Editor’s note: James DeLong is senior fellow, Project on Technology and Innovation, at the Competitive Enterprise Institute.

WASHINGTON, D.C. – Barbed wire won the West. The image of the open range is romantic, but lack of controlled boundaries led to over-grazing, lost stock, trampled homesteads, bitter conflict, and, in the jargon of a later era, an inhibited investment climate.

The Internet is sometimes analogized to the Wild West, and last week Representative Howard Berman (D-Cal.), who has many Hollywood-oriented constituents, took a step toward making some barbed wire. He announced a bill to allow copyright holders to forestall unauthorized P2P (peer to peer — see definition below) distribution of their works through “technological self-help measures,” including “interdiction, decoy, redirection, file-blocking, and spoofing.” Explicit authority is needed, he says, because technological self-help might violate some existing laws.

Berman’s speech added that legislation should be narrow, should not allow damage to computers or introduction of viruses, and should provide remedies for any P2Per who is treated unfairly.

As the ranking minority member of the Subcommittee on the Courts and Intellectual Property of the House Judiciary Committee, Berman has clout, so his bill, when he introduces it — July 11 is rumored — will get serious attention.

And a fine donnybrook it will be. Initial reporting was mostly neutral, but the terms “sabotage,” “vigilantism,” and “cyber warfare” did appear. They will be used again, because Berman’s proposal raises two major concerns, one fair and one illegitimate.

The fair objection is that the threat of outsiders probing our computers makes us queasy. Also, we are not yet convinced that a system can be designed that will not be error prone. In response, proponents of self-help argue that participating in a file swapping network already opens up a computer to the world at large, and undercuts claims of privacy. In any event, if one downloads the latest Eminem hit only to find that is a decoy containing a lecture on the evils of theft, can one really claim harm? Of course, some devices are unlikely to be approved, such as snitch programs, which seek out copyrighted material and report back. As to avoiding error — that is indeed an issue, but it should not be insoluble.

The less respectable objection arises from the reality that large segments of the Internet community are fundamentally opposed to protecting intellectual property. Their fear is not that technological self-help systems would fail but that they would work.

The premise of this position, that the spirit of the Internet is somehow opposed to property rights, seems basically wrong. Protection of intellectual property, like protection of physical property, has vibrant moral, economic, and political justifications. And as CEI has often noted, the promise of the Internet, which is to make a cornucopia of content available instantly and cheaply, cannot be realized without a way to provide creators with the wherewithal to feed their bodies while their spirits soar. It is perhaps a paradox, but if information is to be freely available it cannot be free of charge.

In this calculation, technological self-help under reasonable legal standards looks good. Combined with digital rights management and micro payments, it would spur the creation of legitimate sites and reduce the pressure behind the P2P movement. This would be far better than leaving copyright holders no way to protect themselves except by deploying battalions of lawyers seeking increasingly draconian penalties. It would also be better than expecting artists to work for free while they scrounge out a living selling T-shirts and flipping burgers.

A basic legal case on self-help recovery of property is Richardson v. Anthony, an 1840 Vermont lawsuit over two heifers. If Berman’s technological barbed wire can keep those copyright cows from straying, we will all be better off.

(Definition from searchNetworking.com: “Peer-to-peer is a communications model in which each party has the same capabilities and either party can initiate a communication session–. In recent usage, peer-to-peer has come to describe applications in which users can use the Internet to exchange files with each other directly or through a mediating server.”)

CEI: www.cei.org