Making sense of Trump’s unscheduled sudden midair disassembly of the American empire
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For generations, the American empire was the most powerful force on earth, and so we tended to assume that it was the most durable force on earth – surely anything so powerful must also be eternal?
But power and durability aren't the same thing, as Le Guin reminded us with her oft-quoted maxim that "We live in capitalism, its power seems inescapable — but then, so did the divine right of kings":
https://www.ursulakleguin.com/nbf-medal
Monarchs may be powerful, but that power is derived from a manifestly incorrect belief in special blood, a belief that requires monarchs to inbreed. At best, this produces heads of state who can't stop bleeding and also can't tell you if their blood is blue or red; at worst, it yields heads of state who can't speak intelligibly, much less produce another generation of royals:
https://en.wikipedia.org/wiki/Charles_II_of_Spain
Oligarchy also produces a sequence of progressively weirder and more terrible rulers who rely on a mix of lies, flattery, coercion and personal cult nonsense to hold their coalition together in the face of mounting evidence for the system's bankruptcy. Thus Reagan begat GW Bush, who begat Trump, whose potential successors are a kennel of the least-charismatic chud podcasters ever to curse an RSS feed.
Trump's second term has resulted in a rapid, unscheduled, mid-air disassembly of the American empire. As Baldur Bjarnason writes, under Trump, America "first turned on their trading partners, then their allies in Europe, and then they delivered one of this century’s biggest economic and energy crises to their allies in Asia":
The line comes from an excellent post entitled "The old world of tech is dying and the new cannot be born," about the impact of Trump's de-Americanization of the world on the US tech industry, and thus the world's relationship to tech more broadly. As Bjarnason writes, Trump's tech giants dominate the world because America dominates the world. It's not because the world likes American tech. As Bjarnason writes:
They are, more often than not, about as popular and respected as tobacco or pharmaceutical companies – some of them and their products are polling in terms of public sentiment in ranges similar to child molesters or authoritarian immigration enforcement entities – and their CEOs are some of the more despised public figures in recent history.
These very, very unpopular tech companies dominate because American trade policy insists that they must. They are allowed to violate local laws because stopping them from doing so would result in trade sanctions. It's true that US tech companies face fines abroad from time to time, but these are "the price list for inflicting societal suffering. Pick the one that suits your business model." US trading partners haven't really attempted to extinguish the unlawful conduct of US tech companies.
All of that is up for grabs now, thanks to Trump's uncontrollable compulsion to repeatedly hormuz himself (and America) in the foot. But – as Bjarnason writes – this didn't start with Trump. As ever, Trump is as much an effect as a cause, and the most important cause of Trump is the conversion of America into a financial economy, which started under Reagan, but was only finalized by Obama, who let the Wall Street looters who destroyed the world economy walk away unscathed, even as they stole the homes of millions of Americans:
Financial economies "suck the air out of the rest of the economy and make it less competitive." Keeping billionaires in megayachts comes at the expense of "research, education, infrastructure, and healthcare." Countries that financialize lag behind countries where the economy is based on making things, not extracting or financing things.
Generations of both imperial looting and domestic investment made America the richest country on earth. That wealth cushioned America's transition to oligarchy: for a while, the country could both "finance and billionaire parasites sucking its blood" and continue to invest in itself. But while you can double the wealth of a billionaire at the expense of a town or two, doubling the wealth of a centibillionaire requires the destruction of whole regions.
As America looted itself into irrelevance, China – a very different kind of autocracy – invested in domestic capacity and domestic consumption. China's hardly a well-run place: like any autocracy, it functions according to the whims of extremely fallible officials, which produces real-estate bubbles and other crises of production (to say nothing of the demographic crisis of the One Child policy) and necessitates steadily increasing oppression, from online surveillance to concentration camps in Xinjiang.
Bjarnason writes about how this Chinese/US world presents a "double bind" for the EU. Siding with the US is increasingly untenable: the EU exists in large part to promote its domestic industries, but the US is no longer content to leave these alone. As Bjarnason says, US economic policy is now, "whatever our oligarchs want to steal this month, they get."
US tech has extended so many tendrils into so many sectors that it's not possible to defend any industrial sector without impinging on the "technopoly," where "the only ideas and thoughts that have social and cultural legitimacy are those that support, are supported by, and are mediated through technology."
