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The Case Against IP and Copyright: InfoWars, Pepe, and Lawsuits

A rather important notion within anarchist thought that might seem counter to liberty and market-centered minds is that intellectual property is an enemy, and not an ally of a free society.

The history of copyright law in America stretches back to Article I of the Constitution itself, with Congress being given the power to protect intellectual property. Specifically: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

While this sounds fine in theory, the creep of government knows no bounds, and as many people who have dabbled in YouTube or music production have experienced, modern copyright law is an absolute mess. What should protect and incentivize creators in theory only benefits corporations and media conglomerates in practice, essentially backfiring, as most government programs tend to do.

One part of modern copyright law is literally called the Mickey Mouse Clause due to Disney lobbying and influence to protect their media (which was all mostly yanked from folk tales/public domain anyway) and part of why American culture feels so recycled, bland, and corporate is thanks to these corrupt policies.

We can all see how ridiculous copyright law has gotten with a recent lawsuit. I know what you’re thinking, lawsuits are boring and obtuse, and sometimes (if not most of the time) that can be the case. That doesn’t mean that lawsuits aren’t incredibly important to understand however, and in some instances, these suits can actually be rather entertaining.

The case in question started March of 2018, when Matt Furie, the creator of Pepe the Frog, filed a complaint against InfoWars, who used the ubiquitous meme in a poster they sold in their online store. The poster in question obviously altered Pepe, along with the other famous right-wing figures on the poster to match a certain artistic (and comedic) tone, however Furie felt that his character had been appropriated for a hateful purpose and filed for copyright infringement.

If we’re being realistic, this case is rather ridiculous, both on legitimate legal grounds, and just in terms of common courtesy. If InfoWars had directly stolen a panel from a Marvel comic, or a screenshot from a Star Wars film and sold that as a poster, then the creators would have every right to sue them for infringement under current laws. However, think of all the countless companies and brands that utilize comic and Star Wars imagery in their design, to evoke elements of popular culture to create something that a wide variety of people can relate to.

This isn’t stealing, it’s the marketplace working correctly. Reinvention and reworking are the name of the game, and the democratization of technology only make this process more common and easier to accomplish. Imitation is the sincerest form of flattery supposedly, and in the modern era, the greatest example of this is meme culture.

RiP!: A Remix Manifesto is a great documentary on this subject.

Due to the obvious overlap between the gaming and meme cultures, an unsettling array of memes exist using popular (and esoteric) games, movies, cartoons, and more. If you’ve ever been on Reddit, you’ve surely seen all sorts of unflattering and strange pictures of Sonic the Hedgehog, and as we saw with the new Sonic film coming out, the online culture that creates and obsesses over this material, ironically or not, holds mass amounts of power over its very existence.

This manifests positively often with crowdfunding campaigns and positive social media outreach, and negatively with toxic fan environments and massive spam events.

This is all to say that these behaviors grew completely organically from the marketplace of ideas nurtured on the wild west of the internet, and exclusively in spite of, and not because of copyright law or respect for intellectual property.

If Sega were to sue every person who has made a Sonic meme, or if Bethesda went after ever person who made a meme of Skyrim, every video that took footage from every video game, we’d be in such a different place culturally online for the worse. You can tell that the internet has enjoyed a liberty heavy existence just by taking a look at the parody/remix heavy archives of YouTube or any social media platform, and when companies like Nintendo or fascists like the EU crack down on these systems with regulations, the outcry is understandable.

Putting this back on track, what Furie is doing by suing InfoWars for using his meme is quite possibly spoiling the fun for everybody else, which isn’t a surprise as when he first discovered that 4Chan and other sites were using Pepe ironically as a far-right symbol, he tried killing the character and painting himself as the greatest of all virtue signalers.

This obviously failed, as not only is Pepe alive and well online, but devious folks then went after Furie’s other characters, giving them various offensive designs and backgrounds.

We notably don’t see Furie launching suits against various companies that sell the unaltered image of Pepe on shirts and hoodies, and we definitely don’t see people doing massive takedowns of massive, non-political (or left-wing) content creators who adopt various memes for their own, monetized purposes.

What we do see however, are creators that have a right wing or just non-mainstream slant being constantly threatened with penalties and removal for violating supposed copyright and IP laws. I’ve explained before how the terms of service fight is another issue, but objectively, anyone making content with a right-wing bias has to fight such a wider array of attacks and have to defend their content so specifically, to a degree that others wouldn’t have to face.

InfoWars being banned off so many platforms is tragic, but for the banning platform, not Infowars. By literally shooting the proverbial canary in the coal mine in, Twitter, Facebook, etc. are dooming themselves from any future sense of salvagement or long term meaning. Similarly, with his lawsuit, Furie is essentially putting the spirit of online content creation in jeopardy, over something that could easily be settled outside of court.

Instead, in the middle of May, a federal California judge ruled that InfoWars had failed to show they were protected under fair use, and that the case will move on to trial. In some ways the trial was going better than it could have gone, considering how obviously biased a California federal court could be against InfoWars. However, the fact that Judge Fitzgerald is even considering Furie’s argument that a poster based on a popular meme is direct copyright infringement, especially after Furie stated in a 2015 interview that he wanted people to profit off of the meme, is absurd.

(Of course, seeing a federal judge analyze whether the color difference in InfoWars’ Pepe was enough to justify fair use is equal parts absurd, surreal, and amusing.)

If it isn’t obvious, the fights over intellectual property and copyright law suddenly become fights concerning freedom of speech and expression, as well as property rights and self-identification. The worst thing we can do is tip the scales in favor of State control even further in regards to copyright, as it will surely doom whatever the next InfoWars is going forward.

And while it’s true that in the current era, right wing figures face bias, there’s no saying what way the political winds will blow in the future, effectively limiting creativity for anyone who falls outside the ever-shrinking window of allowable opinion, to the point where only state sanctioned art is allowed.

Anybody who thinks that art and politics are separate from the entity of “the State” are woefully mistaken. While Nazi and Soviet propaganda are well known for the most part, the Italian fascists rise to power is almost tragically inseparable from the Futurist and other artistic movements in Italy at the time. In the wake of Mussolini’s bloody failed state were dozens of ultra-talented artists and geniuses who put blind faith in technology, science, and all-powerful leaders.

With Disney’s further monopolistic and government approved acquisitions in the media landscape an apocalyptic viewpoint seems inevitable, but the important thing to remember is that we are in control of this future.

In a practical sense, electing politicians who have historically helped or been paid by the corporate media will only perpetuate the cycle, and having courts stacked with judges that can barely operate Facebook will do nothing to help the creation (or destruction) of legal precedent.

The nature of courts is to err on the side of conservatism, and an obvious issue arises in electing younger judges and politicians, who were all taught at Marxist universities who literally teach students to come up with the most equality based and tolerant conclusion possible, and working to build your case with any supporting evidence from there.

Ideally then, this is where the removal of copyright law altogether comes into play. Just as other outdated practices, like slavery, were eradicated in this country (sort of) it isn’t too much to fight for the removal of intellectual property and copyright laws, complete relics from a different time, which have only grown exponentially more destructive and deadly.

Remember, the expansion of government is inevitable and the corruption of something as seemingly harmless or market friendly as copyright laws can easily be manipulated by corporate interest to suck the creative soul out of our nation, and dictate the propaganda we consume for the years to come.

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