As we draw near to the anniversary of the death and resurrection of Vridar, a time of commemoration and solemn reflection, I’ve been thinking again about how easy it was for us to get shut down, simply on suspicion of a DMCA violation. We’re hardly unique, of course; these takedowns keep happening, and they’ll continue to occur, because the law holds the poster of the content (i.e., us) and the agency hosting the content (i.e., WordPress.com) equally responsible.
You may have read earlier this year how AIDS-deniers tried to censor Myles Power (a warrior against pseudoscience) by getting Google to take down some YouTube videos that debunk their false claims. As Techdirt put it, “This is censorship in its purist form, and it’s using the law to get away with it.” True, Google did eventually restore the videos, but this disturbing series of incidents shows how malicious people can use the law to their own advantage without any fear of repercussion. Cory Doctorow at boingboing wrote:
The DMCA’s takedown procedures have no real penalty for abuse, so it is the perfect tool for would-be censors. What’s more, the entertainment companies — who are great fans of free speech when defending their right to sell products without censorship, but are quite unwilling the share the First Amendment they love so dearly with the rest of us — are pushing to make censorship even easier, arguing that nothing should be posted on Youtube (or, presumably, any other online forum) unless it has been vetted by a copyright lawyer.
I used to bristle at the idea of lumping copyrights and patents into the larger category of “intellectual property,” but that ship has sailed. And in a larger sense the intellectual property that modern corporations jealously guard, as evidenced by the DMCA, which forces content providers to act first and ask questions later, is in fact real property of the purest kind. Specifically, I’m talking about possessions to which legal entities (i.e. people or corporations) claim exclusive title and which generate wealth.
In the not-to-distant past the only real property was land. If you owned land where you could grow sugar cane, tobacco, cotton or corn, or where you could extract water, coal, silver, or petroleum, then you possessed a source of wealth that made you economically independent. Many Americans in the colonial period and in the early republic equated such economic independence with political independence, which helps explain why several original state constitutions stipulated property ownership as a prerequisite for enfranchisement.
In some cases, the requirements varied, depending on the office in question. For example, according to North Carolina’s constitution of 1776, any free white male over 21 who paid his taxes could vote for members of the lower house. However, in order to vote for a member of the state senate, he needed to be “possessed of a freehold within the same county of fifty acres of land for six months next before, and at the day of election.”
Things were even tougher in Rhode Island. You probably never learned about the Dorr War in high school — perhaps not even in your university studies. But well into the 19th century, the state continued to operate under the rules stipulated in the Royal Charter of 1663, in which only landowners and their first-born sons could vote. As Steven Mintz explains,
The charter lacked a bill of rights and grossly underrepresented growing industrial cities, such as Providence, in the state legislature. As Rhode Island grew increasingly urban and industrial, the state’s landless population increased and fewer residents were eligible to vote. By 1841, just 11,239 out of 26,000 adult males were qualified to vote.
When Thomas Wilson Dorr failed to reform the process through normal channels, he and his supporters organized their own “People’s Convention.” As the situation deteriorated, the governor finally declared martial law and asked the federal government to intervene. I encourage you to read the whole story, and if you’ve never heard of it before ask yourself why that might be. After all, Dorr was eventually tried and convicted of treason. The Supreme Court got involved, too, deciding against the Dorrites in Luther v. Borden. With all those juicy details (including class warfare with a dash of racism) you’d think this story would be more widely known.
The question of property ownership and the right to vote still sometimes rears its ugly head in the idiocracy wing of the Republican Party. A few years ago Tea Party know-nothing Judson Philips said that it was a good thing:
The Founding Fathers originally said, they put certain restrictions on who gets the right to vote. It wasn’t you were just a citizen and you got to vote. Some of the restrictions, you know, you obviously would not think about today. But one of those was you had to be a property owner. And that makes a lot of sense, because if you’re a property owner you actually have a vested stake in the community. If you’re not a property owner, you know, I’m sorry but property owners have a little bit more of a vested interest in the community than non-property owners.
His comments set off a bit of a firestorm on the web, especially on left-wing sites. Even the mainstream media got into the act. CBS’s Money Watch covered the story with this headline — “Tea Party: Don’t Let Renters Vote.” The story ends with this catty remark: “Republicans have always had a fondness for the past. But, do we really want to jump right back to the Middle Ages?”
I have nothing against making fun of fools. However, we’re missing the point if we frame this argument as a war between renters and homeowners. (Need we point out that 1840 was well after the “Middle Ages”?) If you think you’re a property owner because you have a mortgage on a house, I have some bad news for you. First, unless you have the title, you’re not an owner; the bank is. Essentially, you’re renting from the titleholder until you’ve made the last payment. Second, your house is not real property. It doesn’t generate income. You may not even own the mineral rights under your land.
Your house, car, clothes, and other personal effects are possessions. They are not property. Marxists often explain the difference as “personal property” versus “private property.” The fundamental question is one of class; it’s the difference between earning a wage and generating an income. Should the owner class permit the working class to vote?
Our shared ignorance of the definition of property is no accident, nor is our historical amnesia. The owners of the United States and the people they pay to run it understand how the system works, but they have no interest in sharing that knowledge. It’s better that the tenant classes fight among themselves over crumbs.
Consider the issue of opening up immigration to more skilled laborers. The owners would like to relax immigration laws to allow more engineers to enter the U.S. to compete for jobs and thereby lower the prevailing wage. Or consider the issue of allowing jobs to move overseas. In these cases, the politicians at the behest of the owners tell us that American firms need to be able to compete. Labor has to be flexible. Protectionism is bad, they tell us.
When it comes to issues of labor, the system can’t help people. Their hands are tied. But when it comes to protecting property, it’s a different story. Intellectual property must be protected, even it if means throwing out the baby with the bathwater. Have you ever wondered how many DMCA requests Google gets a month? Would you like to guess? Well, they’re now dealing with over 1,000,000 takedown requests per day.
The Electronic Frontier Foundation’s report on the unintended consequences of the DMCA lists the following threats:
- The DMCA Chills Free Expression and Scientific Research.
- The DMCA Jeopardizes Fair Use.
- The DMCA Impedes Competition and Innovation.
- The DMCA Interferes with Computer Intrusion Laws.
As I mentioned at the top, we’re coming up on the first anniversary of the Vridar takedown. If you’d like to commemorate that date with Neil and me, don’t waste your time thinking bad thoughts about Mr. Watts. Instead, look into what you can do to guard all our rights. Start by checking out the EFF to see what you can do to protect freedom of speech, thought, and action.
Don’t give up without a fight.
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