A common criticism of copyright law or its enforcement is that it doesn’t adequately protect first amendment rights. Activist groups like the EFF, Public Knowledge, and the Center for Democracy & Technology are  quick to raise the issue at the first sign of any proposal or effort to protect copyright rights. I’ve previously addressed such arguments as they related specifically to COICA and domain name seizures.

The “free speech critique” of copyright can essentially be summed up as this: “Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please.” 1Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). The past few decades have seen a ton of academic scholarship devoted to this critique. 2Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). By and large, the consensus is that the restriction exists, and something needs to be done about it.

What’s missing from these arguments, however, is any discussion about the free speech rights of copyright owners. 4One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). Today I want to take a closer look at this discussion, one I broached before in Artistic Expression, the First Amendment, and Copyright.

Free Speech Rights of Copyright Owners

“Once it is decided … that the First Amendment operates in the copyright arena, it should be realized that it is a two-way street, for the copyright owner also has First Amendment rights.” 3William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985).

So says William Patry, one of the leading experts in the US on copyright law. He recognizes what many free speech critics of copyright don’t: free speech interests lay on both sides of the copyright owner-copyright user divide. And rather than standing in contradiction to each other, the first amendment and copyright law work in tandem to protect the free speech interests of both sides.

While this point is lost to free speech critics, US courts recognize it — first amendment defenses to copyright infringement actions are consistently rejected in lawsuits. “It should not be forgotten that the Framers intended copyright itself to be the engine of free expression,” wrote the Supreme Court in Harper & Row v. Nation Enterprises. Copyright and the first amendment co-exist to allow new ideas to be created and disseminated. Copyright provides an incentive to encourage the spread of new expression, while the first amendment removes roadblocks in the way of dissemination. What’s more, first amendment safeguards are built into copyright law: protection only extends to expression, not the underlying ideas; fair use allows criticism, commentary, and transformative uses without the permission of the copyright owner; and statutory exceptions exist for certain educational, library, and other “public” uses without permission to enhance access and dissemination of these works.

Copyright critics who raise first amendment concerns completely overlook the free speech rights of creators. One would think that the free speech rights of those who create original expression should, at the very least, be equal to the free speech rights of those who build upon existing works. But under the prevailing view, it seems that the free speech rights of creators of original expression are in fact subservient to subsequent users of that expression.

Even if we accept the notion that some people’s first amendment rights are more important than others, the copyright critic’s ranking doesn’t make sense. Why should we value the free speech rights of those who add new expression to the marketplace of ideas less than the free speech rights of those who build upon or reproduce that new expression?

As David McGowan writes in Some Realism About the Free Speech Critique of Copyright,

The free-speech critique wants courts to favor one type of speaker over another. It plays favorites. It therefore is at odds with any conception of free speech that prohibits judges from playing favorites among speakers, as both current doctrine and the most cogent speech theories do.

The Chilling Effect of Online Piracy

First Amendment doctrine cautions against laws that place a “chilling effect” on speech. Laws aimed at unprotected categories of speech (like libel or child pornography) that are not narrowly tailored may cause self-censorship or stifling of protected speech out of a fear of risking penalties or liability.

In the same vein, copyright infringement has a stifling effect on the creation and dissemination of new creation. Ineffective enforcement against infringement or undue burdens on copyright owner’s abilities to protect their rights reduces the incentive to continue to create new expression.

Essentially, copyright infringement creates a “chilling effect” on the free expression rights of creators.

This chilling effect is very real, as creators have attested to. Indie film producer Ellen Seidler recognized it while she was endeavoring to protect her rights. When submitting DMCA notices to Google to remove links to unauthorized version of her film, she was told copies of her notices would be posted to the Chilling Effects website. “The implication therein is that by asserting my rights and sending a DMCA to request the removal of infringing content I am somehow ‘chilling’ a pirate’s right to ‘free speech,’ she says. “Really?  In my view the only thing being ‘chilled’ is our right to make a living.”

