Iceland: A Thaw in the DRM Curtain

Tom Friedman, in an admirable moment of frankness, once said “For globalism to work, American can’t be afraid to act like the almighty superpower that it is.  The hidden hand of the market will never work without a hidden fist. … And the hidden fist that keeps the world safe for Silicon Valley’s technologies to flourish is called the U.S. Army, Air Force, Navy and Marine Corps.”

As imposing as this global corporate order may seem, we would do well to remember how vulnerable it really is.  It’s only as strong as its weakest link.

Its vulnerability is most recently demonstrated by Iceland’s apparent secession, during one of those brief fluid periods when governments actually succumb to popular pressure, from the global corporate order. A public referendum rejected a Hamiltonian bank bailout on the American TARP model.

Meanwhile, one of the world’s most powerful information freedom movements has prompted Iceland’s Althing (parliament) to establish Iceland as an information freedom haven. The Icelandic Modern Media Initiative (IMMI), introduced over a year ago with widespread support in the Althing, passed unanimously last June. The idea, to quote Althing member Birgitta Jonsdottir, is to make Iceland a “haven for freedom of information, freedom of expression and of speech.” In particular, that means a safe place for people to put Internet servers and host online material that their governments might want to shut down.

Among the leading activists and organizers behind the initiative, in close cooperation with Birgitta, is my online acquaintance Smari McCarthy of the P2P Foundation. He specifically mentions the goal of providing webhosting services for whistleblowers and leakers of state secrets. And it will be a refuge for evading insane libel laws like Britain’s, next time some corporation like Trafigura gets a “super-injunction” against reporting an embarrassing question from an MP in the House of Commons.

There’s been some speculation as to whether the information freedom agenda will include repudiating the Washington Consensus’s proprietary content industry-driven, maximalist understanding of “intellectual property” rights. Might Iceland become a haven for successors to The Pirate Bay, as well as Wikileaks?

Taking on IP policy doesn’t seem to be on their immediate public agenda. Apparently the folks behind IMMI have decided confronting IP head-on immediately will undermine the rest of their effort.

But I’m familiar with McCarthy’s writing and the groups he frequents, and he takes a decidedly negative view of copyright on principle. The movement behind IMMI includes digital rights as well as information freedom activists.  And McCarthy knows a number of members of the Althing who favor at least a scaling back of the American maximalist version of digital copyright law.

The new constitution’s draft articles include some language on information freedom that offers great hope for addressing digital rights in the future. In English, draft Article 26 (current numbering may change) reads:  “Everyone can create, seek, receive, store and disseminate information.”

Remember, it’s not necessary to repudiate copyright in principle in order to make digital copyright unenforceable.  As Cory Doctorow points out, the desktop computer’s a machine for copying bits, and any business model that depends on stopping people from copying bits is doomed to failure. Enforcing digital copyright is simply impossible within traditional principles of copyright law. It requires a totalitarian lockdown of the communications media, enforced by a global superpower and its hangers-on, unprecedented since the fall of the old Soviet Empire.

Simply restoring traditional fair use and first sale doctrines, treating ISPs as safe harbors, and putting the burden of proof on plaintiffs, would kill digital copyright deader than Judas Iscariot. That — essentially an application of print copyright law ca. 1980 to digital content — was more or less the import of Spain’s old copyright law, for which the U.S. and other countries of the DRM Curtain threatened to turn her into a pariah state.

Even the new Icelandic legal provisions protecting intermediares like ISPs from liability will go a long way toward undermining enforcement. And it’s doubtful whether the courts will be any more compliant with attempts to shut down ISPs in the face of legal threats without due process in cases of alleged “piracy,” than in cases of libel and revealing state secrets. Simply eliminating the content industries’ ability to enlist ISPs as accomplices will be a huge blow.

It’s a safe bet that, even without further legislation, Iceland will be a pretty unfriendly venue for the Copyright Nazis.

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