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Enclosing the Digital Commons

By RICHARD POYNDER

There’s growing concern that aggressive use of intellectual property is threatening the development of the Internet. Many are drawing parallels to the “enclosures” in pre-industrial Europe . Through this system, commonly held or unoccupied land was taken into private ownership, leading to considerable abuse. But is there really a threat? If so, why? And what are the implications?

When SBC Communications began sending out letters earlier this year to Web site owners demanding royalties for the patent of a widely used Web-navigation technique, a wave of outrage rippled through the Internet.

“If your Web site uses frames, and there’s a navigation frame on one side with links that load content into the main frame, you’re violating their silly patent, and they can come after you for licensing fees,” programmer Mike Gunderloy thundered indignantly on the Larkware.com blog. Describing it as a junk patent, he concluded, “This is so staggeringly stupid that it’s difficult to know where to start.”

The SBC patent is just the latest in a long line of controversial Internet-related patents. These include the Amazon.com
1-Click patent, the Web-based shopping cart patent now owned by divine, the GIF file algorithm patent held by Unisys, and, of course, the patent that British Telecommunications (BT) infamously claimed gave it ownership of the hyperlink.

Among those targeted by SBC was Museum Tour, a small Web retailer of educational toys. In January, site founder Marilynne Eichinger received a letter demanding royalties that, depending on the licensee’s annual revenues, range from $527 to $16.6 million a year.

Eichinger told The New York Times: “The thing that’s disturbing me is that all of a sudden so many groups seem to be going out and doing this. What’s happening? Why are they all coming out of the woodwork?”

What’s happening, says John Collins, a partner at Marks & Clerk, a London-based patent and trademark legal firm, is that the traditional Web ethos of share and share alike has come into increasing conflict with the commercial imperatives of the offline world. “There is a tension between the view that says that the Internet should be free, and one that holds that anyone who enhances the Web should be able to patent their work and obtain revenue from it,” he explains.

In fact, many see nothing remarkable in SBC’s actions. After all, as the company itself pointed out in a statement, “Active protection of patent rights is a common practice among patent holders worldwide.”

The Web Is Different

Others, however, see it as a thoroughly undesirable development. They argue that if offline concepts of intellectual property are imported into the online environment, the benefits of the Web will be significantly curtailed.

This is a view articulated, for instance, by Lawrence Lessig. In his book The Future of Ideas, Lessig maintains that the Internet developed so rapidly and has proven so revolutionary precisely because it was an “end-to-end open and neutral platform.”

By spurning proprietary interests for the common good, Lessig argues, Web pioneers created an unprecedented environment for experimentation and creativity. It enabled a unique “innovation commons” based not on “strong, perfect control by proprietary vendors, but open and free protocols, as well as open and free software that ran on top of those protocols.” In seeking to take ownership of this platform, he concludes, corporations are in danger of killing the goose that laid the golden egg.

Lessig is not a lone voice. Tim Berners-Lee, the Web’s inventor, argues in his book Weaving the Web that while “the lure of getting a cut of some fundamental part of the new infrastructure is strong,” patents are inevitably a negative force in cyberspace. They present, he says, “a great stumbling block for Web development [because] developers are stalling their efforts in a given direction whenever they hear rumors that some company may have a patent that may involve the technology.”

But do Internet-related patents really pose such a threat? Despite all the heat generated by the Amazon.com 1-Click patent, for instance, Apple is the only company that’s known to have licensed it. This demonstrates perhaps that the feature is hardly essential to Web commerce. Moreover, when confronted by blocking patents, people usually find ways of working around the claims. Or they adopt a completely different approach to achieve the same end, as many did in response to the Unisys GIF patent (which coincidentally expires this June).

And when disputes do reach the courts, patent holders frequently find that some or all of their claims are declared invalid—as happened when BT sued Prodigy over its claimed hyperlink patent—and the case is often thrown out.

Roy Simmer, who runs the PATSCAN patent search service at the University of British Columbia Library , believes Internet-related patents offer little threat. “I have done a considerable amount of work investigating and searching e-commerce patents,” he says. “The consensus is that the majority of these are probably invalid.”

Concern nevertheless continues to mount about patents, particularly their potential to impede the adoption of Internet standards. For this reason, there was a barrage of criticism in 2001 when the World Wide Web Consortium (W3C) Web standards body published a draft proposal aimed at introducing a new “reasonable and non-discriminatory” ( RAND ) licensing policy. This would have allowed those providing technology for Web standards to claim patent rights and charge royalties, thus raising fears that patent owners would be able to hold the Web community for ransom.

Eventually, the W3C backed down. This March, it published a new draft policy in which anyone participating in the creation of a W3C standard would be required to agree to license any patented technology on a royalty-free basis. However, critics have been quick to point out that the new proposal includes a loophole that could, in some circumstances, allow patents to be embedded in standards in a way that would conflict with the W3C’s royalty-free ambitions.

