The Regulation of Liberty

June 11, 2002 - 1:03pm -- hydrarchist

hydrarchist writes:"

The Regulation of Liberty: free speech, free trade and free gifts on the
Net

'What makes the constitution of a state really strong and durable is such a
close observance of [social] conventions that natural relations and laws come
to be in harmony on all points, so that the law... seems only to ensure, accompany
and correct what is natural.' - Jean-Jacques Rousseau. (1)

The State in Cyberspace

The rapid expansion of e-commerce depends upon effective legal regulation of
the Net. As in the rest of the economy, courts and police are needed to enforce
the 'rules of the game' within on-line marketplaces. Theft remains theft even
when committed with the latest technology. Since the Net encourages its own
forms of anti-social behaviour, governments also have to update their legislation
to counter the new threats from so-called 'cyber-terrorism'. (2)
Trespass laws must now protect computer systems as well as physical buildings.
Not surprisingly, media corporations expect that the courts and the police will
carry on protecting their intellectual property. Anyone who distributes unauthorised
copies of copyright material over the Net must be punished. Anyone who invents
software potentially useful for on-line piracy should be criminalised. Like
other companies, media corporations need a secure legal framework for conducting
e-commerce with their customers. As in the old Wild West, business will only
prosper once law and order is established on the new electronic frontier. (3)

This new common sense has displaced the fashionable anti-statism of a few
years ago. According to the Californian ideology, national governments are incapable
of controlling the global system of computer-mediated communications. Instead,
individuals and businesses will compete to provide goods and services within
unregulated on-line marketplaces. The advance to the hi-tech future is simultaneously
the return to the liberal past. (4) Above all, this nostalgic
'New Paradigm' supposedly not only delivers greater economic efficiency, but
also extends individual freedom. For instance, state regulation of broadcasting
will become obsolete once everyone can buy and sell programming over the Net.
Just like after the American revolution, public institutions will only be needed
to provide minimal 'rules of the game' for people to trade information with
each other. (5) In their constitution, the Founding Fathers
formally prohibited government censorship of the press: the First Amendment.
This 'negative' concept of media freedom emphasised the absence of legal sanctions
against publishing dissident opinions. Like their fellow entrepreneurs, writers
and publishers should be able to produce what their customers want to buy. Free
speech is free trade. (6)

For decades, experts and entrepreneurs have predicted that the emerging information
society would realise the most libertarian interpretations of the First Amendment.
They have never doubted the eventual triumph of their hi-tech vision: one virtual
marketplace for trading information commodities. Instead of buying physical
objects, people would purchase on-line versions of books, newspapers, films,
television, radio, music, software and games - and also sell their own creations.
Above all, this pay-per-use form of computer-mediated communications would have
copyright protection hardwired into its social and technical architecture. The
First Amendment is trading intellectual property within cyberspace.

'Anyone with a computer and some organised information located on it can offer
the information for sale. The customers are as close to the data base as their
telephone. Publishing of information is thus likely to become a more competitive
industry...' (7)

Intellectual property has long been seen as a commodity just like all other
commodities. Yet, at the same time, the sellers of information have always wanted
to avoid fully alienating their products to their customers. Even on primitive
presses, the costs of reproducing existing publications were very much lower
than making the first copy of a new work. As well as justified by liberal philosophy,
copyright laws were also a pragmatic solution to the problem of plagiarism.
The state enforced the monopoly of particular individuals over reproducing specific
items of information to reward their creativity. (8) Unlike
political censorship, liberals believed that this economic censorship was essential
for media freedom. For instance, the Founding Fathers included copyright protection
alongside the First Amendment within the American constitution. If free speech
was synonymous with free trade, the state had to defend intellectual property.
(9)

In early copyright legislation, the ownership of information was always conditional.
Just as media commodities were never fully alienated, no one could claim absolute
ownership over intellectual property. Instead, copyrights could be lawfully
expropriated for a 'fair use' in the public interest, such as political debate,
education, research or artistic exapression. (10) However,
during the last few decades, these restrictions on copyright ownership have
been slowly disappearing. According to hi-tech neo-liberals, all information
must be transmuted into pure commodities traded within unregulated global markets.
In their Californian ideology, media freedom is the 'negative' freedom from
state interference. Yet, in practice, the marketisation of information requires
more legal regulation of the Net. For instance, national laws and international
treaties have already been adopted to cover the on-line trading of media commodities.
Even if nation states give up trying to censor the content of the Net, their
courts and police will be needed more than ever to defend the ownership of copyrights.
(11) As John Locke emphasised long ago: 'The great and chief
end of... Mens... putting themselves under Government... is the preservation
of their Property.' (12)

