The
Regulation of Liberty: free speech, free trade and free gifts on the Net
by Richard Barbrook
‘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 expression. (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
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. (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.
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
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,
=======================================================
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
(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,
(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
(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
(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
(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.
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Ends