Others argue that since patent litigation is hugely expensive, those targeted by patent owners often simply pay up rather than mount a legal challenge. This is what Thompson and Morgan, a small plant-seed specialist based in Ipswich , U.K. , did when it received a letter from divine in January demanding royalties for its patent. “We consulted with our U.S. attorney and decided it was cheaper to pay up and negotiate a deal with them than to go down the litigation route,” explains Keith Lewis , Thompson and Morgan’s financial director.

According to critics, paying royalties on Web patents for which the validity is uncertain is little more than digital highway robbery.

For the moment then, the jury is out on the long-term impact of patents on the Internet. Certainly, many continue to complain that the Web is in the process of being privatized, or as some like to describe it, “enclosed.”

Not Patents Alone

This fear of enclosure is focused not on patents alone, but on the whole gamut of intellectual property. For instance, critics point to the frequent and bitter disputes that are arising over domain names. They claim that companies are—often unfairly
—using trademark law to bludgeon third parties into giving up their registered domain names.

However, copyright has become the most controversial issue. For some, it represents the greatest threat to the digital commons.

For instance, as online advertising has failed to deliver expected revenues, Web site owners have begun introducing subscriptions, thereby walling off their content. While not disputing their right to charge for content, many worry that doing so will diminish the value of the Web, particularly where it goes hand in hand with increasingly aggressive use of copyright and trademark laws to outlaw “deep linking” (the practice of routing Web users directly to specific articles on third-party sites rather than to the home page).

Critics argue that these developments threaten to devalue the Web’s most fundamental building block, the hyperlink, and therefore destroy much of the benefit of a networked environment. Rather than seeking to replicate outdated offline models, they suggest that content providers should place a greater emphasis on developing new ones that are more appropriate to the digital economy.

Is this increasing assertion of copyright a serious problem? John Collins doesn’t think so. All we are witnessing, he says, is the development of a two-tier Internet. “More and more people are beginning to accept that where before they were getting things for free, they are now going to have to start paying. Consequently, I anticipate there will be a hard core of free information and then a lot of premium services with premium features—including copyrighted material and patented technology able to offer wonderful new capabilities.”

Certainly, there’s no evidence that the flow of free content on the Web is drying up. This is demonstrated by the explosion of blogs, if nothing else.

Adding fuel to the fire, the debate has become linked to the wider, related controversy over changes to copyright laws and the growing ability of content providers to “lock up” their digital content using digital rights management (DRM) technologies.

First, critics complain that recent changes to copyright law have extended copyright’s period of monopoly for far too long a time frame. In accordance with the Sonny Bono Copyright Term Extension Act, this period is now the lifetime of the author plus 70 years. “That,” says Neil Wallis, an IP lawyer at London law firm Macfarlanes, “is a very, very long time. After all, if I wrote something today and died in 2050, it would still be in copyright in 2120.”

Second, as a result of new laws like the Digital Millennium Copyright Act and the EU Copyright Directive, it’s now illegal to circumvent DRM copy-protection technology, even when that circumvention takes place in order to exercise traditional fair use rights.

While conceding that copyright owners have legitimate reasons to fear Napster-style piracy, critics argue that the response of content providers and legislators has been to tip the balance too far in favor of the copyright owner to the significant disadvantage of the consumer.

In fact, says Anthony Murphy, director of copyright at the U.K. Patent Office, there are now widespread fears that the combination of DRM technology and new copyright laws will enable rightsholders to “use electronic padlocks to effectively achieve perpetual copyright.”

The danger, argues Gilles Caron , director of the Bibliothèque Paul-Émile-Boulet at the Université du Quebec à Chicoutimi in Canada, is that a great deal of copyrighted material may never be released into the public domain. “All of humanity’s heritage is now entering the marketplace,” he says. “If a business can buy the rights from a descendant of an author and have these rights extended in perpetuity, it creates a market where there was none before and opens the gates to the appropriation of the legacy of humanity to the benefit [only] of those who have money to buy it.”

Making this worse, critics point out, is that content that should rightfully never be subject to the restrictions of copyright is being privatized and exploited for commercial ends.

Enclosing the Public Domain

Librarians, of course, are no strangers to the issues raised by copyright. For this reason, they have been at the forefront of attempts to publicize the threat that it now poses to public-domain data. For some years, for instance, they have complained about the way in which articles and papers generated by publicly funded research are being appropriated by publishers like Reed Elsevier.

Since researchers are required to assign copyright to the publisher in order to have their papers published, librarians say research that’s funded from the public purse is inappropriately becoming the exclusive property of publishers. Moreover, they add, as access to refereed journals is increasingly provided by means of electronic subscriptions, permanent print holdings are being replaced by temporary electronic access alone. This raises the possibility that subscribers will have to pay each time an article is accessed.

