position, but many conservatives subscribe to the belief that copyright is property and deserves the same moral treatment as tilled land or gathered acorns appropriated by mixing one’s labor with it. My disagreements with this position aside, it’s an idea that must be taken seriously on the merits and, more relevant to this discussion, because it’s a sincerely held belief.
From this vantage point, it’s easy to see why the right isn’t up in arms about DMCA takedown notices, automated copyright systems, or artists not allowing their songs to be used at political rallies. If someone owns their property, they have a claim against the world to exclude others from its use. You’re under no obligation to host a political rally (especially one supporting positions with which you disagree) on your front 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, but one which contradicts claims of unlawful or unjustified censorship by tech platforms. Twitter and Facebook own their websites in the same way I own my work or someone else owns their lawn. If preventing someone from speaking by using one of these is censorship, they must all be considered censorship.
Though the treatment of works protected by copyright as property seems like an easy way to separate copyright enforcement from content moderation, Twitter has just as strong a claim to ownership of its website as a photographer does to a photo or an artist to a song. Whether or not enforcing one’s copyright constitutes censorship, both these views run into an all-or-nothing wall.
The terms “thief” and “infringer” are often used interchangeably. Still, if if you’re criticizing the unauthorized user of a copy who you don’t like for other reasons, you’re more likely to call them a thief due to the negative connotation associated with the word. A thief deprives someone of the fruits of their labor, while an infringer sounds like someone who forgot to check the right box on form E-7A.
And that’s what the U.S. has done in the case of intellectual property violations by Chinese actors. Allegations of theft cover more than just copyright, extending to a wide range of behaviors ranging from outright espionage to strong-arming business partners into transferring technology. And, while there’s no shortage of bootleggers operating out in the open in China, those complaining about Chinese IP theft are more concerned about patents and trade secrets than works protected by copyright.
All that being said, when grievances are aired about the Chinese government, complaints of intellectual property theft inevitably come up alongside far more serious charges against the regime. This tweet from Senator Pat Toomey (R-PA) best illustrates 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 of and damage done by these technology transfers, putting that next to two egregious human rights abuses, one of which meets the UN’s definition of genocide, is in extremely poor taste and demonstrates a complete lack of perspective. Still, it shows just how closely we associated IP theft with the other crimes of the CCP.
Were conservatives to confront the serious drawbacks associated with aggressive enforcement of copyright, they would admit that infringement (“theft”) is something we should be less concerned with.Perhaps we should even change the scope of what is covered by copyright, i.e., say what was once “stealing” shouldn’t be.
Decrying Chinese IP theft is most certainly bipartisan, and the beating of this drum helps cement the association of IP theft with “the baddies.” But a subconscious association still doesn’t explain the indifference to the issue. Most of the conservatives’ copyright-related censorship doesn’t deal with the wholesale piracy associated with China, and the PRC is a lucrative export market for works protected by copyright. And all that aside, this train of logic is probably too clever by half.
Three: Stronger Copyright Enforcement Hurts Big Tech
Notice-and-stay-down requirements, expanded reach of ContentID and similar systems, link taxes, or any other measures that (implicitly or explicitly) shift the costs of enforcement from the latter to the former most certainly harm the bottom line of tech companies.
I should point out, of course, that while Google or Facebook can afford to sink tens of millions into copyright filters, this requirement would be crippling to smaller websites and a serious barrier to entry for would-be rivals to these larger platforms. These things matter for competition.
Whether or not these rules make it easier or harder for an upstart to dethrone current dominant platforms, these added costs–either through compliance costs or costs associated with litigation–will most certainly harm big tech’s bottom line. Throw Google v. Oracle into the mix, and it’s easy to see how stronger copyright enforcement is viewed as a way to go after big tech.
A better explanation, then, centers on the political dynamics of techlash. Big tech companies are in everyone’s crosshairs, set up a clear “corporate Goliath interfering with democracy” narrative, and are easier to stay focused on than whichever rights holder objects to their content being used online. Anyone can lay out a laundry list of offenses against big tech companies (some more justified than others), but this or that rights holder (or person claiming to be a rights holder) taking down an infringing image doesn’t lend itself to a clean narrative.
Four: Copyright Isn’t Cool
Whenever someone tells me copyright isn’t sexy, my immediate response is “if that’s true, then why does porn come up so much?” But my personal feelings aside, there comes a time when every copyright nerd must accept one hard truth: copyright law isn’t cool.
For any question of the form “why doesn’t [politician or political body] talk about [issue]” the easy answer is “they don’t care.” Saliency and elite opinion matter. If headlines about an issue won’t draw views or elites can’t be bothered to care, it won’t see the light of day.
But here’s the problem with this narrative: when you get down to it, Section 230 also isn’t particularly cool. Laws that determine who is liable for what online aren’t particularly interesting. Of course, Section 230 is in the news, but I think that’s because it’s been erroneously coupled to the cooler issue of free speech (or at least coupled in a way which misstates the dynamic), about which everyone has an opinion.
Section 230 probably became a buzzword due to the debate surrounding sex trafficking and SESTA/FOSTA, and the momentum has carried over into other issues while sucking the oxygen necessary for a productive debate around copyright. Let’s return to the tweet flagged for copyright infringement, the removal of which Trump blamed on Section 230. Nobody has ever accused the President of being detail-oriented. Still, his being exactly wrong on this issue is the product of the fact that everyone is talking about Section 230 but (virtually) nobody was talking about copyright.
From this angle, the answer for why copyright doesn’t get the attention that Section 230 does is as simple as it is unsatisfying: because Section 230 got more attention.
All of the above explanations have their shortcomings. This is just an exploratory look at why conservatives have ignored the role copyright plays in current debates surrounding online censorship, which is a fancy way of saying I don’t have an actual conclusion. Even so, there’s some value to be found in examining why certain policies aren’t scrutinized, even if that value is only therapeutic.