This means that continuing to work within the American system means a steady transfer of economic and political control of every aspect of your life to the US, a decaying empire ruled over by a mad king. Nevertheless, there is a strong, vestigial reflex to protect American tech in the EU, which leaves European power-brokers scrambling to come up with reasons that the EU should confine its tech regulation to empty symbolic gestures, while avoiding meaningful action at all costs:
But the American tech sector relies on the other sources of American power – the ones that Trump is so bent on destroying. Trump's de-dollarization of the world economy is pushing the world away from using American tech for payment processing and networking. The American empire created the form of the US tech sector. As Bjarnason writes, "without the weight of the US political empire behind it – if Airbnb or Uber had been local startups – much fewer countries in the world would have loosened their regulations and consumer protections to accommodate them to the point where they prospered as they did."
Trump isn't the first US leader to make a strategic blunder (the US has lost every war it's fought since WWII, after all). But Trump's blunders are different in that they "deliberately signal the end [the US] empire." Hormuz and tariffs have driven people away from the US dollar, and everyone knows who to blame for the senseless deaths in the Gulf and the global privation caused by oil rationing.
That's bad news for a software industry that "shifted its entire value proposition from 'we make tools that help you make or save money' to using political clout and the dollar hegemony to capture, control, and loot entire sectors of the various economies of the world. That strategy only works when you’re in charge."
DOGE wiped out the health systems of the global south, and now Trump's trade negotiators are demanding that these countries promise to keep their hands off of US tech in exchange for reinstating a small trickle of the aid they lost. These countries are rejecting those demands:
It's all up for grabs, in other words. The post-American internet is being born in a post-American world, and the shape of both is impossible to determine from this side of the veil. Bjarnason quotes Gramsci: "the old is dying and the new cannot be born."
I hold out high hopes for a world of international digital public goods: free and open software that replaces America's extractive, defective black boxes with transparent, auditable, trustworthy alternatives that are under the control of the people who use them:
But – as Bjarnason says – even the intellectual property framework that the free/open source movement relies on to make its licenses enforceable is an artifact of the collapsing American empire. If the global copyright system collapses with America, there won't be any impediments to reverse-engineering and improving the tech around us – but there also won't be any way to enforce the free software licenses that keep that software open:
The whole essay is very good and – like so many great essays – it raises more questions than it answers. It's also full of standout one-liners like this one:
How do LLMs affect productivity and quality? (Much like leaded petrol. There’s some potential benefit for individual users with literally decades of expertise, provided nobody else uses LLMs. The results are catastrophic when everybody is using them.)
Consider moving it to the top of your weekend reading.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
The curious, intertwined history of climate and digital rights activism
I'm on a tour with my new book Enshittification: catch me next in New Orleans, Chicago and Los Angeles! Full schedule here.
I am an environmentalist, but I'm not a climate activist. I used to be – I even used to ring strangers' doorbells on behalf of Greenpeace. But a quarter of a century ago, I fell in with the Electronic Frontier Foundation and became a lifelong digital rights activist, and switched to cheering on environmental activists from the sidelines of their fight:
https://eff.org
Over the decades, there've been many moments where I've been struck by the parallels between climate activism and tech activism. In both cases, the foundational challenge is getting people to care about the looming catastrophic effects of bad policies. In both cases, those policies and their effects are highly abstract and technical, and are downstream of a huge, weird, cross-cutting set of contingencies and circumstances, which makes it hard for anyone to truly take their measure. You don't just have to master the technical issues – you have to get your arms around the economic, social and political issues, too. Bad tech policy and bad climate policy are both wicked problems, hard to define and even harder to solve.
Whether we're talking about tech or the climate, there is a surefire way to get people to care about these issues: simply do nothing, allow these problems to get worse, and worse still, until millions of peoples' lives have been ruined. Then, of course, people will care. If we do nothing about fire debt and rising temperatures, then everyone who lives in the urban-wildlife interface will lose their homes and possibly their lives to a wildfire. And if we do nothing about surveillance, manipulation and monopoly, then eventually everyone will find their pay slashed, their freedoms curtailed, their identities stolen, and their pockets picked by a tech monopolist or an opportunistic predator living off of the monopolist's weakened, vulnerable victims.
In some important sense, the job of an activist is to raise the salience and convey the urgency of these issues before those consequences are upon us. Both climate and tech activists use storytelling to do this, and I've written novels that are cautionary tales about what happens if we get climate wrong and if we get tech wrong, as well as novels that are meant to inspire hope for the kind of world we could have if we get them right.
