R.J. Lehmann: Copyright lobby seeks new hammer to pound free speech in Florida

Anonymity and pseudonymity have been key threads in the fabric of American life since the Colonial era. From arts to politics, from the Revolutionary era-tracts known as Cato’s Letters to the street art of the elusive Banksy, there is a long tradition, respected in practice and protected by the First Amendment, of publishing or distributing material while concealing all or part of one’s identity.

But a bill now sitting on Gov. Rick Scott’s desk, S.B. 604, could imperil such privacy for many online. The so-called “True Origin of Digital Goods Act” would require the owners of any website that hosts music or video files to publish their true names, addresses, telephone numbers and emails.

The purpose of the measure – sponsored by Rep. Jeanette Nuñez and Sen. Anitere Flores, both R-Miami – is to provide the record labels and movie studios yet another hammer in their litigation toolbox. It would allow “aggrieved” copyright holders to file suits against website owners simply for failing to provide the adequate disclosures, without needing to separately prove the websites had actually infringed their rights.

The bill is just the latest salvo from the copyright lobby. Thanks to the Sony leaks, we now know that, having failed to get the atrocious PIPA and SOPA bills through Congress, the movie studios and record labels have been busy trying to get state lawmakers and attorneys general to do their bidding. The Florida bill is based on earlier laws passed in California and Tennessee, not coincidentally the homes of Hollywood and Nashville, respectively.

The problems with this legislation are legion. To start, it simply isn’t the proper role of the states to enforce copyright. The U.S. Constitution enumerated that specific power to Congress, and none other than James Madison himself opined in The Federalist No. 43 that, when it comes to copyright, “the states cannot separately make effectual provision.”

But this isn’t just a matter of ancient constitutional wisdom. Congress explicitly enjoined the states from legislating in this area as part of the Copyright Act of 1976. That law prohibits states from offering any additional copyright protections or remedies that aren’t already provided under federal law.

Proponents of the “true name” bills will note that they do have a precedent, in that 46 states and the District of Columbia already require manufacturers of CDs, DVDs and other forms of audio-visual media to publish their name on the item’s label. But importantly, the courts have permitted such laws only because they serve additional functions beyond simply enforcing copyrights – namely, that they protect consumers from fraud. Not only is there no similar nexus to consumer concerns in this bill, but it would apply across the board even to sites that do not engage in commerce.

Also notable is something the bills don’t contain – the words “fair use.” There is no carve-out or exemption for the fair use of material. The mere act of sharing audio-visual files is deemed sufficient to sacrifice one’s privacy. Thus, Cuban and Venezuelan dissidents now living in Florida who published videos critical of the government back home would be required to reveal their true names and addresses, even if that might endanger the lives of family left behind.

Gov. Scott should veto this terrible bill, which is a solution in search of a problem. The federal Digital Millennium Copyright Act already provides a process for copyright owners to obtain the contact information of those they believe have infringed their rights. We don’t need new state laws to further sacrifice our privacy to Hollywood, Nashville and the rest of the copyright lobby.

R.J. Lehmann is co-founder, editor-in-chief and senior fellow of the R Street Institute. He lives in Gulfport. Column courtesy of Context Florida.