A Web of Bronze, a Medium of Lead: Web Content at Risk in W3C's Proposed Patent Frameworkby Andy Oram
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 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:
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 W3C backgrounder reveals the dangers that the framework would hold for users' rights, so I'll lay out how it can come to pass:
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 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.
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 the mailing list for comments (755 messages in September, and already over 1,400 in October--including 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.