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Chapter 7. Our Rights

It may be time to update the Terms of Service contracts - the social contracts - under which we operate. Information is born free, yet everywhere it finds itself in chains.

Published onFeb 23, 2021
Chapter 7. Our Rights

To the thinkers and writers and actors active in the first Enlightenment, the Monsterverse presented as kings and clerics and nobles: people who defined the expansive powers they claimed as mandated by God, royal blood, or class strata, not as rights natural to us as everyday people—not inalienable, not, as the philosophes came to say, imprescriptible. Visions of a new world defined by liberty, equality, and justice that all enjoyed were freshly forming in this era. And it was the Enlightenment’s publishing project, a single and vast encyclopedia, that facilitated the new insights that were required, the key “epistemological shift that transformed the topography of everything known to man.”1

Today it is also publishing—online and writ large—that is transforming our understanding of ourselves and our ways of approaching knowledge and society. The struggle over the control of information is once again becoming—has it ever not been?—the most important battle of our time. Our universe in all its fullness looks different now, of course. We are centuries into an appreciation (and the critique) of social contracts and constitutions and declarations and charters that define—and define as law—things like freedom. But the ease with which we can post or tweet something that might reach millions of readers and users quickly and seemingly freely should not suggest that the world, even the Western world, is much freer, more equal, or more just than it was in 1535, 1789, 1917—or ever.

The disseminators of knowledge who came before us glow like icons next to the temple flame. These were our real forebears, and we need to connect to their work for inspiration. We need their inspiration because we have work to do as publishers, translators, and disseminators ourselves. Our Monsterverse today is only partially visible—in part because this freedom we do have (to post, to tweet, to search and to find, to record, to receive, and to send) does seem so far-reaching, so free of the kinds of controls that existed over publishing earlier, as we’ve discussed in chapters 1, 2, and 3. It is only very recently that other epic figures in the struggle—Edward Snowden, for example; Chelsea Manning; Julian Assange—have let us see, as Tyndale wanted the king to see, the parlous nature of this system of ours in something like its totality, and the fragility of that thing we consider to be ostensibly now a natural right, that thing called freedom.2

We have managed—through networks and media and communication—to create not just a worldwide web linking many people and movements in a good way but also a system for almost absolute surveillance: surveillance by corporate interests, government interests, and sometimes both in tandem. When Snowden first started to poke around and see the comprehensive nature of that surveillance, in America, no less, he was astonished at its reach, at the complicity of so many corporate-cum-government actors, and at the absence of any functioning safeguards in place—notwithstanding the multiple branches of our government, our Constitution, our case law, and our common sense. He was looking at the actual dashboard:

[The U.S. government’s mass surveillance system, mainly XKEYSCORE] was, simply put, the closest thing to science fiction I’ve ever seen in science fact: an interface that allows you to type in pretty much anyone’s address, telephone number, or IP address, and then basically go through the recent history of their online activity. In some cases you could even play back recordings of their online sessions, so that the screen you’d be looking at was their screen, whatever was on their desktop. You could read their emails, their browser history, their search history, their social media postings, everything. You could set up notifications that would pop up when some person or some device you were interested in became active on the Internet for the day. . . .

The two decades since 9/11 have been a litany of American destruction by way of self-destruction, with the promulgation of secret policies, secret laws, secret courts, and secret wars, whose traumatizing impact—whose very existence—the US government has repeatedly classified, denied, disclaimed, and distorted. . . . The attempts by elected officials to delegitimize journalism have been aided and abetted by a full-on assault on the principle of truth. . . . What is real is being purposefully conflated with what is fake, through technologies that are capable of scaling that conflation into unprecedented confusion, such that we may have reached the final but grotesque fulfillment of the original American promise that all citizens would be equal before the law: the equality of oppression through total automated law enforcement.3