The Digital Panopticon

While the Net remained a predominantly text-based system used by academics
and hobbyists, media corporations could happily ignore the emergence of this
participatory form of computer-mediated communications. According to the experts,
the majority of the population was only interested in new information technologies
which would offer a wider choice of media commodities. However, this ostrich
strategy became increasingly untenable as more and more people went on-line.
Along with making their own entertainment, Net users also enjoy sharing information
with each other. For instance, many owners of music CDs give MP3 copies to their
on-line friends - and even to complete strangers. Much to their horror, media
corporations have slowly realised that the Net threatens the core of their business:
the sale of intellectual property.

The owners of copyrights are now demanding that the state launches the 'war
on copying'. (13) The courts and police must prevent consenting
adults from sharing information with each other without permission. In a series
of high-profile cases, industry bodies are suing the providers of technical
facilities for swapping copyright material. (14) At the
same time, media corporations are experimenting with encryption and other software
programs which prevents unauthorised copying. (15) However,
this anti-piracy offensive is proving to be only partially effective. For instance,
the music industry's attempts to close down Napster simply encourages people
to install more sophisticated software for swapping music. (16)
Even worse, the failure to agree a common method of encryption means that MP3
has become the de facto standard for distributing music over the Net. Contrary
to neo-liberal prophecies, the transmutation of information into commodities
is becoming more difficult in the digital age.

Since intellectual property can't be protected within the existing Net, media
corporations want to impose a top-down form of computer-mediated communications
in its place: the digital Panopticon. (17) If everyone's
on-line activities could be continually monitored, nobody would dare to defy
the copyright laws. When information was sold as a commodity, media corporations
would be able to control its subsequent uses. Across the world, security agencies
are already developing 'Big Brother' technologies for placing every user of
the Net under constant surveillance. For instance, the Chinese regime deters
dissent by spying on the on-line activities of its citizens. Even the elected
governments of the USA and the EU like snooping on the e-mails of their real
or imaginary enemies. (18) According to the Californian
ideology, such oppressive behaviour would become an anachronism in the unregulated
virtual marketplace. Yet, only a few years later, it is commercial companies
which are pressing for the monitoring of private Net use to defend their intellectual
property. Until there is some fear of detection, people will carry on spontaneously
sharing copyright material with each other. Ironically, the 'negative' freedom
of the First Amendment now justifies the totalitarian ambitions of the digital
Panopticon. As the head of the Motion Picture Association of America warns:
'If you can't protect that which you own, then you don't own anything.' (19)

Despite the futurist rhetoric of its proponents, the digital Panopticon perpetuates
an earlier stage of industrial evolution: Fordism. Ever since the advent of
modernity, each transient burst of technological and social innovation has been
idealised as an a timeless utopia. During the last century, the Fordist factory
didn't just become the dominant economic paradigm, but also provided the model
for politics, culture and everyday life. (20) The media
corporations now want to impose this top-down structure on computer-mediated
communications. Like workers on an assembly-line, users of the digital Panopticon
will be under constant surveillance from above. Like viewers of television,
they can only passively consume media produced by others. The new information
society must be built in the image of the old industrial economy. Free speech
should only exist as media commodities.

The Hi-Tech Gift Economy

Many Left intellectuals also believe that the Net will - sooner or later -
be replaced by the digital Panopticon. How could the version of computer-mediated
communications devised by poor academics and insignificant nerds triumph over
the structure championed by wealthy and influential media corporations? (21)
Ironically, these gurus disprove their own masochistic predictions when they
themselves go on-line. Like everyone else, they don't primarily use the Net
to consume media, but to send e-mails, swap information, conduct on-line research
and participate in network communities. While there can be nothing new about
more television, interactive collaboration over the Net is novel. The digital
Panopticon is a future which is already history.

