Information Feudalism and the Oath You Swore to Your Printer

Oct 11 2015

Welcome to the 9th century. The lord owns the land. The vassals are given permission to farm the land in exchange for fealty, money, products, and services. The oath of fealty binds the vassal to the lord. Feudalism evokes images of castles overlooking European heaths. Small huts dot the landscape, and knights ride on horseback over the surrounding countryside.

But the days of feudalism are returning. The tech culture of the 21st century has given birth to a new kind of feudalism: information feudalism. As we sign contracts for everything from toner cartridges to social media websites, we have exchanged freedom for obligation and become vassals to a host of companies.

Lords, Vassals, Oaths and Obligations

Feudalism is characterized by the centralization of ownership in the hands of a few lords. These few then lease usage rights to a wider array of vassals, who in turn are indebted to these lords. Signing contracts with the lords, the vassals enter into an agreement in which they gain the right to use the land in exchange for making their products, money, and services available to the lord. The process of a vassal becoming indentured to the lord was captured in a ceremony in which the vassal takes an oath of fealty.

Two ideas sit at the core of feudalism:

  • The exchange of property rights for contractual obligations.
  • The consolidation of authority at the level of the lords.

We like to believe that capitalism and democracy overturned feudalism. Ownership has been spread out among all individuals (though not evenly) and the idea of the contractual "oath of fealty" has simply fallen by the wayside.

But feudalism is returning. And it is creeping in through intellectual property law and license agreements. Those thousands of software licenses you thoughtlessly click through are becoming the instruments of an emerging class of information lords.

The Kingdom Built On Printer Toner

This month, a fascinating intellectual property lawsuit garnered media attention. Lexmark, the printer company, continues to protect its hold on the toner market by preventing people (or companies) from re-filling its toner cartridges.

While some media attention mischaracterizes the suit, the core issue of the case brings the issue of feudalism to the forefront. When you buy a Lexmark toner cartridge, you must "sign" a licenses agreement when you open the box (You "sign" by opening the box, a bizarre take on the speech-act). And the agreement says this:

RETURN EMPTY CARTRIDGE TO LEXMARK FOR RECYCLING

Please read before opening. Opening this package or using the patented cartridge inside confirms your acceptance of the following license agreement. The patented Return Program cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for recycling. If you don’t accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available.

In short, to use this hardware, you are swearing an oath to Lexmark about what you will do with it. And this oath is indeed legally binding. Read a summary.

This is a frightening forfeiture of rights. We are asked (told) to do this in the name of Lexmark's own profit. With this legally binding contract, Lexmark has turned the tables on you, the consumer. You have sworn an oath of fealty to Lexmark, and it has clearly put Lexmark in the lord's throne, with you as the vassal.

Lexmark is not even close to an exception to the norm, though.

Just Click "I Accept"

You don't even need to read a page into Facebook's Terms of Service before you hit section 2.1:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

Facebook claims rights on everything you post via there service. They don't owe you anything, and you can only revoke those rights if neither you nor anybody else (including Facebook) shares your content with others.

Facebook has leased you its digital "land" in exchange for all that you produce on it. Just about every other social media service you consider using will make a similar claim (Twitter, for example).

In fact, as you scan through user license agreements for software like iTunes or services like iClouds, over and over you will find the repeated theme that even though you feel like you are using "your thing" (the software, your page, your cloud drive), you are really "leasing" virtual land, and making an oath in exchange.

And with the nascent Internet of Things, the kind of information being collected is of a different sort. If you would really like a scare, read through Nest's Terms of Service. Who has rights over all that data your thermostat is sending to Nest? And what recourse do you have if anything goes wrong?

I Pledge Allegiance to Facebook, and to React, its JS Library

My all-time favorite clause is innocuously buried inside of Facebook's React.js library in the PATENTS file:

The license granted hereunder will terminate, automatically and without notice, for anyone that makes any claim (including by filing any lawsuit, assertion or other action) alleging (a) direct, indirect, or contributory infringement or inducement to infringe any patent: (i) by Facebook or any of its subsidiaries or affiliates, whether or not such claim is related to the Software, (ii) by any party if such claim arises in whole or in part from any software, product or service of Facebook or any of its subsidiaries or affiliates, whether or not such claim is related to the Software, or (iii) by any party relating to the Software; or (b) that any right in any patent claim of Facebook is invalid or unenforceable.

