The Instigator
TheLetterK
Pro (for)
Losing
6 Points
The Contender
lazarus_long
Con (against)
Winning
12 Points

Copyright laws are antithetical to the principle of free expression.

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Voting Style: Open Point System: 7 Point
Started: 1/12/2008 Category: Politics
Updated: 9 years ago Status: Voting Period
Viewed: 1,148 times Debate No: 1740
Debate Rounds (3)
Comments (1)
Votes (6)

 

TheLetterK

Pro

I am supporting the idea that copyright laws are contrary to the principle of free expression--and, by extension, unconstitutional in the US after the ratification of the bill of rights. It is important to keep this debate constrained to copyright alone, and not extended into the wider realm of intellectual property in general. There is a distinct constitutional issue involved in copyrights, in that they are explicitly intended to restrict the expression of ideas by people other than the copyright holder. This is not necessarily the case when dealing with, for example, patents, as they protect only concrete methods and inventions.

The first step of any argument is, I like to think, to define the concepts being discussed. Copyright law is, according to the US Copyright Office, "a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression." This definition I will not disregard, however I clearly take exception to the notion that this is "grounded in the constitution". I'll get back to that. The other major concept is that of "free expression", a definition for which I will take from the US Constitution. The first amendment clearly states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." According to several Supreme Court rulings, a fact that I do not believe many will dispute, the "free speech" clause of the above is interpreted to mean a protection of all forms of expression, be they on a tangible media or through the spoken word.

Getting back to that issue of copyright being grounded in the constitution. It is clear that, pending the ratification of the Bill of Rights, Congress was granted the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." However, this power, as implemented through our current system of copyright, would clearly run counter to the later prohibition on the restriction of expression by congress. How can Congress pass a law to "secure the right of authors... to their respective Writings" if they are unable to pass a law restricting the freedom of expression?

That last sentence would actually be a good way for me to sum up the issue, in my opinion. Fundamentally, copyright laws are a restriction on the right of the people to freely express themselves, and as such run counter to the first amendment. For a society that places value on the principle of free expression, it seems somewhat strange that we also put such high value on the restriction thereof, in the form of copyright laws.
lazarus_long

Con

First, let me thank my opponent for choosing a very good topic. Hopefully, this will be an interesting discussion for us both.

In the interests of full disclosure, I should also note up front that I personally benefit, to a small degree, from our copyright system. A good part of what I do for a living involves writing, and I derive a small part of my income each year from the sale of copyrighted work.

My opponent has made two basic assertions - first, the specific topic of this debate, the notion that "copyright laws are antithetical to the principle of free expression." Further, while not really covered under the topic at hand, he claims that "by extension, {copyright laws are] unconstitutional in the US after the ratification of the bill of rights." I intend to show that both of these assertions are seriously in error.

Let's take up the second assertion first, for although it is not actually the subject of the debate, a look at the legal aspects of copyright as it pertains to the Constitution will also show how it is definitely NOT antithetical to free expression.

That there is some conflict between the constituional granting, to Congress of the power to establish a copyright system (Article I, Sec. 8) and the "freedom of expression" clause of the First Amendment is undeniable, and has long been recognized. But does this make the copyright system unconstitutional? Not at all! First, it has long been recognized that the rights granted by the Constitution and its various amendments are not absolute. This has been established both through many, many court decisions, and also (and arguably more importantly in a democracy) through the application of common sense. For a very relevant example, we have the old saw about not having the right to yell "Fire!" for no reason in a crowded theatre. If one were to insist on a literal and absolute reading of the First Amendment, society could not restrict even that form of speech. But it is quite clear that there are other interests of society - and in the rights of the individuals of that society to be protected from such abuses - that must take precedence over any notion of an "absolute" right to totally free expression. Hence we have quite constituional laws prohibiting certain forms of speech, under certain conditions. You are not permitted to incite a riot, to commit libel, slander, or perjury, etc., etc.. These are not, and should not be, considered as undue restrictions on the freedom of expression. There has to be a balance in our laws, and the Framers of our Constitution recognized this. Law is not, and never will be, as simple as a book of absolute rules. Such things are impossible in the real world. A balance between the conflicting interests of society, and even conflicting individual rights, must be struck, and we were also given a judicial system to help find that balance.