Comic artist Colleen Doran describes first-hand how the chilling effect of online piracy affects her:

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

Freelance photographer Seth Resnick adds his perspective:

Copyright is the very basis of my existence and the existence of every freelance photographer in the country. As a freelancer, I exist only by the value of the intellectual property I am able to create. I have to control and license that property. If I don’t control the licensing I am unable to place any value on my art form of photography. Without the ability to license my intellectual property I simply can’t stay in the marketplace. A photographer or any artist who can’t stay in the market, can’t produce work which is a very part of our American culture.

Disputing the Chilling Effect of Online Piracy

Free speech critics may dismiss concerns about the “chilling effect” online piracy has on copyright holders as lacking in evidence or unworthy of attention. Yet they are quick to warn about the dangers to free speech that removing, say, a video of a dancing baby from one of numerous video sharing sites has. In the end, this argument is simply a choice between two speech interests — one that says some people’s rights are more important than others. And chilling effects are, by their definition, difficult to measure. But just as it’s not alright to say “censhorship is ok as long as no one actually ends up in jail,” it’s not alright to say “piracy is ok as long as no one actually files for bankruptcy.”

Concerns might also be dismissed by saying creators aren’t really concerned about their right to speak, they just want more money. But this type of thinking ignores the fact that copyright incentives benefit everybody. Society benefits from the creation of new works, authors and artists are encouraged to continue creating new works. All piracy does is remove the benefit from those creating the new works. As Ellen Seidler notes, with piracy, “Everyone is making money, it seems, except those who own the rights”.

Finally, it might be argued that the chilling effect of copyright infringement is no longer an issue since digital technology has somehow made copyright incentives irrelevant. The happy thoughts that everyone else benefits from the content you create will make up for the incentive copyright provides; merchandising and personal appearances are enough to recoup the expenses of devoting time to creating that content. I realize this argument warrants enough attention for an entirely separate article, but for purposes of this article, it suffices to say that the argument doesn’t justify infringing on free speech rights, and it flies in the face of reality. How many people are flocking to see news photographers in person? How many t-shirts can authors of educational books sell? The quality of the creative work doesn’t matter as much as the marketing skills of the creator, or how good she looks on camera. This same idea has certainly worked well in politics, right?

Parting Thoughts

Recognizing the “chilling effect” that infringement has on the free expression rights of copyright owners is just one strand in unraveling the free speech critique of copyright. In the future, I hope to look at some of the other issues involved in the critique — why courts have categorically denied first amendment defenses in cases of infringement, and why this approach makes sense, for example.

However, I don’t mean to imply that freedom of expression is somehow not important. The first amendment reflects the importance of this freedom in our society. It is precisely because of this importance that there is a responsibility to take everyone’s freedom of expression rights into consideration. Favoring one group’s free speech interests over another’s runs counter to the values enshrined in the first amendment and the copyright clause.

References   [ + ]

1. Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).
2. Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010).
3. William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985).
4. One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005).

15 Comments

  1. Pingback: Tweets that mention The Chilling Effect of Copyright Infringement | Copyhype -- Topsy.com

  2. “Concerns might also be dismissed by saying creators aren’t really concerned about their right to speak, they just want more money. But this type of thinking ignores the fact that copyright incentives benefit everybody. Society benefits from the creation of new works, authors and artists are encouraged to continue creating new works. All piracy does is remove the benefit from those creating the new works. As Ellen Seidler notes, with piracy, “Everyone is making money, it seems, except those who own the rights”.”

    Unfortunately, you’re cherry picking.

    Nina Paley’s movies still running strong

    Steve Lieber’s look into 4chan

    Warner Bros admitting to being able to cater to new customers: Pirates

    You’ve yet to show the actual copyright incentives except for the holder of the copyright. The takedowns are a pain for people wanting to share a work. And regardless of a takedown or not, more work is being created and disseminated everyday. The world of the digital isn’t about copyright infringement, it’s the question of how to get your message out and differentiate it from the thousands of other offerings.

