Nate Anderson of Ars Technica has posted an interview with Sen. Al Franken (D-MN) about Defining Internet “Freedom”. Neither Sen. Franken nor Mr. Anderson ever get around to defining that term in their exchange, but the clear implication from the piece is that “freedom” means freedom for the government to plan more and for policymakers to more closely monitor and control the Internet economy.  The clearest indication of this comes when Sen. Franken repeats the old saw that net neutrality regulation is “the First Amendment issue of our time.”

As a lover of liberty, I find this corruption of language and continued debasement of the term “freedom” to be extremely troubling. The thinking we see at work here reflects the ongoing effort by many cyber-progressives (or “cyber-collectivists,” as I prefer to call them) to redefine Internet freedom as liberation from the supposed tyranny of the marketplace and the corresponding empowerment of techno-cratic philosopher kings to guide us toward a more enlightened and noble state of affairs. We are asked to ignore our history lessons, which teach us that centralized planning and bureaucracy all too often lead to massively inefficient outcomes, myriad unforeseen unintended consequences, bureaucratic waste, and regulatory capture.  Instead, we are asked to believe that high-tech entrepreneurs are the true threat to human progress and liberty. They are cast as nefarious villains and their innovations, we are told, represent threats to our “freedom.” We even hear silly comparisons likening innovators like Apple to something out of George Orwell’s 1984. 

To be clear, I am not saying everything will be sunshine and roses in a free information marketplace. Mistakes will be made by those innovators and there will even be short-term spells of what many would regard as excessive corporate market power. The question is how much faith we should place in central planners, as opposed to evolutionary market forces, to solve that problem.  Those who truly love liberty and real human freedom would have more patience with competition and technological change and be willing to see how things play out. In other words, “market failures” and “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up responses than by coercive, top-down approaches.

The decisive advantage of the market-driven approach is nimbleness. It is during what some might regard as a market’s darkest hour when some of the most exciting disruptive technologies and innovations develop. People don’t sit still; they respond to incentives, including short spells of apparently excessive private power. But they can only do so if they are truly free from artificial constraint from government forces who, inevitably, are always one or two steps behind fast-moving technological developments. Thus, we shouldn’t allow the cyber-collectivists to sell us their version of “freedom” in which markets are instead constantly reshaped through incessant regulatory interventions. That isn’t freedom, it’s tyranny.

More insulting to me is the continued repetition of this balderdash about how Net neutrality is “the First Amendment issue of our time.”  As I’ve pointed out before here before in my essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts Federal Communications Commission bureaucrats in control of the Digital Economy. America’s Founding Fathers intended the First Amendment to serve as a shield from government encroachment on our liberties, not as a sword for government to wield to reshape markets and speech according to the whims of five unelected bureaucrats at the FCC. Anyone who suggests otherwise is engaging in revisionist history of the highest order.

Sadly, however, countless people seem to buy into this twisted vision of “Internet freedom” today. They stand ready to empower the techno-planners, to call in the code cops, and to roll out the tech pork barrel in their invitation to Washington to give the Digital Economy a great big bear hug.

You can call this vision many things, but pro-freedom is not one of them.  As Berin Szoka and I have argued here in the past, true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest” — an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

If you stand for liberty, the choice of which conception of “Net freedom” to embrace is simple.

Last month, National Review magazine published a review that I penned of Mark Helprin’s new book, Digital Barbarism: A Writer’s Manifesto.  Helprin’s book is both a passionate defense of copyright law as well as a mini-autobiography.  Helprin is one of the great novelists and essayists of the past half-century, and his book A Soldier of a Great War is one of my all-time favorite novels.  I cannot in strong enough words encourage you to read that book; it is profoundly moving. (I almost named my son after the lead character in the book!)

Thus, I was quite excited when I learned that Helprin had penned a defense of copyright and I jumped at the chance to review it when the folks at National Review asked me to do so.  Alas, as you will see in my review, I was terribly disappointed.  I wish Helprin would have stuck with the very reasonable tone he adopted in this excellent podcast interview he did recently with John J. Miller of National Review Online. Unfortunately, he went a different direction in the book, as I make clear in my review:

National Review July 20, 2009

“Man, Machine, and Copyright” a review of Digital Barbarism: A Writer’s Manifesto, by Mark Helprin by Adam Thierer

It would be difficult to think of anyone more ideally suited to pen a passionate defense of copyright law than novelist Mark Helprin.  Helprin has written several of the finest works of modern literature, including his masterpiece, A Soldier of the Great War, a narrative of transcendent beauty. In Digital Barbarism, Helprin sets out to use his formidable gift for the written word to repel the “cyber mob” that has attacked copyright law and called for its curtailment, or even abolition.