Snowden is a canary in a coal mine toxic with gas by the time he began to sing. But we cannot allow the sense of grotesque dystopia he describes to become something that paralyzes us forever, like a kind of polio. We have to work once again, work now with the best of the passions of those we can identify in our heroes and with the most sophisticated and effective forms of collective action now that we know. For us to achieve the promise of our moment now, of our new Enlightenment, we have to take a number of measures, and in my book, at least, we have to set out in particular on this five-point plan:

  1. Define our Enlightenment-era rights;

  2. Build our new knowledge Commons;

  3. Construct our new network of facts and evidence—our Republic of Images;

  4. Empower the archives at the heart of all this knowledge; and

  5. Define our new moment—and process—for knowledge institutions to act together.

Perhaps it is no accident that many of the humanist achievements that propelled the Enlightenment forward occurred contemporaneously with many of the scientific ones in the 1700s. Perhaps it is even less of an accident that two of them, together, brought rational thinking a step forward within years of each other, in the 1710s and 1720s.

The cornerstone of Enlightenment scientific thinking was laid by Isaac Newton, who published his Mathematical Principles of Natural Philosophy—in Latin, Philosophiæ Naturalis Principia Mathematica—in 1687, then revised it in 1713 and again in 1726. And around the same time, as it happened, the first copyright act—the Copyright Act of 1710, also known as the Statute of Anne—was published, and both in the United Kingdom. This first copyright act defined something that should give us, even in these darkest of times, some serious cause for optimism—and the metaphor to use for it comes, in fact, from Newton.

In publishing contracts, as in music contracts, film contracts, or contracts for other types of human creative endeavor, the rights that you as a creator grant or license to a private interest are traditionally designed to be limited in time. Representative language might be something along the lines of:

The Author hereby grants to the Publisher, its successors and assigns, during the full term of copyright and renewals and extensions thereof: [a] Exclusive license to print, publish and sell the Work in book form in the English language. . . .

These rights are granted or assigned for a set period; ultimately, they are meant to expire. They may also, at some point, revert, as contract language stipulates, back to you as to the author/designer/creator of the work, if the licensee fails to exploit them.

In the event that the Publisher shall fail to keep the work in print and for sale for a period of twelve [12] months and if thereafter, after written notification from the Author, the Publisher shall fail again to place the Work in print and for sale within a period of [12] months from the date of receipt of such notification, all rights granted to the Publisher hereunder shall thereupon revert to the Author. . . .

More on this follows.

And what of user data and user behavior and user content in modern Internet relationships, as the corporations governing those relationships have succeeded in defining them to date? They are called “terms of use” for a reason. The answer is—utter bamboozlement. Shysterism.

Danger.

Spotify, for example, requires that

You grant Spotify a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other Content or materials, in any manner and by any means, method or technology, whether now known or hereafter created.4

Pandora says that:

When you use the Services, we keep track of your listening activity, including the number and titles of songs to which you have listened, the songs, albums, or artists that you like (thumb up) or dislike (thumb down), the stations you create or listen to, the songs you skip, and how frequently and for how long you listen to the stations in your station list. We may also keep track of your interactions with the Services, which may include the features you use, the advertising in which you see or show interest, and the content you view. We do this for a variety of reasons, such as to gain an understanding of the types of music, content, or features you and/or other similar listeners tend to like or dislike, for compensating artists and other rightsholders for use of their content, to provide you with relevant and interesting advertising, and to improve the Services generally, which includes enhancing our music selection algorithms in an effort to provide you and other listeners with the music most suited to your tastes. As this data is essential to the function of the Services, you may not opt out of our collection and use of such data or information. By accessing or otherwise using any portion of the Services, you hereby consent to the foregoing collection and use of your listening activity and behavior for the purposes set forth above and also as outlined in our privacy policy.5

Various companies will suggest that their hold on user data and information is fleeting and under user control, but far more often the opposite is true: the work of these companies, and their commercial partners—Facebook, for example6—is geared toward making your data their data, and facilitating what some have called “the end of forgetting.”7 These rights go to the heart of the new social order and how it is a continuation of the old social order, and why a new social contract is worth calling for.

