ISPs Becoming Enforcers for the State

by Jeffrey Tucker
Mar. 19, 2012

Remember that battle over SOPA, in which the world's largest websites beat back a congressional threat that would have changed the Internet forever? It was pretty obvious within a day after this Pyrrhic victory that the existing laws in place were enough to give the government the power to wreck the digital world. But how would it happen? How would government end digital freedom?

Well, the excuse is obvious. It is "intellectual property." This phrase serves the same purpose for would-be censors that "terrorism" does for warmongers. It is a way to ramp up government control while kicking sand in the faces of those who would oppose such control. Are you for terrorism? Are you for theft?

It's rather easy to detect normal theft. One day, I have a planter on my porch. The next day, the planter is on your porch, and it got there without my permission. Or one day, I'm driving my car. The next day, you are driving my car because you took it from me in the night. This is the way normal theft occurs. You can tell when it has happened. And the means of redress are obvious.

Now imagine a different scenario. One day, the paragraph above appears on the website for Laissez Faire Books. The next day, it appears on your Facebook page or blog. But it is not thereby removed from lfb.org. Instead, it is copied. A second instance of the paragraph has been created, taking nothing from me. My paragraph still exists. And let's say this happens 10 billion times in the course of a few minutes, as can happen in the digital world.

Is this a case of mass looting, or is it a mass compliment to me?

Copyright law sees this as theft. But how can that be? The whole merit of the digital world rests on the remarkable scalability of everything digitized. That's the basis of the economy of the Internet. Its capacity for inspiring and achieving infinite emulation and sharing is unparalleled in history. It's what makes the Internet different from parchment, vinyl or television. Remove that, and you gut the unique energy of the medium.

Intellectual property law became universal only about 120 years ago. It was gradually expanded over the course of the century, invading the digital realm in the 1980s and expanding its coverage ever since. How do you make copies illegal in a medium that specializes in its capacity for sharing, multiplying, linking and community formation? You need totalitarian control.

But how is the government going to do it? Well, consider how the government went about ramping up the tax state during the 1940s. Instead of just taxing people directly, it leaned on private businesses to do it, via the "withholding tax." Business was forced to become the tax collector for the state. And it was the same with health care. Instead of just mandating universal coverage, it leaned on private business to do the government's bidding. Business became the health care provider through mandate.

The same is now happening with the enforcement of intellectual property on the Web. All the latest reports say that ISPs (Internet service providers) have struck at deal with old-line media companies to start policing the way users of the Internet surf, upload, download and link.

There will be several warnings, and then, presumably, after some point, access will be cut off. They will do this based on the IP address of the user. In other words, ISPs will be doing the dirty work for the state. Probably, they struck the deal just because 1) the laws are already in place, and 2) they are probably trying to avoid a worse fate.

To be sure, some of this is already going on. If you use WordPress or Blogger for blogging, you probably already know this. Open and aggressive violators are presented with notices, whether the violation took place knowingly or not. For several years, YouTube has been blanking out the audio on home videos if the music is under copyright. And innumerable upload sites blast away anything that is under question, presuming guilt before it is proven.

Even an open Creative Commons announcement that grants permission to copy is not always enough. The presumption is that every duplication is a crime. Every upload is suspect, and every download is, too.

And contrary to what people claim, it is not always easy to tell the difference between protected property and common property. Copyright law is notoriously difficult to figure out. Sometimes the answer is obvious, as with material published before 1922. But there is this huge land of publication between that time and 1963 in which renewals are sometimes fuzzy, especially when multiple authors are involved.

Patent is an even worse case. Right now, everyone is suing everyone else for whatever. It has become a wicked game in which the competition takes place not in the arena of consumer service, but in the courts via various forms of trolling and legal blackmail.

In the end, all these disputes are won by the companies with the deepest pockets. I've seen copyright disputes that are settled on this basis alone, regardless of the merits of the case. In the end, it is too expensive for the little guys to defend themselves against large corporate interests, so the little guys invariably relent to avoid super-costly litigation.

This is the way it will be in the future. The big boys will run the show, doing for the state what the state is unable to do for itself, and they will do it on behalf of big corporate interests. This does terrible things to the competitive culture. It does even worse things to the culture of community sharing that has created a vast world of miracles and marvels available to the whole of humanity. It is a case of man's cruelty to man, serving no purpose except the material interests of large corporations that are determined to slow the path of progress for humanity.

However, it is not all dark. Every legal imposition creates incentives for the geeks of the world to find the workaround. There will always be a way. Just as the speak-easies remained open in the 1920s, there will always be zones of freedom in the digital world. And I have no doubt that, in the end, the freedom of information will win this. The tragedy is that there will be many speed bumps along the way to victory.
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Jeffrey Tucker, publisher and executive editor of Laissez-Faire Books, is author of Bourbon for Breakfast: Living Outside the Statist Quo and It's a Jetsons World. You can write him directly here.