It’s Been an Interesting Day For Freedom of Speech

The United States government has a long history of considering, if not passing and creatively interpreting, some really poopy-headed laws. From the Alien and Sedition Acts, to the Dred Scott Decision, to SOPA and PIPA; the Congress and Supreme Court of the United States are sometimes the most dangerous groups of people in the country when it comes to how we communicate ideas.

Today (January 18, 2012) was the great SOPA/PIPA blackout. Sites across the U.S. web voluntarily made their content unavailable for the day in order to express the poopy-headed nature of these bills before Congress. (Disclosure: the sites from this domain were participants.) It was an extraordinary step to take considering the quality of laws that have been coming out of the US Capitol in the past 20-30 years. That should indicate how badly drawn this law was.

In short (with brevity glossing over a lot): these bills, the product of certain large IP (intellectual property) owner (not necessarily creators) had lawmakers fast-track a proposed law to make it possible for them to circumvent the courts to shut down entire domains they deemed having unacceptable content. No due process. Little oversight. It was a cynical, greedy, IP power-grab, pure and simple, despite assurances, not backed up in the text of the bill, that it would only be applied to foreign “pirates”. It didn’t take a lot of analysis of the bills to see that they were just vague, overly-broad, badly drawn legislation…and another example of who is actually controlling the halls of the Capitol.

It seems that the blackout has drawn necessary attention to the need for carefully considered measures when it comes to the theft of other people’s work — which is most definitely worthy of consideration. But an industry carte blanche is definitely not the way to go. ANY law that depends on the “good will” and/or “good intentions” and/or “restraint” of industry or the government in enforcing those laws is almost guaranteed to be a bad law. That badness is increased by several orders of magnitude when there is no oversight or due process.

Coincidentally, on this very same day, SCOTUS (the Supreme Court of the United States — but I prefer the more derogatory-sounding “SCOTUS” in these instances) ruled 6-2, with one recusal, that “The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain.”

On strict principle, I can see how SCOTUS could rule that this was correcting a Berne Convention injustice. Unfortunately, the decision doesn’t have quite the laser-focus you’d hope for in such a case. I agree with the dissenting view of Justice Breyer, who wrote (starting on p.46 of the opinions):

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works—works that have already been created and already are in the American public domain.

I’ve made it clear that I’m very unhappy with the copyright laws in the United States and as handled by the Berne Convention — and I will continue to do so. I feel they are too broad and are geared more toward the IP hoarders than the content creators. I can’t help feeling that this decision by SCOTUS works against the idea of encouraging creators of new work to, you know, create new work.

Knowledge builds upon knowledge, but by preventing free access to the dissemination of ideas, knowledge and creativity doesn’t so much flourish as struggle to survive. SOPA/PIPA was lamed today, but it will doubtless walk again. With the sort of mindset exhibited by today’s SCOTUS ruling, it might even have good traction.

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