Stop in the Name of Private Property

The secretary of state — our roving ambassador from the land of the free — travels the world to denounce governments that would interfere with digital freedom. “They aim to impose a system, cemented in a global code, that expands control over Internet resources, institutions and content,” said Hillary Clinton at The Hague of several measures pushed by China, Russia and others, “and centralizes that control in the hands of the government.”

Statements like that give new meaning to the word hypocrisy, for the U.S. government is behind some of the most far-reaching interventions that could smash digital freedom. A bill making its way through Congress called the Stop Online Piracy Act, or SOPA, has an alarming number of supporters and some measure of support within the Obama administration.

Experts who follow this subject closely have described SOPA as the most draconian and egregious in the history of copyright enforcement. It would permit any plaintiff to presume the backing of the state to effectively shut down any website on complaint alone, and it would instill such a chilling atmosphere of fear that what we now call digital freedom would come to an end.

It is no idle threat. It is being pushed by all the major pre-digital media giants, even though jurists such as Laurence Tribe have said that it is clearly unconstitutional. Their goal is the same as the intended result: roll back history so that the cartel and its government backers can once again control what we read, see and hear. Wikipedia sees the danger, and its founder is now threatening to blank out all pages of the world’s largest information database as a protest against the bill.

It’s no wonder people are unhappy. The Internet is the way we learn, the way we communicate, the way we shop, the way we write. Chilling this venue amounts to a massive assault on the capacity of civilization to function and grow. This isn’t about some small sector of life pertaining to digits. This is about the future of the human race itself.

The big states of the old world have wanted to shut down digital freedom but with open political motives. In the U.S., in contrast, the government claims the excuse of property-rights enforcement. The effect will be the same.

As for the excuse of copyright, this act does force the issue. It’s time for all lovers of freedom to come to terms with the reality that what is called “intellectual property” really has nothing at all to do with real property; its consistent enforcement actually attacks property rights. Nor is it entirely obvious to anyone anymore what is and what isn’t legitimately protected by copyright law. Even the most scrupulous can easily be ensnared in the culture of complaint.

You know the expression “success has many fathers, but failure is an orphan”? In copyright enforcement, this is absolutely the truth. Every market success elicits the mobs of claimants. If you get big or popular, you are a target. And with rule ambiguity and arbitrary enforcement, no one is safe. With real property, you know if someone has stolen something; with intellectual property, which can be copied into trillions of identical units in a matter of seconds, chasing who owns it becomes no more than a power play.

Here is an example that has been in the news recently.

An anti-piracy video you sometimes see at the beginning of movies explains how you wouldn’t steal a handbag, so neither should you steal a song or movie by an illegal download. The ad is riddled with fallacies, but here’s what’s funny. It turns out that the guy who wrote the music for that short clip, Melchior Rietveldt, says that his music is being used illegally. It had been licensed to play at one film festival, not replayed a million times in DVDs distributed all over the world. He is demanding millions in a settlement fee from Brein, the anti-piracy organization that produced the thing.

Interesting, isn’t it? When you have hypocrisy that blatant, criminality this rampant, practices called piracy this pervasive — it reminds you of the interwar Prohibition years — you have to ask yourself if there is something fundamentally wrong with the law and the principles that underlie the law. Yes, people should keep to their contracts. But that’s not what we are talking about here; this case is being treated not as a contract violation but a copyright violation, which is something different. We are dealing with a more fundamental issue. Is it really stealing to reproduce an idea or an image? Is it really contrary to morality to copy an idea?

The verdict here is crucially important because ever more of the state’s active intervention against liberty and real property is taking place in the name of intellectual-property enforcement.

If people who believe in liberty do not get this correct — and it is no longer possible to stand on the sidelines — we will find ourselves siding with the state, the courts, the thugs and even the international-enforcement arm of the military industrial complex, all in the name of property rights. And that is a very dangerous thing at this point in history, since IP enforcement has become one of the greatest threats to liberty that we face today.

Another case in point to consider here… In early December, a judge in Nevada, acting in a case brought by the luxury Chanel, ordered the takedown of some 600 websites that he alone was guilty of trafficking in pirated products — that is selling fake Chanel products. There was no extensive research done; the claim of the company was enough. The judge then issued an order that went beyond the parties to the lawsuit itself and ordered the complete de-indexing of such site by Go Daddy, Facebook, Google, Twitter, Yahoo and Microsoft. Meanwhile, there is legislation before Congress that would permit similar takedowns of any website regarded as a violator of intellectual property.

The idea of competition is that you are free to emulate the success of others, copy an idea, improve on the product or process involved in making or marketing it and chip away at the market share held by another producer. Because of this freedom, every producer must constantly innovate and cut costs in service of the consumer, precisely because others are copying the methods, products and ideas of the successful, and there is constant change taking place among the firms that seek to profit from enterprise.

With copyright, however, everyone in society is bound for a very long period of time from producing any words or making any image that would seem to reflect a learning process used a copyright holder as an example. We have a granting of monopoly privilege here, but instead of having to seek out protection, it is granted automatically. This might seem to be a benefit to the creator, artist, composer or author, but the reality is that these people nearly always sign away their rights to the production company, the publisher, the filmmaker or whatever, and this most often occurs for the lifetime of the copyright. Even the creator, then, must beg or pay in order to use his or her own material. The law has been expanded and internationalized so that the monopoly lasts 70 years after the death of the person who wrote the song, drew the picture or wrote the book.

If we look at the origins of copyright and patent, we can see the essence of what is going on. Copyright originated as a government restriction on printing during England’s religious wars. As it developed, it had nothing to do with individual rights and everything to do with protecting dominant publishing firms against competition. It is the same with patent, which grew out of the mercantilist experience of Europe, in which the prince would grant one producer rights against all competitors. Both are designed to slow down innovation and drag out the process of economic development with government restrictions. For this reason, the idea that IP somehow creates an incentive to innovate is completely wrong; in fact, the reality is precisely the opposite.

The advent of the liberalism of the 18th century gradually wiped out most of these antique institutions and replaced them with competitive capitalism that heralded the right to learn, produce and profit. But in the world of ideas, these protections remained and became worse, especially in the latter part of the 20th century. They are remnants of a precapitalist age.

In the digital age, when ideas can be multiplied by billions of times in a matter of seconds, the notion of IP protection becomes ridiculously outmoded. And it is for that very reason that enforcement is being stepped up and now threatens free speech and the freedom to innovate. Ultimately, a consistent enforcement of IP would shut down free enterprise as we know it.

This is not an easy subject and it does take some serious thinking to sort out all of the issues. But here is one clue about where people who love freedom should come down on the question. When the state is totally dedicated to using its enforcement arm to harm so many businesses and so many free associations, and it does it in the name of private property, you have to wonder if something has gone terribly wrong.

The state is the least trustworthy institution when it comes to defending our freedoms; there is no reason to suppose that this gang of thieves has been converted to the cause of real property rights just because that is what it claims to be defending. The Internet holds out the promise of the greatest leap forward for humanity ever conceived, and we are just at the beginning of seeing what is possible. And this is precisely why the state, which longs for a stupid and dependent population, wants to kill it while it has the chance.


Jeffrey Tucker