The Regulation of Liberty

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. [33] 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.


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