    How many people are flocking to see news photographers in person?
    Let’s ask Rupert Murdoch about how his paywall is coming along.

    How many t-shirts can authors of educational books sell?
    Do you know how much books are going for in college? It’s a monopoly rent anyway. And the price goes up and up and up. Hell, teachers even endorse their own books to people. They don’t need t-shirts.

    This same idea has certainly worked well in politics, right?
    A little disingenuous don’t you think?

    But this type of thinking ignores the fact that copyright incentives benefit everybody
    Ok, I’ll bite, how does this benefit the average consumer?

    If they decide to rent a movie, they’re limited

    If I share a book on Google, I’m limited by what the author wants.

    We won’t start about Youtube, remix culture and having to gain permission to use songs from X amount of artists just to make a remix, which makes no sense.

    Copyright isn’t helping everyone, it’s merely making opportunities limited to those of the early 80s. If it’s truly progressing the arts and sciences, please feel free to show it. But Tolkien’s estate, the Twilight copyright infringement suits, and even how filesharing is being shut down, costing Kazaa, Grokster, and Limewire jobs and potential revenue sources, continues to disagree with your assessment.

    • Unfortunately, you’re cherry picking.

      As I said in the original post, are we to believe that some people’s free expression is more important than others? We can infringe on freedom of speech as long as no one complains?

      Do you know how much books are going for in college?
      I know full well how much they are. But I fail to see the argument that at once a product reaches a certain price point, it justifies stealing that product.

      We won’t start about Youtube, remix culture and having to gain permission to use songs from X amount of artists just to make a remix, which makes no sense.
      Why doesn’t it make sense? Youtube is a company whose goal is to make money. They make that money from the content of the videos uploaded. Is it that crazy that a vendor should pay its suppliers?

      Ok, I’ll bite, how does this benefit the average consumer?
      Knowledge, art, and culture are important aspects of our lives — they would be drab without them. An incentive for people to contribute more to these areas benefits us all.

      Copyright isn’t helping everyone, it’s merely making opportunities limited to those of the early 80s. If it’s truly progressing the arts and sciences, please feel free to show it. But Tolkien’s estate, the Twilight copyright infringement suits, and even how filesharing is being shut down, costing Kazaa, Grokster, and Limewire jobs and potential revenue sources, continues to disagree with your assessment.
      Piracy hasn’t written a single book, sang a single song, or filmed a single movie now or at any time over the past 300 years. It doesn’t contribute to these things; it only diverts the value of knowledge, art, and culture into its own pockets, short-circuiting the incentive that copyright gives to creators and, ultimately, the public.

    • “…filesharing is being shut down, costing Kazaa, Grokster, and Limewire jobs and potential revenue sources… ”

      Good. I hope they all starve. They have no possible, rational or ethical claim to operate as they do. They are indefensible parasites and the world is better off without their undeserved blood-sucking avarice.

  3. “We can infringe on freedom of speech as long as no one complains?”
    Odd… When someone discusses how to make money using the internet, it’s freedom of speech. If anything, Nina Paley has shown a template of how to make money on the internet. Steve has shown that those so called “infringers” are normal people that might not have heard of a person’s work. Then, there’s Cory Doctorow who has been quite good at discussing how to make money with the internet without complaining about supposed lost sales.

    Also, history disagrees with you. Beowulf would not have spread as an epic poem if it were tied to one person. William Shakespeare’s work would not have spread had it have been tied to his estate. And looking at the fact that America’s past is marred in piracy, I’m sure that there was a connection of America not respecting copyright and an increase in literature here in the US. Observe how copyright impedes on Ernest Hemingway’s work being shared

    “I know full well how much they are. But I fail to see the argument that at once a product reaches a certain price point, it justifies stealing that product.”
    This was more an allusion that if books are priced too high, it creates a black market. Best allusion is the drug trade. Even though it’s illegal and we continue to arrest people, demand is still the same as it was in the 1960s and 70s.

