What copyright scholars can learn from the Harper’s magazine “free speech” debacle

Nicholas Grossman has an excellent oped (h/t Mike Masnick) on that much (and justly) maligned Harper’s letter about cancel culture, free speech and stuff.

Grossman’s key point:

free speech defenders … miscast … their argument as a high-level defense of the principles that undergird a free society rather than what they’re actually doing: debating the parameters of socially-acceptable speech regarding race and gender.

To which I can only reply, precisely so.

The problem with the term “free speech” is that there are always always always rules governing speech. Always. The debate is never between free speech or no free speech because “free speech” is a floating signifier that boils down to “speech I agree with, or at least don’t feel threatened by.”

If people were clearer about this fundamental point – if we could get directly to discussing the parameters of socially acceptable speech – our public discourse could be improved in so many different areas. Not just with respect to political speech, the subject of Grossman’s article, but also in things like internet governance, where “internet freedom” plays the “free speech” role.

Copyright and the (non-existent) state of nature

And copyright, too. I’m writing an overview of copyright for a reference book and Grossman’s article articulated an uneasiness I’ve had about copyright scholarship that I’ve been trying to express for a while. In trying to explain what copyright is to neophytes, I’m struck, and not for the first time, how almost every analysis of copyright begins with the assumption that copyright imposes an artificial (state-created legal) restriction on the creation and dissemination of ideas, the corollary being that without copyright, ideas would be able to flow, well, freely.

The pithy apotheosis of this view is Lawrence Lessig’s comment praising “free culture,” not as in “free beer,” but as in “free speech.” Which should be our first hint that the state-of-nature understanding of knowledge and copyright just might have exactly the same problems as the “free speech” position.

Both the Lessig and the mainstream legal view of copyright is based on the assertion that knowledge is a public good (i.e., non-rival/non-excludable) in its natural state. As a former practicing economist, I understand the appeal of this approach, and it’s not like it’s 100% wrong, but I think it misstates the fundamental nature of knowledge – the thing being regulated here – in a way that has significant consequences for our understanding of copyright.

The thing is, just like political speech, commercial or creative speech is always governed by rules that determine who should be allowed to create, what they should be allowed to create, and who should be allowed to disseminate and access these works. There is no state of nature for creative speech, or knowledge for that matter. “Chewbacca” does not exist in the state of nature. Our favourite Wookie, and knowledge generally, are human creations. Creative speech, like all knowledge, is constituted by rules. Rules define. They set parameters. They include and exclude.

What I wonder is whether what we take as knowledge’s supposedly non-rival and non-excludable nature is actually an expression of a situation in which there are very loose limits on the controls that society is either willing or able to impose on the creation, dissemination and use of creative works. Stated in another way, there are always rules and norms at work in the constitution, dissemination and use of knowledge.

This is not just a twee academic exercise: it has real implications for how we consider knowledge regulation. Framing copyright as something imposed on otherwise “free” knowledge sets up a false dichotomy between restrictions and freedom. This false dichotomy, I think, accounts for much of why copyright debates, when they flare up, descend so easily into ideological grudge matches. Why do you hate artists? Why do you want to criminalize creativity? (Although the obscene amounts of money at stake also likely has something to do with it.)

Just as with Grossman’s “free speech” debate, strong-copyright proponents and copyright critics are not actually arguing about respect for artists versus cultural freedom, but about the parameters of socially acceptable commercial and creative speech. Which is how these things usually play out: the best writers highlight the role of balance between owners and users in copyright. And of course copyright law is all about dictating winners and losers. But that assumption about the state of nature is always there, lurking in the background.

Ditching the state of nature starting point in our copyright discussions would allow for a more honest, straightforward discussion and frank assessment of the stakes at play, rather than hiding behind empty platitudes such as “respect for the creator” or “free culture.” It would highlight that the choice is not between freedom and restriction, but between different rules.

This approach would start by asking the questions, What parameters – that is, permissions, limits and restrictions – should we place on creative and commercial speech? And, what groups, norms and forms of creative expression do we wish to favour, recognizing that there are always tradeoffs?

No monopoly on virtue

Starting our analyses from the acknowledgement that there are always rules, and that these rules will always advantage and disadvantage certain groups, norms and forms of creative expression, would hopefully force both strong-copyright proponents and copyright critics to realize that neither has a monopoly on virtue. It would recognize that even our insanely overprotective copyright regime – seriously, there’s not a person who has ever lived who ever made a decision about what to create based on whether their descendants will get a payout in 150 years – does not destroy creativity. It shapes it. It rewards some creators and punishes others.

Does the current copyright regime shape creativity in a positive or negative way? You can probably guess my overall position. But I’ll also acknowledge that “overly” (from one perspective) restrictive sampling rules pushed hiphop overall in a direction that it might not otherwise have gone (relying more on unidentifiable samples, some artists switching to live instrumental music). Is that a win or a loss?

There isn’t a definitive answer to that question, which must be worked out politically. Answering the question of where we should set the parameters of “socially acceptable speech” when it comes to creativity raises the same questions, with lower social stakes, as the current debates over race and gender. And like that debate, it’s highly political. But just as with the debate over political speech, it would be helpful if we could confront the real issues head-on in a way that recognizes that there are no optimal solutions, just trade-offs that will always favour some people and ideas over others.

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