There was, in last Friday’s Independent, a most remarkable piece of writing on the subject of the Internet and the role of the state. Written by Andy Burnham, the Minister for Culture, Media and Sport, and weighing in at 800 words or so, it does something I might otherwise have considered impossible in such a brief statement. It encapsulates just about everything that is wrong about the government’s thinking, if ‘thinking’ is not too strong a term, about the Internet and the culture of cyberspace.

Burnham’s central thesis is simply this: that cyberspace is an anarchic, value-free, quasi-Hobbesian homagé to the frontier values of the American Old West. A place in need of a new breed of lawmen and state-sponsored private sector bounty hunters. Sam Peckinpah’s Tombstone.com:

…the internet is a lawless zone, where it is the vulnerable, the poor and the weak who are most at risk from the absence of any guiding rules. Democratic consent on guiding principals upholds the common good, and prevents one group in society pursuing their own interests at the expense of others.

This is a caricature, of course.

One buttressed in the article by the blatant and, one strongly suspects deliberate, misrepresentation of EFF founder John Perry Barlow’s ‘A Declaration of the Independence of Cyberspace’ which, as you might expect, Burnham quotes in the highly selective and unrepresentative manner without providing the hyperlink necessary to enable those reading his article to judge its content for themselves from its full text. Let me correct that omission for you now, the full text of Barlow’s seminal declaration can be read here and on reading it you will notice immediately that while it is certainly libertarian to a fault it is also, unmistakably, a progressive and optimistic statement of values and aspirations.

Of course, the context that underpins Burnham’s comments is that of a government in service, or perhaps more accurately in thrall, to the vested economic interests of an exploitative cartel of self-styled ‘copyright owners’, one that is now seeking to turn internet service providers into the unofficial, and unaccountable, policemen and bounty hunters of cyberspace.

Burnham’s concern here is not for the weak, the poor and the vulnerable, or for musicians, artists, writers and other creative individuals without whom there would no creative industries.  Rather his primary concern is for the rich and, formerly, powerful – for Sony BMG, EMI, Warner and Universal Music Group.

These companies, and their antecedents in the music industry, constructed a business model founded on the principle of hydraulic despotism in which profits were derived from the exploitation of artists and consumers alike on the back of the major labels’ near absolute control of the means by which music was distributed to and in the marketplace. It is this, and only this, that has changed with the advent of the internet, the iPod/MP3/4 player and digital media formats.

‘Illegal’ music downloads are not ‘the problem’, they are merely a symptom of a broader and much more far-reaching issue that governments, in pandering to existing vested interests, have, as yet, been both unwilling and unable to address.

In a 2004 interview in Reason magazine, Barlow expands on his personal ‘vision’ of the nature of intellectual property in the digital age:

The way most people get paid for work done with their minds is on that basis. Lawyers, doctors, and architects don’t work for royalties, and they’re doing fine. Royalties are not how most writers or musicians make their living. Musicians by and large make a living with a relationship with an audience that is economically harnessed through performance and ticket sales.

Trying to own intellectual products and creating an economy of scarcity around them as we do with physical objects is very harmful to the development of culture and the ability to speak freely, and a very important principle not talked about much, which is the right to know. I think we have a right to know. It shouldn’t be something we have to purchase.

That’s me. EFF takes a somewhat more moderate view, but they are very concerned about fair use, and they don’t believe present copyright laws, especially as defined by the 1998 Digital Millennium Copyright Act, are in the service of fair use at all. It was a very dumb piece of legislation, and if we could get rid of it, the world would be a better place.

Although I doubt that we’ll every leave behind the royalty system in its entirety, as it remains the best and most efficient method of securing payments for artists when their work is used by a third party in a commercial venture – in a television programme, film or in advertising – in stripping the major music corporations of their once near despotic control over the means of distribution, the Internet has paved the way for new business models and new, fair and mutually beneficial economic relationships between artists and consumers. What these new economic relationships need is the revision of our existing, but hopelessly outdated, intellectual property laws in ways that facilitate and enhance innovation and fair use/dealing in the new digital economy rather than, as has been too often the case, in ways that serve only to prop up the dying and wholly inequitable business model favoured by corporate interests.

Burnham’s article for the Independent demonstrates, in the clearest possible terms, why he and others in the ‘earthbound’ political classes are regarded as having no sovereignty, no jurisdiction and no credibility out here in cyberspace. In choosing to publish his views in a national newspaper and on its website, which offers only a limited and heavily regulated opportunity to engage in meaningful debate, he fails the most basic test of democratic values by failing, entirely, to engage with and seek the consent of those he would presume to govern.

His attempt to foist responsibility for the policing of the Internet on to ISPs is, though I doubt he realises it, already doomed to failure – the chatter in the ‘underground’ is already of development the next generation of peer-to-peer file-sharing systems, which will incorporate encrypted data transmission and the use of anonymous proxies to prevent the film and music industries snoops identifying file-sharers or the material they’re sharing. To date, every attempt, whether legislative or technical, to curb the free exchange of information and data, has foundered on the creative ability of ‘netizens’ whose command of the medium, and the technology that drives the medium, has always kept them one step ahead of the prohibitionist’s game.

However, the real failure here is not one of technology but of policy. What Burnham, in common with other politicians and legislators, has failed to understand is he and the corporate interests he actually represents are still trying to fight battles in a war they lost a long time ago… because what most animates the internet’s laissez-faire attitude to music, film and software piracy is not greed, or profit, or convenience but justice, fairness and morality.

No one out here really cares about what file-sharing does or does not mean for the bottom line on Sony’s balance sheet. The self-styled corporate ‘copyright owners’ can go hang for all that anyone is actually concerned about their profits or their future prospects. Having grown fat on the proceeds of exploitation it is the Sonys and EMIs, and those who act as their lapdogs in government, who have fatally undermined their right to lead this debate and not the pioneer internet generation for whom the fires of liberty and justice, of free expression and the free exchange of ideas and, most importantly in the context of this debate, of fairness, burn as brightly as ever – and that culture is one we will pass down to the next generation, and the next, and the next, no matter how much time and effort politicians, like Burnham, put into seeking to suborn the young to the corporate cause with their lies, spin and scaremongering.

Should we pay for music? Yes, of course we should – we should pay a fair price under fair terms of use and, most importantly of all, we should be paying those whose creativity enriches our lives and our culture and not a bunch of faceless executive suits. Understand that, Andy, and you’ll have taken your very first step on the road toward a new approach to intellectual property that offers artists a fair reward for their creative endeavours and towards earning the right to participate as an equal in this debate.

1. Robert Sharp » Blog Archive » Regulating the Wild West

   [...] Unity took Burnham to task at greater length, for misrepresenting John Perry Barlow’s ‘A Declaration of the [...]