One of the most important debates of our time

The doors are slamming shut; the back alleys are being sealed off; the inspector makes his rounds.

Slowly, the Internet is being converted into a permission-required zone. The connection between tightening copyright laws and eroding civil liberties became clearer than ever over the past year. One example: the United States government now seizes domain names for merely linking to  unauthorized content, regardless of what else the site links to or what other services it offers. Such seizures affect people around the world, of course, since web sites do not know national boundaries. Not only might the owners of a domain be outside the U.S., but many of its users might be as well. Yet the decision about which Internet activities are authorized and which are not is made for everyone, by one nation’s government.

The most worrying thing is not individual events like domain seizures, though. It is the intellectual incoherence of international law when confronted with a worldwide copying machine for digital content. Refusing to distinguish clearly between physical goods and electronic bit patterns, or between identity theft and attributed copying, law enforcement and trade bodies confuse both themselves and the public. This is most obvious in their insistent coupling of counterfeiting with unauthorized copying. The two are completely unrelated, and really shouldn’t even be enforced by the same department. Counterfeiting is simply fraud, a form of identity theft; few defend it. Making copies without permission, on the other hand, involves no deception and is the subject of a lively debate among economists and others as to whether it is more helpful or harmful on balance.

Yet over and over, we see them tied together as though they bear some useful relation to one another. The very name of the latest proposed treaty, the “Anti-Counterfeiting Trade Agreement” (ACTA), suggests that copyright infringement (which is one of its targets) is a form of counterfeiting — as though when people pirate songs they replace the artist’s name with their own. Here is the U.S. Attorney General, Eric Holder, announcing more domain seizures: “The theft of ideas and the sale of counterfeit goods threaten economic opportunities and financial stability, suppress innovation and destroy jobs.” Since none of the sites were seized for patent infringement, one can only assume that he was using “theft of ideas” loosely, and really meant “unauthorized copying”, that is, copyright infringement. (Not that patent infringement would be theft either, of course: the use of the property metaphor for temporary statutory monopolies is another sign of the confusion.)

This simultaneous inflation and conflation of terms is a habit that law enforcement picks up, probably unconsciously, from the industry strategists who drive these treaties.  Confusing attribution and copying is an old tactic in the content-monopoly industries. Knowing that the public has much more sympathy for an artist deprived of credit than for a corporation deprived of rent, the industry tactic is simply to pretend that the two are the same. With ACTA, and with the recent domain seizures, we are simply seeing that tactic officialized in the very structure of law enforcement: if the same department enforces both kinds of laws, and uses the same broad-brush rhetoric to justify it, then opposition to monopolies on sharing culture and information can be portrayed as support for  counterfeiting.

It doesn’t have to make sense; it just has to play well on the evening news.

As insidious as it is, though, I’m optimistic. Much of law can be viewed as an immune response to government overreach, especially in cases where the government too clearly allied itself with interests other than the public’s. As the collision between restrictive content laws and civil liberties becomes plainer, a minority political party can make a difference, even if it has only a few seats — or the threat of seats — to work with. Bound together by one idea, such a party can deliver a much more focused and understandable case to the public than a big-tent political party ever can, and it can also translate that clarity of understanding into targeted policy changes when it has even a few votes to trade.

Unfortunately, the electoral system of my country, the United States, makes it unlikely that we can accomplish much by this means. Sweden and the European Union, however, use proportional representation, and the Swedish Pirate Party right now stands the best chance of remaking the debate about copyright laws into a debate about civil liberties — as it was when copyright was first devised, three hundred years ago — and politicizing the issue sufficiently to affect people’s votes. Every political party wants to be thought of as “the party of ideas”, but few ever are. The Swedish Pirate Party has been an exception. It is a party founded on a very powerful idea: that controlling information flow for commercial purposes is still controlling information flow, and that it will inevitably affect civil liberties. Presenting that idea effectively enough to get votes makes a huge difference in one of the most important debates of our times, and the effects will be felt far beyond Sweden. I take comfort in the fact that international law enforcement is now doing everything it can to help.