Copyright and the First Amendment - Essay Example

Argument and Analysis: Copyright and the 1St Amendment According to McLeod, the corporate world has led developments in copyright law, which favors curtailment of fair use. Fair use is another side of the copyright law, which aims to protect innovations by encouraging them through reproduction and use of parts of copyrighted material (Public Law 112 - 131). However, curtailment of fair use is a part of a violation of a much more important right, namely the right to freedom of expression awarded under the1st Amendment. Privatization of previously public information and spaces has curtailed the 1st Amendment, thus no longer leaving much space for any type of expression on behalf of individuals. McLeod uses many different examples, domestically and internationally, to prove his point. Though McLeod rightly claims that our rights under the 1st Amendment have been curtailed through a rise in copyrighted material, he is wrong to include in his arguments gathering and protection of personal information for homeland security purposes. Developments in the use of copyright have privatized previously public information and technology. According to McLeod, privatization of available knowledge and technology has progressed so much, that even the radio spectrum has been sold off by the Western governments, despite the fact that the electromagnetic spectrum used be at disposal to everyone (226). Even pictures of famous buildings, such as the Chrysler Building in New York City, are copyrighted (McLeod 230). Artists are not allowed to use them as part of their larger work without paying fees under the copyright law. Thus, copyright laws hinder their freedom of expression. Moreover, privatization has gone so far that even previously public spaces have been privatized. In 2003, the American public was preparing for another Gulf War. Steve Downs, a lawyer, entered the Crossgates Mall in Albany in order to shop as usual. However, he was soon arrested for trespassing as he wore obscene material on his T-shirt, which called for peace on Earth (McLeod 227). McLeod himself handed out copies of the 1st Amendment at another mall (227 – 228). The mall had a policy prohibiting solicitation of any type, both outside on the parking lot and inside the mall (McLeod 228). However, McLeod argues that he was entitled to such action as he was informing the public about their rights and was not selling anything. Previously public squares and parking lots, thus, are no longer spaces where individuals can practice their 1st Amendment right. Prohibition of any activity around, or in the malls and private companies, has led to a destruction of spaces once used by protestors. An extreme development is the “free speech zones” during the 2002 Winter Olympics (McLeod 229). Protestors were not allowed to voice themselves on any public ground, unless it was dedicated to such activities. However, in some states public lands prohibit trespassing arrests. In South Carolina, where still available, these spaces serve as protectors of the 1st Amendment (McLeod 229). Nobody is allowed to be apprehended for trespassing or any type of exercise of the 1st Amendment on public grounds (McLeod 229). Moreover, the federal government openly supports infringements upon the 1st Amendment. The Digital Millennium Copyright Act authorized companies to send “take down” notices to anyone using their copyrighted material (McLeod 238). These companies, however, as already mentioned, violate the 1st Amendment rights of many artists and hinder innovations. Despite fair use practice, consumers of the copyrighted materials are at a disadvantage. Fair use enables consumers to freely use and distribute parts of copyrighted material for nonprofit educational purposes (Public Law 112 – 131). However, important members of society, such as artists, are excluded from fair use rules (McLeod 231). Because they are a small and economically weaker group, they cannot sue companies protecting their buildings. McLeod argues that these buildings belong to the cultural space, and as such, they should be available to everyone. Again, copyright infringes upon the 1st Amendment by disabling individuals from pursuing the fair use rule. Unlike in the United States, in countries such as Austria freedom of expression is above copyright. Though in the United States artists are not allowed to use pictures of building such as the Chrysler Building, or copyrighted words, such practice is more flexible in Austria. A group of activists in Austria used Nike Company’s logo to encourage the public to complain about supposed Nike logo installments all across Vienna (McLeod 232). Real Nike sued the activists, but dropped the charges once the public reacted to the logos (McLeod 232). Activists won because they used the “Nike” logo as an artistic and critical project for nonprofit purposes (McLeod 232). However, such practice is almost nonexistent in the United States, portraying how deeply disrupted the 1st Amendment rights have become. As a result, McLeod argues against collection of citizens’ private information for homeland security purposes. Homeland security, according to McLeod, has been privatized as well (236). McLeod argues that privatization of war, more specifically anti – terrorist activities, harms taxpayers who would prefer social programs instead of wars and violence (237). However, citizens have no say in everyday business conduct of these private companies, despite the fact that they conduct war for the United States government. The same rules apply to these companies, just as to the owners of the Chrysler Building. Neither is accountable to the public, despite the fact that private security companies are paid through tax money. Moreover, collection of our personal information through Multistate Anti-TeRrorism Information eXchange (MATRIX), according to McLeod, could lead to abuse of our private information as the police officers using it for anti – terrorist purposes might misuse it (McLeod 246). However, since freedom of expression is curtailed by the government’s right to collect such information and keep it confidential, the 1st Amendment cannot be used by individuals wanting to see their files, or news agencies wishing to publish such information. Though McLeod’s arguments are valid, he is incorrect to