The Regulation of Liberty
Richard Barbrook, 14.09.2000
Free speech, free trade and free gifts on the Net [Telepolis Mix]
»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 Rousseau1 .
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. 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. This new common sense has displaced the fashionable anti-statism of a few years ago. According to the Californian ideology, individuals and businesses must compete to provide goods and services within unregulated on-line marketplaces. Above all, this »New Paradigm« supposedly not only delivers greater economic efficiency, but also extends personal freedom2 .
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. 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 trade3 . 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. Crucially, 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.
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. Copyright laws were adopted as a pragmatic solution to the problem of plagiarism. Unlike political censorship, liberals believed that economic censorship was essential for media freedom4 . 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.
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 expression. 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. Even if nation states give up trying to censor the content of the Net, the courts and police will be needed more than ever to defend the ownership of copyrights.
The Digital Panoptican
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. Yet, when they go on-line, Net users love to share information with each other. For instance, owners of music CDs give MP3 copies to their 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«5 . 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. At the same time, media corporations are experimenting with software which prevents unauthorised copying6 . However, this anti-piracy offensive can 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. Contrary to neo-liberal prophecies, the transmutation of information into commodities is 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 Panoptican7 . If everyone«s on-line activities could be continually monitored, nobody would dare to defy the copyright laws. Across the world, security agencies are already developing »Big Brother« technologies for placing every user of the Net under constant surveillance. For instance, the governments of the USA and the EU snoop on the e-mails of their real or imaginary enemies8 . 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. Ironically, the »negative« freedom of the First Amendment now justifies the totalitarian ambitions of the digital Panoptican.
Despite the futurist rhetoric of its proponents, the digital Panoptican 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. 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 Panoptican 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
The digital Panoptican 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, they had no need for on-line systems for trading information commodities. Designing for their own use, scientists invented a form of computer-mediated communications for sharing knowledge within a single virtual space: the »intellectual commons«9 . 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 transform the passive consumption of fixed pieces of information into the participatory process of »interactive creativity«10 .
As the Net spread outside the university, its new users quickly discovered the benefits of sharing knowledge with each other. Many non-academics also want to overcome the fixed boundaries imposed by the commodification of information. For instance, musicians have long appropriated recordings for DJ-ing, sampling and remixing. The popular MP3 format doesn"t just make the piracy of copyright material much easier, but also encourages enthusiasts to make their own sounds. The passive consumption of unalterable recordings is evolving into interactive participation within musical composition.
What began inside scientific research is now transforming music-making and many other forms of cultural expression. 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. Although some are convinced that »interactive creativity« is the cutting-edge of political and cultural activism, most simply enjoy their on-line projects as a leisure activity. Far from being displaced by the digital Panoptican, 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 must restructure themselves in its image: flexible, participatory and self-organising. 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 exposes the contingency of their intellectual property. Quite spontaneously, most people are opting to share knowledge rather than to trade media commodities over the Net. 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. However, this 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 flowing 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. 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. Only fear of punishment can force everyone inside the digital Panoptican. For the media corporations, the »negative« form of media freedom now means state enforcement of economic censorship. Free trade is more important than free speech. According to the Free Software Foundation, this growing contradiction between legality and reality within the Net can only be resolved by extending the scope of the First Amendment. The »negative« concept of media freedom must apply to private corporations as well as public institutions. 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 commodification11 .
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. His web programs were much more likely to be adopted as common standards if all residual traces of individual ownership were removed. Owned by nobody, the Net can become the common property of all12 . 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 Panoptican. Businesses can communicate more efficiently with their employees, suppliers and customers when everyone uses open source software. While serious money can be made on the existing Net, why should anyone outside the media 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 services13 . 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. Free speech is both free trade and free gifts.
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. Yet, the letter of law criminalises the on-line activities of almost every Net user. The »negative« concept of media freedom prohibits political censorship only to justify economic censorship. Free trade is state power.
In their daily lives, everyone knows that there is almost no chance of being punished for swapping information. 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. 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 freedom14 . 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. Free speech was restricted to political parties15.
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 should help people to make their own media. Above all, the rigid enforcement of copyright laws must give way to official toleration of more flexible forms of information: bootlegs, copyleft, open source and public domain. «Fair use" is free speech.
For most people, the weakening of copyright protection is someone else»s problem. They are unconcerned that trading of commodities in the old media co-exists with the circulation of gifts in the new media. When copying is ubiquitous, punishing people for stealing intellectual property seems perverse. Instead of formal laws, most on-line activities can be regulated by the spontaneous rules of polite behaviour16 . Sooner or later, even the media corporations will eventually have to accept the demise of information Fordism. The «negative» freedom from state censorship will evolve into the «positive» freedom for everyone to make their own 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."17
Richard Barbrook is co-ordinator of the Hypermedia Research Centre, University of Westminster, London.