The Regulation of Liberty:
free speech, free trade and free gifts on the Net
Richard Barbrook UK
What makes the constitution of a state really strong and durable is such a close observance of [social] conventions that natural relations and laws come to be in harmony on all points, so that the law... seems only to ensure, accompany and correct what is natural.’
- Jean-Jacques Rousseau. (1)
(1) Jean-Jacques Rousseau,
The Social Contract, page 98.


The State in Cyberspace

The rapid expansion of e-commerce depends upon effective legal regulation of the Net. As in the rest of the economy, courts and police are needed to enforce the ‘rules of the game’ within on-line marketplaces. Theft remains theft even when committed with the latest technology. Since the Net encourages its own forms of anti-social behaviour, governments also have to update their legislation to counter the new threats from ‘cyber-terrorism’. Trespass laws must now protect computer systems as well as physical buildings. Not surprisingly, media corporations expect that the courts and the police will carry on protecting their intellectual property. Anyone who distributes unauthorised copies of copyright material over the Net must be punished. Anyone who invents software potentially useful for on-line piracy should be criminalised. Like other companies, media corporations need a secure legal framework for conducting e-commerce with their customers. As in the old Wild West, business will only prosper once law and order is established on the new electronic frontier. (2)

This new common sense has displaced the fashionable anti-statism of a few years ago. According to the Californian ideology, national governments are incapable of controlling the global system of computer-mediated communications. Instead, individuals and businesses will compete to provide goods and services within unregulated on-line marketplaces. The advance to the hi-tech future is simultaneously the return to the liberal past. (3) Above all, this nostalgic ‘New Paradigm’ supposedly not only delivers greater economic efficiency, but also extends individual freedom. For instance, state regulation of broadcasting will become obsolete once everyone can buy and sell programming over the Net. Just like after the American revolution, public institutions will only be needed to provide minimal ‘rules of the game’ for people to trade information with each other. (4) In their constitution, the Founding Fathers formally prohibited government censorship of the press: the First Amendment. This ‘negative’ concept of media freedom emphasised the absence of legal sanctions against publishing dissident opinions. Like their fellow entrepreneurs, writers and publishers should be able to produce what their customers want to buy.
Free speech is free trade. (5)

For decades, experts and entrepreneurs have predicted that the emerging information society would realise the most libertarian interpretations of the First Amendment. They have never doubted the eventual triumph of their hi-tech vision: one virtual marketplace for trading information commodities. Instead of buying physical objects, people would purchase on-line versions of books, newspapers, films, television, radio, music, software and games - and also sell their own creations. Above all, this pay-per-use form of computer-mediated communications would have copyright protection hardwired into its social and technical architecture. The First Amendment is trading intellectual property within cyberspace.

‘Anyone with a computer and some organised information located on it can offer the information for sale. The customers are as close to the data base as their telephone. Publishing of information is thus likely to become a more competitive industry...’ (6)

Intellectual property has long been seen as a commodity just like all other commodities. Yet, at the same time, the sellers of information have always wanted to avoid fully alienating their products to their customers. Even on primitive presses, the costs of reproducing existing publications were very much lower than making the first copy of a new work. As well as justified by liberal philosophy, copyright laws were also a pragmatic solution to the problem of plagiarism. The state enforced the monopoly of particular individuals over reproducing specific items of information to reward their creativity. (7) Unlike political censorship, liberals believed that this economic censorship was essential for media freedom. For instance, the Founding Fathers included copyright protection alongside the First Amendment within the American constitution. If free speech was synonymous with free trade, the state had to defend intellectual property.(8)

In early copyright legislation, the ownership of information was always conditional. Just as media commodities were never fully alienated, no one could claim absolute ownership over intellectual property. Instead, copyrights could be lawfully expropriated for a ‘fair use’ in the public interest, such as political debate, education, research or artistic expression. (9) However, during the last few decades, these restrictions on copyright ownership have been slowly disappearing. According to hi-tech neo-liberals, all information must be transmuted into pure commodities traded within unregulated global markets. In their Californian ideology, media freedom is the ‘negative’ freedom from state interference. Yet, in practice, the marketisation of information requires more legal regulation of the Net. For instance, national laws and international treaties have already been adopted to cover the on-line trading of media commodities. Even if nation states give up trying to censor the content of the Net, their courts and police will be needed more than ever to defend the ownership of copyrights. (10) As John Locke emphasised long ago: ‘The great and chief end of... Mens... putting themselves under Government... is the preservation of their Property.’ (11)


---> to "The Regulation Of Liberty" part2: "The Digital Panoptican"

(2) For an analysis of increasing
legal regulation of the Net,
see Lawrence Lessig, Code.

(3) See Richard Barbrook and Andy
Cameron,‘The Californian Ideology’.
(4) See Mitch Kapor,'Where is
the Digital Highway Really Heading?'.
(5) For an analysis of the origins of
the First Amendment in English
liberalism, see Leonard Levy,
Emergence of a Free Press. An
English liberal mandarin later defined
‘negative’ freedom as: ‘...the area
within which the subject - a person
or group of persons - is or should be
left to do or be what he [or she] is
able to do or be, without interference
by other persons...’ Isaiah Berlin,
‘Two Concepts of Liberty’, pages 121-2.
(6) Ithiel de Sola Pool, Technologies
of Freedom, page 211.
(7) See Christopher May, A Glo-
bal Political Economy of Intellectual
Property Rights, pages 16-44.
(8) See Richard Barbrook, Media
Freedom, pages 7-18; and Leonard
Levy, Emergence of a Free Press,
pages 220-281.
(9) See Christopher May, A Global
Political Economy of Intellectual
Property Rights, pages 45-66.
(10) Despite denouncing state
regulation as obsolete, Newt
Gingrich’s neo-liberal think-tank
still saw that: ‘Defining property
rights in cyberspace is perhaps
the single most urgent and im-
portant task for government
information policy.’ The Pro-
gress and Freedom Foundation,
Cyberspace and the American
Dream, page 11.

(11) John Locke, Two Treatises
of Government, Mentor, New York
1965, p. 395. For a socialist remix
of this liberal analysis, see Eugeny
Pashukanis, Law and Marxism.