So the question then becomes one of whether or not copyright law serves a higher interest of society, such that this sort of restriction of expression is justifiable. The answer here can only be a clear and resounding "yes." Copyright law serves two interests of society that make our current system a reasonable balance. First, we are forced to face the undeniable truth that ideas, and the expressions of those ideas, have value. They are often, therefore, considerable as forms of property, and the right of individuals to own property (and the responsibility of our society to protect that right) is also constitutionally recognized. So to NOT allow for copyright would itself be a violation of the right of citizens to be secure in their property, and to exercise the rights of ownership regarding that property. That the property in question is intangible makes no difference; it has value, it may be bought and sold, and persons may derive income from its production.

And this fact also now comes into play when we consider the question of whether or not copyright law is "antithetical to free expression." In fact, the situation is quite the opposite. The Supreme Court itself, in a decision in the 1985 case of Harper & Row Publishers, Inc. v. Nation Enterprises, noted that:

"It should not be forgotten that the Framers intended copyright itself to be an engine of free expression"

In other words, the principle of copyright is, rather than being a hindrance to free expression, actually an encouragement of it. It is very clear that a writer sees a financial incentive in writing, but only as long as there is a paying market for his or her work. If that work, which represents a considerable effort on the part of the writer (I myself have put a solid six months' worth of research and writing into a book), could be freely copied by anyone, where would the incentive to create it come from in the first place?

And for that matter - are the restrictions put in place by copyright law really unreasonable restrictions of free expression? Not at all - they merely state that others cannot distribute another's work as their own, or without fair and reasonable compensation to the originator of that work. There is no absolute restriction against ANY use of copyrighted material - simply that the permission of the originator of the material be obtained, and that that person be compensated. My writing is just that: mine. Why should I be expected to permit others to pass it off as their work, or to allow them to gain from my labor without my permission? If they wish to express their own ideas, opinions, thoughts, and so forth, they are still clearly free to do so - they simply have to do it in their own words. They need to put forth the same sort of effort to make their expression clear that I have done, but they ARE free to make that effort. And when they have, they too will benefit from the protection of the copyright laws that will protect their expressions from misuse.
Debate Round No. 1
TheLetterK

Pro

I must confess a degree of personal incredulity regarding the claims of my opponent. My consternation originates, primarily, from two separate segments of their response. The first issue I have is with the idea that constitutional rights are not absolute. The second is with the relevance of the societal good of copyright. I will take these two issues in order of their presentation.

In regard to the absolute nature of constitutional rights; the vast majority of rights guaranteed by amendments to the constitution are treated as absolute. For example, the amendments protecting citizenship rights, allowing for income taxes, prohibiting slavery, and the like, are all interpreted quite literally, and in a rather absolute manner. We do not often hear people claiming that the government does not, for example, have an absolute power to tax personal income. We do not tax income in a manner that is tempered by "common sense", but rather in a manner that is designed to maximize revenue generation. For an example of that, consider the 70+% tax rates that were applied to the upper tax brackets in the 1970s. Neither do we interpret the 13th in a manner that was in line with common sense--we took the moral stand and said that slavery was absolutely wrong, even though it meant severe economic hardship for the south in the wake of the civil war. If common sense were a valid factor in our interpretations of constitutional rights, then some "reasonable" amount of such a horrid practice should have been deemed justified. Indeed, most of our more recent constitutional amendments have been interpreted in an absolute manner, even those that grant rights to individuals. Even in cases where profound harm results from an absolute interpretation of an amendment, we tend towards the absolute interpretation. For an example of this, consider alcohol prohibition. If common sense were to be a valid factor in determining an appropriate level of implementation, we would not have allowed such a complete ban on alcohol, and instead opted for a lesser degree of restriction. We did not, and chose to repeal the prohibition instead. Many people write and speak about what is known as the "rule of law". This generally seems to be held to mean that a government operates according to the laws that are written, as they are written. If there are interpretive provisions written into the law, then they should rightly be considered when it comes time to enforce the law. However, absent those provisions, it must be upheld to the letter of the law, if we wish to consider ourselves governed by the rule of law.