Unfortunately, while Helprin occasionally rises to great heights in his defense of copyright, he too often sinks to lamentable lows — by resorting to the same unbecoming rhetorical tactics used by the mob he seeks to condemn. Indeed, his book is filled with gratuitous vitriol and neo-Luddite ramblings about the Internet and Information Age that severely detract from his defense of copyright. This is a shame, because, in places, Digital Barbarism makes a fine case against those critics who wrongly view copyright as an impediment to the creation and diffusion of content. “The availability of information is not and will not be restrained by the copyright system any more than it is or will be restrained by the delivery systems that make it possible,” Helprin argues. Why, he asks, “must ‘content’ be free” when everything else — access to the Internet, digital devices, etc. — costs good money? He notes that the movement that advocates “free,” universal access to all copyrighted material in the name of “openness” and “the public good” would, ironically, “destroy the dream it advocates”:

By insistence upon unhindered access without regard for rights and incentives that have been carefully balanced over centuries, the hurried new order will diminish the substance over which it demands sovereignty. It will have its access, but, as time passes, to less and less, and eventually perhaps to almost nothing, the means having grossly overpowered the ends. The past may be brilliantly cataloged and made accessible as never before, but at the cost of making the culture of the present relatively barren. Though it may never be entirely extinguished, it can be made as eerily quiet as if without the beat of a single heart.

The power of Helprin’s defense of copyright is that it is grounded in both this sort of utilitarian rationale and a Lockean, natural-rights-based conception of man’s moral right to the fruit of his mental labor. But there are many thorny issues Helprin fails to address in setting forth his dual defense of copyright.

To begin with, things just aren’t as black-and-white as he makes them out to be. There’s a certain inherent messiness to “intellectual property,” at least when compared with tangible property. As an abstract concept, it’s easy enough to defend. In practice, however, it often proves exceedingly challenging to delimit and enforce, since intangible creations cannot be enclosed the same way our back yards can.

This does not mean, however, that the opposite approach — a collectivized “commons” for intellectual creations — is more sensible. That intangible property is harder to enclose and protect doesn’t mean the law shouldn’t seek to do so. “Copyright is important because it is one of the guarantors of the rights of authorship,” Helprin argues, “and the rights of authorship are important because without them the individual voice would be subsumed in an indistinguishable and instantly malleable mass.”

American copyright law has generally cast this right in utilitarian terms, ever since the Founders gave Congress the power under Article I, Section 8 of the Constitution “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But how much “limited time” is enough time to incentivize creativity and invention? Under the first Copyright Act, enacted by Congress in 1790, the term of protection was just 14 years plus a right to renew for an additional 14 if the author was still alive.

There are many legitimately difficult questions about the enforceability of copyright in an age of ubiquitous digital connectivity and instantaneous information flows. I came to appreciate these challenges several years ago after transferring my entire 30-year CD collection to a portable music player that was smaller than a box of cards. How can copyright coexist with the giant copying machine represented by the combination of personal computers, digital devices, and the Internet? What sorts of restrictions on devices and networks are required to ensure that we continue to reward intellectual creativity without destroying the forms of technological innovation? How should copyright law define “fair use” in a culture that increasingly enables collaboration and encourages “remixing”? Will we need to create new “compulsory licensing” schemes — already in place for radio and television — to ensure that creators are compensated through mandatory fees embedded in digital devices or our monthly broadband bills?

These are challenging questions that deserve a fair hearing. But Helprin rarely bothers with these details because he’s too busy trading jabs with “the mob.” Unfortunately, his manifesto goes off the rails as his defense of copyright quickly morphs into an indictment of the Internet and all things digital.

At times, Helprin seems to be channeling the ghost of the late social critic Neil Postman, who, in his 1992 anti-technology screed, Technopoly: The Surrender of Culture to Technology, heaped contempt upon the unfolding Information Age. Recently, Internet critics such as Lee Siegel (Against the Machine: Being Human in the Age of the Electronic Mob) and Andrew Keen (The Cult of the Amateur: How Today’s Internet Is Killing Our Culture) have continued this tradition of deep techno-skepticism. With Digital Barbarism, Helprin joins this cause, arguing that we are witnessing “the decline of culture,” the “mechanization of the soul,” our “intellectual and spiritual destruction,” and the rise of a movement of “wacked-out muppets led by little professors in glasses” that “threatens in a decade or two to dissolve the accomplishments of millennia, reordering the ways in which we think, write, and communicate.”