“When a library buys an electronic copy of a journal or periodical, they often do not own the rights to the archives,” says Jessamyn West , who runs the librarian.net blog. “So if you buy BigJournal electronically, you do not often have access to BigJournal’s back issues when you stop paying them. If you bought the paper copies, you’d still own them.”

Elsevier Science chairman Derk Haank, however, disputes this. “Customers choosing not to subscribe anymore still own the content that they subscribed to,” he insists. “In such circumstances, they have two options: We can either supply it to them on CD-ROM in any format they want, or they can have us keep it for them, and we will continue to make it available at a nominal fee.”

Moreover, adds Haank, it’s inaccurate to suggest that publishers like Elsevier are privatizing research or seeking to monopolize access to it. In fact, in addition to having Elsevier publish their articles, he says, “We want authors to put their papers on their Web site and for universities to create institutional archives of researchers’ articles, since the more widely available research is, the better.”

He adds: “The only thing we cannot allow is for this to be done in a way that would enable our competitors to create an exact copy of our products. So if, say, someone created an archive that included metadata capable of allowing a third party to create a virtual copy of Elsevier’s Brain Research at the press of a button, then clearly we would feel we had thrown the baby out with the bath water.”

Beware the Metadata

However, the issue of metadata looks set to become as controversial as DRM’s copy-protection features. There’s growing concern that it’s increasing the opportunity for commercial publishers to appropriate public-domain data.

Speaking on condition of anonymity, a Thomson insider points out that in today’s electronic environment, raw data represents an ever-smaller component of the value inherent in an information product. Consequently, content providers are adopting a new model of information distribution. It assumes that more and more of the value resides not in the data itself, but in the access and navigation tools for locating it, and in the metadata that define document-to-document relationships.

“So it would be possible for a commercial product to contain ‘free’ information,” he explains, “but the way the customer accesses this free content would be via value-add navigation tools (search engines, tables of contents, topical hierarchy, citators) or internal cross-references from copyrighted documents.”

As such, the publisher would not be charging for the information so much as for the tools to access it. Since this would mean maintaining sophisticated document-relationship maps and indexes as separate metadata repositories, he notes that “publishers would jealously guard the navigation tools and metadata repositories but not try to own all the content.”

The problem with this model, argue critics, is that the free information at the heart of such products may not be available elsewhere in digital format. In fact, as print is phased out, it may not be available in any other format either. Where it’s available elsewhere digitally, it could be so hard to locate that it’s by all intents and purposes inaccessible. This would give commercial providers a semi-monopoly on distribution—an outcome all the more likely given the intense media consolidation taking place in the publishing and media industries.

This is already evident in the legal information market, where the two big providers, LexisNexis and Westlaw, have as good as “cornered the market for legal research materials,” says Melissa Barr, legal resources specialist at Cuyahoga County ( Ohio ) Public Library.

In a recent article in Searcher (http://www.infotoday.com/searcher/jan03/barr.htm), Barr describes how these companies take court opinions as well as other public-domain information and add editorial enhancements to them. This is done to help attorneys and judges interpret points made in the cases and locate similar cases. Because these enhancements are subject to copyright, however, the free data at the heart of the resulting products (which is exempt from copyright law) is effectively appropriated. The outcome is a paid-for proprietary product. While some of this free data is also available on court Web sites, coverage is limited. As a result, says Barr, “thousands of older cases are not available to those who cannot pay.”

Additionally, since the court-hosted data is dispersed across dozens of different sites and requires knowledge of a wide range of (sometimes inferior) search engines, all but the experienced searcher are effectively disenfranchised from accessing current data too. This situation is all the more worrying, says Barr, because often “public libraries are not allowed to offer access—free or fee—to [these companies’] legal subscription databases.”

“The courts and the court’s words belong to us,” she concludes. “In more ways than one, the American people have already paid for the case law produced by our courts. Commercial vendors must not be allowed to hijack our law or dictate who may have access to it.”

If such concerns prove justified, it may be that although high-profile patents like those granted to SBC, BT, and Amazon
.com will continue to attract a lot of media attention, a greater threat to the digital commons will come from a less obvious process of enclosure. This threat might emanate not so much from patenting basic Web features and processes, but from the ability of large content companies to use copyright laws in order to appropriate public-domain data and then enjoy a virtual monopoly on its distribution. To address Haank’s fear that competitors will replicate the resulting products, however, content providers can be expected to also seek patents on their search and discovery tools.

At the same time, concerns will surely grow that ever-more-powerful copy-protection techniques will be used to keep proprietary copyrighted material out of the public domain. In short, the death of the commons.

But is this inevitable? Next month, in part two, I’ll look at the growing initiatives aimed at protecting and reclaiming the digital commons.

This article has been reprinted in its entirety from the May, 2003 issue of Information Today with the permission of Information Today, Inc., 143 Old Marlton Pike, Medford , NJ 08055 . 609/654-6266, http://www.infotoday.com.

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