I also take exception to the diversionary attempt at driving this to a conversation about societal good. This debate would not seem to have anything to do with the goodness of copyright, or the moral acceptance of the idea. This is simply a discussion about the seeming contradiction between the idea that you can express whatever ideas you'd like, and the idea that people can own the exclusive right to express an idea. The benefits of assigning the ownership of an idea to a particular individual are outside the scope of this discussion.

The tangent about the absolute nature of laws is also rather beside the point. Rather than arguing legal minutiae, we should perhaps focus back on the issue at hand--does copyright violate the *principle* of free expression? I'm not exactly sure how it could be argued otherwise, since the very nature of copyright implies a degree of restriction on expression. How can you freely express yourself, if there are certain ideas that you are prohibited from expressing simply because someone else lays a claim of ownership over them? You have made the suggestion that copyright promotes free expression, but I would argue that it simply promotes expression of a non-free kind. The only way an author can make gains from his copyright is if everyone else is restricted from expressing the copyright idea. That is anything but *free* expression, in both the social and economic sense. It holds back the potential for expression for everyone else, entirely for the monetary benefit of the person who lays claim to that idea's expression. Suggesting that the goal of free expression is promoted by the generation of proprietary expression is akin to suggesting that the goal of greenhouse gas reduction is furthered by the extraction of fossil fuels.

As for the restrictions on copyright. They are completely acceptable for a society that places little value on free expression. They are completely *unacceptable* for a society that places high value on the principle of free expression of ideas. It is not a very free sort of expression if I have to secure the permission of someone else before expressing an idea. Especially if I have to pay royalties for the privilege. In response to your question about why you should allow others to freely copy your work. I would ask you in response why others should even need to ask your permission to copy it.
lazarus_long

Con

Regarding my opponent's most recent response on this topic:

"I must confess a degree of personal incredulity regarding the claims of my opponent. My consternation originates, primarily, from two separate segments of their response. The first issue I have is with the idea that constitutional rights are not absolute. The second is with the relevance of the societal good of copyright. I will take these two issues in order of their presentation."

Unfortunately, neither incredulity or consternation make for much of an argument - particularly when such appear to come from a significant degree of naivete and outright confusion regarding the laws of our country. To disagree with the notion that "constitutional rights are not absolute" is to display a rather amazing degree of ignorance regarding the basics of constitutional law. As I noted in my opening remarks, the non-absolute nature of these rights is very widely recognized, as even the most casual of research into the field will show. The right commonly thought of as "freedom of religion," for instance, will not protect you from prosecution for murder if you assert that your particular religion requires human sacrifice and act accordingly. That's a rather extreme example, but apparently my opponent missed the more common examples I gave originally. As I noted, it is quite clear that the right to "freedom of expression" does not mean that laws prohibiting libel, slander, disturbing the peace, or defacing property with graffiti are unconstituional. The "right to bear arms" does not mean that one can privately own nuclear weapons. The list of examples goes on and on, but it is clear from even the most cursory consideration that our Constitutional rights are not without limit and so are not "absolute" in that sense.

My opponent goes on to say:

"In regard to the absolute nature of constitutional rights; the vast majority of rights guaranteed by amendments to the constitution are treated as absolute. For example, the amendments protecting citizenship rights, allowing for income taxes, prohibiting slavery, and the like, are all interpreted quite literally, and in a rather absolute manner. We do not often hear people claiming that the government does not, for example, have an absolute power to tax personal income."