Could it be that the Declaration of the Rights of Man, which was born of the Enlightenment, might find a cognate in a new declaration, a Declaration of the Use Rights of Man, a declaration born of and in this new Enlightenment?

The 1789 Declaration—there is something so beautiful about it:

The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. . . . The National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:

Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.8

—which is an echo of Jean-Jacques Rousseau’s opening to his 1762 masterpiece, The Social Contract:

Man is born free; and everywhere he is in chains.9

Information, it has been famously said, “wants to be free.”10 Perhaps it is more correct to say that information is born free, too, and yet everywhere it, too, is in chains. Considered in this light, William Tyndale and Aaron Swartz were not heretics, obviously, or thieves. They were simply active in the process of accelerating events—accelerating the arrival of freedoms the importance of which will be as plain to see for us in the future as the value of the Thirteenth or Nineteenth Amendments appears to us today.

There is, then, a physics of intellectual property. We refer to video, very much a focus of this book, as a time-based medium for a reason. Information is frequently represented in physical terms, as ideas and expressions progressing through time. That’s also why we cite and annotate video with time code, music with notes and instructions that move in time order, and text with pages that are read in time order, first to last.11 The prescient author, musician, and copyright activist John Perry Barlow described information as moving, as in motion:

Information is an activity. Information is a life form. . . . Information has to move. . . . The way in which information spreads is also very different from the distribution of physical goods. It moves more like something from nature than from a factory. It can concatenate like falling dominoes or grow in the usual fractal lattice, like frost spreading on a window, but it cannot be shipped around like widgets, except to the extent it can be contained in them. . . .  

Even when it has been encapsulated in some static form like a book or a hard disk, information is still something that happens to you as you mentally decompress it from its storage code. But whether it’s running at gigabits per second or words per minute, the actual is a process that must be performed by and upon a mind, a process that must take place in time.12

Unlike the physical—“static,” in Barlow’s term—containers in which human ideas and information find themselves, the ideas and information in those containers are moving, and moving, I would posit, or riff, from a privately owned or privately licensed state, which is their temporary condition, into their proper and permanent position, where they become part of the knowledge Commons (the public’s domain): that, is from the right side of the rights spectrum, where use and other freedoms are limited, toward the left—and ultimately all the way to the left.13

The movement of all information, in a social or societal or global context, in other words, is inherently and naturally toward the Commons, the shared public resource that is and always must be perpetually available to all. Ever since the earliest days of patent and copyright law, the law has “imposed a durational limit on patent and copyright protection.” Scholars of the law tell us that “the Framers of the U.S. Constitution recognized the importance of the public domain. By providing that patents and copyrights could only be granted ‘for limited Times,’ they ensured that all patented inventions and copyrighted works of authorship would enter the public domain at the end of that limited period,” just as they had in England.14 And a full appreciation of this phenomenon is written into the law—from the very first copyright law, across the pond, to the laws that currently govern our media, technology, and freedom of expression. Thus does law describe this almost physical phenomenon of virtually all works of the mind falling—“falling”—into the public domain.

Were this to be a visible fall, as in fruit from a tree in a garden, the visuals might remind us of another Enlightenment moment. Isaac Newton described it:

After dinner, the weather being warm, we went into the garden & drank tea under the shade of some apple tree; only he & myself.

Amid other discourse, he told me, he was just in the same situation, as when formerly the notion of gravitation came into his mind. Why sh[oul]d that apple always descend perpendicularly to the ground, thought he to himself; occasion’d by the fall of an apple, as he sat in contemplative mood.

Why sh[oul]d it not go sideways, or upwards? But constantly to the Earth’s centre? Assuredly the reason is, that the Earth draws it. There must be a drawing power in matter. And the sum of the drawing power in the matter of the Earth must be in the Earth’s centre, not in any side of the Earth.

