A New Zealand judge is wrong. The U.S. itself isn't what threatens digital rights.
Comic-Con wasn’t the only meeting that wrapped up last week in San Diego. Of much more import, and thus to much less fanfare, the TPP concluded its 13th meeting there where it discussed, among other things, the kinds of copyright laws that each member country would adopt some time in the near future.
At the very same time, New Zealand District Court Judge, David Harvey, referred to the U.S. as “the enemy” while speaking about IP jurisprudence at an Internet conference. His remarks were all the more significant because Harvey is the same judge who will be presiding over Megaupload founder, Kim Dotcom’s extradition hearing later next month.
In addition, all of this news is accompanied by yet another arrest in Japan related to enablement of copyright infringement. As a result of an amendment made last year to Japan’s Unfair Competition Prevention Act, store associate Masayuki Nishimura will now most likely land in jail for the distribution of game copying devices such as majikon. Nishimura is of course not alone. He is but the most recent victim in the new Japanese crackdown, fueled by the corporate interests of entities like Nintendo, on those who enabling the hacking and pirating of copyright protected devices and content.
Judge Harvey called the U.S. an enemy because of its push in TPP negotiations to make our country’s ridiculous copyright laws the minimum throughout all of the TPP lands. But the U.S. is hardly alone its folly, with similar legal excesses in favor of copyright holders codified throughout the developed world.
Now what’s at issue here isn’t the ethics of piracy. That is a field of philosophic land mines in which content providers like Disney and Nintendo would love to see the discussion explode into a million moralistic pieces. I’m not going to defend those who duplicate and distribute copyright protected content, nor chide companies for their futile efforts at DRM.
Instead, I’m going to call attention to the more central issue at hand: the asymmetric nature of legal and political warfare as it is currently employed in the fight between companies and users.
It is an imbalance whose contours can be seen most clearly in the Kafkaesque jurisprudence which infuses the Obama Administration’s assassination program, but whose more pedestrian examples should be no less distressing.
Take for instance the case mentioned above facing Kim Dotcom. Despite several missteps on the part of New Zealand law enforcement and their FBI task masters, Dotcom’s millions of dollars in assets have been frozen, and hard drive information stolen. He now faces extradition to the United States, the outcome of which will be decided on the basis of evidence illegally obtained from materials taken via a warrant that has since been judged inadequate.
Content providers did not like Megaupload. Content providers wanted Megaupload taken down. Content providers got what they wanted, not through a rigorous execution of existing law, or even a long fought legislative battle to introduce new statutes (as in the case of Japan), but simply by virtue of their undue influence, and by proxy, the undue influence of U.S. statecraft.
The Obama Administration wanted to get rid of people they labeled terrorists. They wanted those terrorists dead. The Obama Administration has, on several occasions, gotten what it wanted, not through a rigorous adjudication of the issues involved in that policy, but through a nontransparent process where the ones implementing the rules are also in charge of making them up as they go.
In an attempt to control the uncontrollable, corporations and governments prefer to subvert the rule of law by implementing it for their own benefit and in the service of their own clandestine goals, rather than subject themselves to the same boundaries by which the rest of us are constricted.
Indeed, we have met the enemy. But it is not us, or even US. Instead, it is the unholy combination of those who not only willingly, but by economic and legal necessity must, put their interests above our interests, with those who are unwillingly to stand up to such capitalist behemoths for fear of losing access to the funds which so generously fill their political coffers.
Corporate influence has no boundaries, ready as it is to spread sheet like across a world made flat by globalization. So the enemy is not the U.S., or even necessarily in the U.S. The enemy is also in Japan and wherever policies persist which degrade individual rights while strengthening and giving greater deference to those of large political and economic bureaucracies.