[Nettime-bold] [andyo@oreilly.com: Web Content at Risk in W3C's Proposed Patent Framework]

[t byfield <tbyfield@panix.com>]

good summary of bad news.

cheers,
t

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Date: Thu, 11 Oct 2001 07:37:43 -0400 (EDT)
From: Andy Oram <andyo@oreilly.com>
To: cpsr-activists@cpsr.org
Subject: Web Content at Risk in W3C's Proposed Patent Framework

http://www.oreilly.com/news/oram_patents_1001.html

   A Web of Bronze, a Medium of Lead:
   Web Content at Risk in W3C's Proposed Patent Framework

   by Andy Oram, O'Reilly editor
     __________________________________________________________________

   It would be understating the case to say that the World Wide Web is
   facing the biggest challenge of its history. More accurately, the Web
   as a rich, evolving organism is on its way to the dustbin if the World
   Wide Web Consortium goes through with its proposed [48]W3C Patent
   Policy Framework. This proposal would allow patented techniques to be
   inserted into W3C recommendations that permanently shape the future
   Web.

   In your imagination, sweep the Web off the world and put the following
   in its place:

    1. A system where you can no longer save a document to disk, or even
       cut and paste a few words.

    2. A system retreating from the promise of universal resource
       locators. Each site has to be visited through its portal, and you
       have to follow a path through ad-polluted screens to get to the
       content you want.

    3. A system where every view is tracked and recorded by a site,
       perhaps down to the amount you scroll through a page. You might be
       charged for each screen or have your browsing behavior added to a
       database for whatever purposes the site owners want.

   None of these items is alarmist or speculative. They are all being done
   right now. (Sites accomplish the first through frames, the second
   through lawsuits against "deep links," and the third through Web bugs
   and cookies.) But the W3C's proposed framework will ultimately enshrine
   such digital rights management (DRM) techniques right in the protocols
   and file formats required to make an appearance on the Web.

   Current trends in DRM threaten the concepts of fair use (allowing users
   to reuse material for legitimate educational purposes, commentary, and
   criticism) and of derivate works (allowing users to add value to
   information through adding to it innovatively). DRM has technical
   weaknesses that require it to be bolstered by laws such as the Digital
   Millennium Copyright Act (DMCA) that lead to heavy-handed restrictions
   on the distribution of software and information.

   Neither the W3C proposal nor the [49]W3C backgrounder reveals the
   dangers that the framework would hold for users' rights, so I'll lay
   out how it can come to pass:

    1. Someone invents a file format and protocol that contains the kinds
       of digital rights management the content providers have been
       talking about for years, while patenting the key features that
       enforce the rules on viewers.

    2. The format and protocol get adopted as specifications.

    3. Content providers pay software companies to create browsers and
       servers that accommodate the format and protocol. Licensing ensures
       that all systems preserve the intended controls. (Licensing need
       not, however, prevent systems from over-reaching the restrictions
       or removing other user rights.)

    4. Anyone developing an alternative server or browser gets sued for
       patent infringement, in addition to any criminal penalties imposed
       by the DMCA or the recently proposed [50]Security Systems Standards
       and Certification Act (SSSCA).

   Nothing in the proposed framework allows independent developers to
   access the new formats without the controls that threaten fair use and
   derivative works. If the stated purpose of a system is to limit use, a
   license requiring such controls would automatically be considered
   "reasonable" and "nondiscriminatory."

   Nor does it help for the proposal to say that the "core Web
   infrastructure" should remain royalty free. The damage is done by the
   license itself, not by royalties. Furthermore, the damage can occur
   outside the core on the application layer.

   It is now commonplace, following Lawrence Lessig's insightful book
   [51]Code and Other Laws of Cyberspace, to speak of computer
   architectures that encourage or enforce particular behavior. How far
   will large content providers and their legal advisors go in abusing
   such a trend? They tipped their hand pretty far in letting the SSSCA
   come to the floor of Congress. This law would effectively announce the
   end of innovation in digital technology: it would become illegal to
   create any hardware or software that failed to incorporate controls
   chosen by the content providers. According to an article in The
   Register, [52]Music Biz Wants Tougher DMCA, CPRM 2 to Protect
   Copyright, the Recording Industry Association of America is expanding
   its efforts to put mandatory digital rights management in hardware.