Therefore does this apple fall perpendicularly or towards the centre? If matter thus draws matter; it must be proportion of its quantity. Therefore the apple draws the Earth, as well as the Earth draws the apple.15

Like Newton’s laws, the original copyright law entered our discourse in the early 1700s. And the law as we have written it since then imposes some time limits on invention, creativity, and the private ownership of expression, before things do “fall,” as inevitably as ripening apples, into the public domain. The physics of intellectual property, then, a corollary to the Newtonian Principia—treatises that underlay so much of the science behind the Enlightenment—needs its own Newtonian type of reframing. Newtonian Principia for intellectual property would suggest that the natural laws of gravity for ideas and inventions require any and all of them to eventually—some sooner than others, but all, eventually—to fall, drift, settle, end up, crash into . . . the public domain. The common good, in other words, is where these things ultimately arrive, by intent, by social design, even with today’s systems of licenses and protections. That was the design of the very first copyright law. That is the design, all the obfuscatory language and the misleading information about it notwithstanding, underlying the latest copyright laws and updates in the West and in other parts of the world as well. Intellectual property, as we call it, is not meant to be private, except for a term, and then it’s meant to be public forever.

So could it be said that the state of nature for an idea or an invention or any other human creation is, ultimately, in the public domain? That, after all the agita goes forth exploiting and commercializing something, and after all the rights have been recognized and registered and then . . . expire, ashes to ashes and dust to dust, that the thing itself ultimately settles into stasis as a public good? If Newton had written his Principia about what some of us call “intellectual property,” would the force described in it governing these things be like . . . gravity? Meaning that everything we create, ultimately, falls into the lap of/belongs to . . . society?

The answer is, in a society that is a democracy, where there is not a king or crown vested with ultimate power and authority and ownership, and where we the people are the governors of first and last resort: yes. This is ultimately quite explosive a concept, because it frames every effort to restrict public access to a mind-born thing, idea, invention, or work of the imagination as temporary and—in effect, given our invocation of Newton—unnatural.16

If that is all so, then some new Newtonian laws, new New Enlightenment laws, for intellectual property—or what we are calling the physics of intellectual property—might make some sense. The three Newtonian laws of motion might have cognate laws of . . . information! Such that “Every object in a state of uniform motion will remain in that state of motion unless an external force acts on it” could read much the same in information terms, with a kicker or two:

Every object in a state of uniform motion will remain in that state of motion, directed toward the public domain, unless an external force [a contract or a license] acts upon it.

“Force equals mass times acceleration” could read as:

Free up that mofo info!

And “For every action there is an equal and opposite reaction” could be reformulated as:

Eventually, all of our work will become part of common humanity, or humanity’s Commons.

A new Social Network Contract. New laws of information—a physics of intellectual property! A new . . . Use Rights of Man! Tyndale and Swartz, Diderot and Stallman—two on one side of the original Enlightenment, two on the other—were simply trying to accelerate time itself. One day, someone might actually draft a formula free of arbitrary time dimensions legislated by private interests, such that the proper pull of our public domain might be explained. Perhaps it would be a formula like Newton’s law of universal gravitation:

wherein, irrespective of the form (song, photo, poem, play, book, film, drawing, tapestry), there is some math that predicts when every creative act becomes fully part of our free common heritage.17 As a friend of mine used to say, “It’ll all be the same in a thousand years,” but that’s too long to wait.

