SPEAKING OUT (or SPEAKING UP)
Oh, I can remember those middle
school report cards, when a math teacher would write about me, “he sometimes
doesn’t know when to stop expressing his own views.”
Freedom of speech is both among the
least and among the most appreciated of our fundamental rights. But people obviously have very different
perceptions of the value of speech.
Recent surveys by think tanks have shown that the American public does
not put freedom of speech high on its priorities of personal liberty. Some people think it should be curtailed and
look upon unsupervised use of the Internet as they look at personal gun
ownership. More than once I have been flamed on Internet discussion boards for
venting unpopular or politically incorrect opinions (of pitting “words against
people”) by people claiming to be “average joes.”
In both the
family and traditional workplace, cooperation and helping people feel
comfortable with themselves are often more valued than “telling the complete
truth.” While some people seek to be
movie or pop stars, and others may want their “15 Minutes of Fame,” others see
public visibility as a negative possibility, an invasion of privacy or
interference with family.
Yet privately-sourced speech has
always been as a threat. When the
printing press was invented, publisher needed a “license” to publish. At several times in our history we have had
strong sedition laws (even criticizing the draft during World War I) despite
our First Amendment.
Traditionally, the commercial
publishing world and the media world have been preoccupied with turf, financial
track record, and other parameters relating to traditional business
models. It was hard for new authors or
artists to be heard at all. With the
rise of cheaper desktop or on-demand publishing (including cooperative
publishing) and especially the World Wide Web, it has become possible for any
individual to make his views and contributions known with very little
investment or previous track record, if the “content” is original and
interesting enough. The World Wide Web presents a stark potentiality: a posting
by anyone on an unrestricted domain may generally be viewed almost immediately
from (except for some censorship) almost any personal computer on this
planet. It’s relatively simple to become
“famous” with constructive speech—I recall that line in Cannery Row
(1982) “some people live here because they don’t want anybody to know them” and
the lead line of show Cheers (I want to go where everybody knows my name)!
This should not be confused with the
flash-in-the-pan dot-coms, many based on superficial ideas of high-volume
marketing of superficial content. What is purported is that an author may now
publish himself and gradually attract an audience before having to prove that
it makes easy money, to that eventually he may make his expressions
commercially successful. This possibility is subtle and probably will not be
noticed by many until they feel that their turf may be encroached.
But there are many ways that these
promising opportunities may be jettisoned.
Congress has already tried to control the Internet with strict
censorship, supposedly to “protect children,” especially those whose parents
are too pressed to watch them. In 1996
it enacted the Communications Decency Act (
There will inevitably be questions
about self-publishing and freelance “professionalism.” Some may say that it is unprofessional to
self-publish (or even write at all) unless one can do it for a living full time
(as if profitability or “earnings” proved a professional product empirically).
Others may maintain that all publishing should have third-party supervision to
be credible to the consumer—and in this regard if a freelancer can publish in
many competitive sources at least he is less likely to find a “cartel” limiting
his ideas. Computer geeks tell me that
it is “ethically” more important to enable others to speak by technical
facilitation than it is to speak oneself.
Media risk policies may object to the lack of supervision of
self-publishers. My own take is that a gradual approach (one which allows one
to keep paying the rent and doesn’t require taking investors’ or even friends’
and relatives’ money, not to mention going public and then dealing with those
earnings warnings) is acceptable if one has a timeline for economic
self-sufficiency (of the writing and closely associated activity) in mind.
Expressive political writing could be supplemented by a mechanism to give
others the chance to respond and build a dialogue.
The Internet has posed a variety of
copyright and related issues in video and music, as peer-to-peer technology has
forced the evolution of a whole new set of practices. Again, the idea of one teenage man, and about 80 hours of intensive programming,
were enough to threaten a whole industry.
But there are still many murky areas
that are just now beginning to be explored in legal and professional
circles. I can list a few here:
● Are ISP’s “publishers” or are
they just communications providers like phone companies?; holding ISP’s
responsible for their customers would have a chilling effect
● Should publishers or purveyors of
violence (both individual authors or web operators and corporate movie
studios), pedophilia or hate be held legally responsible when their displays
are imitated by children or mentally incompetent people?
● When do employees who publish
controversial literature on their own create a conflict of interest in the
workplace?
● Does commercial
intent affect the way fair use, invasion of privacy or publicity rights is
weighed?
● Is self-publishing
as “credible” as traditional trade publishing?
Is it, when viewed from a consumerist point of view, deceptive and can
it be disruptive to more traditional forms of trade publishing, or does it
introduce mainly offer welcome new ideas and formats for intellectual property
and additional material for the public?
Do people who self-publish (without a profit) threaten people who write
professionally for a living?
● When may persons
only tangentially involved with a copyright or other intellectual property
infringement (like printers, stores, employees) be held legally accountable?
● Does the ability of search engines to make a
person visible publicly present legal problems? Should employers try to discern
a person’s personal activity or occurrence on the web?
● Should people be
able to make anonymous postings on the web without fear of subpoena (as by
employers)?
● Should employers
use computer technology to regiment the workplace? Should they have zero-tolerance policies
regarding non-business use?
● Is inaccurate or
intentionally deceptive information on the Internet a real threat to the fair
trading of securities?
● Should writers be
expected to indemnify much deeper-pocketed publishers against the possibility
of frivolous lawsuits? Or could this have a “chilling effect”?
With intellectual property, more
than perhaps other areas, there is always some tension between professionalism
(including supervision and bureaucracy) and innovation, between new paradigms
for virtual identity (that is, domain names) and traditional commercial
branding and trademark, between established rights to privacy, publicity and
royalty when compared with the genuine value of new expression that builds upon
the work or contributions of others. The new world of small-scaled publishing
and self-expression offers the likelihood that finally the public can develop
an interest in understanding how different kinds of people think. But it is important to
remember that real intellectual innovation and breakthrough tends to come from
individuals relatively unencumbered by bureaucracy and conventional ideas of
numerically measured “success “.
Naptser already provides an important example.
ãCopyright
2001 by
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