Free speech shouldn't be a shield for online thieves

Mike McCurry and Mark McKinnon, arts+labs

(Left to right) Mike McCurry, Mark McKinnon, Arts+Labs co-chairmen

By Mike McCurry and Mark McKinnon, Arts+Labs

The First Amendment is critical to much of what Americans cherish about our freedom to pursue our own lives of happiness.  But the concept of free speech does not include the right of others to steal that speech. This is not an idle question. In the name of "free speech," opposition is organizing around legislation pending in Congress that would shut down rogue website businesses that exist to steal the work of others. Protecting those websites in the name of constitutional free speech rights would be outrageous.

We are not lukewarm First Amendment advocates. One of us went to jail to protect freedom of the press and the other routinely had to defend this freedom to belligerent skeptics on the White House staff.  But we believe it is a misuse of the First Amendment to shield rogue websites whose main purpose is distributing illegal copies of intellectual property--counterfeit drugs, business trade secrets, software, music, and movies, to name a few examples. Wittingly or not, providing cover for the crooks will be the result if First Amendment concerns derail legislation such as the "Protect IP Act," a version of which will soon be introduced in the House.

Importantly, Protect IP, already before the Senate, is narrowly crafted to target only websites with "no significant use" other than copyright violation, trademark infringement, or actions that might endanger public health such as the sale of counterfeit drugs. No property is seized or websites shut down without a hearing and a court order.  

The First Amendment was designed to enable open political debate, discussion about social and cultural values, and the right to criticize the government and its leaders without fear of retaliation. You can stand on a street corner or blog to your heart's delight just about anything that pops into your head. And, that's as it should be.  But using the Internet to distribute the product of somebody else's creativity is no more about free speech than fencing stolen goods in a parking lot.

Floyd Abrams, perhaps our country's most respected First Amendment attorney, put it well in a letter to the Senate Judiciary Committee about an earlier version of the Protect IP bill: "It's one thing to say the Internet must be free; it is something else to say that it must be lawless.  Even the Wild West had sheriffs, and even those who use the Internet must obey the law." 

In our view, it's vitally important that copyright holders get to decide how to share or sell their own work. The improper diversion of copyrighted and trademarked goods enacts an enormous cost on the economy--in the form of lost earnings and the lost jobs those earnings support. As pernicious, in our view, is the impact on creativity.  

Illegally copy a book, a song, a film and share it around--for free or for pay--and you take money out of the creator's pocket. Do that as a business, on the scale of the rogue websites that Protect IP targets, and you risk destroying the chain of creativity that copyright law is designed to encourage. 

In a 1985 opinion on the First Amendment and copyright, the Supreme Court had this to say on the subject: "[T]he Framers intended copyright itself to be the engine of free expression... "[b]y establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." 

Indeed, we think protecting intellectual property is itself a bulwark for free expression and speech because providing creators the chance to earn a living through their ideas will enable them to share their creativity more widely.   Conversely, destroying creators' livelihood through Internet theft discourages their exercise of the free expression that enriches our democracy. 

Bottom line: absolutely "yes" to free speech, arguably our most important freedom. But because speech is free does not mean that the content somebody creates must be free as well. That decision, in our view, belongs to the creator. If he or she chooses to share work for free, we applaud. But if we value creators' words, ideas, music, their films or other forms of expression, we should be willing to protect their right to be paid a reasonable price and enable them to create even more.

Mike McCurry and Mark McKinnon are co-chairmen of Arts+Labs, a collaboration between technology companies and creative communities that have embraced today's rich Internet environment to deliver innovative and creative digital products to consumers. Mr. McCurry is former White House press secretary to President Bill Clinton from 1995-1998 and Mr. McKinnon is a veteran political consultant who has worked for President George Bush and Senator John McCain's candidacy for President.

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