Copyright Does Not Violate the Right to Free Speech

Adam Mossoff —  17 September 2012

I’m speaking on a panel hosted by the Free Speech Dialogues program at the University of Texas at Austin this Thursday, September 20.  The topic this year is Intellectual Property Rights and Free Speech, and UCLA law professor Neal Netanal and author Robert Levine are also speaking on the panel.

The Austin newspaper, the Statesman, asked me to write a lengthy op-ed for its Sunday edition.  My title for the op-ed was, Copyright Does Not Violate the Right to Free Speech.  The newspaper editor turned this into, “Copyright Doesn’t Limit Online Speech.”  Sigh.  Actually, copyright does limit online speech — the copyright laws prohibit digital speech that accesses or copies copyrighted speech without authorization — and the point of my op-ed is that this is not a violation of the right to free speech.  It’s not the first time such things have happened with newspaper editors, and I’m sure it won’t be the last.  Luckily, aside from a few other changes, the content of the op-ed is basically what I wrote.

You can read the whole thing here.  Here’s a small taste:

For this reason, a copyright owner is not the same as a government agent who wields the coercive power of the state to punish expression of certain ideas. Famed intellectual property and Internet law scholar Larry Lessig often refers to the music industry’s enforcement of its copyrights as “Soviet,” but Time Warner, Sony or Universal are nothing like the Soviet officials who imprisoned authors in Siberian gulags simply because they dared to criticize communism. There is a fundamental difference between a property owner seeking protection of her rights under the law and a government official who wields state coercion in the violation of these same rights, whether liberty, property or speech.

Contrary to state censorship, such as the government prohibiting what it arbitrarily deems to be “obscene” speech, a copyright secures only the exclusive use of an artistic work created by someone — no more, no less. A federal appeals court stated this point in 2001 in the famous digital copyright case Universal Studios vs. Corley: “Owners of all property rights are entitled to prohibit access to their property by unauthorized persons.” Thus, the Corley court concluded that the copyright laws did not violate the right to free speech by prohibiting the hacking of digitally encrypted copyrighted works