Expanding intellectual property rights for technological development is colonialism par excellence that serves to dominate and control the Global South through the network stream of US innovation

Michael Kwet, “Digital colonialism: US empire and the new imperialism in the Global South”, Institute of Race Relations, 14 January 2019, https://journals.sagepub.com/doi/abs/10.1177/0306396818823172?journalCode=racb

The control of code is foundational to digital domination. In Code: and Other Laws of Cyberspace, Lawrence Lessig famously argued that computer code shapes the rules, norms and behaviours of computer-mediated experiences in ways similar to architecture in physical space (e.g. imperial railways designed for colonisation).21 ‘Code is law’ in the sense that it has the power to usurp legal, institutional and social norms impacting the political, economic and cultural domains of society. This critical insight has been applied in fields like copyright, free speech regulation, Internet governance, blockchain, privacy, and even torts. What has been missed, however, is how US dominance of code – and other forms of digital architecture – usurps other countries’ sovereignty.

Digital forms of power are linked through the three core pillars of the digital ecosystem: software, hardware and network connectivity.22 (Software is the set of instructions that define and determine what your computer can do. Hardware is the physical equipment used for computer experiences. The network is the set of protocols and standards computers use to talk to each other, and the connections they make.)

Software functions as the coded logic that constrains and enables particular user experiences. For example, software determines rules and policies such as whether or not users can post a message anonymously at a website, or whether or not users can make a copy of a copyright-restricted file like an e-book. The rules that a programmer codes into the software largely determine technological freedoms and shape users’ experiences using their devices. Thus, software exerts a powerful influence on the behaviour, policies and freedoms of people using digital technology.

Control over software is a source of digital domination primarily exercised through software licences and hardware ownership. Free Software licences allow people to use, study, modify and share software as they see fit.23 By contrast, nonfree software licences grant a software designer control over users by precluding the ability to exercise those freedoms. With proprietary software, the humanreadable source code is closed off to the public, and owners usually restrict the ability to use the software without paying. In the case of Microsoft Windows, for example, the public must pay for the programme in order to use it, they cannot read the source code to understand how it works, they cannot change its behaviour by changing the code, and they cannot share a copy with others. Thus with proprietary licensing, Microsoft maintains absolute control over how the software works. The same goes for other proprietary apps, like Google Play or Adobe Photoshop.24 By design, non-free software provides the owner power over the user experience. It is authoritarian software.

Control over hardware is a second source of digital domination. This can take at least three forms: software run on third-party servers, centralised ownership of hardware, or hardware designed to prevent users from changing the software.

In the first scenario, software is executed on someone else’s computer. As a result, users are dispossessed of their ability to control it. This is typically accomplished through Software as a Service (SaaS) in the cloud. For example, when you visit the Facebook website, the interface you are provided executes on third-party hardware (i.e. on Facebook’s cloud servers). Because users cannot change the code running on Facebook’s servers, they cannot get rid of the ‘like’ button or change the Facebook experience. ‘There is no cloud’, the saying goes, ‘just someone else’s computer’. Corporations and other third parties design cloud services for remote control over the user experience. This gives them immense power over individuals, groups and society.25

In the second scenario, people become dispossessed of hardware ownership itself. With the rise of cloud computing, it is possible that hardware manufacturers will soon only offer low-powered, low-memory devices (similar to the terminals of the 1960s and 1970s) and computer processing and data storage will be primarily conducted in centralised clouds. With end-users dispossessed of processing power and storage, software and data would be under the absolute control of the owners and operators of clouds.26

In the third scenario, hardware is manufactured with locks that prevent users from changing the software on the devices. By locking down devices to a predetermined set of software choices, the hardware manufacturer determines which software is allowed to run when you turn on your device.27 Thus, hardware restrictions can prevent the public from controlling their devices, granting device manufacturers power over users.

Control over network connectivity is a third source of digital domination. Net neutrality regulation proposes that Internet traffic should be ‘neutral’ so that Internet Service Providers (ISPs) treat content flowing through their cables, cellular towers and satellites equally. According to this philosophy, those who own the pipes are ‘common carriers’ and should almost never be allowed to manipulate the data that flows through them.28 This constrains the ability of wealthy media providers to pay for faster content delivery speeds than less wealthy providers (such as grassroots organisations, small businesses, and common people). More importantly, by treating traffic equally, net neutrality prevents network discrimination against various forms of traffic critical to civil rights and liberties. For example, the Tor browser facilitates anonymous Internet communications, but the use of the Tor network can be detected by ISPs and throttled (i.e. slowed to a crawl).29 Net neutrality prevents this form of discrimination and protects the end user’s freedom to utilise the Internet as they wish, without third-party favouritism, blocking, or throttling. Let us consider some concrete examples as to how software, hardware, and networks constitute sources of power and control related to social justice in the Global South.