    “Why doesn’t it make sense? Youtube is a company whose goal is to make money. They make that money from the content of the videos uploaded. Is it that crazy that a vendor should pay its suppliers?”
    You missed my point entirely. Youtube was merely a vessel for other’s work. Again, I point to the Grey Album, which I heard about through all the woes of piracy in 2004. A mixture of Jay-Z’s work with the Beatles, which the studio didn’t want to let out of the proverbial bag. That is remix culture. I’ll also point to the Remix Manifesto that shows a lot better what people have to face because of inept laws.

    Specifically about Youtube, it has opened doors to people enjoying a number of new avenues. We have self made stars on YT, from gamers, to news pundits that don’t have to go the traditional channel of incorporating themselves to larger conglomerates and losing their voice somewhat. Sure, they have ads, but for the most part, people have expression in a variety of ways. From dance, to remixing songs, to parody, it’s a bevy of new ideas that can’t grow without

    Knowledge, art, and culture are important aspects of our lives — they would be drab without them. An incentive for people to contribute more to these areas benefits us all.

    Again, it isn’t. It’s limiting the forms of expression to make a permission culture.

    Piracy hasn’t written a single book, sang a single song, or filmed a single movie now or at any time over the past 300 years. It doesn’t contribute to these things; it only diverts the value of knowledge, art, and culture into its own pockets, short-circuiting the incentive that copyright gives to creators and, ultimately, the public.
    I showed Beowulf. The Statute of Anne and the idea of copyright is from the 1700s. Funny how you pull up that specific date…

    So… piracy hasn’t assisted in books? Word of mouth? Libraries? I can still continue to read a book, taking a sale away from publishers.
    Sang a song? What about gypsy songs, folktales, and national anthems? Things that people hold valuable that don’t (or rather, shouldn’t) copyright?
    Filmed a movie? How about spreading movies that are being eaten away in archives?

    The point is again, to spread works. The need to monetize every digital resource actually hurts us far more than this need to share works and find new ways to add value. Copyright still doesn’t accomplish this feat.

    • “From dance, to remixing songs, to parody, it’s a bevy of new ideas that can’t grow without–”

      –some conglomerate trying to muck it up for everyone else. Imagine if Youtube had to gain permission for everything from the MPAA, the RIAA, the Publisher’s Guild, the Union of San Francisco, the Pope, and everyone else in the world. How would that truly be effective in the new digital world? Especially if the ones seeing these things, and recording them, are normal people? This belief that pirates are the scum of the universe is truly misguided.

  4. Using Leiber and Paley as great examples of creators who made massive amounts of money giving their work away on the internet is a laugh and a half.

    In Leiber’s case, he was clever enough to show a jump in sales on his cute little hand made chart without showing what the baseline was. The massive jump in sales everyone fell all over themselves to praise as a great victory for piracy was 24 copies. An artist can go to McDonald’s on that. And to do so, had to beg to one of the most misogynistic, homophobic, sociopathic groups of thugs on the internet.

    Leiber’s retail sales are so low (less than 2000) that the supposedly HUGE increase (according to Leiber all of 15%) after the big hype as a percentage of retail sales amounted to no more than a few hundred copies. Chump change. And will those sales maintain ever after? Based on the demand for the work? Or based on the demand to prove an ideology?

    That 15% jump came after Techdirt, Wired, and a bunch of other online sucker activists made a big deal over his 24 sales, while never mentioning ONE WORD about what that chart represented.

    Sales came from massive amounts of HYPE based on 24 copies, not on actual demand for the book itself created by piracy. Anyone getting that kind of publicity could sell a few books.

    Nina Paley’s hype is equally ridiculous. All she has done is pay the base costs of her three years of effort, and she has barely made any profit at all. She is shilling her ideology based on a business model that is eking out a few bucks for her, but would not be viable for others. If she’s happy with that, fine. But I looked at her numbers and wonder how she had enough leisure time to do all that and what she had to finance the effort in the first place. Art via privilege.