This shows a rather serious degree of confusion between "rights" and other provisions of the law. The prohibition of slavery, for instance, is hardly stated in the form of an individual right, and what the enabling of the Federal income tax has to do with whether or not certain rights are "absolute" is beyond me; perhaps we will see a further explanation of this. But it should also be clear that simply because some rights are not considered "absolute" (and cannot be, in any practical system), this does not mean that there are not other "absolute" statements contained within the law. Whether or not this confusion was intentional or was simply a case of confusion on my opponent's part, I cannot say - but it clearly has no bearing on the question at hand.

"I also take exception to the diversionary attempt at driving this to a conversation about societal good. This debate would not seem to have anything to do with the goodness of copyright, or the moral acceptance of the idea."

My opponent may "take exception" to this, but it's hardly a "diversionary attempt." As noted, since we ARE forced to consider a balance between the protection of two conflicting rights - namely, the right to free expression vs. one's rights to personal property - societal and individual good become a key consideration. (In short - sorry, but you raised the question of law here. And what is a system of law about if not determining justice?) The benefits of assigning ownership to a particular expression are definitely NOT outside the scope of such a discussion, since it DOES come down to balancing the interests of these rights.

My opponent then continutes with:

"The tangent about the absolute nature of laws is also rather beside the point. Rather than arguing legal minutiae, we should perhaps focus back on the issue at hand--does copyright violate the *principle* of free expression?"

Again, "arguing legal minutiae" was unavoidable, given that my opponent raised the question of copyright laws being "unconstitutional" in his opening remarks. But since it appears that there can no longer be a question of the constitutionality of such laws - they have repeatedly been found to be quite constituional, and the justifications for such findings have been clearly given - let's turn again to the "issue at hand" as my opponent states it.

As I pointed out in my opening remarks, copyright protection is very widely recognized as actually being a means of PROMOTING free expression, as they put into place a system which provides considerable incentive to those who wish to express original thoughts. What it prohibits - and really, ALL that copyright law prohibits - is someone ELSE deriving undue benefit from the work of others. There is no prohibition under our copyright system of ANYONE expressing their own thoughts, ideas, and opinions - what there is is a prohibition against using someone ELSE'S expressions as your own. My opponent asks,

"How can you freely express yourself, if there are certain ideas that you are prohibited from expressing simply because someone else lays a claim of ownership over them?"

but completely fails to give any example of such a prohibition. You are clearly free to express any IDEA you wish - you simply have to come up with your own expression of those ideas. There are, for example, any number of books, articles, speeches, etc., which have been written, given, or published concerning the basic idea that, say, reducing air pollution is a good thing. They all express this same idea, but differ in how each individual author chooses to express that idea. Unless you can make a convincing argument that you must use someone ELSE'S words to express YOUR views on an idea, the proposal that copyright law somehow restricts your right to expression rings very hollow. Why should you have to steal the expressions of others if what you are arguing for is the right to express YOUR thoughts?

The notion that

"It is not a very free sort of expression if I have to secure the permission of someone else before expressing an idea. Especially if I have to pay royalties for the privilege."

is both again confusing the expression of an idea with the stealing of someone else's work, and apparently denying the idea that such work can have value in the first place. You clearly do NOT have to secure the permission of anyone else to express an idea - what you have to get permission for is the use of THEIR expression of the idea. If you an incapable or unwilling to express that idea on your own, that is no one's fault but yours - on what grounds would you claim the "right" to benefit from their work?. And to object to the payment of royalties - does my opponent intend to claim that the forms of expression protected by copyright are completely without value? Again, if I put in the very significant amount of work required to produce these expressions, is it unreasonable to expect to receive fair payment for their use? And if such fair payment CANNOT be expected, is this not a significant DIS-incentive to the expression of such works in the first place, and therefore itself antithetical to promoting free expression?