This concept of IP ownership as something we ultimately have in common—of social ownership, at least, not-ultimately-private ownership—for knowledge that we produce and share in the twenty-first century (as we have done now for hundreds of years) leads one to declare, in this complex Internet age, and with others who have said as much, that new rules are required, new rules of use, new terms of service (as they are often described, in the vulgate), new, in effect, manuals, guidebooks, directions, and agreements binding members of society and the companies and other private interests that seek to exploit their creativity, in ways quite different from the ways in which they have been written up to now.18 The rights of creators, of members of society, to their own work and data in an era where almost anything can be zipped out onto the Internet for distribution and replicated almost instantly—they need restating, for, again, the Internet era and the network connectivities that it has ushered about constitute a change as transformative as that occasioned by the printing press, and that was the last real media change before the Constitution and its Bill of Rights was drafted and approved and published. Now, some 230 years later, again (there are no coincidences), these founding documents face a media and communications—and, with these a data-collection—environment, especially in the developed world, that would have been unimaginable by the Founding Fathers. And let us remember, they had some imagination!19

If we should be seeking in some sense an update of the rights enshrined in these, our own terms of service as a society, what sections should we look at? This is not a call to amend the master contract, which is our Constitution—just to interrogate, closely and then even more closely, our true place as parties to it. It is more to remind ourselves that however majestic the document is upon which we have built our society here at home, it is also a document, a terms-of-service agreement, that served to ensure an early world of savage inequity, one in which slavery and other forms of brutality were condoned and normalized, and in which the most basic rights of society were kept away from women and nonwhites—not only then, at the time of its drafting, but for centuries thereafter. “The Constitution,” writes historian David Waldstreicher, “never mentions slavery.”

The word does not appear. And yet slavery is all over the document. Of its eighty-four clauses, six are directly concerned with slaves and their owners. Five others had implications for slavery that were considered and debated by the delegates to the 1787 Constitutional Convention and the citizens of the states during ratification. This is many more words, with greater implications for slavery, than contained in the Articles of Confederation, the previous, notoriously weak national charter drafted in 1776 and passed eventually by the Constitutional Congress. All but one of these clauses protects slavery; only one points toward a possible future power by which the institution might be ended. In growing their government, the framers and their constituents created fundamental laws that sustained human bondage.20

Historian Eric Foner reminds us that, “of the fifty-five delegates [to our 1787 Constitutional Convention, where the document was drafted], nearly half, including a number of northerners, possessed slaves. George Washington, who presided, owned over two hundred, three of whom accompanied him to Philadelphia. . . .”21 In other words, our terms-of-service agreements, so-called “end-user” agreements, those that we so often approve (even as we ignore them, since consent is usually implicit and opt-out)—these terms are in effect a kind of cipher, a symbol, a metaphor, a reflection, for and of the larger terms of service which we, too, have all too often ignored.22 The Use Rights, or perhaps, the User Rights, of Man! Historians have remarked upon the fact that written constitutions often function as “weapons of control” rather than as “documents of liberation and rights”—and the use rights to which media and knowledge corporations subject us to may in fact be no different.23

How these use rights intersect with the Constitution and especially our Bill of Rights is an area for fruitful inquiry. The corporate behavior we’ve begun to describe concerns the Fourth Amendment, for example, and though it may not be a search, and it may not be a seizure, whatever goes on is certainly “unreasonable,” especially when these companies not only collaborate with each other to exploit this user data but share information and work hand in glove with federal, local, and international governments. Calls have mounted for the reversion of these data rights as though they were basic rights an author grants to a publisher (which they are), and as this is not a government protecting us by virtue of a covenant designed to benefit our welfare but instead a set of private corporations in effect infringing upon our rights and overstepping the limits of what should be acceptable behavior in a modern web-connected world.24 This is overreach in principle and practice—“surveillance capitalism,” as it is now being called—connected to the neoliberal order architected for so long under steadily diminishing regulation. The data collection and retention policies of these companies, together with their nonstop collaboration with governments, especially our own, would have given the Founding Fathers pretty powerful dyspepsia. Indeed, perhaps it is a search and a seizure. As Harvard Business School professor Shoshana Zuboff tell us, we thought we were searching Google all this time, but actually Google has been searching us.25 It’s time to proceed in lockstep, as it were, with John Locke, who, after all, described his work so very modestly as just a search for “a modified form of the original compact.”26

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