Intellectual property and empire

The copyright industry is threatened by the mass sharing of paywalled publications over the Internet (what they label ‘piracy’). Given that hard drive capacity and Internet speeds will rapidly increase over time, the capacity to share vast libraries of music, movies, books, and other media is steadily increasing. What will be done when each person has a 40 terabyte hard drive and can trade the entire collection of popular music from the last century within an hour? Advances in technology deepen the need for architectural control to police the copyright system.

One way to stop file sharing is to control software. The industry built Digital Rights Management (DRM) software, for example, to prevent copyright-restricted publications from playing on a user’s computer unless the user pays to access it first. This works well with proprietary software because users cannot remove the DRM. (However, if the DRM software is Free Software – which allows people the freedom to use, study, modify and share the software – people can remove the DRM code that locks the content.) Thus, industry is bolstered by proprietary software as a means to enforce copyright.

A second way to prevent sharing is to take control of the hardware. If, for example, people stop running software on their own devices, and instead run their computer experiences through centralised cloud servers, then cloud providers can determine their ‘access’ to copyrighted data. In this scenario, users cannot copy and trade media over the Internet because the data ‘streams’ to their device from a content owner’s platform (e.g. Netflix or Spotify) which provides media content through its servers. Thus, the widespread distribution of storage capacity and broadband Internet threatens the copyright monopoly.30

A third way to prevent sharing media is to control the network. People may own and control their software and hardware, but if they can be spied on by an ISP or government, then they can be fined or arrested for copyright infringement, or have their Internet connection throttled or terminated. People might use privacy protection technologies to conceal their content sharing – such as the Tor network or Virtual Private Networks (VPNs) – but this can be thwarted by ISPs throttling Tor or VPNs. In this scenario, control of the network (ISP discrimination) is used to make anonymous content sharing impractical. Thus, public control of the network threatens copyright enforcement.

To bring this back to colonialism, US multinationals have designed digital architecture which, in one way or another, allows them to accumulate vast fortunes based on rent or data extraction. In the case of copyright, control over software, hardware, or the Internet is used to protect the copyright monopoly in the name of intellectual property rights. Given that the marginal cost of producing digital works is near-zero, prominent intellectuals and activists have challenged copyright paywalls in the interest of socioeconomic justice and out of concern that draconian technologies are needed to enforce digital forms of copyright.31 Free access to digital publications for all people on planet earth, irrespective of their wealth, could improve education, culture, equality, democracy, and innovation. Western technology has been engineered to block free sharing, which impoverishes poor people’s ability to obtain knowledge and culture, and reduces communication between rich and poor.

Intellectual property rights date back centuries, but they became a fixation of the West in the late twentieth century as western corporations came to dominate intellectual property. Despite strong IP protections, much of the development in the domain of technological innovation has been driven by the public sector. The Internet, GPS, multi-touch screens, HTML, the Siri virtual personal assistant, LCD displays, microprocessors, RAM memory, hard disk drives, Google’s search algorithm, and lithium-ion batteries were all developed by public institutions or with a heavy dose of public funding.32 Additionally, 80 per cent of basic scientific research and development in the US is funded by government and non-profit sectors.33 Thus the foundational knowledge and technologies of the digital world have been largely driven by state-led research and development.

The expansion of copyright protections is also a recent phenomenon. The United States did not observe foreign copyrights until the end of the nineteenth century. For about a century prior, it printed copyrighted works produced by Europeans without paying licensing fees. As its own domestic industry developed, the US changed its tune in order to protect its local content industry. Initially, copyrights lasted just fourteen years, with a right of renewal for another fourteen years. By the end of the twentieth century, the US muscled the international community into accepting lengthy copyright terms (life of the author plus several decades). While the US (and other countries) built up its knowledge economies without respecting foreign copyrights, today it seeks to ‘kick away the ladder’ and impose extensive copyright restrictions on the rest of the world.