Both climate and tech activists have to contend with bullshit neoliberal "solutions" that propose to solve the problem by deploying technologically outlandish policies. Tech activists have to fight with people who say we can solve the commercial surveillance problem by "getting consent" to spy on people. Environmental activists have to fight with people who say we can control emissions with garbage "carbon credits" that make Elon Musk into a centibillionaire by selling indulgences to SUV manufacturers that fill our roads and our skies with ever-mounting clouds of CO2 and carcinogenic exhaust:
Both climate and tech activists have to show people that this crisis stems from systemic dysfunctions, not individual consumption choices. We have to get our supporters to stop focusing on agonizing about whether they should use a plastic straw or agonizing about whether they should quit Facebook, and focus instead on using politics to shatter the power of the giant, wildly profitable corporations that got us into this crisis. We need to smash oil companies like Chevron and Exxon, and we have to smash oily rag companies like Facebook and Google:
Beyond these parallels, both climate and tech activism have some actual commonalities. The biggest barrier to getting good tech or climate policy is the power of the cartel that dominates each sector. Cartels aren't just contrivances for raising prices – they're even better at capturing their regulators. A hundred small and medium-sized companies are a hopeless rabble, unable to agree on anything – especially what they want from regulators. But five giant companies find it very easy to come to agreement, and they are aslosh in monopoly cash, which they can mobilize to get their way in policy forums:
But there's another, more hopeful parallel between tech and climate: after decades of vapor lock, both have seen rapid global improvement. Solar is racing ahead of all expectations. Globally, we're getting more power from solar than we are from coal. Solar is cheaper than any form of fossil fuel. Solar gets better every day, and we're figuring out how to overcome some of the serious challenges to solar, like finding all the materials we'll need for a solar transition. It turns out that a lot of the challenges on that front boil down to the fact that recycling old cleantech uses up a lot of energy. But as solar gets cheaper and more efficient, we have a lot of energy, and we can take apart an old solar panel that ran at 20% efficiency and use its recovered materials to make two solar panels that each run at 40% efficiency:
Then there's tech. The past half-decade has seen more global action on tech regulation than the previous 40 years. Not all of it is good – plenty of it is as stupid as pinning your hopes on carbon capture or fusion reactors – but governments all over the world have got the bit in their teeth and they're champing at it:
For both climate and tech, Trump is turning out to be a (mixed) blessing in disguise. Sure, he's killing decarbonization in the US, but he's also alienating America's (former) allies so quickly and thoroughly that many countries are moving closer to China's orbit. Again, that's a mixed blessing, but one very positive impact of Trump's beliigerence is that it has lit a fire under the leaders of other (formerly) friendly countries, spurring big, ambitious programs to escape US-based tech companies:
Back in the first Trump administration, tariffs on Chinese solar panels led Chinese manufacturers to flood countries in the global south with solar panels that were so cheap that whole regions solarized, virtually overnight. Pakistan – one of the countries suffering the most from a changing climate, and most at risk from future changes – is now a solar nation, so much so that its national power company is in danger of going bust because everyone's making their own electricity rather than buying it from the grid.
Meanwhile, Putin's invasion of Ukraine pushed Europe – all of it, but especially Germany – into a galloping solar transition of its own. Virtually every high rise in Germany is now dotted (or even covered) with cheap, easy to hang balcony solar panels. Europe is way ahead of its energy transition goals:
Putin's not the only dictator pushing Europe to enact rapid changes in order to escape US Big Tech silos, building a "Eurostack" of open, transparent, made-in-the-EU applications and services that are meant to replace American tech platforms:
Another, unhappier commonality between tech and climate: it's not just that both are getting better faster than we'd thought possible, it's also that they're both getting worse faster than we'd feared.