For the emerging information society is being built according to principles
laid down by the scientists who invented the Net. Funded by the state and foundations,
academics collaborate with each other by giving away their findings in journals
and at conferences. Scientists had no need for on-line systems for trading information
commodities. Instead, they built the code of the Net in the image of the academic
gift economy. Designing for their own use, they invented a form of computer-mediated
communications for sharing knowledge within a single virtual space: the 'intellectual
commons'. (22) Above all, the pioneers of the Net knew that
the publication of findings across many different books and journals was hampering
scientific research. From Vannevar Bush to Tim Berners-Lee, they developed technologies
which could overcome this fragmentation of academic knowledge. The passive consumption
of fixed pieces of information would become the participatory process of 'interactive
creativity'. (23)

As the Net spread outside the university, its new users quickly discovered
the benefits of sharing knowledge with each other. There has never been much
demand for the equal exchange of commodities when people can access the labour
of a whole community in return for their own individual efforts. (24)
Many non-academics are also striving to overcome the fixed boundaries imposed
by the commodification of information. For instance, musicians have long appropriated
recordings for DJ-ing, sampling and remixing. (25) The popularity
and capabilities of the Net is intensifying these ambiguities within the economics
of music-making. The MP3 format doesn't just make the piracy of copyright material
much easier. As importantly, the social mores and technical structure of the
Net encourages enthusiasts to make their own sounds. The passive consumption
of unalterable recordings is evolving into interactive participation within
musical composition. (26)

What began inside scientific research is now transforming music-making and
many other forms of cultural expression. Back in the early-1990s, only a few
academics and hobbyists could access this open form of computer-mediated communications.
A decade later, almost every academic discipline, political cause, cultural
movement, popular hobby and private obsession has a presence on the Net. Whether
for work or for pleasure, people are creating websites, bulletin boards, listservers
and chat rooms. Although only a minority are now engaged in scientific research,
all Net users can participate within the hi-tech gift economy. A few hope that
network communities are prefiguring the co-operative and ecological societies
of the future. Some are convinced that 'interactive creativity' is the cutting-edge
of modern art. Most simply participate within on-line projects as a leisure
activity. Far from being displaced by the digital Panopticon, the 'intellectual
commons' of the Net continues to expand at an exponential rate. Free speech
is a free gift.

What's Left of Copyright?

The Net is now proclaimed as the new paradigm of society. Business, government
and culture are supposed to restructure themselves in its image: flexible, participatory
and self-organising. (27) Although often seen as pioneers
of the hi-tech future, media corporations are terrified of this emerging paradigm.
For the rapid growth of the Net is exposing the contingency of their intellectual
property. As information separates from physical products, copyright loses its
apparent basis in nature. Quite spontaneously, most people are opting to share
knowledge rather than to trade media commodities over the Net. Technological
progress is symbiotic with social evolution. Free speech can flourish without
free trade.

The media corporations are desperate to reverse history back to the previous
paradigm: the Fordist factory. As in old sci-fi stories, they dream of giant
mainframes spying upon everyone's on-line activities. Like members of the secret
police, the owners of copyright are nostalgic for the Cold War days of 'Big
Brother'. However, history has moved on. The centralised vision of computer-mediated
communications is already technically obsolete. How much computing power would
be needed to make a detailed analysis of every piece of data in the information
flows passing across the Net? How could constant top-down surveillance be imposed
on all peer-to-peer file-sharing within cyberspace? But, without constant monitoring
from above, the effectiveness of encryption and other security devices is limited.
As hackers have repeatedly proved, anything which is encoded will be eventually
decoded. When no one is looking, media commodities will spontaneously transmute
into free gifts on the Net.

Since there is no technological fix for protecting copyright, the media corporations
can only preserve their wealth in one way: state power. The police and the courts
must deter people from pirating intellectual property or inventing software
for making unauthorised copies. The social mores and software codes of the Net
must be criminalised. Only fear of punishment can force everyone inside the
digital Panopticon. For the media corporations, the 'negative' form of media
freedom is now synonymous with state enforcement of economic censorship. The
law must be obeyed. The Net must be replaced with the digital Panopticon. Free
trade is more important than free speech.

