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Is it anybody’s business what you download? A lot of government functionaries think it should be, and they want to put a gun to your Internet provider’s head to make sure that company pulls your plug and informs on you. Disturbing as this is, it isn’t even the most important alarm we should be raising.
Paul Meller, writing in TechWorld this week, reports that “the anti-counterfeiting trade agreement (ACTA) being negotiated in secret by the U.S., EU and others” will force Internet Service Providers (ISPs) to police the Web for copyright infringement. Part of a draft of this agreement was leaked recently, and the news is worrying: The agreement would compel service providers to “monitor the content on their networks and to sever Internet connections of subscribers who repeatedly upload or download copyright-protected content without permission.”
Enter Peter Hustinx, who, in his capacity as “European data protection supervisor,” is essentially a professional governmental hand-wringer. The EDPS is supposed to be “the European guardian of personal data protection” in the European Community. The EDPS “is an independent supervisory authority that ensures that the EC institutions and bodies respect their data-protection obligations. These are laid down in the Data Protection Regulation (EC) 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.” According to its own website, the EDPS “also advises EC institutions and bodies on all matters having an impact on the protection of personal data.”
Hustinx, as quoted by Meller, worries that “[i]ntellectual property is important to society and must be protected [but] it should not be placed above individuals’ fundamental rights to privacy and data protection.” In this, he’s correct: To demand that ISPs police all of their subscribers, holding them liable for failure to do so, oversteps the bounds of the relationship ISPs traditionally have held with their customers. It’s also fundamentally in conflict with the spirit, if not the letter, of the perhaps euphemistically named Communications Decency Act. Section 230 of the CDA is generally held to provide online publishers immunity to liability for third-party content, such as in cases of libel. If we turn around and hold Internet Service Providers liable for the copyright infringements committed by their individual customers, we risk widespread disruption (through fear of legal reprisal) of Internet services to our citizenry. At the very least, the American people (and all other people living under the draft provisions of ACTA) would live under a government-mandated microscope that presumes them all to be criminals before the fact.
The core of this issue, however, is not ACTA itself, for governments have been overstepping their powers and robbing their constituent citizens of civil rights through legislative fiat for as long as there have been centralized command-and-control bureaucracies. Central to the problem, much deeper than arguments over how to cope with it, is the debate over protecting intellectual property online.
As we previously discussed in Technocracy, you cannot simply steal property online. The instant access to almost any information and entertainment that the Internet has given us – an accepted fact of life now taken for granted only two decades after such wondrous access to data was considered science fiction – has created a sense of entitlement to other people’s property. The Pirate Bay case exemplifies this attitude, and those who so ardently defend The Pirate Bay are its most egregious offenders. These idiots put Windows skull-and-crossbones logos on their desktop wallpaper, shaking their fists defiantly at “The Man,” never realizing that their puerile attitudes will, if taken to their logical conclusions, destroy productive effort and economic growth.
There are those who argue, in fact, that there really is no such thing as intellectual property at all. As summarized by Daniel Krawisz, the crux of the argument seems to be that owning the commercial rights to a song, a movie, or a book means that you control all expressions of that property anywhere and everywhere, even in people’s homes. This presumably leads to a dystopian society in which children can’t sing “happy birthday” to each other for fear that the song isn’t in the public domain. As a libertarian, this is the type of reductio ad absurdum reasoning I hate. On paper, it seems sound – but in reality, it makes the arguer look like an impractical git.
As explained by Robert Nozick in “Anarchy, State, and Utopia,” philosopher John Locke “views property rights … as originating through someone’s mixing his labor with it.” Why is this so? “Perhaps,” Nozick says, “because one owns one’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns.” Intellectual property is the epitome of a thing “permeated” with the creator’s effort. That effort is traded, value for value.
You can’t eat admiration; you can’t spend applause. If we say there is no intellectual property, we’re saying that the author of a book, the composer of a song and the director of a movie aren’t adding any effort. Their work has no value; their labor has no worth; their skills have no significance. If these things are true, anyone can do what these artists, intellectuals, authors, actors, inventors, composers, engineers and innovators do. That is the definition of something without value, after all: something that anyone can do, or something that nobody wants. Neither case is true in reality where intellectual property is concerned, for if it had no value it would not be worth protecting … and so many people would not be so eager to steal it. If there is no intellectual property, there is no property, period.
Compelling ISPs at governmental gunpoint to police the activities of their customers is impractical, morally wrong and commercially damaging. Failing to protect intellectual property, however, is potentially even more destructive to our economy and to our society. If we are to prosper as a people, we must find a way to protect individual rights – which must always include property rights.