On climate, virtually every bad thing that showed up in our models is breaking faster than we thought it would. The permafrost is melting faster and it's releasing more methane than we'd anticipated. The gulf stream and jet stream are bother getting more screwy, more quickly than predicted. Sure, we're decarbonizing and solarizing faster than we thought we could – but the world is falling apart faster than we thought it would, too:
And I don't have to tell you what's happening with tech. Technofascism is ascendant. ICE is using our devices to round up our neighbors and send them to torture prisons. Trump is using our social media posts to hunt down "the radical left" as a prelude to mass purges. Seven AI companies are now a third of the S&P 500, and they're losing money even faster than they are emitting carbon, and the crash on the horizon is gonna make 2008 look like a walk in the park:
What's more, tech and cleantech are merging. The enshittification that has turned every platform to shit can now turn every part of the cleantech stack into a pile of shit, too. If Apple can pull the ICEBlock app out of your phone, then a solar inverter company can also remotely shut down your solar array and leave you in the dark:
For all of this century, I've been a tech activist, but it's turning out that being a tech activist has an awful lot in common with being a climate activist, and sometimes – as when we're fighting to keep EVs from being bricked by their manufacturers or to prevent rent-seeking with inverters – they're literally the same thing.
The great James Boyle has described the transformational power of the word "ecology." Without that word, there's no obvious connection between, say, the campaign to save the ozone layer and the campaign to save endangered owls. The fate of charismatic nocturnal avians is not readily understood as being of a piece with the gaseous composition of the upper atmosphere. The word "ecology" makes the connection, and so transforms a thousand issues into a movement
I think something like that is happening again. There's a inchoate movement groping its way to understanding that it is a movement – that the problems of labor exploitation, fascism, climate degradation, surveillance, authoritarianism and genocide are all connected to each other by the fact that they are caused by extreme concentrations of wealth and power. Highly concentrated wealth and power is dangerous in and of itself, because even the most benign billionaire isn't infallible, and the stupid decisions of very rich people are far more consequential than the stupid decisions you or I make. Our mistakes make the people around us unhappy. Billionaires' mistakes – like their dilettanteish obsession with "education reform" – can ruin a whole generation:
And of course, the kind of person who amasses billions is pretty much never a benign person. The story you have to tell yourself in order to become a billionaire makes you into a literal psychopath:
We don't have a word for this new anti-enshittification, anti-oligarch, anti-carbon baron movement yet, but perhaps that word might be "solidarity." Solidarity is the opposite of fascism. The solidarinet is the opposite of the enshitternet. Solidarity is what stops disasters from becoming catastrophes:
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
If you want to know which industries have the most influence in DC, study the trade deals struck by the US Trade Representative, whose activities are the most obvious manifestation of American corporate power over state. Take the Indo-Pacific Economic Framework (IPEF). As David Dayen notes, this treaty is a kind of Big Tech wishlist:
If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
The USTR’s playbook has changed over the years, reflecting the degree of control over the US government exerted by different sectors of the US economy. Today, with Big Tech in the driver’s seat, US trade deals embody something called the “digital trade agenda,” a mix of policies ranging from limiting liability, privacy protection, competition law, and data locatization.
The Digital Trade Agenda is a relatively new phenomenon. A decade ago, when the USTR went abroad to twist the arms of America’s trading partners, the only “digital” part of the agenda was obligations to spy on users and to swiftly remove materials claimed to have violated US media monopolies’ copyright. But as the tech sector grew more concentrated, they were able to seize a greater share America’s trade priorities.
One person who had a front-row seat for this transformation was Wendy Li, a PhD candidate in sociology at the University of Wisconsin, who served in the USTR’s office from 2015–17, and who leveraged her contacts among officials and lobbyists (and ex-lobbyists turned officials and vice-versa) to produce a fascinating, ethnographic account of a very specific form of regulatory capture. That account appears in “Regulatory Capture’s Third Face of Power,” in Socio-Economic Review. The article is paywalled, but if you access it via this link, you can bypass the paywall:
https://pluralistic.net/wendi-li-reg-capture
Li’s paper starts with a taxonomy of types of regulatory capture, drawn from the literature. The first kind — the “first face of power” — is when an industry wins some battle over a given policy, triumphing over the public interest. Li notes that defining “public interest” is sometimes tricky, which is true, but still, there are some obvious examples of this kind of capture.
My “favorite” example of horrible regulatory capture is from 2019, when Dow Chemical — working through the West Virginia Manufacturers Association — convinced the state of West Virginia to relax the limits on how much toxic runoff from chemical processing could be present in the state’s drinking water. Dow argued that the national safe levels reflected a different kind of person from the typical West Virginian. Specifically, Dow argued, the people of West Virginia were much fatter than other Americans, so their bodies could absorb more poison without sickening. And besides, Dow concluded, West Virginians drink beer, not water, so poisoning their drinking water wouldn’t affect them:
This isn’t even a little ambiguous. Dow’s pleading wasn’t just absurd on its face — it was also scientifically bankrupt — there’s no evidence that being overweight makes you less susceptible to carcinogens. And yet, the state regulator bought it. Why? Well, maybe because chemical processing is WV’s largest industry, and Dow is the largest chemical company in the state. Regulatory capture, in other words.
