So Girl Scouts can sing again. ASCAP, an association of music copyright owners, has stopped trying to collect royalties on campfire renditions of “This Land Is Your Land.” The girls have a new place to camp, too–a vast stretch of land in Utah that President Clinton recently declared a “National Monument.” Mining’s forbidden now. Too bad for Andalex, which owned the rights to dig for coal.
Woody Guthrie, who wrote “This Land Is Your Land,” was a Communist. It’s your land, but it’s my land too. From California to the New York Island, and probably Utah as well. I’d quote more, but I’d need permission. Guthrie copyrighted the song in 1956. It remains the private property of his heirs until 2031. As I said, Guthrie was a capitalist.
Most of us are equally two-faced about property. My property is mine; yours is for sharing. Put any two toddlers in a room with toys, and you get four political theorists. End-of-Property stories appeal to some grown-ups too. Karl Marx finished one in 1894: A tidal wave of workers was going to sweep aside the obstructive nuisance of private ownership. The 1990s version merely announces the end of all intellectual property–ownership rights in words, music, and so on–obliterated this time by a tsunami of new technology. Copying and transmitting data is becoming too easy for the law to protect anyone’s private ownership. The ribbon of digital highway is for roamin’ and ramblin’. Copyright is dead. Digital content just “wants to be free.” See John Perry Barlow, Esther Dyson, Nicholas Negroponte, Wired….
There’s an obvious technological rejoinder. Digital content can be shuffled as easily as it can be transmitted. Encryption puts viscosity right back into the fluid digital pipeline. Curiously, most of the property abolitionists seem to like this home-brew form of copyright. There’s a strong economic rejoinder too, as Bob Wright pointed out on these screens not long ago. Most people won’t steal digital content if buying actually remains cheaper and easier, as it probably will. But the “free the bits” view of things isn’t just inconsistent or unfinished. It’s an analysis that hasn’t progressed beyond the Pampers stage of political theory.
Twenty years ago, the Supreme Court announced that lawmakers couldn’t ban abortions in the first trimester of pregnancy, but could ban them in the third. A constitutional line is crossed, Justice Blackmun reasoned, when a fetus becomes “viable” outside the womb. By that logic, the constitutional right retreats with every advance in neonatal medicine. When medics learn how to incubate a test-tube baby for the whole nine months, the abortion right ought logically to disappear. Except that it won’t. Logical consistency has nothing to do with it.
I t’s a safe political prediction that the legal rights in intellectual property aren’t going to be abolished, however badly bits may want to be free. Even Hollywood’s softie-lefties go all hard and capitalist when it comes to intellectual property. Jack Valenti, Hollywood’s lead flack in Washington, spent the early ‘80s trying to kill the new video cassette recorder, which he was sure would be used mostly to pirate his clients’ movies. Valenti didn’t succeed, but only because the VCR ended up delivering huge profits to the movie moguls. Far more people use VCRs to rent movies than to steal them.
But people could steal movies if they felt like it. The end-of-property cybersages argue that the law may say what it likes, but the law doesn’t matter any more. Technological might makes right. People with the machines will copy if they please, and lawyers shouldn’t try to stop them. (Unless, of course, those lawyers work for Wired, which is very actively defending its own trademark.)
But this premise is also wrong. The first point to recognize is that copyright is just a commercial form of privacy law. Indeed for some, it’s the only kind of privacy they still own. Madonna can no longer stop you from gazing at her breasts. Copyright at least makes you pay for the pleasure.
So we’ve done breasts and we’ve done abortion; let’s move on to the rest of your private life. Lexis-Nexis recently caused an uproar when it offered to help personal biographical stuff on its way to freedom, through a database (P-Trak) accessible at $82 a pop. The Social Security numbers in the database were removed 11 days after its introduction: technology trumped by popular protest.
Information wanting to be free doesn’t seem so appealing when it includes details about all your own flesh and frailties–credit history, shopping habits, records of where you’ve been, what you asked for, and what you took. Your modem doesn’t know the difference between information called “property” and information called “privacy.” And privacy–cloak of night, stocking mask, and any digital equivalent–is all that separates the thief from the law. The harder it is to maintain privacy, the easier it is to catch thieves. It’s no use responding that the law itself protects privacy better than copyright protects a Spielberg movie. If you’re a technological determinist, there is no privacy law, not in cyberspace.
Which means that the easier it gets to steal from Spielberg, the easier it gets for his lawyers to come after you. True, technology empowers millions of potential copyright violators. But Spielberg doesn’t have to catch them all. Spot enforcement, well-publicized with blue flashing lights, is what maintains speed limits on the highway.
If you’re enough of a pirate to be worth bothering about, Spielberg’s lawyers will get you. And the law will then seize your property, like your Pentium Pro, your ISDN card, and your Jaz drive. That is what has got the cyberlibertarians so agitated. Do you see the irony? They aren’t really property anarchists–quite the opposite, in fact. They reject the new property because it threatens their absolute control of the old. My high-speed modem is mine, so your intellectual property must be mine too. If I really own my modem, then I must have an unqualified right to dial up anywhere, any time, and suck in whatever is out there to be sucked. Copyright law in cyberspace offends because it limits what I can do in physical space. Encryption is OK because its authority is created in my very own machine.
From Marx to Lennon (“Imagine no possessions”), anti-property zealots all miss the most fundamental point. Property is politically neutral. Sure, property is the capitalist’s tool. But the feminist’s, too. And the libertarian’s. The woman who wants an abortion says it’s her uterus, not Pat Robertson’s. The rancher says it’s his land, not the government-protected wolf’s. Your supposed constitutional right to get an abortion, or smoke dope, or ride a Harley without a helmet, all emerged from the Fourth Amendment–written originally to protect “houses, papers, and effects, against unreasonable searches and seizures.” Whether you’re talking about land, abortion, or environmental protection, you inevitably drift into the rhetoric of property.
Property is an endless succession of bubbles in space, or cyberspace, with different people claiming an endless variety of interests in them. Property is a bottle of champagne, or the name of the label, or the whole concept of effervescent wine, or perhaps just wine in your bloodstream while you drive home in your Buick. Control of each little bit of turf, physical or virtual, can always be made a bit more–or a bit less–personal and private. Politicians, prosecutors, judges, and litigators decide, often one case at a time. The deciding never ends, because people, and the things they value, change. Technology will never end the tug of war.
The only prognosis that’s certainly wrong is that all boundary-setting law will just somehow disappear, because the Workers of the World have united, or because information wants to be free.