    Many artists have their work online, and many more have their work stolen from them online. One size doesn’t fit all. Artists have a right to use the method that works for them. Pirates rob them of the right to choose.

    Not everyone produces cutsie-poo, snarky webcomics that make for t-shirt fodder. Not every artist wants to create work that can be reduced to nothing but consumerist merchandise that no one needs. Not every novel, poem, work of art is marketable as a t-shirt, or snide coffee cup slogan.

    Respect the artist. Our copyrights are protected by the Constitution, too.

    Since artists who do try to protect their rights from piracy are routinely attacked, threatened and find their websites hacked, that free speech thing only works one way for piracy advocates.

    Give us all your stuff, or we’ll take whatever we want.

    A taking culture.

    In the words of one pirate: “I don’t want the crumbs, I want the whole bakery.”

    Depriving the baker of everything he has worked for, so one well fed consumer can have everything for himself with no investment at all.

    Millions of books, movies, television shows, all available at no cost to him aren’t good enough. He wants to take the ones that people charge money for, money so the artists can make a living and make more art.

    I like the permission culture better. And because I disagree with you, I won’t send my piracy thug buddies to go hack your website.

    • Who the hell is “he?”

      Anyway, NONE of the artists are making massive amounts of money in their endeavors. They are, however making comfortable livings and at least are pursuing other interests. As I’ve seen it, Nina continues to make money with Sita within the last three years. Most movies are viable after only two. They all have an opportunity to show what their best work is moving forward.

      Funny how your tirade discounts quite a lot of webcomics that are making money, able to pursue other endeavors. Penny Arcade is a well known example of two guys that happened to have come upon a great third man who let them continue to make comics everyday. The Giant (Order of the Stick) has his webcomics online. While his webcomics do promote his books, he does enforce copyrights. I don’t agree with every last decision he makes, but it’s his to make.

      The same goes with any site that I choose to make away from this one. One thing I would suggest:

      “Since artists who do try to protect their rights from piracy are routinely attacked, threatened and find their websites hacked, that free speech thing only works one way for piracy advocates.”
      That’s nothing more than rhetoric. Let’s keep away from that, shall we? The Giant’s website has yet to be hacked and he’s pretty close to his fans so that just makes you seem all the more foolish for such a view.

      “In the words of one pirate: “I don’t want the crumbs, I want the whole bakery.””
      Wow… I guess those economical circumstances such as high prices, translation issues, or cheaper substitute goods are pretty much lost on you then. Rather than get the expensive bagel, I might just go with french toast, but that’s just how I view it.

      “Millions of books, movies, television shows, all available at no cost to him aren’t good enough. He wants to take the ones that people charge money for, money so the artists can make a living and make more art.”

      So if I view a TV show, and decide it’s worth watching but then record it on a TiVo, I’m depriving him. Seriously?

      And there are now newer ways for artists, old and new, to reach audiences. Deviantart, Youtube (there’s that word again…), LiveStream…

      So in the end, if an artist (newer artist) has to get permission to paint, that isn’t doing anyone any favors. But I guess that’s what permission culture is all about. Making it harder for the new guy when those barriers effectively come down.

      • The “permissions culture” argument makes short shrift of a very important fact. One does not need permission to engage in the creation of new works when what is being “borrowed” is an idea.

        The problem is not the use of ideas, for this is a use specifically contemplated and approvingly embraced by copyright law. The problem is the use of tangible expression without the slightest thought or concern that perhaps the user is appropriating the original expression of another in a manner that does not comport with fair use as provided by law.

        While the “permissions culture” does in some instances impose a social burden, I submit that the “‘I will do as I darn well please’ culture” imposes a social burden far, far exceeding anything associated with the former.