The second kind of regulatory capture is the “revolving door”: when an executive from industry rotates into a role in government, where they are expected to guard the public interest from their former employers. There’s some of this in every presidential administration — think of Obama’s ex-Morganstanley and ex-Goldmansachs finance officials.
But while Obama and other “normal” pols sketched their corruption with a fine-tipped pen, making the overall shape hard to discern, Trump scrawled large, crude, unmissable figures with a fisted Sharpie. Remember Scott Pruitt, the disgraced Trump EPA who wanted to abolish the EPA? Pruitt was was such a colossal asshole that even the lobbyists who’d been bribing him with free housing actually evicted him:
That’s the “second face of power.” What’s the third? It’s taking over the shape of the debate, getting to define its axioms. Think of the reflexive idea that government projects are “wasteful” and “inefficient.” Once all players internalize this idea, the debate shifts from “what should the public sector do?” to “which private-sector entity should the government pay to do this?” Anyone who says, “Wait, why doesn’t the government just do this?” just gets blank stares.
We can see this in the cramped and inadequate debate over the SVB bailout; apologists for the bailout insist that it was necessary because if SVB’s depositors had been forced to take a haircut, every large depositor in America would pile into Morganstanley, making it so “too big to fail” that it could tank the nation.
This is probably true — but only if you discount the possibility of establishing a public bank. Public banks are hardly a radical idea: America had nationwide public banking through the postal service until 1966:
Li summarizes: “the first face of power is measured through the winner of the game, and the second face of power can be understood as the referee. The third face of power is the field, the rulebook, and agreement that there is even a game at all.”
It’s the creation of this third face that Li’s paper dissects — the creation of “Type I” ideas that form the unquestioned assumptions for all other debate. Sociologist call these ideas “schemas.” Li describes two ways that the tech industry changed the schemas used in trade negotiations. First, schemas are changed through “knowledge production” — creating reports and data.
Second, schemas are embedded through “recursive institutional reproduction” — a bit of unfortunately opaque academic jargon that is roughly equivalent to what activists call “policy laundering.” That’s when an industry can’t get its way in its home country, so it leans on trade reps to include that policy in a treaty or trade deal, which transforms it into an obligation at home.
In tech policy, the Ur-example of this is the DMCA, a 1998 digital copyright law that has profoundly changed the way we relate to everything from online services to our coffee makers. The origins of the DMCA are wild. In 1991, Al Gore kicked off the National Information Infrastructure hearings — AKA the “Information Superhighway” project. One of the most prominent proposals for the future of the internet came from Bruce Lehman, Bill Clinton’s Copyrigh tCzar. Lehman had been the head of IP enforcement for Microsoft, and he had some genuinely batshit ideas for the internet, like requiring a separate, negotiated copyright license for every transitory copy made by RAM, or a network buffer, or drive cache:
https://www.wired.com/1996/01/white-paper/
Gore laughed Lehman out of the room and told him to hit the road. So Lehman did, scurrying over to Geneva, where he turned his batshit ideas into the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Then he raced back to DC where he told Congress that they had to get on board with those UN treaties. In 1998, Congress passed the DMCA, turning a failed regulatory policy into a federal law that endures to this day.
That’s “policy laundering.” Lehman couldn’t get his ideas though the US government, so he rammed them through a UN agency, converting his proposal into an obligation, which Congress duly assumed.
The Digital Trade Agenda triumphed by both knowledge production and recursive institutional reproduction (AKA policy laundering). Under Obama, trade officials created the Digital Trade Working Group in consultation with industry, through the US Chamber of Commerce. This group worked with the US International Trade Commission (USITC) — a quasi-governmental research body — to produce copious reports, testimony and data in support of a focus on “digital trade.”
In particular, they inflated the value of digital trade to US officials, convincing them that getting wins for the digital industry would have an outsized impact on the US economy. This is reflected in the terms of the Trans-Pacific Partnership, a trade deal that was negotiated in the utmost secrecy, in hotels all over the world surrounded by armed guards, where neither the press nor activists were welcome.