According to the Free Software Foundation, the growing contradiction between
legality and reality within the Net can only be resolved by extending the scope
of the First Amendment. The economic interests of the few should no longer take
precedence over the political liberties of the many. The 'negative' concept
of media freedom must now apply to private corporations as well as public institutions.
Above all, the state should refrain from enforcing not only political censorship,
but also economic censorship. (28) As privileges of copyright
disappear, information should be regulated in a more libertarian way: 'copyleft'.
Although producers should still be able to prevent their own work from being
claimed by others, everyone must be allowed to copy and alter information for
their own purposes. Free speech is freedom from compulsory commodification.
(29)

Even this proposal isn't radical enough for some Net pioneers. For instance,
Tim Berners-Lee decided that the original programs of the web should be placed
in the public domain. Instead of making proprietary software for sale in the
marketplace, this inventor was developing tools for building the 'intellectual
commons'. His web programs were much more likely to be adopted as common standards
if all residual traces of individual ownership were removed. Being a scientist
funded by EU taxpayers, Tim Berners-Lee was happy to give away his research
to anyone who could benefit from more accessible computer-mediated communications.
Owned by nobody, the web could become the common property of all. (30)

In the prophecies of the hi-tech neo-liberals, all information was going to
be inevitably transformed into unalloyed commodities. Inside the digital Panopticon,
everyone would be forced to prioritise a 'single business model': trading intellectual
property. (31) Yet, when given a choice, almost everybody
prefers the bottom-up Net over this top-down version of computer-mediated communications.
Crucially, the absence of intellectual property within the Net has never been
an obstacle to the successful commercialisation of computer-mediated communications.
On the contrary, many dot-com entrepreneurs have discovered that more profits
can be made outside the protection of the digital Panopticon. Businesses trade
more efficiently with their suppliers and their customers when everyone uses
open source software. Employees collaborate with each other much more easily
within the non-proprietary architecture of the Net. (32)
Despite their wealth and influence, media corporations are unlikely to persuade
their fellow capitalists to adopt the digital Panopticon. While serious money
can be made on the existing Net, why should businesses adopt a less flexible
and more intrusive form of computer-mediated communications?

Even for the trading of intellectual property, there is no pressing need for
investing in expensive copyright protection systems. Information can still be
commodified through other tried-and-tested methods: advertising, real-time delivery,
merchandising, data-mining and support services. c While these techniques remain
profitable, the weakening of intellectual property within the Net can be tolerated.
Increasingly, information exists as both commodity and gift - and as hybrids
of the two. No longer always fixed in physical objects, the social distinction
between proprietary and free information becomes contingent. For instance, the
Linux operating system can either be downloaded without payment from the Net
or be purchased on a CD-rom from a dot-com company. (34)
This hybrid existence is not confined to 'cutting edge' software. For instance,
the same dance tune is sold on vinyl, given away on MP3 and sampled to create
new sounds. The passive consumption of fixed pieces of information now co-exists
with the participatory process of 'interactive creativity'. Free speech is both
free trade and free gifts.

Making Media

According to current copyright legislation, this new form of free speech is
simply a new type of theft. Information must always remain a commodity within
cyberspace. Yet, within the Net, free speech is evolving into the fluid process
of 'interactive creativity'. Information exists as commodities, gifts and hybrids
of the two. Oblivious to this growing contradiction, politicians carry on tightening
the legal protection of copyright at both national and international levels.
(35) They are determined to help their local media corporations
to compete successfully within the global marketplace. As a result, the letter
of law criminalises the on-line activities of almost every Net user. For instance,
giving away bootleg MP3s is stealing the intellectual property of media corporations.
The 'negative' concept of media freedom prohibits political censorship only
to justify economic censorship. Free trade is state power. (36)

Yet, in their daily lives, everyone knows that there is almost no chance of
being punished for swapping MP3s. The existing copyright laws are increasingly
unenforceable within the Net. If only for pragmatic reasons, the concept of
media freedom now needs be extended beyond freedom from political censorship.
For instance, in nineteenth century Europe, Karl Marx argued that free speech
shouldn't be confined within free trade. The Left had to struggle not only against
political censorship, but also economic censorship. Crucially, the removal of
legal controls was an essential precondition, but not a sufficient foundation
for free speech. Everyone also had to have access to the technologies for expressing
themselves: the 'positive' concept of media freedom. (37)
During the Fordist epoch, the Left almost forgot this libertarian definition
of free speech. For technical and economic reasons, ordinary people appeared
to be incapable of making their own media. Instead, the Left supported public
service broadcasting so its leaders could gain access to the airwaves. Free
speech was restricted to elected politicians. (38)

