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The Inquisitorial Internet, in Copyright Class Struggle: Creative Economies in a Social Media Age (Cambridge University Press, 2018)

This chapter is within Part II of the book, on “IP Liberties,” in which the scope of copyright is the focus. The law generates or reflects a dialectic in which (1) those creating content without access to capital, who apply their labor to what has come before, argue for narrower rights; (2) those who have transitioned to owners of capital in the form of IP assets seek and enjoy broader rights, while strategically exploiting and denying the rights of the creators they imitate; and (3) an accommodation is reached between these ideal types, a peace which is threatened due to licensing and royalty disputes, among others. At stake is literary freedom. What creative liberties may a writer or filmmaker take? Those most at risk of having their labor discounted and their products disqualified in the marketplace, it seems, are authors whose literary freedom is not backed by accumulated capital. This chapter explores whether, in their haste to punish piracy and save jobs, legislators and some judges may be doing away with the public trial and vigorous defense methods that have distinguished the adversarial system. Are Internet services becoming Inquisitors? The Inquisitorial Internet is a concept that borrows a distinction – used in the sociology of law – between Anglo-American systems of justice by “public trial,” which are known as “adversarial” because of the climactic contest of opposing counsel who put one another’s evidence and theories to the test, and European and other civil law systems known as “inquisitorial” because they are based on Roman models of an administrative, bureaucratic investigation by a judge (inquisitor) using an often scanty dossier of evidence. Inquisitiorialism is a method of organizing decision-making power, and the procedures this method uses. It vests a great deal of trust in the police, the prosecutors, and the judiciary, while distrusting the accused and defense counsel in matters of cross-examination of witness testimony, signed confessions, and negotiated verdicts. Trends in copyright law are the focus of the chapter, including the Stop Online Piracy Act, the criminalization of streams of copyrighted works, automated copyright filtering, and censorship of memes, mashups, remixes, and other free speech works. This chapter the contains the following sections: 6.1. Introduction 6.2. Facebook Dead? 6.3. Dedicated to Theft 6.4. Hard Times for a Few Rhymes 6.5. An Inquisitorial Internet and a First Amendment Underclass 6.6. The Law and Economics of Internet Copyright Filtering 6.7. How Many Jobs Has the Internet Killed?