TPP represented a kind of farcical wishlist for America’s corporate giants, including the tech sector, and it looked like a done deal — until Trump. Trump unilaterally withdrew from TPP, so the tech industry’s reps simply tacked around TPP. They took everything they’d wanted to get out of TPP and crammed it into the USMCA, Trump’s rewrite of NAFTA. This makes perfect sense — corporate America’s priority was TPP’s policies, not TPP itself.
Li’s paper doesn’t just document this shift, she also gives us interviews with (anonymized) officials and lobbyists who speak frankly about how this happened behind the scenes. For example, a former Commerce official turned tech lobbyist describes how he lobbies his former coworkers: “Sometimes, [meetings are like] hey, let’s grab lunch, let’s grab coffee, and catch up. And half of it is about our kids, and half of it is about this [work related issue]. We’ll have a formal meeting [with government officials], but obviously we chitchat before and after. Because we’re human. So, a lot of it is just normal human interaction, right?”
This social coziness lets lobbyists position themselves as “stakeholders,” which legitimizes — and even requires — their participation in policymaking. As a trade negotiator says, “So to get your handle on a problem, you’ve got to pull the right people together, and you’ve got
to sift through all the various ideas, so we obviously have a lot of regular interaction with companies [. . .] I spend a lot of time with the companies trying to understand their business model, try ing to understand how they interact with the governments in different countries, and then of course, socializing it within the building.”
Once lobbyists are “stakeholders,” they get to define not just what position the US takes — they get to define which positions can even be considered. As a trade negotiator says, “[Lobbyists aren’t] coming in and spouting talking points. They’re not giving us draft text because
we haven’t gotten to the text phase yet. The way these meetings go is, generally we provide an update on what is happening and what approach we’re taking. The remainder is usually devoted to companies talking about their particular interests, and inquiring as to whether and how their issues are being addressed in that forum.”
That’s not just winning the game — it’s defining the rules.
Li’s paper is a fascinating tour of the sausage-factory and a close examination of the gunk that litters the factory floor. That said, I think there are areas where she drops policies and fights into neat categories that are much messier. For example, Li contrasts the rules in TPP with the rules in ACTA, the Anti-Counterfeiting Trade Agreement, a failed international treaty from 2010.
Li characterizes ACTA as being an anti-tech proposal because it imposed copyright liability on tech companies, which would have raised their costs by forcing them to police their users’ speech, items for sale and uploads for copyright infringement. But that’s not quite right: ACTA was much broader. First, because “counterfeiting” doesn’t mean what you think it does: in an international trade agreement, counterfeiting concerns itself with all kinds of totally legitimate activities.
For example, Apple engraves microscopic Apple logos on every part in an iPhone; no user ever sees these parts. But Apple uses the presence of an Apple trademark on these tiny components to lodge trademark claims with US border officials in order to block the importation of parts harvested from dead iPhones, as part of the company’s war on repair:
Likewise, companies like Rolex and Cartier have national subsidiaries in countries all over the world with the exclusive license to sell their goods in each country. These companies then claim that, say, an official Mexican Rolex watch becomes a counterfeit Rolex the minute it crosses the US border, because Rolex Mexico doesn’t have the right to use Rolex International’s trademarks outside of Mexico.
Asking tech companies to police “counterfeits” isn’t just about stopping knockoffs — it’s about letting multinational corporations control all secondary markets for their goods, giving them total control over repair and used goods.
Beyond that: creating an affirmative duty for platforms to police their users’ uploads and speech for copyright infringement is one of those things that not only won’t prevent copyright infringement (beating filters is easy for dedicated copyright infringers), but it will also compromise users’ speech (because filters are rife with false positives) — and it will hand eternal dominance to the largest tech firms (both Youtube and Facebook support mandatory filters, because they’ve spent hundreds of millions on them, and know that their small rivals can’t).
ACTA wasn’t a way to “punish” tech to make life better for media companies — it was a way to shift some of the oligarchic control of both tech and media around, while shoring up its dominance. Yes, parts of the tech sector hated ACTA, but it died because millions of people campaigned against it.
And of course, ACTA got policy-laundered into law in 2019, when the EU adopted the Digital Single Market Directive and created a filtering mandate, ignoring the largest petition in EU history and the people who marched in 50 cities. That was recursive institutional reproduction in action all right.