argue that privacy of our information is abused in case of homeland security. First, McLeod does not provide an example on how exactly the police or any law enforcement agency could misuse information contained in the MATRIX, nor what the extent of the damage to the individual could be. Though McLeod makes a valid point about dangers of misuse of private information, he fails to acknowledge that governmental use of private information has managed to protect us from possible terrorist attacks. Moreover, the right to collect private information is still in development as part of the legal practice, thus susceptible to changes in governmental policies. Information on anyone residing or visiting the United States has protected lives of the majority. By 2011, the FBI thwarted 40 terrorist attacks on the United States that almost took place since 9/11 (Carafano & Zuckerman 1). Carafano and Zuckerman attribute this success to the fact that investigative tools, such as the Patriot Act, have been used to gather information on terrorists. In particular, “[k]ey provisions within the act, such as the roving surveillance authority and business records provisions, have proven essential in thwarting terror plots” (Carafano & Zuckerman 18). An additional success of these tools is reflected upon the fact that though terrorist attacks against the United State have been increasing, no large scale attack took place after 9/11 (Carafano & Zuckerman 1). Though not mentioned by Carafano and Zuckerman, MATRIX too belongs to this field of investigative tools. Moreover, the government must collect information on individuals residing in the United States, as terrorists can be homegrown. Earlier in 2012, five American citizens attempted to bomb an Ohio bridge (Brooks). Their names are Brandon Baxter, Anthony Hayne, Connor Stevens, Joshua Stafford and Douglas Wright (Brooks). As their names indicate, these perpetrators are all Americans (Brooks). Their ideology was different from the ideology of Islamist terrorists (Brooks). According to Brooks, there have been 18 homegrown plans of terrorist attacks in the United States. Moreover, 12 of them involved either federal agents or informants (Brooks). Law enforcement was not aware of only the May 2010 Times Square bomber, Faisal Shahzad (Brooks). Were it not for the gathered intelligence, perhaps all 18 attempts would have been successful, inflicting irreparable damage on the American society. As a result, as Brooks too argues, threat assessment at any time is necessary. However, this type of an assessment requires private information on most persons residing within the United States. Besides data gathering, this type of assessment requires privacy of information and prohibition of access to this information by ordinary citizens. As a result, the 1st Amendment must be curtailed. Ordinary citizens cannot obtain access to the information contained in MATRIX. Information obtained on a possible terrorist could be misused by ordinary citizens under the pretense of the 1st Amendment. Retaliation, preemptive strikes by neighbors, or even shunning and discrimination could take place. However, the suspect could be innocent, and could only be associated with a terrorist network unconsciously through friendship with a member. There is no guarantee that an ordinary citizen would remain neutral and objective until all data were gathered. Moreover, what is to say that a possible terrorist would not want to gain access to one’s own information in order to stay ahead of law enforcement? Though all these scenarios are fictional, neither of them has taken place yet, precisely because the government has curtailed the right to 1st Amendment by hiding the information on all citizens. Though fair use is important, protection of personal information is superordinate. Fair use would enable American citizens to gather information on methods of data collection, processing, and possible treatment of suspects. Civil rights organizations could examine whether any of the constitutional rights of the suspects were violated in the process of the investigation. Furthermore, law schools or governmental agencies dealing with data collection could then use this information for educational purposes. Legal scholars could through fair use deploy this information to further legal theory. However, this data, as mentioned previously, is highly sensitive. As a result, freedom of expression is not superordinate to protection of personal information, even if that means curtailing the right to cultural and legal progress. Moreover, the right to privacy is a new construct, separate from freedom of expression. According to Emerson, by the late 1970’s, the right to privacy was still a highly contested area (330). Discussion on the government’s right to collect individual’s information was in its inception (Emerson 330). The right to privacy “made its first appearance in American law as a tort, a civil suit for damages or an injunction to protect against an unwarranted invasion by others of the vague ‘right to be let alone'” (Emerson 329). It was not until 1965 that the right to privacy was established as a constitutional right in Griswold v. Connecticut (Emerson 329). However, the government’s right to collect private information was still not developed at the time (Emerson 330). On the other hand, the freedom of the press is a well established right dating back to the end of the 17th century English laws (Emerson 330). Thus, the two rights were historically not associated with each other. Privacy was historically absent in communities. In traditional communities, such as a small village with less than five hundred residents, there was little communication with outsiders. Villagers produced most needed goods, and exchanged with others if necessary. There was little privacy in such communities. Crimes too were oftentimes punished by local councils made up of the elderly, which meant that most villagers had access to details of local crimes. The modern notion of privacy is not the notion of privacy our ancestors had: In an important sense, privacy is a modern invention. Medieval people had no concept of privacy.  They also had no actual privacy. Nobody was ever alone. No ordinary person had private space.  Houses were tiny and crowded.  