"a fish, a barrel, and a smoking gun"
for 8 September 2000. Updated every WEEKDAY.

Downtime by Law



With almost embarrassing enthusiasm, the American judicial system has recently taken upon itself the task of spanking the Internet, hard and with relish. Each day seems to bring another decision designed to leave the technically savvy sputtering with rage. But as galling as the verdicts have been, the judiciary — with every curt dismissal of every nerd-approved argument — is doing the plugged-in set an enormous favor. Because if anybody needs a lesson in the way the real world works, it's the geeks.

For all the high-minded talk that has accompanied the rise of the Internet — the creation of the New This and the ascendance of the New That — there still exists one fundamentally unalterable old-school fact: Lawyers rule the world. They always have and they always will. Billions of dollars and millions of users won't change that, and though the technology sector now swims with the biggest of fish, it can and will be eaten by sharks.

Yes, the verdicts that have been plopping out of the judicial system like nuggets from a well-fibered horse are almost uniformly inept. They demonstrate to a mathematical certainty that the courts are not only hidebound and archaic but laughably incapable of applying well-established precedents to anything that confuses them. But the decisions are no less legally binding for being silly: As of last month, domain names aren't property and thereforecan't be stolen; the ability to decrypt a DVD corresponds directly to the intent to pirate it; and linking to a program declared illegal is itself illegal. The legislative branch has kicked in its own contributions, too: The DMCA (Digital Millennium Copyright Act) and UCITA (Uniform Computer Information Transaction Act) are wonders of embarrassing corporate glad-handling, all at the expense of users.



These are actual, established rights being disposed of — the fundamental legal underpinnings of the Internet — and in any sane world a series of decisions like this would create a backlash severe enough to snap your neck. Though freedom of speech has always been the abstract red-headed stepchild of the Constitution, almost any largish group subjected to treatment like the recent decisions would respond as it needs to respond: with an effective and organized lobbying effort to defend not only its present but its future rights.

The population of the Internet, in contrast, has managed to whine a lot. Or rather, those who are even aware of the problem have managed to whine a lot. At the rate things are going, the Internet is going to end up the neutered corporate lapdog that everybody claims to fear and nobody is doing anything to prevent.

It's largely a matter of history. After a five-year winning streak, the propeller-heads at the forefront of most online movements can't conceive that they're on the down side of a coin toss. Overcome with self-confidence and flush with self-satisfaction, they don't even know what losing looks like.

Classic geek arrogance plays an important role in this denial. With all the sweaty assurance of a faculty-lounge communist, nerd culture is suffused with a rock-solid belief in the inevitability of history. It's built into geek jargon and the geek mindset — into geek DNA, even, the result of success after success after success. "We can't lose," the thinking goes. "Because ... well, just because."



But that's dead wrong. A near-invisible niche for the vast majority of its existence, computer culture has only recently stepped into the big leagues and has yet to even learn the rules. Sprung from a world of digital absolutes, nerd brains are woefully unprepared for the fuzzy gray shadings inherent in the legal system. But if they can't play the game, they might as well just forfeit to save themselves the beatings.

And there are plenty of beatings to come. Except for the under-funded Electronic Frontier Foundation, the embryonic efforts of the ACLU, and the occasional self-interested corporate lobbyist, the Internet's collective response to one well-nigh apocalyptic decision after another has unfortunately been the same as the Internet's collective response to just about everything: posts, lots and lots of posts. Discussions and cries of hypocrisy and malformed analogies have consumed megabyte upon megabyte of masturbatory rage and self-indulgent self-righteousness.

Which, of course, accomplishes exactly nothing. For all the endless caterwauling that each addle-headed legal decision generates, the impact extends only as far the smallish communities that spawn it. Even ignoring the significant percentage of the population that remains stubbornly off-line — including the vast majority of Congress and the judiciary — the cage-rattlers have failed even to involve those who might actually care. Millions use the Internet without the slightest idea that their rights are being stripped away, blissfully unaware of what's going on because they don't happen to be members of the choir. The tempest not only fits in a teapot, it doesn't even rattle the lid. In this age of omnipresent email and mainstream technology news, pictures of ribbons don't cut it as tools of moral suasion anymore.



The technical elite of the Internet are smug and self-satisfied, confident in their position in — and their control of — this brave new world they have created. But the blind narcissism that leads geeks to confuse "can be done" with "will be allowed" is disastrously naive. Lawyers and politicians and those who hold the reigns of real power are going to use that hubris to eat the medium alive, snapping off bits to chew on at their pleasure. And all the indignant, insular posts in the world will do nothing to stop them.

Until those who are aware of the problem can turn the energy of a million keystrokes into some coherent action, computer culture — and the freedom it so badly wants protected — is going to be viewed as nothing more than an unruly dog in need of a muzzle. Until the geeks can put away their snotty superiority and muster up enough interest to deal with the law on its own terms, their precious technical achievements are going to be for naught. And until the people who claim to care about the future of the Internet can put down their keyboards, put on suits and learn to fight like attorneys, then all this revolutionary new freedom is moot.

Lawyers rule the world. And don't you forget it.


courtesy of Greg Knauss


pictures Terry Colon

Greg Knauss