The limits of freedom

John Perry Barlow is a veteran net activist. And he's worried. What he sees is nothing short of the erosion of civil liberties in the digital world. By Wendy Grossman

Monday 11 November 2002 01:00

" I'm not being hyperbolic about this," says John Perry Barlow, the self-styled "cognitive dissident", net prophet, former Grateful Dead lyricist and retired Wyoming cattle rancher. But he knows he's being hyperbolic and reveals with pride that the Lotus founder Mitch Kapor once told him that he needed a "hyperbolectomy".

He's entirely serious when he says that in three years the world we know could be wholly owned by corporations, with freedom of speech consigned to history. What shocks him most is how few people care or realise what's going on.

"There are two futures," he said at the Institute of Contemporary Art in London last Thursday. "One is entirely institutional, in which there will be one global corporate state, where large corporations direct every aspect of human endeavour and human beings have no choice but to go along with, it because we don't know any better. It's already taking place in the US."

Barlow points to several alarming developments. First is that computer-chip manufacturers are proposing to build security features into their processors that could be used to enforce copyright on video and music files. Second is that the US Congress is considering the "Peer-to-Peer Piracy Prevention Act", which would make it legal for copyright owners to use "technological tools" to stamp out the trading of copyright material over peer-to-peer networks. Third is the steadily increasing term of copyright ownership. All three are eating away at "fair use", the public's principal counterbalance to copyright law, which permits unlimited use of parts of, or private copies of all of, copyrighted works.

You may think it doesn't matter in the UK what laws are passed in the US, but its dominance of hardware and software development means the US can impose its intellectual property laws worldwide. Barlow's scenario is a world in which chunks of the net can be shut down by a content industry that has redefined its own computer crime as a social good. Besides, the UK is considering its implementation of the European Copyright Directive, which will imitate the US's Digital Millennium Copyright Act in making it illegal to bypass copy protection systems.

A lot hinges on Eldred vs Ashcroft, a case just argued before the Supreme Court by the law professor Lawrence Lessig, a specialist in intellectual property law who was appointed special master in the Microsoft anti-trust case. Eric Eldred, frustrated because a number of the public-domain texts on his website were going back into copyright, sued the government to overturn the 1998 "Sonny Bono" copyright extension act. Lessig argued on Eldred's behalf that the law ignored the balance between the interests of the copyright industries and those of the public, contrary to the American Constitution, which suggests (without defining) a limited period of exclusive rights for creators.

"If Lessig loses, we are in for a protracted battle," Barlow says. "We are going to see guerrilla information warfare. People will become much more conscious about their acts of information civil disobedience." Barlow believes that allowing this (11th) copyright extension act in 40 years to stand (with presumably more to come) will lock away large portions of our cultural history. Scientists whose work was published in now out-of-print journals are prevented from republishing on the net to keep their research available. "If you no longer have access to the historical record of a scientific theory, how can you proceed?" On the other hand, "if Lessig wins, I don't expect the content industry to admit defeat".

Barlow's background is a 1960s mix of Establishment and counterculture. He grew up in Wyoming and was taught in a one-room schoolhouse, but his father was a Republican state senator who owned the ranch Barlow eventually ran for 17 years. He graduated from the liberal arts Wesleyan University in Connecticut in 1969 with a degree in comparative religion. He met Bob Weir, the Grateful Dead's future drummer, in prep school, and was a close friend of John F Kennedy Jr. He's also a fellow at Harvard's Berkman Law School.

Barlow reinvented himself as a net pioneer in 1990, when he helped found the Electronic Frontier Foundation to lobby for the extension of civil liberties into cyberspace. He circulated essays codifying basic principles of this new territory and wrote for many major publications.

"Intellectual-property law cannot be patched, retrofitted or expanded to contain the gases of digitised expression, any more than real-estate law might be revised to cover the allocation of broadcasting spectrum," he wrote in 1993's "The Economy of Mind". Yet this is what's being attempted. It's not just that the content industry wants to recreate the physical and geographical control of the analogue era in the digital era. It's that they want to impose finer-grained control of rights than they've ever had before.

Suppose the legal initiatives are defeated, and fair use and practicality mean file-sharing is legal. How then willcreators of intellectual property make a living?

"I think we make a living from the services of our minds, not intellectual property, like a doctor or lawyer or architect," he says. "Nobody buys The Independent because it owns what it puts out every day. People buy it because it's today's paper. What you're selling is convenience." Barlow was on contract to produce songs for the Grateful Dead, though he also got (and gets) royalties. He is also paid to write articles, make speeches, and be a consultant.

Ultimately, Barlow proposes that the current business model be retained for physical objects, like books, CDs, and videotapes, but that cyberspace be regarded differently. Most important, he believes fair use and the public domain must be protected. His analogy is the Enclosure Acts in 16th-century England and Ireland, when large portions of public grazing lands were privatised. But the analogy isn't too close. "I don't think you can own thought," he concludes.

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