With the advent of the Net, this limited vision of media freedom is becoming
an anachronism. For the first time, ordinary people can be producers as well
as consumers of information. Marx's 'positive' concept of media freedom is now
pragmatic politics. Instead of making media for them, the state can help people
to make their own media. For instance, public service broadcasters can nurture
network communities and telecoms regulators can encourage infrastructure investment.
(39) Above all, the state must reverse the recent tightening
of the copyright laws. For the 'positive' concept of media freedom precludes
vigorous economic censorship. The widespread 'fair use' of copyright material
should be recognised in law as well as in practice. The rigid enforcement of
intellectual property must give way to official toleration of more flexible
forms of information: bootlegs, copyleft, open source and public domain. 'Fair
use' is free speech. (40)

For most people, the weakening of copyright protection is someone else's problem.
They are unconcerned that trading of commodities in the old media must co-exist
with the circulation of gifts in the new media. (41) Even
neo-liberals are realising that the trading of physical commodities is much
easier outside the digital Panopticon. While e-commerce will always depend upon
legal regulation, 'interactive creativity' among Net users has little need for
courts and police. When copying is ubiquitous, punishing people for stealing
intellectual property will seem perverse. Instead of formal laws, most on-line
activities can be regulated by the spontaneous rules of polite behaviour. (42)

'The more perfect civilisation is, the less occasion has it for government,
because the more does it regulate its own affairs, and govern itself...' (43)

Sooner or later, the state will abandon its attempts to impose economic censorship
on the Net. Even the media corporations will eventually have to accept the demise
of information Fordism. Instead of copyright enforcement, government intervention
can focus on extending and improving access to the Net for all people. The 'negative'
freedom from state censorship must evolve into the 'positive' freedom to make
media. In the age of the Net, free speech can become: '...the right to make
noise... to create one's own code and work... the right to make the free and
revocable choice to interlink with another's code - that is, the right to compose
life.' (44)

Richard Barbrook is co-ordinator of the Hypermedia Research Centre, University
of Westminster,

. ================================================== =====

Footnotes

(1) Jean-Jacques Rousseau, The Social Contract, page 98.

(2) For instance, the British government is introducing legislation
which includes any actions which 'seriously interfere with or seriously disrupt
an electronic system' within its definition of 'terrorism'. See Will Knight,
'Hackers Will Become Terrorists Under New Law', page 1.

(3) For an analysis of increasing legal regulation of the
Net, see Lawrence Lessig, Code.

(4) See Richard Barbrook and Andy Cameron, 'The Californian
Ideology'.

(5) See Mitch Kapor, 'Where is the Digital Highway Really
Heading?'.

(6) For an analysis of the origins of the First Amendment
in English liberalism, see Leonard Levy, Emergence of a Free Press. An English
liberal mandarin later defined 'negative' freedom as: '...the area within which
the subject - a person or group of persons - is or should be left to do or be
what he [or she] is able to do or be, without interference by other persons...'
Isaiah Berlin, 'Two Concepts of Liberty', pages 121-2.

(7) Ithiel de Sola Pool, Technologies of Freedom, page 211.

(8) See Christopher May, A Global Political Economy of Intellectual
Property Rights, pages 16-44.

(9) See Richard Barbrook, Media Freedom, pages 7-18; and
Leonard Levy, Emergence of a Free Press, pages 220-281.

(10) See Christopher May, A Global Political Economy of
Intellectual Property Rights, pages 45-66.

(11) Despite denouncing state regulation as obsolete, Newt
Gingrich's neo-liberal think-tank still saw that: 'Defining property rights
in cyberspace is perhaps the single most urgent and important task for government
information policy.' The Progress and Freedom Foundation, Cyberspace and the
American Dream, page 11.

(12) John Locke, Two Treatises of Government, Mentor, New
York 1965, page 395. For a socialist remix of this liberal analysis, see Eugeny
Pashukanis, Law and Marxism.

(13) This analogy with the repressive 'war on drugs' is
made in Richard Stallman, 'Freedom - or Copyright?', page 2.