It must also be noted that like the "right to free expression," copyright protection itself is not absolute. U.S. law DOES recognize the right to "fair use" of copyrighted material, whereby such material may be used without either permission or royalty, so long as such use IS actually a part of what is itself a new expression. Those cases which do not fall under the "fair use" criteria are rightly called something else - the stealing of another's work.
Debate Round No. 2
TheLetterK

Pro

To begin my closing statements, I think I will reiterate the topic of discussion. That being "Copyright laws are antithetical to the principle of free expression." I though this would make an important inclusion, since it appears that my opponent has forgotten this. It was stated as such in the very name of the debate, yet my opponent has insisted on trying to make this into a case for the societal good of copyright. I do not dispute that copyright is an important thing for society, and I have not done so in any of my responses. What I have maintained is that the idea is antithetical to the principle of free expression. The issue of copyright and free expression being contradictory to one another is quite separate from the question of "is copyright a good thing?" My opponent has not even touched on the crux of the issue at hand--that issue being the *inherent* contradiction between free expression and a restriction on expression. Free expression is not simply about being able to express your own ideas, nor about being free to express other ideas in a unique manner. It is about being able to express *anything* you want to, with no restrictions whatsoever. Anything that places restrictions on how one may express any idea, even if it does not infringe on the right to original expression, is antithetical to the *principle* of free expression.

My opponent has all but agreed with this concept with their affirmative defense of copyright as a sort of necessary evil. There is no necessary "balancing act" involved, if copyright and free expression were not contradictory. If these two principles were complementary, as my opponent has asserted, then benefiting either of them would help the other, and no counter force would be needed. This does not seem like a reasonable conclusion to draw, since the *principle* of free expression is clearly diminished by the act of violating it. Indeed, copyright may benefit expression as a whole, but it does so by creating a class of "proprietary expression" that is not free. Certainly, there are pragmatic benefits to the adoption of copyright--a conclusion that I have not disagreed with, nor do I deny. I do, however, maintain that it is a violation of the ethical principle of free expression. There are many expedient measures that may be beneficial to society, yet are ethically bankrupt. An example of this might be slavery. This system of labor is quite beneficial for those who own slaves, and those who exist in a society made possible by the practice, but it is clearly a violation of human rights. Mandatory government surveillance can also provide a great benefit to society--it can result in less crime, and safer streets. From a purely pragmatic standpoint, both of these practices make a great deal of sense. However, both violate ethical principles that today's western society claims to hold dear. This is also true of copyright, in relation to the ethical principle underlying free expression. Copyright, no matter how pragmatic and expedient the idea is, is still a fundamental violation of the *principle* of free expression. What is necessary may well be different from what is right, and as a society we should knowingly decide which goal we prefer.

My opponent, however, has steadfastly ignored this crucial issue, and has done their best to devolve this into a legalistic debate about the constitutionality of copyright. I do not dispute that copyright is legal under the current interpretation of free expression as the courts have traditionally held it. Of course, slavery was also constitutional before the US Civil War--we even condoned its existence in the text of the Constitution, by allowing the "3/5ths compromise". The issue of copyright really isn't very different from that particular issue--both involve ownership rights of individuals, allowing them to own some aspect of another person (Copyright, their expressions, and slavery, their body). I hope those voting will remember that. Laws, and prevailing legal interpretations, are not always held to the proper ethical standards. Neither does the prevailing legal interpretation remain static. New courts can hold differing opinions on constitutional issues from one decade to the next, based, in part, on changing public perceptions. Debates like this one are intended to challenge the prevailing view on the constitutionality of copyright by challenging it on principle, not on legal history. This is not, and has not, been a referendum on the necessity of copyright. This is, and always has been, a discussion about the contradiction between copyright and free expression.

The issue of constitutionality was brought forward as an attempt to prompt further debate once the violation of free expression by copyright had been demonstrated. Unfortunately, the debate that was intended did not occur, as my opponent largely ignored the matter of principles, and least first to a legal defense of the constitutionality of copyright. I hope those voting will remember that as well.
lazarus_long

Con

lazarus_long forfeited this round.
Debate Round No. 3
1 comment has been posted on this debate.
Posted by Daxitarian 9 years ago
Daxitarian
Article 1, section 8 of the constitution:

"...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

You could not be more wrong about copy right being unconstitutional.
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TheLetterKlazarus_longTied
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