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Reclaiming the Digital Commons

By RICHARD POYNDER

In last month’s issue, I looked at growing fears that the Internet is in the process of being privatized by companies exploiting intellectual property laws to assert ownership over the Web’s infrastructure and wall off more and more content. Let’s now examine some of the initiatives aimed at protecting and reclaiming the “digital commons.”

Today, there’s considerable concern that aggressive use of intellectual property—most notably copyright and patents—threatens to “enclose” the open nature of the Internet and therefore privatize it by stealth.

The fears are twofold. First, critics argue, today’s overgenerous patent system will enable opportunistic companies to appropriate the Web’s infrastructure and transform the Internet’s free and open platform into a proprietary network. Second, ever more powerful copyright laws, coupled with copy-protection tools and industry consolidation, will enable a small group of media and information companies to exert increasingly monopolistic control over digital content.

Not only will these companies come to own a disproportionate amount of copyrighted material, but through their ownership of proprietary search and navigation tools, they’ll also be able to exert a semi-monopoly on access to public-domain data. This will effectively privatize information that’s intended to be freely available to all.

Not surprisingly, growing awareness of these dangers has sparked a host of new initiatives that are aimed at preserving the digital commons.

Free, Open, Available

The greatest panics are usually associated with patents, particularly in cases where companies appear to have been granted broad rights to basic Web functions, features, or standards.

However, despite frequent scares, there’s little hard evidence to suggest that patents are as yet having a detrimental impact on the Web. In fact, there are grounds for arguing that the costs of obtaining and enforcing patents are becoming so high that disenchantment will eventually set in. Even the most conservative estimates suggest that it now costs at least $20,000 per patent application to obtain global protection.

Certainly, there’s growing skepticism about the intrinsic value of patents. For instance, when Amazon.com announced in March that it had filed for a Web advertising patent, many questioned its usefulness, arguing that the method described in the patent is of dubious utility. Jim Nail, a Forrester Research ad analyst, told ZDNet, “The question is, would anyone want to buy advertising that way?”

Large patent-rich companies like IBM, Hewlett-Packard, and Xerox realized many years ago that overzealous patenting can waste time and money. Therefore, in the 1950s, they devised an alternative. Known as defensive publishing, or “making a technical disclosure,” this system involves publishing details of inventions rather than patenting them.

The logic is that while blanket patenting is wasteful, failing to patent an innovation is risky. A competitor could subsequently patent it and then demand licensing fees, or even block you from a market that you had created. Once information about an invention has been published, however, it constitutes “prior art” and disqualifies the innovation from being patented.

To this end, a number of specialist journals were created for publishing technical disclosures. Today, there are also Web-based services like IP.com.

Ironically, in introducing defensive publishing techniques, IBM and others created the first organized system that encourages innovators to make conscious choices about whether to seek proprietary rights for inventions or deliberately put the information in the public domain. In effect, they must choose between enclosing an innovation with intellectual property rights or releasing details of it into the commons for everyone’s benefit.

True, these companies didn’t consider what they were doing in this light. They deliberately published in specialist journals with small circulations and have continued to be aggressive users of the patent system. Nevertheless, the subversive potential of defensive publishing is undeniable.

Certainly, it attracted the attention of the Foresight Institute, a nonprofit educational organization whose mission is to help prepare society for anticipated advanced technologies. In 2001, the institute partnered with IP.com to create priorart.org, a Web-based database for software and nanotechnology disclosures.

priorart.org was intended to be a central resource where software developers could publish their innovations, thereby limiting the number of software (and also Web) patents that would be issued. At the time, Robin Gross, a staff attorney at the Electronic Frontier Foundation, said to Salon.com: “[T]his is about using the law to make technology free, open, and available.”

To the institute’s disappointment, however, the software community reacted to priorart.org with suspicion, and the site was subsequently closed. The fear was that rather than expanding the commons, the service would become a honey pot around which large corporations would gather to review the disclosures and patent-related innovations themselves.

Today, patent refuseniks are more focused on pressuring standards bodies like the World Wide Web Consortium not to allow patented technologies to be incorporated into Web standards.

Preserving the Commons

More to the point, perhaps, many have concluded that copyright, not patents, poses the greater threat to the digital commons. Certainly, most new initiatives that are intended to prevent enclosure are focused on copyright.

This isn’t surprising. It costs just $30 to register a copyright. And although registering brings some benefits, it’s not even necessary since it’s an automatic right. Moreover, compared with the 20-year monopoly provided by a patent, copyright now extends for the lifetime of the creator, plus 70 years.

It has also become apparent that most valuable content ends up not in the hands of individual creators, but in the ownership of large media and information companies. As these companies continuously merge with one another, they’re creating vast warehouses of copyrighted material.

And as this content is increasingly digitized, many fear that a potent combination of draconian copyright laws and digital rights management technologies will see more and more of humanity’s heritage withheld from the public domain, imprisoned indefinitely behind electronic padlocks.

