TCS Daily

Free Speech Under Attack

By Glenn Harlan Reynolds - March 6, 2002 12:00 AM

When Bjorn Lomborg wrote his book The Skeptical Environmentalist, I imagine that he expected to be criticized; one doesn't accuse an entrenched establishment of fraud without encountering some blowback. So when a critical issue of Scientific American came out, accusing Lomborg of not knowing what he was talking about, Lomborg didn't get mad: he simply posted the article, along with a detailed response, on his website.

What happened next, however, may have come as a surprise: Scientific American sent him a letter threatening to sue him if he didn't remove the critical article that he was responding to. With the air of bemused politeness that has marked Lomborg's response to his often-overheated critics, Lomborg took the article down.

Lomborg's situation, however, serves to underscore a new and unwholesome trend: the use of copyright law to silence critics.

And the Scientific American example isn't an isolated incident. For example Microsoft is currently in hot water facing lawsuits over a no-criticism-of-Microsoft clause in its products' license agreements. Other examples abound.

Moreover Scientific American was, if I recall, quite unsympathetic to efforts by the Pentagon to use classification to silence critics of various missile-defense programs. But apparently the republishing, with credit, of its critique on the website of the person criticized was too much to bear.

Did Scientific American fear that it would lose newsstand sales because of Lomborg's use (which I would call "fair use") of its criticisms? Or was it afraid that Lomborg's response would seem more persuasive if it were presented in tandem with the criticisms to which he was responding? Since the first fear seems ludicrous, the second fear seems likely to be the true motivation - however badly that reflects on Scientific American's commitment to free and open interchange of ideas.

I'm afraid, however, that Lomborg is not merely a victim of Scientific American's churlishness, but a harbinger of things to come. As bad as this episode is, things will likely only get worse unless the growing tendency to use copyright to stifle free speech is brought under control. But the people who are often held up as the remedy to corporate overreaching seem either willing to abandon their principles, as with Scientific American, or to have been bought off in large numbers.

Exhibit one for the prosecution on the latter is Senate Commerce Committee chairman Ernest "Fritz" Hollings (D-SC), who last week led hearings on digital copy protection in which, as The Register's Thomas Greene noted, he seemed to lose sight of the distinction between representing the citizenry and doing the bidding of the industries seeking to control what goes on inside your computer. Hollings' confusion is perhaps understandable -- he was the recipient of nearly $300,000 in contributions from the entertainment industry in the last election cycle.

Such confusion also appears to be widely shared, with Senators John Kerry (D-Mass.) and Barbara Boxer (D-Calif.) echoing Hollings' concerns. If the digital copy-protection legislation that entertainment industries seek becomes a reality, one can expect many more restrictions on speech in boilerplate "licensing" agreements, and additional legislation that will make it easy for corporate titans to silence critics a la Lomborg.

Yet as these politicians carry water for Big Entertainment, a grassroots rebellion is brewing. A recent New York Times story on copy protection produced quite a few angry consumers like this one:
"Being treated like a criminal makes me want to act like one," said Ron Arnold, 39, of Royal Oak, Mich., who has 1,137 songs on his portable iPod player -- all of them paid for, he said.

To most Americans, copying music for personal use is a part of ordinary life, and they don't see anything wrong with it. Music industry complaints about falling CD sales being due to "piracy" aren't persuading many people -- and don't explain why the viewership of this year's Grammy Awards was the lowest in six years. Maybe people just don't like what they're selling?

And, so far, the outcry against efforts to forbid criticism in licensing agreements has produced swift retreats whenever those efforts have become public, while underscoring in many minds the cheesiness of the companies involved, and of "shrink wrap" and "click-through" licensing agreements in general.

The best hope for protecting free speech against copyright abuse is a political groundswell against the power of Big Entertainment. Given the many damning facts available concerning the entertainment industries' dishonesty, greed, and contempt for their consumers, that shouldn't be hard to start. All it needs now is for some bright politician to seize the opportunity.

That still won't help Bjorn Lomborg, of course. But it may save the rest of us from being treated like Lomborg ourselves.

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