Sunday, October 23, 2011

A Law That Can’t Be Enforced Is As Good As No Law At All

It’s no secret the Obama administration has a close relationship with the big media companies when it comes to making “intellectual property” policy.

In 2010 Joe Biden — formerly Senator from MBNA, now Vice President from Disney — hosted a “Piracy Summit” consisting entirely of content industry representatives, where he stated that “stealing” content was no different from a “smash-and-grab at Tiffany’s.”

Shortly thereafter, a special Homeland Security IP task force raided and shut down a series of movie sites accused of copyright infringement — and announced the shutdowns from Disney headquarters! The guy in charge of the raids said IP enforcement would be a top priority of Homeland Security. So Congress granted federal law enforcement powers for supposedly “fighting terrorism,” comparable to those granted Hitler after the Reichstag fire — and they’re now being used to protect Disney from download sites.

You might be forgiven, after all this, for thinking Biden & Co. don’t even bother concealing the extent of their collusion. As Bart Simpson said of a “Where’s Waldo” puzzle with Waldo standing in plain sight, “Man, he ain’t even tryin’ any more.” Still, you would be wrong. The Big Content stooges in the U.S. government get seriously bent out of shape when their token efforts at neutrality are exposed as a charade.

Christopher Soghoian, under a Freedom of Information Act request, obtained emails from IP Czar Victoria Espinel’s office documenting her role in the recent “Six Strikes” agreement between ISPs and the content industries. After a long negotiation process, broadband ISPs — among them AT&T, Comcast and Verizon — negotiated a “six strikes” policy against file downloaders in agreement with RIAA and MPAA (the record and movie industry trade associations). That’s right: The same media conglomerates that rolled over and showed their belly to FBI warrantless wiretaps are now rolling over when Big Content wants to kick people off the Internet without due process of law.

As it turns out, Espinel was working closely — very closely — with Hollywood and the record companies, doing her best to see they got what they wanted out of these negotiations. Espinel and the Big Content lobbyists were quite chummy, emailing constantly back and forth on details of the negotiations. Of course Espinel, embarrassed by the revelations, said she was “just doing her job,” and had brought together a wide range of stakeholders and interest groups.

Well, not quite. Toward the end of the negotiations, even Espinel noticed how bad her almost exclusive hobnobbing with the digital content industries would look. She emailed the chief of the RIAA recommending the Center for Democracy and Technology — a digital rights group — get some advance warning before the “big rollout” so the backroom deal wouldn’t seem like quite such a betrayal.

Far from the “voluntary agreement between private entities” it’s made out to be, this was a clear case of the U.S. government acting on behalf of the RIAA and MPAA to bully “voluntary” concessions out of the ISPs.

This is all just more evidence, as if we needed any, that the traditional goo-goo strategy of respecting and obeying the laws while we try to change them, of “getting a seat at the table” and “participating in the process,” is a fool’s game. As Charles Johnson has argued:

“If you put all your hope for social change in legal reform … then … you will find yourself outmaneuvered at every turn by those who have the deepest pockets and the best media access and the tightest connections. There is no hope for turning this system against them; because, after all, the system was made for them and the system was made by them. Reformist political campaigns inevitably turn out to suck a lot of time and money into the politics — with just about none of the reform coming out on the other end.”

Far greater success can be achieved, at a tiny fraction of the cost, by “bypassing those laws and making them irrelevant to your life.”

Both U.S. strategic bombing campaigns and Al Qaeda sabotage campaigns have demonstrated that, for a very tiny fraction of the total cost of taking out an entire physical infrastructure, one can incapacitate the whole thing by simply targeting a few key nodes. Likewise, for a thousandth the cost of using the political process to secure control of the state apparatus, we can simply incapacitate it by destroying its weak point: Its enforcement capability.

A law that can’t be enforced is as good as no law at all.

-by Kevin Carson at Center for a Stateless Society republished under Creative Commons

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