Should librarians care? No, says Ron Simmer, who runs the PATSCAN patent search service at the University of British Columbia Library . “I have nothing against people selling information to make a buck. If users are willing to pay for quality information, then the vendor of that information will extract the most possible revenue.”

Simmer, however, does not hold the majority opinion. Many librarians are concerned that current developments will significantly reduce what they’re able to offer patrons. “It used to be that the national library kept every document ever published in a country,” says Torunn Helene Fredriksen , who runs a library Web log in Norway . “Now they might not be allowed to preserve it, or if they are allowed to preserve it, they are perhaps not allowed to give the public access to it.”

Miguel Dias , a librarian at the Universidade do Algarve in Portugal , agrees. “We librarians seem nowadays to be sleeping with the enemy and actively collaborating with the private annexation of the public commons. Our duty is to facilitate the dissemination of information and the granting of access, not with the protection of the interests of media conglomerates.”

It’s no surprise, then, that initiatives to preserve the public domain are proliferating or that librarians are at the forefront of many of them.

For instance, at Canada ’s Université du Quebec à Chicoutimi , librarians are creating a freely available online collection of around 600 major social science book titles. All of these works are either in the public domain or have the author’s permission for them to be made available online.

The value of building an online collection in Canada , explains Gilles Caron , director of the university’s Bibliothèque Paul-Émile-Boulet, is that Canadian copyright expires 20 years earlier than in most other countries. “The development of this collection is based on the fact that in Canada , texts enter the public domain 50 years after the death of their author.”

And in the belief that copyright laws are helping large publishers like Reed Elsevier privatize publicly funded research (a charge denied by Reed Elsevier), many librarians are working with academics and research institutes to create open archives with the aim of “freeing the refereed literature.”

However, self-archiving can only achieve a limited freedom, since the authors of the archived papers generally still sign over copyright to publishers. If they want to publish in high-impact journals, they may have little choice. But those seeking a more radical approach are increasingly advocating a “copyleft” approach.

Reclaiming the Commons

Invented in 1985 by Richard Stallman, founder of the Free Software Foundation, copyleft refers to the use of alternative copyright licenses designed to ensure that works remain freely available for anyone to utilize, even when modified.

The most widely used copyleft license is the GNU General Public License (GPL). Developed by Stallman for the free software movement, the GPL has subsequently been adopted by many open source programmers too. Perhaps the best-known example of a GPL program is the increasingly popular GNU/Linux operating system.

By using the GPL, a programmer does not waive copyright but rather stipulates a different set of usage rules. Thus, while the GPL allows anyone to use, modify, and redistribute the software, this can only be done under certain conditions.

Importantly, it requires that any modified or extended versions of the works are themselves also distributed under the GPL. This a subversive condition that some liken to a virus “contaminating” other software code incorporated with it, thereby forcing that code into the commons too. Stallman, it should be noted, objects to the metaphor. “The GPL’s domain does not spread by proximity or contact, only by deliberate inclusion of GPL-covered code in your program,” he said. “It spreads like a spider plant, not like a virus.”

Whatever the metaphor, the important point is that the GPL uses copyright laws not as tools for exclusivity, but as a way of ensuring that software remains in the commons.

GPL-type licenses have subsequently been developed for all other sorts of copyrightable material, such as music, images, video, and text. They include the Open Audio License, the GNU Free Documentation License, and the Design Science License.

The first copyleft license designed specifically for text was the Open Publication License (OPL). Developed in 1999 by David Wiley, an assistant professor at Utah State University , the OPL allows licensed works to be freely used and modified. However, any derivative work must credit the original author and state what changes have been made, when they were made, and who made them. Like the GPL, it also requires that all derivative works be distributed under an OPL license.

In short, copyleft licenses are becoming an important tool not only for preserving the commons, but also for reclaiming them. The viral, or “spider plant,” nature of copyleft enables it to colonize modified works and restore them to the commons.

Creating a New Commons

Unlike the land enclosures of pre-industrial Europe , which dealt with a finite resource, the digital commons are potentially infinite. So although copyrighted material that’s already been assigned to large corporations is probably lost to the commons for a long time, individual creators remain free to produce an infinite number of new works. If in doing so they utilize copyleft, the argument goes, a new commons can be created.

To help facilitate this, last December an organization called the Creative Commons made a range of open licenses available on the Web for anyone to use.

Designed to let content be made freely available, Creative Commons licenses can stipulate a number of qualifying conditions, including the requirement that credit is given to the creator; that use is only permissible for noncommercial purposes; that derivative works, or verbatim copies, are not allowed; or that modified works are only distributed on a “share-alike” basis.

The last stipulation has the same viral characteristics of the GPL, since it requires that any modified work can only be distributed under the same copyleft principles as the original work.

