When we think of maintaining freedom, we most often think of restraining government. Written into the American psyche is a fear of invasion into liberty by the tyrannical power of the state. Yet government, or at least government acting alone, is not all we have to fear. In the guise of day-to-day business, more subtle threats are gaining ground.

A student with a textbook resale business recently appeared before the Supreme Court. The student, Supap Kirtsaeng, asked relatives to buy textbooks in Thailand and send them to him in the US. Kirtsaeng then turned around and sold the books to American students, undercutting American versions of the same books. John Wiley and Sons, Inc., a textbook publisher, sued Kirtsaeng for copyright infringement and won in the lower courts. The lower courts ruled that a copyrighted product is only protected under first sale doctrine if it is made in the United States (the first sale doctrine says that once a person buys a particular copyrighted item, the person may sell the item or otherwise distribute it without the consent of the copyright owner). Therefore, under the lower courts’ interpretation of the Copyright Act,  a person who owns a copyrighted item manufactured and purchased abroad cannot sell the item in the United States without the consent of the copyright holder.

The Copyright Act’s language on this point is very confusing and seemingly contradictory (Section 109Section 602). But if you move past the statutory uncertainty, something more fundamental comes into view: the expanding extent of private control over ordinary life. As that expansion tracks under the surface of this case and many other facets of our time, it’s worth a second look.

Government action will always remain a special focus of those concerned with liberty, for government exercises power that no one else may wield. But that focus should not blind us to the increasing control private actors hold over our lives. The most limited affirmation in this case would prevent resale of books printed in Toronto and bought in Windsor by residents of Detroit or resale of old London-pressed records sent by relatives in England for some long-ago Christmas. This is not a complex corporate case far from the realms of ordinary people – this is private control over the everyday stuff of life. If our elected government took such power directly, the nation would be up in arms and Washington politics aflame. Yet when private, often opaque companies accountable only to the dollar attempt to grab control, only a relative whimper.

The watchdogs of liberty must diversify their business. Private products and private services have come to dominate our lives, to induce our dependence and to encircle our worlds. If we sleep or look elsewhere, the circle may become a noose.

The economics of international production might agree with Wiley: perhaps international manufacturers need protection from unauthorized importers if they are to properly price their products across different markets. But what’s best for business and economic growth shouldn’t always be the deciding factor. As we consider the rights and privileges of private actors in intellectual property and elsewhere, we might reflect that wealth never did anyone any good in prison.