If we follow through some disjunctions, we can read out the following implication:

The license... will terminate... for anyone that makes any claim... that any right in any patent claim of Facebook is invalid or unenforceable.

All I have to say is that one of Facebook's patents is silly or frivolous, and I automatically lose my little plot of land on the great Facebook estate.

To be fair, Facebook has recently toned down the PATENT file rhetoric (largely because other lords complained that Facebook was trying to make them vassals). But the fact that clauses like this crept into commonly used pieces of software indicates how thoroughgoing the conversion to information feudalism is.

Why are we so willing to give up our rights?

Discounting the Future

There is a well-known cognitive bias we humans are prey to. Psychologists call it temporal discounting, and economists use it to explain why we don't save our money or contribute to our 401k.

In general, we discount the future when we choose present rewards over future rewards. Research suggests that we often will choose small rewards immediately over larger rewards in the distant future.

Discounting is part of the reason why sign away our rights so readily when we join a website or click through a EULA on our software. We want something now! But what about the rights to the content we post in the future? Meh. I need to print something now, so I'll take today's discounted ink in exchange for giving up future freedoms.

What are we doing as we continue to blindly serve this bias? We are eroding a core concept that guaranteed the possibility of the capitalist system.

The Dissolution of Property

When feudalism's semi-formal structures emerged during the Middle Ages, the concept of property rights hadn't really been fleshed out. From the Magna Carta to the Statute of Anne through to the writings of Locke and Smith, the British concept of property took hundreds of years to solidify. (I'm embarrassed to admin that I know nothing of similar developments in non-English speaking countries.)

The systems of capitalism and democracy stand upon some fundamental assertions of what "private property" is and what freedoms come with it.

Property involves claims of ownership, which in turn provide both freedoms and responsibilities. Own a huge parcel of land? You can use it how you wish. But remember that if something bad happens on it, you may also be culpable. Don't believe me? Here's a fun place to start: Google trampoline lawsuits.

But something subtle is happening as we sign contracts: We may keep "ownership" of our toner, our digital images, and our blog posts, but we give away the privileges of ownership. In short, the new lords of information have learned how to extract the value of the property (in the form of perpetual transferable sub-licensable usage rights and other things) while leaving you with the associated responsibilities and liabilities.

These companies are doing this for the simple reason that it is advantageous to them. It protects the from lawsuits, it extends their intellectual property portfolio, and it gives them an edge on the competition.

I doubt they realize that as they do this, they are undermining the value of property itself. On the one hand, we give up the rights of ownership when we buy a product like toner or Microsoft Office. We sign a EULA that says we don't really own what we bought, or we break a seal on a wrapper that binds us to do what we're told with the product. And so that rudimentary concept of property behind commerce is devalued. A moment later, we sign a contract with a social media website that says the product that we generate is theirs to use. Automatically. Forever. And they owe us nothing--not even a guarantee of service.

We break apart property and the freedoms and obligations it confers. Then we negotiate the freedoms away. What is left? To be a member of the middle-class economy is to be nothing more than a nexus of contractual obligations to companies whose products and services we utilize.

That is not capitalism. It's feudalism.

Where Does It End?

At first, the wild west Web was a free-for-all of information sharing. This, of course, is a major threat to those that own information. Early lawsuits shut down services like Napster that made illegal information sharing (namely, bootlegging music) into a business model. And who knows? This may well have been the best course of action to protect the idea of property under capitalism.

But the tech industries have subtly extended their reach. They own "their" information. They have all the rights to your information. And the claims with companies like Lexmark extend beyond mere information: they own the rights to your physical property, and can tell you what you may or may not do (even if you "own" the property). Facebook's PATENT file takes things a considerable step further: Even your speech is regulated by your contract with the company.

Karl Marx famously postulated that societies went from feudal to capitalist to communist. We in the western world seem to be showing Marx up. Having tasted capitalism, we consumers are willing to regress to feudalism. And where there are willing vassals, there will be no shortage of lords.


Image from https://en.wikipedia.org/wiki/Commendation_ceremony,



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