July 30, 2002
Vigilante internet

No this is not an article about a failed 2M Invest company... Actual legislation is being proposed in the US Congress to allow any copyright holder to hack the hackersas reported on K5. In short, the proposed bill provides immunity for a number of possible liabilities caused by interfering with another party's computer, if the intent was explicitly - and upfront - to foil illegal use of copyrighted material.

This is the old "If guns are outlawed only outlaws will have guns" idea. Let the good guys give the bad guys a taste of their own medicine. Only, in the virtual world, where boundaries of location (especially in a P2P world) are abstract and hard to define, it seems to me that this bill is an extension of the right to self defence and the right to protect the sanctity of the home, to actually allowing aggresive vigilante incursions on other peoples property, when the other people are accused of copyright infringement.

It goes right to the core of current intellectual property debates, and raises in a very clear way the civil right issues involved in the constant and rapidly increasing attempts at limiting right-of-use for lawfully purchased intellectual property. Whose property IS intellectual property anyway?

UPDATED 20020731

In the olden days - when intellectual property was securely tied to some kind of totem, a physical stand-in for the intellectual property, in the form of the carrier of the information, i.e. a book or an LP or similar, there was a simple way to settle the issue. Possesion of the totem constituted an interminable right of use of the intellectual property. The only intellectual property available on a per-use basis was the movies. Live performance does not count in this regard, since live performance is tied to the presence of the performer, and the consumption of live performance is not therefore a transfer of an intellectual property to the consumer, in that it is neither copyable or transferable or repeatable.
It is of course the gestural similarity with live performance that has led to the rental model for film.

As the importance of the totem began to degrade, so began the attacks on the physical interpretation of intellectual property. We have seen these attacks and reinterpretations of purchase through the introduction of casette tapes, video tape, paper copiers, copyable CD rom media, and now just the pure digital file.

At each of these turning points attempts are made to limit the right-of-use to film-like terms. Use of intellectual property is really just witnessing of a performance. So you pay per impression, and not per posession.
What is interesting of late, and in relation to the lawsuit, is both the question of whether this 'artistic' pricing model is slowly being extended from the entertainment culture to all cultural interaction. Modern software licenses are moving towards a service-model with annual subscription fees. This could be seen as a step towards pure per-use fees for all consumable culture - an idea that is at least metaphorically consistent with the notion of the information grid. Information service (including the ability to interact) is an infrastructure service of modern society, provided by information utilities, and priced in the same way as electrical power.
In practice you do not own the utility endpoints in your home - the gasmeter and the electrical power connection to the grid. And ownership of any powercarrying of powerconsuming device does not constitute ownership of the power/energy carried or consumed. In the same way the content companies would have us think of hardware. And Microsoft would like you to think of Windows as content in this respect.

Secondly, there is the important question of how this interpretation of information and culture relates copyright to civil right.
The sanctity of physical space (i.e. the right of property) is a very clear and therefore very practical measure of freedom. Actions within the physical space are automatically protected through the protection of the physical space. There are very real and important differences between what is legal in the commons and what is legel in private space. And of course the most important additional freedom is the basic premise of total behavioural and mental freedom.

The content company view of intellectual property is a challenge to this basic notion of freedom. There is a fundamental distinction between the clear cut sanctity of a certain physical space, and the blurry concept of "use".
The act of use itself can be difficult to define, as property debates over "deep-linking" make clear.
In more practical terms, any use of digital data involves numerous acts of copying of the data. Which ones are the ones that are purchased, and which ones were merely technical circumstances of use. The legislation proposed enters this debate at the extreme content-provider biased end of the scale. Ownership of anything other than the intellectual rights to content are of lesser importance than the intellectual ownership.

The difficulty of these questions compromise the notion of single use and use-based pricing. And ultimately - as evidenced by the deep-link discussions - the later behaviour of the property user is also impacted by purchase of intellectual property according to the content sellers. This is a fundamental and important difference between the electrical grid and live performance on one hand, and intellectual property on the other. Intellectual property simply is not perishable, and, as if by magic, it appears when you talk about it.

Interestingly a person with a semiotics backgorund would probably be able to make the concept of "use" seem even more dubious, since the act of comprehension of any text or other intellectual content, is in fact a long running, never ending and many faceted process. In the simplest form, you would skirt an issue such as this, and go with something simple like "hours of direct personal exposure to content via some digital device". That works for simple kinds of use, but not for complicated use. And is should be clear from endless "fair use" discussions that content owners are very aware of the presence of ideas made available in their content in later acts of expression.

A wild farfetched guess would be that as we digitize our personal space more and more, expression will be carried to a greater and greater extent over digital devices, so that the act of thought is actually external, published and visible (witness the weblog phenomenon). In such a world, the notion that reference is use becomes quite oppresive.

Ultimately the concept of free thought and free expression is challenged by these notions of property. It is basically impossible to have free thought and free expression without free reference or at least some freedom of use of intellectual materials.

Posted by Claus at July 30, 2002 12:46 AM
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