And Helprin is just getting started. While he claims that he is “not decrying the digital revolution per se,” it often sounds that way. He speaks repeatedly about the “surrender” of human nature to “the machine revolution” and the corresponding need to “control the machine.”

Much of Helprin’s Internet ire seems to originate with the anonymous “blogging-ants” who have attacked his earlier essays in defense of copyright-term extension. Digital Barbarism becomes his chance for payback. “It would be one thing if [the digital] revolution produced Mozarts, Einsteins, or Raphaels,” Helprin says, “but it doesn’t. . . . It produces mouth-breathing morons in backward baseball caps and pants that fall down; Slurpee-sucking geeks who seldom seek daylight; pretentious and earnest hipsters who want you to wear bamboo socks so the world won’t end . . . beer-drinking dufuses who pay to watch noisy cars driving around in a circle for eight hours at a stretch,” and so on.

Unfortunately for Helprin, would-be rappers, basement-dwelling geeks, enviro-hippies, and NASCAR fans all predate the rise of the Internet, so one wonders if he has fingered the right culprit for civilization’s supposed decline. The fundamental problem with Digital Barbarism is that the cultural decay Helprin laments cannot be so easily tied to the battle over copyright. Indeed, most of what Helprin condemns in modern culture has come about during a time when copyright’s protections — at least as defined by law — have been expanded considerably in both length of term and breadth of coverage.

Moreover, he is simply too quick to proclaim the decline of modern civilization by looking only to the baser elements of the blogosphere. The Internet is a cultural and intellectual bazaar where one can find both the best and the worst of humanity on display at any given moment. True, “brutishness and barbarism” can be found on many cyber-corners, but not all of its corners. And, contrary to Helprin’s assertion that blogging “begins the mad race to the bottom,” one could just as easily cite countless instances of the healthy, unprecedented conversations that blogs have enabled about a diverse array of topics. Finally, even if one concedes, for the sake of argument, that blogging produces more cultural trash than treasure, would greatly enhanced copyright protection really turn things around?

There are strong moral and utilitarian arguments for protecting copyright and, during his calmer moments, Helprin articulates some of them quite effectively. He is surely right that “theft is ugly,” and that far too many people (especially in academia) are turning a blind eye to the injustices of the widespread copyright infringement taking place online today. There’s a lot of good sense buried underneath the angry rhetoric of this book; it’s regrettable — and surprising — that someone of Mark Helprin’s literary prowess didn’t make a better effort to persuade his readers.

Additional Reading about Digital Barbarism: A Writer’s Manifesto:

• Mark Helprin’s home page, his Claremont Institute page, and his Wikipedia entry
• Helprin’s New York Times editorial that prompted a backlash and led him to write the book
• Helprin podcast interview with National Review Online
• Russ Roberts interviews Helprin for the Econ Talk podcast
• Lawrence Lessig’s written response at the Huffington Post and an NPR interview with Lessig about the book
• Helprin’s recent Wall Street Journal editorial, “Copyright Critics Rationalize Theft,” which is condensed from the book
• the Amazon page and HarperCollins page for the Digital Barbarism
• a review by Jeremy Philips, and executive with News Corp, which appeared in the Wall Street Journal
• a review by Gordon Crovitz of the Wall Street Journal (+ lots of good comments)
• a review by Patrick Ross of the Copyright Alliance (Part 1, Part 2)
• a review by Jonathan Bailey that appeared on the Plagiarism Today blog
• a review by Nate Anderson of Ars Technica

When people ask me why I do what I do for a living — and, more specifically, why I focus all my attention on digital media and technology policy — I often respond by showing them the new gadgets or software I am playing with at any given time.  I just love digital technology.  I am swimming in a sea of digital gadgets, consumer electronics, online applications, computing software, video games, and all sorts of cyber-stuff.