  5. Jay,

    I’m having trouble following your argument. You seem to suggest that the net benefit of copyright in society is negative, because (1) it does not embrace users’ need to “spread works” (2) copyright enforcement has led to “filesharing [] being shut down, costing Kazaa, Grokster, and Limewire jobs and potential revenue sources” and (3) authors like Nina Paley don’t need copyright to make money anyway.

    From what I can see, the large content industries that rely upon the existing copyright structure are responsible for (1) funding the creation of thousands (if not millions) of useful works that the public regularly consumes and enjoys, (2) employing millions of Americans, (3) paying millions of dollars each year in taxes, (4) exporting content around the world and driving international revenues into the US, (5) creating a beneficial ripple effect across the economy by employing workers and purchasing products from a variety of industries, (6) and doing all of this on a scale unmatched by any independent authors or filesharing services.

    In the absence of copyright protection, would authors continue to create? Sure. Would they make money? Of course. But does that change the fundamental fact that the current system of copyright produces a far superior net benefit to society? Not at all.

    If it’s a choice between protecting a system of copyright that has proven to create the largest content industry in the world or ensuring that works can be shared and remixed in the most efficient manner possible, I choose the former. And, incidentally, I think it’s the best choice for society as well. Your evidence only suggests that some creators can make money without copyright, not that society as a whole is better off because of it.

  6. Oh, PUHLEEZE, this Jay guy doesn’t understand the most basic aspects of financing art and entertainment, particularly when he ignores the fact the TV shows are financed via advertising broadcast. You as the consumer have the legal right to record a TV show privately to use for your own enjoyment, but not to re-record and then redistribute and then add your own ads on your own websites elsewhere. That’s what piracy is about.

    The very few webcomics that make any money are making upper middle class cash at best (while almost no one else makes anything) and have been on the web for years. The entire entertainment economy can’t be financed the same way. This tedious use of a handful of successful webcomics to show that just EVERYBODY will do well if they do the same thing continues to make art into gadgets: the artist remains unable to follow the business model that works for them when anyone at any time can make their own copies of your work, post them elsewhere, and make their own product without paying the creator a dime. Creators aren’t just having their books stolen, their images are made into posters, prints, coffee mugs, t-shirts, and the artists get nothing. Some website in China sells my stuff, and there is no way I can stop them.

    So what if you can name one webcomic creator who enforces his copyrights who doesn’t get hacked? That does not devalue the experiences of creators who have had their websites hacked in revenge for expressing support for copyright law. Even creators who have their work on the web for FREE get hacked and get their work stolen.

    No one needs permission to paint. Paint something unique to you, you don’t need permission.

    Bottom line, you still don’t get copyright law basics, and think just because you want something you have the right to take it. There are still millions and millions of available works for free legally. All creators object to is their work being taken illegally.

    This is not about speaking up for the poor, no matter how you try to frame it and since artists are among the poorest class of skilled workers, you are robbing the poor. There are tens of thousands of free webcomics online right now. Yet people seem to think that they have to take the latest issue of Wonder Woman, else they will be deprived.

    Seriously, we really need a new definition of deprivation after all this. The entitlement culture which believes if they can’t make copies of other people’s efforts in any way they like – and sell the stuff – they are being deprived.

    I feel deprived too. I demand you hand over your wallet. Otherwise you are depriving me.

    “Permissions culture” is only a burden on the terminally rude. Those who mug artists to get what they want.

    • this Jay guy doesn’t understand the most basic aspects of financing art and entertainment, particularly when he ignores the fact the TV shows are financed via advertising broadcast.

      As I’m saying to artistrights, and I’ll say to you, the technology is creating newer ways to finance projects for cheaper. Just because something was done the same way for 50 years, doesn’t mean it will get the same results when there are newer ways to solve the same problem.

      You as the consumer have the legal right to record a TV show privately to use for your own enjoyment, but not to re-record and then redistribute and then add your own ads on your own websites elsewhere. That’s what piracy is about.