Everyone was embedded in a face-to-face community. Privacy, as idea and reality, is the creation of a modern bourgeois society.  Above all, it is a creation of the nineteenth century.  In the twentieth century it became even more of a reality. (Friedman 258) According to Friedman, privacy is a modern social construct. Our interactions, architecture and habits turned an abstract notion of privacy into something that has, as McCleod points out throughout his book, become very complex and contested. However, this is a point McCleod misses to account for when criticizing the infringement upon individual’s right to access private information. Privacy was in the past oftentimes synonymous with hidden crimes. According to Friedman, privacy and reputation were connected (4). Reputable individuals were respected. However, reputation was oftentimes earned and kept because of public’s lack of access to non - reputable acts of that individual or company (Friedman 4). In the past, a zone of privacy was there for Victorian men and women who deviated from social norms (Friedman 4). In this zone, they were given leeway to exercise what was deemed as unacceptable by the social norms of the time. Then, modern times expanded this zone to everyone. Since the right to privacy is a new right, the present concerns about MATRIX were not resolved in the past either. As today, so were the two rights at odds in the 1970’s as well. The right to publish private information and obtain access to private information collected by the government became problematic in the 1970’s (Emerson 331 - 332). Were these issues resolved in the past, MATRIX and private security companies would not be an issue. So far, courts have “found invasion of a statutory or common law right of privacy in embarrassing disclosure cases and in false light cases despite freedom of the press claims” (Emerson 334). As a result, legal practice has at times subordinated the 1st Amendment to the privacy of information. Thus, the current clash between the 1st Amendment and private information collection is not based on a well determined legal practice. Instead, this clash is a new historical development that could lead to new legal practice. According to Emerson, the right to privacy is “designed to support the individual, to protect the core of individuality, in the relations of the individual to the collective society” (337). This sphere separates the collective from the individual will. However, since it depends on the collective and the individual, it is also susceptible to changes in definitions of the two. Thus, privacy “differs from time to time, and from society to society, depending on where the line is drawn between individual autonomy and collective obligation” (Emerson 337). Since the issue of collection of private information and its relationship to the 1st Amendment has not been resolved, it is wrong of McLeod to argue that the former violates the latter. So far, practice has been that private information collection for homeland security purposes is above the 1st Amendment. Since practice has been changing, the law could change as well. It is well known in other subfields of the United States law that is it the applications that define the law. Legal analysts such as Spiro have been claiming that the United States president can adjust laws through successful changes in practice. For example, the decision to intervene in Libya in 2011 was done without prior Congressional approval. However, the previous rule was that Congress needs to authorize any military intervention in a conflict (Spiro). Spiro summarizes the fluidity of the American law: As in any area of constitutional law, but especially in the absence of judicial decisions, these categories supply only an outline of the law. The boundaries of these categories are unstable and subject to revision and evolution, especially in the face of changing background conditions. However, there is a remarkable consistency to the practice. This consistency suggests workability. The consistency also suggests an acceptance of the practice as legitimate by all relevant constitutional actors, the Congress and President centered among them. (Spiro 3) It is consistency in practice that establishes a law. Thus, unless civilians successfully challenge MATRIX in courts and this practice is abolished, McLeod’s arguments that privacy of information collected for homeland security purposes curtails the 1st Amendment rights are not valid. To conclude, McLeod depicts how the 1st Amendment is curtailed through recent developments in copyright laws and practice. However, his critique of the right to privacy with regard to homeland security is incorrect in few respects. First, without the disrespect for the 1st Amendment, safety would have been jeopardized. Secondly, the 1st Amendment and the right to privacy have not been created at the same time. As a result, the contradictions between their coexistence have not been resolved to this day. However, since the notion of privacy and laws governing it depend on practice, new legal practice, reflected through MATRIX and the use of private security companies, will most likely change the notion of interdependence between the 1st Amendment and the private information with regard to homeland security. Thus, though the 1st Amendment is at time curtailed by copyright, this is not always the case. Works cited Brooks, Risa. Homegrown Terror Isn’t just Islamist. CNN, 3 May 2012. Web. 10 Dec. 2012. Carafano, James Jay and Zuckerman, Jessica. 40 Terror Plots Foiled Since 9/11: Combating Complacency in the Long War on Terror. The Heritage Foundation, 7 Sept. 2011. Web. 10 Dec. 2012. Emerson, Thomas. “The Right of Privacy and Freedom of the Press.” Faculty Scholarship Series, Paper 2776 (1979): 329 -360. Web. 10 Dec. 2012. Friedman, Lawrence. Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy. Stanford: Stanford University Press, 2007. Print. McCleod, Kembrew. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property. Minneapolis: University of Minnesota Press, 2007. Print. John F. Kennedy Center Reauthorization Act of 2012. Public Law 112 – 131. 17 USC § 107. U.S. Government Printing Office, 8 Jun. 2012. Web. 10 Dec. 2012. Spiro, Peter J. Testimony of Peter J. Spiro before the United States Senate Committee on Foreign Relations regarding Libya and War Powers. United States Senate, 2011. Web. 10 Dec. 2012. Read More