Free speech, like most fundamental rights, doesn’t do so well under a “shoot first, ask questions later” policy — hard as that may be for a transplanted Texan like AT&T to accept. Last week, the San Antonio-based telecom giant announced that it will partner with Hollywood entertainment companies to stop piracy — the illegal use of copyrighted material — before it happens, at the upload phase.
As technology races ahead of the law, that’s the kind of “solution” that is being pushed by some film, music, and television studios. And all the new-fangled ways you can catch the latest episode of 24 or your favorite YouTube artiste means that companies like AT&T that traditionally provided the delivery system are now invested in content as well (Exhibit A: AT&T’s U-verse TV and cable competitor) — giving them an entirely new (read: monetary) perspective on the entertainment industry’s piracy problems.
AT&T said as much last week when it announced the anti-piracy initiative: “ ... we do feel the interests of our shareholders are aligned with the interests of the content community,” AT&T Senior Vice President James W. Cicconi told the Associated Press.
The company says it doesn’t understand the fuss raised by critics such as the Electronic Freedom Foundation who immediately objected to the idea of a technology provider playing cop. But a recent MediaPost summed up the reason consumer-advocacy groups are alarmed: While you can’t run off and burn your own copies of Apocalypse Now and use them to finance an at-home business, U.S. law does allow for a wide range of what’s called “fair use.” Generally, you can use portions of copyrighted material if your purpose is satirical, critical, or educational.
The freedom to reference and build on the works of other artists drives creativity and is crucial to a democratic republic. The law recognizes this by essentially creating a presumption of fair use: Write, film, mix, and publish first, and if someone can prove you violated their copyright after the fact, they can sue you for damages. In cases of actual piracy, the government can pursue criminal charges.
The digital age has complicated matters by making information more portable and easy to copy than ever before. The Los Angeles Times reports that last year online piracy cost major U.S. studios $2.3 billion. The ability to profit from one’s own work also protects and promotes creativity, and I’m not trying to belittle piracy concerns, but any filtering technology that tries to catch it before it happens will, as critics have pointed out, circumvent the impartial court system and put decisions in the hands of the people who stand to profit from a more constricted definition of fair use — not only for financial reasons, but because fair use is one of the great wells for political and social satire.
We should also be concerned that AT&T and its new media buddies are trying to usurp law enforcement, which has mechanisms and safeguards (such as warrants, theoretically) in place to pursue piracy cases. Earlier this month, the FBI busted a Chicago man who had uploaded four episodes of 24 to a video-sharing site. Credited with an assist in the case: AT&T, one of the internet service providers used by the suspect. Why, if AT&T and Fox (who also cooperated with the bust) can work successfully with law enforcement, do they want to preempt it?
AT&T still stands accused of turning over customer records to the government without a warrant for homeland-security purposes, and it’s fair to worry about the motives of a company that’s loose with the law even when the feds are involved. What if AT&T — the nation’s largest ISP — preemptively blocked a video commentary about the Iraq war that made use of one of the most parodied marketing campaigns of all time, MasterCard’s “priceless” ads? Or a slide show that mocked AT&T’s own “Your world, delivered” ads with “Your world, monitored”? The burden would then be on the creators of the content to challenge a massive corporation — not a cheap or easy task.
But with an assist from the local, typically deferential, daily, AT&T would have you believe that this questionable intiative is not news. On June 15, the Express-News ran a story tagged “AT&T slammed over piracy plan,” which concluded with an optimistic defense of AT&T’s business acumen:
“While the deal has generated anger among Web activists, Frost Bank analyst Le Keough said he doesn’t think most consumers care about the company’s anti-piracy efforts.
“‘From a business standpoint, this is a non-event,’ he said.”
For the future of the internet and free speech, we need to prove him wrong.