Anyway, even though this is a technology policy blog, I sometimes highlight new digital toys or applications that have changed my life for the better. As the year winds down, therefore, I thought I would share with you five technologies that improved my life and productivity in 2008. I’d also love to hear from all of you about the technologies that you fell in love with this year in case I might have missed them. Here’s my list:

#1) Naturally Speaking 10:

Thanks to Nate Anderson’s outstanding review over at Ars Technica, I finally made the plunge and bought Dragon Naturally Speaking 10 earlier this month.  Wow, what a life-changer. I had played around with an earlier version of this market-leading speech recognition technology and found it somewhat clunky and unreliable. But Ver. 10, has ironed out almost all the old problems and become an incredibly sophisticated piece of software in the process. I love the way I can use simple voice commands to navigate menus in Microsoft Word and in Firefox. Perhaps best of all, I can dictate random rants into a pocket recording device and then upload them to Naturally Speaking (via a USB connection) and have them instantly transcribed. I’m even composing blog entries like this using it! Only problem is inserting HTML code; that’s still a hassle. Also, I find that switching from one input device to another definitely affects the quality of the transcription. Once you “train” Naturally Speaking using one device, it makes sense to stick with it. It’s not just the quality of the microphone; it’s also the proximity to your mouth that makes a difference. Regardless, this is one great product and, best of all, it’s should help save my rapidly-aging hands from becoming prematurely arthritic! All those years of video games and keyboards have taken their toll. #2) Scribd:

Like many other policy wonks and academics, I’ve long been housing my papers and studies on SSRN to give them more widespread visibility or share them with others. But SSRN’s format is clunky and its functionality is extremely limited. Worst of all, it didn’t provide any embeddable code such that documents could be hosted directly within a blog post. Scribd solves all those problems for me. It’s a slick document-hosting service that is also highly searchable. It also offers up relevant documents as you are viewing others (the same way YouTube does for video). Very cool feature. Better yet, Scribd let’s you create groups for your organization or interests to collect related documents in one place. (For example, check out the PFF group page here.) Why couldn’t SSRN be more like this?!

#3) Ubiquity for Firefox:

“CTRL-SPACE BAR.” Thanks to Ubiquity, that keyboard shortcut has forever changed the way I use the Firefox web browser. I know this won’t seem like a big deal to some people, but for an old geek like me, I still prefer navigating some applications with keyboard shortcuts instead of using my mouse and drop-down menus. Ubiquity lets me do so in a browser environment. Basically, anytime I see something in my browser that I’d like more info about, I just run my cursor over that term, hit CTRL/SPACE and up pops a command prompt box that lets me run an inquiry of my choice. Once that box pops up, I can run a quick search about the term by just typing Google, MSN, or Yahoo and then hitting enter. Or I can map it instantly by typing “map.” Or search for an image or video related to it by typing “Flickr” or “YouTube.” Or “eBay” it. Or “Wiki” it. Or “Digg” it. And so on, and so on. Here’s lists of the command prompts at your disposal (1, 2, 3).

#4) HTC Touch (Verizon Wireless XV6900):

Screw the iPhone. This is little beauty can do everything the iPhone can do and do it in more compact package. This thing sits in my front shirt pocket and I often forget its there. It also has a stylus. Don’t understand how you iPhone zombies get along without one. It also has none of the silly restrictions that encumber the iPhone. I’ve downloaded more mods and apps to this thing than I know what to do with. While you iPhoners are salivating over the slim pickings at the iPhone apps store, I’m sitting on 10,000 choices to decide from over at Handango (and that doesn’t even begin to scratch the market for homebrew hacks). HTC’s TouchFlo navigation is very cool and works effortlessly with the flick of your thumb. The touchscreen keyboard wasn’t so hot, but who cares when dozens of aftermarket ones are available (I went with Resco). Same goes for the IE mobile browser, which is the weak spot of any Windows Mobile equipped device. But I solved that problem with my next choice…

#5) Skyfire mobile web browser:

The mobile version of Internet Explorer has just never cut it, and Skyfire capitalized on that fact to produce a very slick touchscreen browser for Windows Mobile smartphones. The early beta version had some bugs, but they’ve been working those out and producing a great product in the process. Is the iPhone Safari mobile browser better? Yes, it still is. Even an Apple-hater like me will admit it.  But Skyfire is catching up quickly.

Honorable mentions…

LinkedIn: Yes, I know LinkedIn has been around a couple of years, but it really took off in 2008 and made impressive improvements to become more than just the “Facebook for Old Farts” I once thought it was. I am a huge fan of the new applications they have worked into the site, especially the WordPress blog app and the Amazon books app.

Google Chrome: Although it won’t be displacing Firefox in my heart any time soon, I have come to really appreciate Chrome’s speed compared to my Firefox experience, which is now bogged down with waaaaaay too many add-ons. (So much so that it takes me well over a minute to even get Firefox to boot up!) So, I pull up Chrome and run it alongside Firefox to surf script-heavy or graphically-intensive sites (like ESPN.com) or to just keep my eMail accounts and LinkedIn page active on another screen.