   Current restrictions on Web content are carried out in half-baked, ad
   hoc fashions by individual sites. A patented DRM specification would
   not only make it easy for content providers who want these controls,
   but would force all Web sites to conform. There would be a catch-all
   "public domain" or "fair use" setting, but it would have to be
   explicitly invoked.

   Things get worse, folks. The stream of inventive media we've seen over
   the past decade would dry up faster than the Colorado River on its
   route south. People could no longer design protocols and user
   interfaces wherever their imaginations could take them. Instead, they
   would have to start with the reality of an extremely rigid and
   restrictive standard, and ask, "How can we extend what is allowed
   within that framework?" We'd never know what we lost.

   This threat has been described in many criticisms already lodged by
   open source software advocates against the W3C proposal. The
   flexibility of the Web would change to a confining mesh with the
   rigidity of bronze. The channels that were meant to carry the thoughts
   of a million users would darken to the opacity of lead as they carry
   out their primary goal of blocking content sharing.

   When I started reading about the W3C patent proposal, the parallels
   with the SSSCA were too glaring to ignore. Do I have any evidence that
   the hidden agenda of the W3C is to ensconce DRM? No. But as
   leading-edge developer Dave Winer told me, "DRM is behind everything."
   When dealing with content holders and their legal advisors, I've
   learned never to attribute to ignorance what could be attributed to
   malicious intent.

   But even if a few Internet activists were the first people, by some
   unimaginable luck, to think up this plan, it would not be long before
   content providers came to it themselves. Face it: this nightmare is the
   dream medium for plenty of commercial sites. But of course, the
   intellectual property holders have the noblest of intentions in their
   own minds. The argument they would make is the same they've always made
   in opposing open technologies that further the innovative use of
   information. They believe that nobody generates anything worth looking
   at or listening to without a strong guarantee of payment pegged to
   sales. Thus, to further the growth and use of the Web, one needs to
   protect content from unauthorized uses. It's a reasonably consistent
   argument.

   Luckily, since word got out about the proposed framework, email has
   been pouring in to [53]the mailing list for comments (755 messages in
   September, and already over 1,400 in October--including [54]one from
   me), and all the ones I've sampled are strongly anti-patent. The W3C,
   I'm sure, will listen to its true constituency, the public.

   If the Web is to stay free, we must still face the problem of how to
   work around pre-existing patents taken out by corporations or
   individuals who are happy to hold the technology ransom and feel no
   loss if the technology never becomes a W3C recommendation. We may have
   to rely on moral exhortation and facing down the opponent in these
   cases. Luckily, a large percentage of innovations stem from
   government-sponsored, or public research (although the rush of
   universities toward patents and commercial partnerships threatens this
   too). I am willing to compromise with financial realities, but not to
   the point of allowing a dagger to be plunged into the heart of what the
   best minds on the Web have worked for.

Resources

     * [56]W3C Patent Policy: Bad for the W3C, Bad for Business, Bad for
       Users by Alan Cox (W3C mailing list).
     * [57]Corrupting Standards to Privatize the Public Good by Dan
       Gillmor (SiliconValley.com).
     * [58]W3C Public Comment Page (World Wide Web Consortium).
     * [59]W3C Considers Royalty-Bound Patents in Web Standards
       (Slashdot).
     * [60]W3C Looking for More Patent Feedback (Slashdot).
     __________________________________________________________________

   Andy Oram, an editor at O'Reilly & Associates, developed our Linux
   series and is responsible for a number of other O'Reilly books on
   programming and open source software. And he probably spends more time
   writing rather oddball articles for the O'Reilly Web site than he
   should. His background and other publications can be found at an
   [61]Interview with the Editor.

   Copyright (c) 2001, O'Reilly & Associates, Inc.

References

  48. http://www.w3.org/TR/patent-policy/
  49. http://www.w3.org/2001/10/patent-response
  50. http://www.politechbot.com/docs/hollings.090701.html
  51. http://code-is-law.org/
  52. http://www.theregister.co.uk/content/6/22087.html
  53. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/
  54. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1386.html
  56. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0131.html
  57. http://web.siliconvalley.com/content/sv/2001/09/30/opinion/dgillmor/weblog/index.htmblog/index.htm
  58. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/
  59. http://slashdot.org/article.pl?sid=01/09/30/1454216&mode=flat
  60. http://slashdot.org/article.pl?sid=01/10/02/1238201&mode=flat
  61. http://www.oreilly.com/~andyo/

----- Backwarded

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