(14) See the Recording Industry Association of America,
'RIAA Lawsuit Against Napster'; and the Motion Picture Association of America,
'DVD-DeCSS Press Room'.

(15) For instance, all the major record labels are members
of a consortium to develop encryption methods for copyright-protected music,
see the Secure Digital Music Initiative website.

(16) For instance, see the Gnutella and Freenet websites.

(17) See Howard Rheingold, The Virtual Community, pages
289-296. The dystopian vision of the Net is inspired by the symbol of oppressive
modernity in Michel Foucault, Discipline and Punish.

(18) See Elmo Recio, 'The Great Firewall of China'; and
Duncan Campbell, 'Inside Echelon'.

(19) Jack Valenti talking about the potential threat from
the DeCSS decryption program in 'Film Studios Bring Claim Against DVD Hackers
in Federal Court'.

(20) See Simon Clarke, 'What in the F---'s Name is Fordism'.

(21) For instance, Robert McChesney says: 'It's almost an
iron law of US communication[s] media... that... the corporate sector comes
in, and... muscles all... other people out of the way and takes it over.' Corporate
Watch, 'Towards a Democratic Media System', page 3.

(22) Lawrence Lessig, Code, page 141. Also see Michael Hauben
and Rhonda Hauben, Netizens, page ix.

(23) Tim Berners-Lee, 'Realising the Full Potential of the
Web', page 5. Also see Richard Barbrook, 'The Hi-Tech Gift Economy'; and 'Cyber-communism'.

(24) See Rishab Ghosh, 'Cooking Pot Markets'; and Richard
Barbrook, 'The Hi-Tech Gift Economy'.

(25) See Bill Brewster and Frank Broughton, Last Night a
DJ Saved My Life; and Sheryl Garratt, Adventures in Wonderland.

(26) See Jacques Attali, Noise, pages 133-148. Also see
Romandson, 'Interactive Music'.

(27) From academic research to management theory, this new
paradigm now fascinates the cutting-edge of intellectual life. For instance,
see Manuel Castells, The Rise of the Network Society; and Jonas Ridderstråle
and Kjell Nordström, Funky Business.

(28) See Richard Stallman, 'Freedom - or Copyright?'. Some
American judges have already defined computer programming as a form of free
speech, see Patricia Jacobus, 'Court: Programming languages covered by First
Amendment'.

(29) See Free Software Foundation, What is Copyleft?.

(30) See Tim Berners-Lee, Weaving the Web, pages 78-80.

(31) See Tim Berners-Lee, Weaving the Web, pages 70-71.

(32) See John Hagel and Arthur Armstrong, net.gain.

(33) See Esther Dyson, Release 2.0, pages 131-163.

(34) See Robert Young, 'How Red Hat Software Stumbled Across
a New Economic Model and Helped Improve an Industry'.

(35) See Christopher May, A Global Political Economy of Intellectual
Property Rights.

(36) See Lawrence Lessig, Code, pages 30-60.

(37) See Karl Marx, 'Debates on Freedom of the Press'. In
contrast with its 'negative' predecessor, 'positive' freedom is defined as:
'I wish to be... a doer - deciding, not being decided for, self-directed and
not acted upon... by other men as if I was... a slave incapable of... conceiving
goals and policies of my own and realising them.' Isaiah Berlin, 'Two Concepts
of Liberty', page 131. For this socialist concept of political rights, also
see Karl Marx, 'On the Jewish Question'.

(38) See Richard Barbrook, Media Freedom, pages 55-73.

(39) See Richard Barbrook and Andy Cameron, 'The Californian
Ideology', pages 63-68.

(40) See Richard Barbrook, 'Cyber-communism', pages 26-35.

(41) For a discussion of the 'fragmentation of copyright',
see Christopher May, A Global Political Economy of Intellectual Property Rights,
pages 144-157.

(42) Among early users of computer-mediated communications,
such spontaneous self-regulation was dubbed 'netiquette', see Michael Hauben
and Rhonda Hauben, Netizens, pages 63-4.

(43) Tom Paine, Rights of Man, page 165.

(44) Jacques Attali, Noise, pages 132. Bibliography Jacques
Attali, Noise: the political economy of music, University of Minnesota Press,
Minneapolis 1985.

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