What’s wrong with the Internet? Nothing? Everything? Why are you asking these stupid questions?
With climate change (it’s real!!!) and fiscal cliffs (probably made up!!!), you probably don’t spend much time thinking about stuff like Internet governance and intellectual property. But I do. And ridiculously enough, I’m paid for it. (Pretty sure I’d be doing it even if I wasn’t.)
The following is a breakdown of what I consider to be the breakdown. Or rather, the points of greatest tension on the Internet. I came up with three because it’s an easier number to remember than five. (These are not the only three Internet issues; just the ones that impact the creative marketplace.)
Writ large, the free exchange of information benefits intellectual property (IP) as it allows creative expression to flourish. Likewise, open technological structures offer a level playing field for all participants, from the small operator to the large commercial concern. (This is also useful for other stuff, like democracy.) As a purely practical conceit, however, Internet freedom can become unwieldy. What does it mean? Who does it apply to? What are the restrictions, if any? On a completely “free” internet, there is no way to limit the unauthorized access, duplication or distribution of intellectual property. Of course, you can try through technological measures (which can inhibit structural openness) or legal remedies (which may have implications for speech).
The fights between open tech (or free culture) advocates and the copyright community can get nasty. I think the rhetoric needs to be dialed down on all sides of the debate. Achieving a balance between the open marketplace of ideas and protections afforded to IP creators is crucial to a sustainable informational ecosystem. If you don’t think so, you’re a commie. Or a fascist. Or a commie-fascist.
The corporatization of communications platforms creates tensions for both internet openness and IP (particularly small or independent operators). Internet Service Providers and telecommunications companies wield a disproportionate influence on the communications space. Through aggressive lobbying, they have achieved a regulatory framework that has all but eliminated competition in the broadband marketplace. A duopoly exists on the wireline Internet side, and mobile access is controlled by just a few companies. There is an ever-present effort by these corporate giants to raise prices on consumers while charging content providers for premium access to customers. This distorts the marketplace for information, of which commercial and non-commercial IP are a part. Comcast’s purchase of NBCU can be seen as an opening volley in the battle to vertically integrate all aspects of content and digital distribution. (This is hardly restricted to ISPs — witness Apple and Google’s mad scramble to control your TV.)
Data manipulation by web companies that offer a public good is seen by many as harmless (if it even registers). Yet there are instances coming to light that indicate that the business side of “search ‘n’ social” isn’t as squeaky clean as it may seem. Ad service networks, including those operated by market leader Google, have been shown to facilitate commercial activity on pirate websites (also implicating a host of well-known brands whose ads appear on these sites). Google has also been singled out for its search practices, with rivals claiming the company “cooks the algorithms” to favor its own commercial products (and those of its partners). Meanwhile, the content industry alleges that, hypocritically, Google still allows pirate links to appear higher in search rankings than licensed sites and services.
Many online companies are shielded from liability by federal law that compels the removal of infringing content and links upon notification of a specific offending use. While this clearly offers important protection for innovators, rightsholders complain that it puts too great a burden on them to police the entire web, as well as creating incentives for internet companies to grow their businesses without compensating those whose content helps to create value for the platform.
Through the wide scale harvesting of non-personally identifying data, social networks and other Internet services collect information on users to sell targeted products. Increasingly, platforms such as Facebook (and its latest acquisition, Instagram) insinuate themselves into users’ expression through terms of service agreements that give these companies tremendous commercial leverage over material generated by their users. Finally, decades of lax case law around the 4th amendment plus “special needs” assessments based on national security concerns means that the government can likely access any of this information without probable cause or even reasonable suspicion. Although disconcerting for many reasons, it may be difficult at first to see how this impacts IP creators. Yet recent incidents involving the imprisonment of songwriters in Vietnam and protest rockers in Russia serve as examples of this extremely slippery slope.
In previous eras, most of these concerns — if they even existed at all — would be handled by specific regulatory agencies following laws written by Congress, or, where challenges posed, ruled on by the courts. This is to a large extent still the case. Yet due to the reach of the Internet into every aspect of our lives, oversight bleeds across branches of government, leading to interesting (and sometimes vexing) jurisdictional questions. New lobby muscle makes its presence known in Congress, while traditional groups maintain a strong foothold with legislators. The issues become more intertwined and complex, implicating privacy, cybersecurity, global trade and the democratic experiment itself.
It’s easy to lose sight of intellectual property in this morass, but but we shouldn’t. There are winners and losers in every technologically-driven transition, and we’re not done with this one by a long-shot. We have seen some parts of the economy explode due to the efficiencies produced by digital technology. Other sectors haven’t fared as well. More disruptions are coming. Yesterday, it was music and movies. Tomorrow it will be home-fabrication of any good you can imagine with specialized printers. Locking down proprietary information will be difficult, if not impossible. Security will be tested. Economies will be unmade (and hopefully new ones made).
IP is the canary in the coal mine. Coal produces carbon dioxide, which contributes to global…