There’s a concept in the law of free speech known as “the Heckler’s Veto.” It’s the idea that if a speaker creates such a stir that he is silenced to avoid enraging the audience—perhaps to the point of violence—then the audience, and the most unhinged among them, gets to determine the limits of free speech.
And in the United States, that sort of thing is generally frowned upon.
So why, then, is the White House celebrating a purported anti-piracy measure that makes internet service providers the chief copyright enforcers on the web? It seems like a recipe for corporate censorship, carried out by private parties at the behest of other private parties, often corporations with a demonstrated history of cherishing profit far more than anything quite so mundane as freedom of speech.
Not that I, and certainly not Free Press, have any love for copyright infringement. We firmly believe that creators of content should be justly compensated for their work. We are, however, troubled that a virtual “heckler’s veto” could become standard operating procedure online.
What is to prevent owners of copyrighted material from selectively enforcing copyrights so that only favorable critiques of their work are available, or that use of their materials for not-for-profit, analytical review and debate is only available to analysts and scholars who are willing and able to pay whatever price the creator demands?
Under copyright law generally, there is an allowance for such uses, known as the Fair Use doctrine. Simply put, this allows for the educational or public interest use of portions of a copyrighted work, so long as it doesn’t unduly, negatively impact the marketability of the work. This is considered by most in the legal community to be a pretty equitable result: the public debate is enhanced while the creator’s interest in compensation is protected.
So why is this new plan something different? As ars technica’s Nate Anderson notes, this puts ISPs in a position to impose penalties on end users at the mere accusation that they are infringing on copyright, without any requirement of due process or Fair Use expertise on the ISP’s part, and apparently, no recourse against copyright claims brought for the purpose of silencing or harassing critics.
This is not an academic point. It landed on Free Press’ doorstep this very week.
It came about through Change the Channels, our effort to publicly expose TV stations that cynically circumvent FCC ownership rules intended to foster diversity and competition by entering into “joint operating agreements,” whereby one station essentially runs at least a portion—often the news department—of another, which is basically a shell company. These broadcasters claim to be following the FCC rules that prevent one owner from dominating a local media market. But in effect, these arrangements egregiously violate the spirit, and sometimes the letter, of the rules. We call this practice "covert consolidation."
One such quasi-merger, WTEV-TV and WAWS-TV in Jacksonville, Fla., was featured in a video on Change the Channels and the Free Press website. It showed the websites for the two supposedly separate and independent newsrooms sharing virtually identical stories and content. Newport Television, LLC, the company that runs both stations, claimed this violated its copyright.
Interestingly, the cease-and-desist letter, from both stations, came from the same lawyer– in-house counsel for Newport Television, which owns WAWS-TV, but not (purportedly) WTEV-TV. From a legal standpoint, only the copyright holder can enforce its right. So unless WAWS-TV and WTEV-TV are the same legal entity, it looks as though someone might be trying to protect a copyright to which they have no claim.
All that aside, upon Newport’s complaint, YouTube swiftly disabled the video, despite the fact that Newport’s claim is laughably weak and Free Press’ use of the material falls squarely within Fair Use.
It’s hard to blame YouTube under these circumstances; the Digital Millennium Copyright Act places an obligation on service providers to remove supposedly copyright-infringing materials or face liability for failing to do so. But that knee-jerk reaction has effectively silenced Free Press in the discussion of the covert consolidation issue. By merely showing the image of WTEV’s and WAWS’s websites in a non-profit debate of a public issue, Free Press subjected itself to the heckler’s veto. And without having to make a legitimate legal argument or prove the merits of its claim, Newport Television was able to gag a critic.
Free Press, of course, is going through the appropriate procedures to lift the copyright-based censorship and raise awareness of the dirty little secret of covert consolidation. We are lucky to have a strong legal team to beat back Newport’s spurious claims. Even so, we’ve been advised that the soonest our video will reappear on YouTube is “between 10 and 15 days from [July 8].”
But what of those internet users without the resources to challenge the claims by corporate copyright holders who would like to shut up anyone who has anything bad to say, or even tough questions to ask, about them?
This new corporate agreement between copyright owners and ISPs smells of a for-profit star chamber, where claims of infringement are ruled upon by one interested party on behalf of another. Any “justice” that could come out such a system should be viewed skeptically. And any such system is one that should offend every American who believes in the value of public debate.