Censorship of Fleeting Pornography

Pop Quiz, kids! Which will kill unfettered freedom of speech faster? Is it (a) laws overtly restricting the content of speech, (b) degradation of the doctrines of judicial review regarding the First Amendment, or (c) copyright? Well, when it comes to pornography, the answer appears to be (c).

Of course, both (a) and (b) have been longstanding threats to liberty. Any rights that might rub up against the preferences of a community provide a natural source of tension, which must be continually resolved and massaged with political solutions that naturally mitigate the absoluteness of the rights. Like anything in politics, compromise is the name of the game. However, if a society resolves those conflicts using utilitarianism or consequentialism as its guiding star, then a lone dissenter or small minority may have their voices silenced. Alexis de Tocqueville called this problem “the Tyranny of the Majority,” and thought it was “irresistible” in a society where the moral authority lies in the herd/community and respect is given for the “wisdom of crowds.” Especially when a majority can enact new laws that might restrict the exercise of the otherwise unbounded rights of another (i.e., in a democracy), the minority can be easily persecuted. However, de Tocqueville also observed that America’s republican composition provided a more positive bulwark to this problem by using the judiciary’s elitist legal structures and formulation of rights as activities we may engage in despite the preferences of the majority in the protection of individuals against the masses.

Of all the rights that have been restricted throughout history, the First Amendment’s protection of “speech” in particular has been qualified by various judicial doctrines, bending to majoritarian will, that classify incitements, sedition, obscenity, and other forms of expression as “non-speech” and therefore not protected. As de Tocqueville observed, such doctrines are endemic to any democracy, where the locus of power is in the demos or the crowd, as opposed to a republic, where the locus of power is in the law. The Tyranny of the Majority in a democracy allows simple majorities (vague pun intended) to veto individual exercises of rights by prohibiting “obscene” works that “primarily appeal to the prurient interests,” as judged by a fictional “reasonable person” with the community’s moral standards. Miller v. California, 413 U.S. 15 (1973). (a) and (b) in action indeed, but they have been thankfully mitigated by the desensitizing march of history (and perhaps the cunning of reason?), which has pushed the community’s moral standards and prudishness farther and farther down the line in its evolution toward live-and-let-live libertarian tolerance.

In the most recent set of news relevant to today’s pop quiz, obscenity had recently come to the fore with the trial of Buttman. John Stagliano (aka “Buttman”) was facing up to 32 years in prison and $7 million in fines in the first federal adult porn obscenity case since the Meese Report was in vogue. Perhaps realizing the lunacy of their outmoded attempt to make the end run around the First Amendment, prosecutors dropped all charges against Buttman. After all, the case should have been nearly impossible to win in a society where “community standards” sounds more like the punch line to a joke than a discernible legal standard. Of course, it didn’t hurt that it was revealed that a prosecutor had lied to the FBI special agent who had originally ordered the suspected obscene adult materials in the course of the prosecution.

To get to what I believe to be the correct answer, what I have previously predicted has indeed come to pass: pornographers have recently been forced to become the front-line defenders of fair use. This case doesn’t involve misappropriation and “remixing” by pornographers who use those works as skeletons of plots (as was the case for the previous post). Rather, it involves what I might call “fleeting” copyright infringement. Pornographers have been sued by record labels for taping scenes in locations like strip clubs or other real-world locales that have music playing in them.

The music labels appear to have a blanket policy not to license their works for use in porn, and therefore all of the music used in the porn videos must be unlicensed, say the music labels. “Defendants simply stole these sound recordings and musical compositions, synchronizing Plaintiffs’ works more than 500 times into the soundtrack of their pornographic videos without license or consent from Plaintiffs, apparently hoping that their conduct would go unnoticed,” reads the complaint.

The twist here is the nature of the videos and the music in them. True to its name, the porn site films its videos in reality show style—that is, the studio takes its stars to “real, operating nightclubs” and records whatever unscripted action may occur, RK Netmedia attorney Marc Randazza told Ars. As such, the music used in the videos isn’t being dubbed over or played on a soundstage; Randazza says it’s just the music being played in the background at the club.

As I have repeatedly stated, if our policy is to require content creators (or speakers in general) to resolve any uncertainty as to whether or not a work is infringing on an existing copyright, that policy imposes a significant transaction cost. If there is any legal presumption that use of a work in any context is infringement, all the more so. While I do think that these uses might come out as fair use if the case actually was resolved on the merits, I would guess that this case will settle long before that eventuality is played out. And in that sense, Big Content gets exactly what it wants: its fee. Big Content can squelch and limit parody and other works of political or creative significance by merely imposing the costs of doing legal battle on independent creators.

This legal move of censorship through copyright is another way to sidestep the protections of the First Amendment because these restrictions are constitutionally permissible. But instead of giving the power to a simple majority, power is concentrated into the owners of this content; it’s not democracy, it’s oligarchy all over again. But because the demos stays silent about the structures that control its freedom, and the majority is not wielding the tyrannical power it is structurally capable of, the aggressive and extractive use of copyright is a far more potent tool in the control of speech.

Maybe the answer was really “(d) None of the above. Apathy is the greatest threat to liberty.”