I’ve read a few articles and blog posts in the past couple of days about a measure in the senate that would modify copyright laws. Senate Bill 978 is a turd — vague and overbearing (a felony? For ten downloads?), that attempts to criminalize unauthorized performances, rather than have them simply be covered under the civil part of copyright law, and it arguably affects embedding videos, even if you weren’t the one who uploaded them. So it’s bad.

But something that also bothers me is are some of the arguments used in the debate — embedding videos is being discussed as a “free speech” issue, and I don’t think this has anything to do with free speech rights. One of the pieces was on Starts With a Bang, a blog I read regularly, and got several links and tweets.

First, here’s a primer I ran across recently: Understanding Copyright And Licenses.*

Ethan (and others offer a similar sentiment) offers this view:

Don’t let them bully you out of your right to say what you want to say, and to say it how you want to say it.

The argument that copyright takes away your right to say what you want is a bunch of bull. If you are using a copyrighted piece of work, they aren’t your words, so any kind of protections for the originator of those words doesn’t stop you from saying what you want to or the way that you want to. An upload of someone else’s performance isn’t your expression. This is an issue of fair use and what constitutes infringement, not of free speech. The creator of an artistic/literary work has certain rights. It doesn’t matter if they might benefit from the exposure you might give them by uploading a video of their work — if you don’t have permission to do so, you aren’t allowed to do it!

I’ve had people use cartoons I’ve drawn without permission. Sometimes they strip the attribution from the work. I’ve even seen one instance, at an Institution that teaches Technology in Massachusetts, where they claimed it was “by permission” but they never asked. Those are the people who should have to pay a (small) price. It’s not worth it to me to pursue these people in court; I’m not bothered to the point of action (I rarely turn anyone down who asks), and since the cartoons in question are not registered with the copyright office I would have to show lost income, which would be basically zilch. (Were they registered there would be statutory damages I could try and recover, as well as legal fees). But that doesn’t make them right, or turn my cartoons into their speech. The bottom line is that these are my works, and I get to decide who uses them, in situations not covered by fair use.

But this bill ignores things. If someone uploads something to youtube for which they did not have the right or permission to do so, they are the ones who should be held accountable; if they lie about owning the copyright, there should be some appropriate punishment. Embedding a video, on the other hand, for which permission has been granted, should not be a crime should it turn out that the one who uploaded it disregarded or lied about owning the copyright. That’s one of my main beefs about this bill. But one has to use a little common sense. It bothers me when I see someone say that you should watch the video right away, because it will be taken down soon. You suspect (or know) that it’s a violation, but you link to it anyway?

So yes, fight this bill. But fight it for the right reason, and not some misguided free-speech notion that what’s yours is yours and what’s mine is yours. ‘Tain’t so.
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*pay attention to the section at the end. If you use online services like Twitter, Flickr and others, chances are you sign away all of your rights to your uploads as part of the service agreement.