      Nice to see what you believe it was about. But there’s a lot of issues with saying “pirates” are adding their own ads. If anything most just share what they like for whatever reason. But eh, looks like you’re pretty set to say everyone’s a pirate that disagrees with you.

      The very few webcomics that make any money are making upper middle class cash at best (while almost no one else makes anything) and have been on the web for years.
      Uhm… No? They all worked hard on different models. Same as any other industry that the Pareto Principle will take root. Merely dismissing them because “they’ve been there for years” is somewhat disrespectful of the fact that they ALL started in the chaos of the internet when there WERE no established webcomics. They all built their fanbase, they have different models of business, it works for them. Saying they’re upper middle class to somehow strike them as being somehow different seems quite disingenuous in itself.

      Creators aren’t just having their books stolen, their images are made into posters, prints, coffee mugs, t-shirts, and the artists get nothing. Some website in China sells my stuff, and there is no way I can stop them.

      Yep, that sure can stop you from doing your own thing. I guess it takes a little more gusto than thinking the government can give you a free handout.

      Paint something unique to you, you don’t need permission.
      Somehow this reminds me of a line in Finding Forrester, “take something and make it your own.” Other thing is, weaker copyright laws seem to always lead to more innovation but again… Eh. Seems you’re pretty stuck in thinking that you can stop everyone from doing their own thing.

      This is not about speaking up for the poor, no matter how you try to frame it and since artists are among the poorest class of skilled workers, you are robbing the poor.

      HAAAAHAHAHA!!! I guess all of these people should “give back” those paintings to their favorite manga artist or superhero that they decide to draw on their free time eh? Wow, that was a great argument.

      There are tens of thousands of free webcomics online right now. Yet people seem to think that they have to take the latest issue of Wonder Woman, else they will be deprived.

      You seem to really love framing an argument based on ethos, not logos. How about this…

      Marvel and DC Comics have been around for 30+ years. People continue to collect them for the stories. And… would you look at that… Marvel has them online to read! Maybe, if someone looks at the digital version, they can want to collect the physical version? Just a thought.

      The entitlement culture which believes if they can’t make copies of other people’s efforts in any way they like – and sell the stuff – they are being deprived.

      You still haven’t given any examples. Seriously, how long is your appeal to ridicule going to take for logical fallacies? How about an actual argument with less vitriol, more examples, and more of a basis in the way people actually consume and use culture, and less of a rant hoping to change people’s minds without debating the issues?

  7. An aspect of copyright infringement that is often overlooked is that somewhere along the line it involves outright dishonesty. Items covered by copyright (books, films, CDs, music downloads, software, games, etc) are sold subject to the clear and well-understood condition that they are not to be copied without permission. People are perfectly free not to buy them, but if they do buy them they must accept the conditions of sale, either explicitly or tacitly by the act of purchase. (Unless they inform the seller that they reject the condition before purchase – and how many of our brave pirates do that?) If we take the case of online purchases from Amazon, iTunes, etc, you can only buy from them after explicitly accepting their terms of business, which of course include compliance with copyright law. So anyone who buys a copyright item and then distributes copies without permission is breaking a condition of purchase, and morally if not legally liable to the full extent of any resulting financial loss.

  8. Terry, unfortunately, I can not agree with your opinions. I have reviewed them but there is a constant nagging that copyright does not seem to be about fair use any longer. It seems more and more about how much our system is used to stifle creation.

    Since this is the most recent blog post, I hope that you have seen the ICE takedown notice and look for the glaring errors. Here it is for your viewing pleasure. Further, we should take exceptional notice of all the money being spent for these laws that are influencing the landscape. The RIAA alone $4 million this year

    Everyone continues to talk about artists… But I have a question. If the label is spending so much, how much is the artist able to say? How is their voice being heard through the deafening ring of what their label is doing? I can name quite a few artists that aren’t against piracy. But can anyone name artists that find these connections bad?

    If copyright infringement has truly come to a collusion from Hollywood and Washington DC, then there is a problem.

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