Skip to main content

Fighting to Keep the Web Open

While frontiers represent freedom, they also represent opportunity and potential. The untamed spaces have no limits, rules, or organizing communities, so one can venture into the frontier do as one pleases. The success of the frontier in this traditional context is the establishment of rules, limitations, and organizing communities. To realize any value from the frontier, one needs to establish security, infrastructure, and clear boundaries. To establish these things, the frontier must be domesticated. As such, the opportunity represented by the frontier is its own destruction, or the destruction of those features characteristic of a frontier. 

Yesterday, the EFF released a formal objection to the inclusion of DRM in HTML5. While that sounds pretty technical, the base idea is straightforward. The short version is that there is a proposal to include usage control and digital rights management capabilities in the next version of the markup language used to create web pages and consequently deliver content via the Web. HTML5 is a big deal for many reasons, not the least of which is the maturation of the Web's ecosystem. The last HTML revision happened in 1997, just as the Web was settling into mainstream life. When HTML was first written, there were no Internet connections capable of delivering embedded video to the everyday folks who used the Web. As a matter of fact, there were no everyday folks who used the Web, or even the Web as we think of it today. HTML was a visionary, forward-looking project, imagined as the solution to a problem that was just about to emerge: making creating and sharing content over computer networks easy for people to do.

Since 1990 when HTML was created, our networks and our computers have come a long way. We now use the Web for tasks that personal computers were not able to perform 23 years ago. In that time, we have also witnessed what are clearly the growing pains associated with the introduction of a new significant technology. The intellectual property debates and privacy issues that have been the focus of my academic research are two relevant examples here. Sharing is an important part of both human communication and HTML. Through embedding content in pages and linking to web-hosted files, we have used the Web to share lots of things with one another. As a content-delivery system, the Web has incredible capabilities, and those capabilities have grown as the supporting technology has improved. Digital publishing and digital distribution make it easier to create and share media, but the media industry has a long-standing concern that ease of sharing will dominate over their established business models. These concerns have resulted in the Digital Rights Management Act, the introduction of digital-rights management technology, and legislative tools like SOPA and ACTA to strengthen enforcement and control how users interact with media and other digital content.

All of these efforts are essentially directed at domesticating the Web, putting up fences and channels where there was once open space. Free Culture advocates, including some of the founders of the Web, argue that the move to domesticate and control the Web is antithetical to the original vision of the Web as a forum for unbounded communication and expression. Supporting that view are organizations like EFF, Wikimedia, Creative Commons, and others who believe that open communication is important as a fundamental human right or as a way to bring together a fractured global community.

What is so interesting about these efforts is the view, seemingly correct, that the Web loses value as it becomes less open. Unlike a traditionally understood frontier, the openness of the Web is the very source of its value: the opportunity to create without diminishing the ability of others to do the same. Placing restrictions on Web content, including DRM and usage control, introduces features more characteristic of a traditional frontier. Once one person has done it, no one else can do something too much like it, share it with others, or use it to build something new.

Understanding the Web in this way, I hope you can see why some of the people most closely involved with the Web argue in favor of its openness. There is a tangible sense in which openness directly ties to the value of the Web. In some ways, openness is embedded in the technology that drives the Web such as HTML, the linguistic structure that defines its content. While getting to California is far easier on the I-80 than on the Oregon Trail, we will have much more trouble navigating the Web and realizing its potential value if we allow boundaries and restrictions to creep into its foundations.

Comments

Popular posts from this blog

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.
There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Lab…

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.
Fair Use is not a right While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: http://www.uspto.g…

History and Identity

Yesterday the European Court of Justice issued an important ruling that has the tech policy world buzzing about privacy, search engines and personal history. In short, the court ruled that the EU Data Protection Directive gives a person the right to demand that old information be purged from search results. The particular case involves an attorney seeking removal of links to announcements about a real-estate auction connected with a debt settlement in 1998. While the ECJ made a number of interesting moves in the case (including a welcome argument that the distinction between data processors and data controllers does not make as much sense today as it did in 1995 when the Directive went into effect), the big consequence everyone is talking is the right to be forgotten.

The long memory of the Internet is a feature it's hard not to love and fear at the same time. Whether you have something to hide or not, if it's on the Internet, it stays on the Internet (most of the time, at lea…