Nothing is Really Free

03-02-2012

The copyright conflict between the internet community and the entertainment industry escalated recently when some of the most visited sites on the web flexed their muscle by spearheading a campaign to kill the two bills which started the trouble. The bills have been shelved, thanks to the participation of most of the major social media websites and search engines in a twenty-four-hour blackout (including Wikipedia, Google, Reddit, Tumblr, Mozilla, among many others) – but what does such a “victory” mean?

Just days after most support had been pulled from the bills in both houses, the founder of file-sharing site Megaupload, Kim Dotcom (born Kim Schmitz, but had his name legally changed around 2005), was arrested in New Zealand and is facing extradition to the US due to alleged piracy charges, along with at least three of his closest associates. This may come as a surprise to those who argued that these bills were necessary to stop intellectual property theft. As Bill Keller explains in a recent Op-Ed piece in the Times, “The central purpose of the legislation — rather lost in the rhetorical cross fire and press coverage — was to extend the copyright laws that already protect content creators in the U.S. to offshore havens where the most egregious pirates have set up shop.” And yet, even without the new laws, Dotcom and his cohorts were arrested on US government orders.

It is helpful to go back to basics and try to understand the thinking behind the protection of intellectual property. Why, in other words, is it necessary to arrest someone like Dotcom, who merely makes content available to a wide and interested audience?

One attempt to answer that question is Mark Helprin's Digital Barbarism, an impassioned, literary, and philosophical defense of copyright on the internet. Known best for his novels, most memorably Winter's Tale, Helprin puts forth a philosophical and humanist argument in favor of copyright. At root, copyright is necessary as the “guarantor” or “coefficient” of liberty itself.

That property is at the essence of liberty is an idea that has its roots deep in liberal thinking. Property, from the root proper or propriety, is what is right and most my own. Who I am includes the character I possess, what defines me. This includes as well the way I live and the things I choose to own. Ownership, in other words, concerns what is my own, and who I am.

Our love for and defense for our property is not simply economic. It is a matter of identity and existence. Pace Helprin:

Property is to be defended proudly rather than disavowed with shame. Even if for some it is only a matter of luck or birth, for the vast majority it is the store of sacrifice, time, effort, and even, sometimes, love. It is, despite the privileged inexperience of some who do not understand, an all-too-accurate index of liberty and life. To trifle with it is to trifle with someone's existence, and as anyone who tries will find out, this is not so easy. Nor has it ever been. Nor should it ever be.

The copyright battle is less about economics, in Helprin's telling, than about freedom.  Unlike some proponents of free market ideology, he does not advocate the absence of limits on freedom. In his words (which remind us of Helprin's artistry):

Nothing is entirely free, not even an electron (hardly an electron) or an atom floating in the inaccurately named vacuum of space. Everything that exists is subject to the pull or constraint of something else.

The point is not to reject all limits on property, but to insist upon a balance—one that Helprin thinks today is too far weighted toward disrespect for property.

He makes his argument in the context of taxation. Opposing both extreme positions of liberals (who find it cruel and inexplicable that someone would want to set limits before every mouth is fed and every cry comforted") and conservatives (who "find it deeply alarming that anyone can fail to recognize the danger of pressing ahead in the absence of limits"), Helprin insists that we at least honestly recognize that taxation has a non-material cost: taxation, to some extent, "extinguishes liberty."

In other words, taking someone's property is, in itself, wrong. There may be reason's do to so, and there is no absolute right to one's property. Society demands limits and some takings. But such decisions should be made with an appreciation that these takings are meaningful intrusions on individual liberty. This is Helprin's core point and it is one that I believe is rarely made and even more rarely considered.

To illustrate his claim about the imposition involved in all takings, Helprin calls on the common (and these days volatile) theme of income tax. Taxes, while necessary, are infringements on freedom (not simply on income). If the state compels Cyril “to surrender half his income” in an effort to provide for those who cannot provide for themselves, then Cyril is “laboring for the state during half his working life,” and not for himself. Helprin likens such disenfranchisement to slavery. This seems excessive. As far as I can tell, Helprin employs the analogy because he wants to shock us into seeing just how we have come to naturally accept the fact that it is normal for the majority to take property from the minority. In his account, just as the slave owner “presumes that the labor of his slaves belongs to him…that whatever they make is rightfully his,” so does the state, when it requires its citizens to pay a tax on the income generated by their own labor, operate under the assumption that it is entitled to decide the ultimate use of such labor.

The comparison of taxation to slavery is over the top, sure. But there is a point Helprin makes that is important:

Anyone who blithely recommends expropriation as a means of "economic justice" should first divest himself of most of what he has and give it to those who have less — and there are certain to be those who have less and are greatly afflicted for it. We tend to look up rather than at ourselves when surrendering to such passions of righteousness. The assault on copyright is a species of this, based on the infantile presumption that a feeling of justice and indignation gives one a right to the work, property, and time (those are very often significantly equivalent) of others, and that this, whether harbored at the ready or expressed in action, is noble and fair.

Which is why the question of Kim Dotcom’s arrest is central. According to Helprin’s explanation, Dotcom's websites and others like them blithely engage not just in economic exploitation of writers and artists, but do so without seriously considering the injustice involved in their depriving others of their sense of ownership in what they create. One can disagree. To do so, you must think that our societal right to read your essay or hear your song trumps your right to sell that song (or not) to whomever you wish.

For your weekend read, buy a copy of Helprin's Digital Barbarism, and give it a read. Or, read a chapter that Helprin has, freely, made available on the web.

-RB