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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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February 28, 2005

An Engine of Censorship

Posted by Ernest Miller

In the copyright and First Amendment case Harper & Row, the Supreme Court famously called copyright law "the engine of free expression." Indeed, properly limited, copyright can be an engine of free expression. However, when not properly limited, copyright can, instead of promoting free expression, become an engine of censorship.

Many have argued this point, but seldom do you see such blatant and concrete examples of this phenomenon as when the Walt Disney Company aligns itself with would be censors of "dirty bits" in order to promote expanded copyright law. The Agitator had the story 10 days ago (Mousetrap):

So I was a little curious why Walt Disney Company sponsored a booth at CPAC [Conservative Political Action Conference]. It's the only notable corporate booth at the conference. My first thought was that maybe Disney's trying to win back family values crusaders still pissed off about the whole (ridiculous) "gay day" thing.

Turns out, Disney's presence at CPAC is a Grover Norquist project, and represents a soul-selling symbiotic effort between cultural conservatives and the Mouse to ban peer-to-peer technology. The Disney booth is lined with op-eds, Heritage backgrounders, and dire warnings to conservative parents about how their children are utilizing peer-to-peer to download pornography.

Is it a coincidence that the copyright industry (which usually celebrates the First Amendment) seeks to get in bed with censors? I think not.


Frank Field's Furdlog notes this hypocritical alliance (Alliances in the Grokster Battle) He quotes from an AP article on the New York Times website (File - Sharing Case Unites Unlikely Allies):

"Hollywood is definitely a strange bedfellow to most of us," said Jim Backlin, vice president of legislative affairs for the Christian Coalition of America. "Our goal was to cut down child pornography and other kinds of pornography, and if for some reason we were allied with the Hollywood types this time, so be it." ....

In building a wider coalition of support, Bainwol [head of the RIAA] said he sought to find a way to ensure that the "mainstream of America would embrace our position."

Bainwol's predecessor, Hilary Rosen, doubts a cozier relationship between conservatives and the entertainment industry will ensue.

"There is a bizarre but cool irony to the conservatives who hate the media we produce but defend to the death our right to make money when we produce it," added Rosen, whose tenure at the RIAA coincided with the 1999 congressional hearings over violent lyrics that followed the Columbine High School slayings.

I really have to admire the brazen way Rosen turns around the classic rallying cry of free speech "I disagree with what you say, but will defend to the death your right to say it."

Comments (2) + TrackBacks (0) | Category: Copyright | Freedom of Expression


1. Andrew Greenberg on March 1, 2005 06:01 AM writes...

I presume many of you will remember that the American Conservative Union came out against Induce?

As to the Engine of Censorship issue, Ernie hit it very close to the mark. Just a few centuries ago, the modern notion of Copyright was born in England, with Parliament's adoption of the Statute of Anne. In those days, as in the late 18th Century when its counterpart, the U.S. Constitution and the furst Copyright Act was passed, indeed it was.

Prior to the Statute of Anne, the right to possess, operate and use the output of a printing press was limited by Crown patent to a monopoly, the Stationer's Guild. The patent was enforced throught the strong-arm dictates of the Star Chamber, and the monopoly was granted PRECISELY to assure crown control over the output of England's printing presses.

With the Statute of Anne, Parliament ABROGATED the publishing enterprise monopoly, and vested for the first time exclusive rights in ARTISTS. Businesses were free to engage in commerce to acquire those rights for use with a printing press, and anyone with a press and a mind could publish at last.

With the new mantra of secondary liability, the content aggregators now wish to create a new Stationer's Guild for themselves, to actually get the Congress and the Courts to believe that Copyright exists to control the technology of publishing, rather than the content published. Should that ever happen, the engine of free expression will once again be shackled, and a new Stationer's Guild established in its place.

We must never let this happen.

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2. Rolo Timassie on March 3, 2005 05:06 AM writes...

Yeah, that's right, if you can't make free copies of "The Matrix," the whole world is going to hell.

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