The empire strikes back

As we drift farther downstream into the postmodern era, the battle between the élite institutions of modernism and the culture will intensify. The culture is on the offensive, forcing the establishment to defend itself, and that is already underway. On the modernist side, the war will be fought by the keepers of the status quo — the lawyers of the land. On the culture’s side will be technology and the participatory nature that it brings with it.

The defenders know this and will do everything they can to prevent it, trying to use the courts and the legal system in attempts to rope the wild stallion and return it to their barn.

In the last few days, a plan that can only be described as sinister from our friends in the recording industry is being exposed. The idea is right out of the Sopranos — use the threat of lawsuits to force ISPs into “taxing” every user $5 to download music via the Internet. TechCrunch is on top of the story.

The tax will not, in fact, be mandatory. But that is misleading — it won’t be mandatory for ISPs who provide Internet access to actual users. But if ISPs join the scheme, it will apply to all of their customers and be added to their bill as a surcharge.

Why will ISP’s agree to this? Mainly to avoid liability. The core of the plan is a covenant not to sue anyone who pays the fee. (industry insider Jim) Griffin touched on this in the article, saying ISPs will want to “discharge their risk” around file sharing that occurs over their networks.

The rollout plan will hit colleges and universities first, who will simply add the fee to tuition bills so they won’t have to worry about getting dragged into lawsuits. Then Griffin will approach consumer ISPs. If an ISP joins, their users will not have the option of not paying, even if they don’t download music from the Internet. So, basically, the tax is only voluntary if you define avoiding it as not going to college, or using the Internet.

TechCrunch calls it “government endorsed extortion, nothing more and nothing less,” and I couldn’t agree more. While the record companies would find relief from such a plan, imagine what it would do to stifle innovation and creativity.

Meanwhile, the RIAA is lobbying Congress hard to explore the idea of universities “filtering” their networks to stop allegedly illegal downloading. What would you do, if you ran a big school, install filtering applications or simply pass along the $5 “tax” to students. No brainer.

But other battles waging — in the form of lawsuits — in the fight by institutional modernism to reclaim territory it feels belongs to them. To see these suits for what they are, we must examine one of the core philosophies of the modern culture — that everything is cause and effect and, therefore, there’s always somebody to blame (usually the one with the deepest pockets) when something goes wrong. We will never have tort reform in this country as long as the people creating the laws (read: Congress) is made up of trial lawyers, who exploit this blame game to serve themselves, but I digress. As long as “the law” is god in the culture (as it is with the modernist belief), there will always be lawyers ready to take on any cause in the name of blame.

The reason this is on my mind is the strange case in Jacksonville, Oregon, involving Robert Salisbury and Craigslist. Somebody — either maliciously or on a lark — posted ads on Craigslist saying that Salisbury had to leave town suddenly and that everything at his home was free for the taking, even his horse.

As Salisbury was driving home, he noticed truck after truck going the other direction carrying his stuff. All his possessions were gone, and while authorities were able to get some things back, the question remains as to who did this to him.

The case is identical to one earlier from Tacoma, and it’s got people asking questions about, you guessed it, liability. After all, these people were wronged, and victims in our culture are entitled to compensation for their losses, right? So speculation is aimed at Craigslist. They ran the ad. This wouldn’t have happened without them. Hence, it’s their fault.

Along comes Michael Arrington from TechCrunch to make a remarkable statement: Craigslist Is Our Mirror, Nothing Better (Or Worse).

Could a litigiously minded individual find a winning argument to get Craigslist to pay for the damages? Perhaps…And there are certainly plenty to lawyers who’d consider taking the case on contingency, hoping for a quick settlement/shake down to keep PR exposure over this to a minimum.

But what I really think is that Craigslist is just a mirror, and we have to take the good with the bad. Countless connections and transactions are made on the site, and the vast majority are of benefit to everyone involved.

Sure, mainstream press feasts on the occasional accident scene, making it seem like the site is a den of predators waiting to strike at anyone who drops by. Craigslist has it all — Sex, drugs, humiliation and more.

But for the most part Craigslist is just a really good place to find a job, or a boyfriend, or buy cheap furniture for your dorm room. The situation today is simply an exception that proves what an important place Craigslist has taken in our culture. I feel bad for Mr. Salisbury and I hope he gets all his stuff back (especially his horse). But pointing the finger of accusation at Craigslist for what happened is not what should happen next.

Arrington is making a postmodern argument that is foreign to the concept of blame assessment, and I fully support it. Others have come to Craigslist’s defense in this matter, saying that if the company was a profit-hungry corporation, they might deserve a lawsuit, but that Craigslist is more public service than profit-motivated, and thus, shouldn’t be touched.

I don’t like this argument, because I think we’ve gone way overboard in the culture and that any company functioning as a conduit for the actions of people — profit-driven or not — ought to be protected from the shenanigans of the few. We’re a society that supposedly believes in personal responsibility, but every day, I see evidence that this is not so. This is why we have section 230 of the CDA, which classifies such web applications as “common carriers,” similar to telephone companies. You can’t sue the phone company if somebody plans a terrorist attack over the phone, and you shouldn’t be able to sue Craigslist — or anybody else — if bad people do bad things online either.

But somebody will sue Craigslist; I’m convinced of that, and then we’ll see how strongly we feel about such protection.

And there’s one other matter here that must not be overlooked. Media companies who cover this issue must tread very, very carefully, especially the newspaper business, for Craigslist gets the blame (there’s that word again) for the financial woes of the industry.

I’m just sayin’…


  1. […] Post-modern thinkers like to think that human beings make the world with their representations. But don’t be deluded. To a real bird, a statue of Byrd is just another rock. […]

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