Public Knowledge has been attacked for allegedly saying “piracy is free speech” when we point out that hyper-aggressive copyright enforcement can have First Amendment implications. Our usual points relate to how fair use is ignored or entire categories of technologies are threatened in a ham-fisted attempt to curb online infringement.
In most of these enforcement efforts, free speech is collateral damage. Rarely have the big content industries come right out and said that speech they don’t like ought to be silenced.
But the other day, the trade associations representing the motion picture industry, the record industry, and their cohorts filed comments with the federal government’s top official in charge of copyright enforcement where they call for “senior government officials” to get involved, and help social networks realize that they should crack down on the dirty pirates who are using their platforms for…speech. Specifically, they don’t think sites like Facebook should be used by bad guys to “promote” themselves or “communicate with large ‘fan’ bases.”
You’d think the entertainment industry would realize that it’s a bad idea for the government to start deciding what kinds of speech are okay and what kinds are not. These scorched-earth tactics will inevitably backfire. If there are websites that are breaking the law, the content industry is within its rights to go after them. But it’s dangerous for the government to start asking Facebook to block people from talking about those websites. (Other “intermediaries” who ought to take a greater role in enforcing the content industry’s rights, according to the content industry, include hosting service providers, search engines, ad networks, payment processors, domain name registrars, proxy services, and any sites that allow users to post “application or widgets.” Ars Technica and Techdirt have more background on the content industry filing, which evidently sees peer-to-peer as a bigger threat than other kinds of IP infringement, such as counterfeit medicine and industrial espionage.)
Facebook, as a private platform, is within its rights to “censor” whatever it wants. It’s a different story when the government starts leaning on private platforms to block certain kinds of speech. This is in line with attempts to use government to get ISPs to implement three strikes policies “voluntarily”–a clever workaround of due process. There’s a time-honored tradition in DC of government officials raising their eyebrows and harumphing to encourage private parties to take steps to avoid regulation. This is entirely appropriate when the government could legally regulate if its tsk-tsking fails. It’s another matter, though, when the government couldn’t take those kinds of actions directly consistently with the U.S. Constitution. Even a bipartisan coalition led by Rep. Mary Bono Mack Vice President Joe Biden couldn’t pass a law requiring that Facebook block certain speakers, and it’s bad public policy–and contrary to the long-term interests of content creators–to involve the government in making decisions about speech.