America’s Peculiar Institution

Once upon a time, a major portion of the American economy centered on a peculiar institution, which depended on a certain bizarre “property right.” The peculiar institution was defended by preachers and politicians, by lobbyists, and by an army of editorialists, arguing that this peculiar form of property was property in the same sense as any ordinary form of property. Any violation of this form of property, they proclaimed, was “stealing” in exactly the same sense as taking away a person’s ordinary possessions.

The federal government resorted to censorship to protect this form of property, and an intrusive police state developed in order to carry out the federal government’s legal obligation of enforcing the peculiar property right that this peculiar institution depended on. Government was forced to become more and more authoritarian in defense of this peculiar institution, because it flew in the face of every human instinct for freedom.

On the other side, there was a proliferation of advocacy groups and public figures who condemned the peculiar institution, and called for the abolition of the peculiar form of property it depended on. They argued that this so-called “property” was utterly spurious and abhorrent, and was not in fact genuine property in the same sense as ordinary possessions. Further, there were organized efforts to ignore or defy these spurious property claims, and to evade government’s attempts to enforce them.

That time is now.

Joe Biden, previously Senator from MBNA and now Vice President from the MPAA, just announced: “Look, piracy is outright theft. People are out there blatantly stealing from Americans — stealing their ideas and robbing us of America’s creative energies. There’s no reason why we should treat intellectual property any different than tangible property.”

Well, “intellectual property” is treated differently from tangible property, all right. But that should make Biden happy, because it’s actually enforced more strictly than tangible property. IP has to be protected in ways that tangible property — legitimate property — never was, because it’s unnatural. For example digital copyright depends on legislation criminalizing technology that can circumvent Digital Rights Management, even by the purchaser of a CD who just wants to copy it for “fair use” purposes like playing it on more than one platform.  Digital copyright depends on criminalizing speech, like posting a string of numbers on a blog or wearing it on a T-shirt. That’s what Eric Corley was prosecuted for: Publicizing a code that could crack the movie industry’s DRM.

Such protections are unprecedented when it comes to mere tangible property. Well, actually there’s one precedent.  The U.S. government prohibited distribution by the U.S. Post Office of any literature calling into question the legitimacy of another peculiar institution back in the 1850s, and the U.S. Senate banned any discussion of its legitimacy on its floor.

“Intellectual property” is enforced by special FBI task forces, one of them run out of Disney headquarters, closely coordinating their actions with the Motion Picture Association of America. Internet service providers are enlisted as junior G-men, spying on their customers on behalf of digital content “owners.” See if you can get that kind of zeal and diligence from the cops if mere tangible property like your car is stolen.

Well, actually there is a precedent:  The authoritarian police apparatus that grew up around the task of reclaiming runaway “property” under the rules of that other peculiar institution, back in the 1850s.

Both peculiar institutions, yesterday and today, were on the wrong side of history. Human beings want to be free.  Information wants to be free. All laws to the contrary will fail in the end.

Translations for this article:

Free Markets & Capitalism?
Markets Not Capitalism
Organization Theory
Conscience of an Anarchist