The Creative Commons licenses have been well-received. In February, when I spoke to Creative Commons executive director Glenn Otis Brown , he said that around 37,000 Web sites alone were already offering content using the licenses. “What we are trying to do is provide an easy, cheap way for people to announce to the world that they don’t mind people making certain uses of their work on certain terms and conditions,” he said.

Among those using the licenses are musicians like Roger McGuinn (founder of ’60s band The Byrds), U.K.-based sound artist Vicki Bennett (aka People Like Us), sci-fi novelist Cory Doctorow , and MIT, which plans to offer content from around 2,000 of its undergraduate and postgraduate courses over the Web.

“No one creates as an island,” said Bennett, explaining why she has started using Creative Commons licenses. “We have always used what came before us. If we stop making available what we have, then there is no future for those that are inspired by what we do. I want my work duplicated as many times as possible. Then it has more chance of surviving.”

Thanks to the availability of these new licenses, content creators are increasingly rejecting enclosure and voting with their feet. As Brown puts it, “People are using private contract law to simulate public benefits that the law is not providing.”

Whether they can make a living from doing so remains to be seen.

The Darknet Genie

Some believe that the greatest threat to the digital commons comes from a combination of patented technologies and copyrighted content. As we saw, for instance, librarians are concerned about the ability of large content providers to appropriate public-domain data by monopolizing access to it.

Thus, even where content is theoretically in the public domain, it may only be available—or at least readily accessible—via the patented search tools, copyrighted metadata, and proprietary databases of large information companies like Reed Elsevier and Thomson Corp. Not surprisingly, both companies have patents or patent applications related to various types of information classification, thesauri, and natural language retrieval technologies.

Making content available in the public domain, therefore, may not be sufficient. Nonproprietary search-and-retrieval tools will also be required. For this reason, open-content encyclopedia Wikipedia (http://www.wikipedia.org) is a likely model for the future. Wikipedia is being written by volunteers who freely contribute articles licensed under the GNU Free Documentation License. In addition, the search-and-retrieval tools used for accessing the content are licensed under the GPL. The aim is to ensure that both the technology and content remain permanently free of proprietary interests.

Some believe that commercial content providers will themselves have to adopt open publishing models. Advocates of this view argue that DRM is simply not capable of withstanding the ability of hackers to break its electronic padlocks and “liberate” the enclosed content. This content can then be freely exchanged via peer-to-peer services like Grokster and Kazaa.

Intriguingly, a paper written by several Microsoft researchers last year comes to the same conclusion. The authors say that the “darknet” (“a collection of networks and technologies such as peer-to-peer networks used to share digital content”) will make the benefits of DRM technology moot (http://www.bearcave.com/misl/misl_tech/msdrm/darknet.htm). “We speculate that there will be short-term impediments to the effectiveness of the darknet as a distribution mechanism, but ultimately the darknet genie will not be put back into the bottle.”

Rolling with the Punches

The paper also points out that DRM techniques raise significant usability issues. “[A]lthough the industry is striving for flexible licensing rules, customers will be restricted in their actions if the system is to provide meaningful security. This means that a vendor will probably make more money by selling unprotected objects than protected objects.”

If this is correct, it suggests that the rules may have changed forever and commercial providers will have to roll with the punches. Indeed, some already are. In January, for instance, technical book publisher Prentice Hall announced plans to release a new series of books under the OPL.

Since the books are about open source software, it could be argued that Prentice Hall is merely meeting the expectations of a particular market. Nevertheless, in using the OPL, the company will forego many of the perceived benefits of copyright. Anyone will be free to copy and redistribute the books and, while regular print versions will be sold through bookstores, free electronic copies will be available over the Web.

The point to bear in mind, says Mark Taub, editor in chief at Prentice Hall PTR, is that adopting open licensing does not mean abandoning commercial models. Taub anticipates that offering free electronic versions of the books will increase print sales since customers will be able to sample them first. “In 99.99 percent of cases, consumers still want their books in print. So we are not acting in a purely altruistic fashion here. We think it is good business.”

It’s also noteworthy that although more than 70,000 free electronic copies of Doctorow’s novel Down and Out in the Magic Kingdom were downloaded in the first few weeks after it was released online, print sales have not been affected. Earlier in the year, the book was number 19 on the Amazon.com science fiction bestseller list. “This is enormous reach for a first novel,” boasts Doctorow.

But what does all this mean for the future of the traditional online information industry? Right now, we don’t know. All we can say is that the crisis currently engulfing the music industry suggests that blindly clinging to traditional business models in the digital age is a high-risk strategy.

For information consumers, the future is similarly uncertain. Those inclined to take a sanguine view of the matter, however, may want to review the dystopian picture painted by Stallman in the February 1997 issue of Communications of the ACM (http://www.gnu.org/philosophy/right-to-read.html).

Blake Carver , who runs the LISnews.com site, suggests that for librarians, the matter should be perfectly clear. “We need to fight this and fight it hard. We need to make sure they don’t even get a start on privatizing the Web and destroying fair use.”

This article has been reprinted in its entirety from the June, 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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