I remember a friend telling me that one day books would be digital; that no one would ever have to actually be encumbered by a book again. I didn’t think he was wrong, but I didn’t like the idea. Then we had a debate about a man that was editing popular movies, removing the “adult” content, and reselling them to families that didn’t want to be subject to those portions of the films. This was a true story that sprung a real debate. I stood ultimately in defensive of the artists creating the work. My point of view was (and still is) if you don’t want to watch a movie as-is, then why would you want to watch it at all? Our debate centered not on this logic, but on whether the man should have a right to edit these films and make a profit on them. We explored it: What if the man didn’t make a profit from doing this, but instead offered it as a free service? Would that be wrong? I don’t know why someone would want to do that, but no, that wouldn’t be wrong. We went so far as to hypothesize a device of sorts, a box that automatically removes the aforementioned type of content by magic. Would it be right to profit off the sale of such a device? It was several hours into the debate when I conceded the point – it would be OK to sell and profit from such a device.
It wasn’t until just now that I realized how closely the hypothetical device parallels TV. Basic cable has been playing movies “edited for content” for years and making a profit off the viewership (granted, these movies are usually edited under the supervision of the film director, but…) I still say that people are out of their minds if they think they are born with the right to watch movies as they see fit. It is no different from wanting to change the colors and/or the expression of the Mona Lisa. It was made how it was made for a reason – be it by artistic choices, creative hindrance, means or lack thereof. Regardless of how, any piece of art stands as an expression of an artist and marks in the history of humankind, and the life of that artist, a specific time and place.
But, we aren’t talking about artistic integrity; we are talking about a possible snowball effect that could come from censoring the internet. We are talking about rights – not feelings.
Let's start with a subject that makes reasonable people cringe which may produce the urge to censor:
I will be the first in line to condemn sites that contain messages of hate and bigotry. I find them appalling and hurtful. More so, they poison our society with misguided agenda and brain-washing propaganda to recruit for their various rabbles. But, it is not illegal. Unpopular speech is protected by the Constitution, no matter how far an individual or group may take their words. What those words insight is another subject all together.
Ludwig van Beethoven can no longer profit from his work - his copyright has long run out. But, if I were to go out and record Moonlight Sonata, the specific recording would be mine – the copyright would fall to me. Others can go and re-record it from the same sheet music, and it would be theirs. Does that mean I own the music? No. It means I own my specific interpretation as committed to recording.
But, what does interpretation mean?
For those that don’t know, Girl Talk is a guy named Gregg Gillis. He takes other songs – literally hundreds of other songs – and creates what are popularly described as “mash-ups.” Under “fair use,” DJs and whomever else, are allowed to use 30 second samples in order to create “new” music. The interesting question is: did anyone anticipate him using so many samples at one time? Typically a handful of samples are used to create a “beat,” over which entirely original content is placed – usually lyrics. Fair Use came to pass as sampling became accepted by the mainstream, as pioneered by early hip-hop artists.
One lawyer, Barry Slotnick of Loeb & Loeb’s intellectual property litigation group claims, “Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work. What you can’t do is substitute someone else’s creativity for your own.”
The flaw in Slotnick’s argument is that he slides from law to artistic integrity in one thought. I agree: you shouldn’t willingly pass someone else’s work of as your own. But, in this case, that doesn’t make it illegal.
Gillis has claimed, “I want to be a musician and not just a party DJ… and like any musician I want to put out a classic album.” Does creating mash-ups make Gillis a “musician?” I personally don’t think so. But, I would be a fool to say he isn’t creating something enjoyable and new – and from what I hear he puts on a great live show. So, maybe he’s not a musician, but he’s definitely an artist. His specific paint just happens to be drawn from what is allowed to him by Fair Use.
The Bottom Line
“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ‘The freedom to speak one’s mind is not only an aspect of individual liberty – and thus good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.’ (Bose Corp. v Consumers Union of United State, Inc. ). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a ‘false’ idea. (Gertz v. Robert Welch, Inc. ). As Justice Holmes wrote, ‘when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market…’ (Abrams v. United States ).”
- Chief Justice Rehnquist, final opinion of the court, Hustler Magazine v. Falwell, 1988