Expelled defended - on one point

I didn't think I'd be writing any posts in defence of Expelled, the creationist propaganda film starring Ben Stein. Its content has been roundly debunked in numerous forums, and Richard Dawkins, Skatje Myers, and Josh Timonen (among others) have written convincingly scathing reviews.

Obviously, I need to see it for myself, but we can be pretty sure that Expelled is a meretricious pseudo-documentary. Its main claim is that various academics have been "expelled" from the academy for challenging Darwinian evolutionary theory. However, once examined in detail, this turns out to be a farrago of lies and distortions.

The individuals concerned are not involved in any genuine scientific research program based on the idea of "Intelligent Design"; their criticisms of mainstream evolutionary biology are without merit; they have engaged in morally dubious tactics, showing little concern for intellectual honesty; and yet they've been treated with considerable leniency, despite all their efforts to provoke confrontation. Read the details for yourself when you study up on the dramatis personae of Expelled, using the fine Expelled Exposed site.

All that said, let's consider the latest row about Expelled: its use of a snippet from the John Lennon song "Imagine", apparently in a bitterly ironic way. As far as I understand the details so far - without having seen the film - about twenty-five seconds of the song are played, involving the invitation from Lennon to imagine "no religion, too". This recording is played over frightening images related to Nazism and the Holocaust (or maybe it's to Stalin and Mao, or to all the above). The clear effect (if my understanding is accurate so far) is to attack Lennon's message and to suggest that a world without religion would be horrific.

Presumably, this part of the film attributes Nazism to atheism in some way (much as this would be a stupid claim). That is evidently one theme, though a more pervasive one, going on reports, is that Nazism can be blamed on Darwin. Or perhaps, at this stage of the film it's suggesting that any non-religious society would be as bad as Stalinist Russia. The precise point being made by Stein and company doesn't really affect any of the analysis below.

The current kerfuffle on the internet arises from the fact that the song was used without permission and is thus a copyright violation.

There are several things to be said about this. First, given all the other things that are evidently wrong with this film, complaint about a copyright violation sounds pretty trivial. But there's a lot more to it than that.

Second of all, it should be clear by now that I totally disagree with the messages of Expelled, including its attempt to equate atheism and Nazism, or to suggest, as the film is apparently trying to say throughout, that Darwinian evolutionary theory and Nietzschean atheism led to Nazism. That is a massive and unfair distortion of history, as Dawkins discusses in his review. As for a connection between Darwin and Hitler, yes Hitler may have been influenced by some garbled version of Darwinian theory, to which he added a good dose of the Humean fallacy, thus producing one ingredient in the racist, totalitarian witches' brew of Nazi ideology. But that by no means entails that Darwinian theory leads to Nazism. It also has nothing to do with whether the essentials of Darwinian evolutionary theory are actually true.

However - and this is crucial - the perpetrators of the movie are entitled to try to make their case. Which brings me back to the copyright infringement thing.

Intellectual property law exists to encourage the creation of valuable cultural products that, by their very nature, are not scarce and so cannot readily be taken from, or kept from, the commons and turned into property. Items of intellectual property are non-rivalrous because they essentially consist of information. Information can be replicated endlessly (in contrast to, say, a particular hamburger or a particular block of land or a particular, physical CD that your lover gave you for your birthday - all of which are genuinely scarce resources). It is socially important to create a kind of property in the information that cultural products such as songs and recordings ultimately consist in, but it takes a legislative scheme to accomplish that.

However, it is also socially important that items of intellectual property be open to criticism relating to their aesthetic form or to their explicit or implicit ideas. Public policy needs to strike a balance between (1) offering the creators of intellectual property a means of obtaining income from it, thus encouraging the creation of valuable works, and (2) allowing criticism and comment that relates to these works once they are created. The legislative scheme should reflect that policy.

In this case, it appears that the Expelled people play a small part of Lennon's song solely to attack its message, by the way that it is presented with images that make its original message ironic. Given the length of the snippet, it seems that they play no more of it than is needed to evoke the message that they are attacking, so it can't be said that any defence that they're playing "Imagine" to attack it is contrived. Most obviously, they are not using "Imagine" for its entertainment value - this is not a rivalrous use of "Imagine" for the purpose for which it was written, to entertain and to put across Lennon's message. It's not an ornamental use of it, as if it had been pilfered to jazz up an advertisement (for sports shoes, perhaps, or condoms, or life in the army). Rather, it is a nakedly hostile use: it's an unashamed attack on the song and what it stands for.

Given all that, and that this is a clear-cut case, not some kind of contrivance, I think that freedom of speech should prevail here. Morally speaking, the Expelled people should be allowed to put across their message in this way. It doesn't open any floodgates, because this kind of direct attack on a high-profile popular song and its message would be rare. Accordingly, I think that all the attacks in the blogosphere, asserting that this is yet another example of bad ethics by the Expelled people are actually taking the low moral ground. This is a case where we should be defending freedom of speech. If copyright law prevents this sort of thing, then it is operating in a way that goes beyond the fundamental policy considerations that justify the enactment of copyright law in the first place.

That's the moral position. What about the legal position?

I'm not a copyright lawyer. I have no idea what the case law says about a situation like this. As I stated above, it would be a rare kind of case anyway. But from the one or two comments that I've seen from people claiming expertise, Expelled may be on very shaky legal ground.

But should it be? Again, this is not a contrived case: it appears that the song is played in order to make a genuine, and genuinely hostile, comment (however wrong or foolish the comment may be in substance). It also seems that the song is played to no greater extent than necessary to make the film's point. This is not the kind of use that the law should be attempting to prevent.

Protecting the creators of intellectual property from this kind of use of their products is not consistent with the ultimate justification for intellectual property law, which is a statutory system based on particular policy considerations. If the law can be interpreted in a way that allows this kind of use, then the courts should interpret it that way. Obviously, they cannot (or should not) do so if it would go against the clear words of relevant statutes or against binding or overwhelming precedent. Whether that is or is not the situation, I will leave to lawyers with expertise in the area - but I actually hope it isn't.

Finally, a word of caution. While many of us may be involved in a kind of culture war against Expelled, and its makers, and everything they stand for, that does not mean that we should oppose them or their allies on every single issue that crops up day by day. We don't want to be a bunch of knee-jerk atheists. It's important that we stand up for such values as freedom of speech, including our opponents' free speech. That will give us more credibility, and it's also the right thing to do.