Likewise, TPP can’t be understood as the tech sector sidelining the entertainment companies — because both of them rallied for the parts of TPP that feathered all their nests. For example, the entertainment sector and the tech sector both love rules against reverse-engineers (like Section 1201 of the DMCA), which make it a felony to unlock your books, music, games and videos from the store that sold them to you and take them with you to another player.
Tech loves this because it gets them lock-in — if you break up with Amazon, you have to kiss your Kindle and Audible books goodbye. Media loves it because it gives them control — DRM stops you from recording Christmas movies between Feb and Dec, when they come free with your streaming service, and that means you have to pay-per-view them in December, when you want to watch them.
In other words, the Big Tech and Big Content’s policy fights aren’t so much about which policies we get — they’re about who gets to profit from them. They both want the same stuff — no taxes, no unions, no minimum wage, no consumer rights, no privacy — but they each want to hoard the benefits from that stuff.
Both tech and media love “IP” — not in the sense of “copyright” or “trademark,” but in the sense of “any law that lets me control the conduct of my competitors, critics and customers”:
https://locusmag.com/2020/09/cory-doctorow-ip/
In USMCA, it wasn’t just the “Digital Trade Agenda” that made it into the final agreement — it was mandatory DRM laws, massive copyright extensions, and the evisceration of fair use and its equivalents in Mexico and Canada:
There’s another important factor missing from Li’s analysis of the rise of the Digital Trade Agenda: monopoly. Tech used to be composed of hundreds of competing firms that hated each other’s guts and were incapable of working together. The entertainment industry, by contrast, was already hugely consolidated and able to lobby effectively as a body.
That was hugely important in the Napster Wars, when international copyright proposals like the Database Right and the Broadcast Treaty were popping up at the UN and in country-to-country trade deals. While the tech industry was competing to give users a better deal, Big Content was able to solve the collective action problem and come up with a common lobbying position, getting nearly identical (and absolutely ghastly) tech bills introduced in dozens of state legislatures at once:
The rise of the Digital Trade Agenda is downstream of tech industry consolidation, the orgy of mergers that saw the internet transformed into “five giant websites, each filled with screenshots of text from the other four”:
Li’s taxonomy of regulatory capture is useful and important, and it’s complimented by an analysis of failures in antitrust enforcement. Market consolidation has produced firms that are more powerful than the governments that are supposed to keep them honest. When the teams have more power than the ref, the game will never be fair:
The tech industry aren’t really adverse to the entertainment industry, at least not where it counts. They are all part of the business lobby, whose regulatory priorities are broadly shared, even if they disagree at the margins. Dayen describes how the Digital Trade Agenda is playing out in IPEF, the treaty with more than a dozen Pacific Rim countries: “It would prohibit governments from reviewing or prescreening algorithms for violations of labor law, competition policy, or nondiscrimination statutes. It would bar limitations on data flows or storage. And it would treat policies that have greater impacts on the large tech firms as illegal trade barriers. These terms could block signatory countries from writing laws that take on any of these issues.”
Those aren’t tech priorities — those are corporate priorities. The success of the “Digital Trade Agenda” isn’t just because tech grew up and started lobbying — it’s because the things they lobby for are the things every business wants: no labor protection, no antitrust, no privacy.
That’s the “schema” that matters: the bedrock assumption that job of US trade policy is to make sure that workers and residents abroad have no rights, with the obligation on America to dismantle the few rights that remain intact in its borders to satisfy the “obligation” it actually insisted on.
Later this week (Apr 20/21), I’m speaking in Chicago at the Stigler Center’s Antitrust and Competition Conference.
This weekend (Apr 22/23), I’m at the LA Times Festival of Books.
[Image ID: The Milky Way. Standing to the left of the frame is a giant ogrish figure, a top-hatted, cigar-chomping caricature of a capitalist. He emerges from behind a silhouetted tree, towering over it. With one white-gloved hand, he is yanking a golden, dollar-sign-shaped lever at a control box. With the other hand, he disdainfully dangles a 'big blue marble' image of Earth from space. The starry sky is partially blended with a green-on-black 'code waterfall' effect in the style of the Matrix movie open credits. The ogre's eyes have been replaced with the glaring red eyes of HAL9000 from Stanley Kubrick's '2001: A Space Odyssey.']
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