Saving the oodlehood and shebangity of the internet
SPARC Open Access Newsletter, issue #63
July 4, 2003
by Peter SuberThe internet makes open access possible. Open access wasn't physically or economically possible in the age of print. These commonplace assertions are true but slightly out of focus. Let's be more specific. The internet has many properties (it's digital, it's packet-switched, it has end-to-end architecture, it has a certain number of nodes, a certain throughput capacity, a certain level of traffic at a given time, a certain degree of saturation, and so on), but one property above all others makes open access possible. It's the capacity to disseminate perfect copies of a digital file to a worldwide audience at virtually no cost.
Now that this property is in focus, notice that it's the very same property that makes spam and large-scale digital piracy or mass infringement possible. I wish this property had a name. That would do a lot to advance the discussion of open access, spam, and mass infringement. In the absence of an accepted name for it, and for lack of a better term (like oodlehood? shebangity?) let me call it the "prodigality" of the internet.
Open access proponents like to focus on the revolutionary potential of the prodigality of the internet for the public good. But our strategic thinking must address the fact that the same prodigality also has revolutionary potential for mass infringement, economic harm, loss of privacy, and spam hell. The forces at work to curb these harms are powerful and well-funded --and not especially cautious about the goods they destroy in order the crush the evils they fear. It's time to realize that the obstacles to open access don't lie merely in the inertia and ignorance of scholars, and the dysfunction of the journal market, but include a coordinated campaign to limit the prodigality of the net itself. We could be collateral damage in the war against piracy and spam.
I've written often in the past about how the reaction to mass infringement has given up on surgical responses to online crime and turned to crude remedies that threaten the prodigality of the internet. For example, we see this in the denial of the first-sale doctrine to digital content, in retroactive extensions of copyright, in the hardware mutilations contemplated by Hollings' SSSCA, and in the DMCA ban on circumvention even for fair use or other non-infringing purposes. New question: will the reaction to spam be equally harmful?
It may be. Many spam filters block mass mailings, whether or not they are spam. Or, they create a presumption that every mass mailing is spam, and put the responsibility on senders and receivers to rebut the presumption. This harms newsletters, discussion forums, and the open-access current-awareness services of free and priced journals.
Many spam filters are too crude to distinguish opt-in services from others, and many that make this distinction are hard to awaken to the fact that a wrongly blocked list is really opt-in. Even mailings that are not blocked because they are addressed to multiple recipients may be blocked because of their content. Vanilla discussions of breast cancer, safe sex, pedophile priests, and national security legislation might trigger a filter. Forthright discussions of sex and political opposition are at even higher risk. The problem is aggravated when spam filters use secret criteria, and aggravated further when they are imposed by schools, employers, ISP's, or governments without user knowledge or consent.
New challenge-response systems for blocking spam may be even more harmful to open-access mailings. Instead of blocking requested content, so that recipients never see it, they confront the sender with a challenge that takes human labor to satisfy. (This is the point; if the validating responses could be automated, spammers would automate them.) Senders of newsletters and other email-borne forms of open-access content will be showered with challenges and never have time to answer them. Either that, or answering them will create a new cost of doing business that threatens the open-access business model. This problem can be averted if users of challenge-response spam blockers put their subscription newsletters and journals on their whitelists. But it's probably easier to design a perfect spam filter --impossible to date-- than to educate all their users.
Other spam remedies, like Sen. Charles Schumer's Stop Pornography and Abusive Marketing (SPAM) Act, could ban anonymous remailers, which are essential to the free circulation of ideas in repressive parts of the world.
If my keyboard had a key that sent a non-fatal electric shock to the sender of a piece of spam, then I confess: mine would be worn out. I'm ominously attracted to a direct, Skinnerian remedy that combines text and voltage. ("Thanks for the spam. Here are 100 volts just for you.") People who hate copyright infringement hate it even more than I hate spam. On June 19, Senator Orrin Hatch said in public what many no doubt think in private, that the music industry needs a method to destroy the computers of copyright infringers. If executives at the RIAA and MPAA had remote detonation keys on their keyboards, they would be worn out.
You may not hate mass infringement, but you probably hate spam, and that's enough to put you on both sides of this problem. The prodigality of the net carries the potential for momentous good and the potential for momentous harm. Those who fight the harm have a bad track record at limiting themselves to the harm, and a proven tendency to fight the prodigality of the net itself even at the cost of momentous good.
Watch the campaign against spam and mass infringement. You don't have to love either one to love the prodigality of the internet that makes them possible. Fight to defend it and to prevent remedial overreaching. Don't hastily blame only the defenders of indefensible intellectual property theories. All of us who hate spam are now implicated. So while watching others, who might encroach on the prodigality that makes open access possible, we should also watch ourselves. Can we hate spam surgically?
Finally, let's watch for escalations of mischief and harm that create excuses to sacrifice the good potential of the net in order to block the bad. Will the dream of open access live only as long as the internet's prodigality is endurable, and die when terrorist viruses (let's call them Hatchlings) can be delivered to every desktop?
On the threat from challenge-response spam systems
Sen. Charles Schumer's Stop Pornography and Abusive Marketing (SPAM) Act
Orrin Hatch's remote detonation fantasy
* PS. In light of this, it's especially depressing (1) that the Supreme Court just upheld the Children's Internet Protection Act (CIPA), requiring federally funded libraries to use internet filters, and (2) that Ben Edelman and the ACLU lost their suit for permission to circumvent copy protection in order to learn the blacklist of N2H2, a commercially available internet filter. There will now be more filtering than ever, according to secret criteria, against the will of users, blocking much of what the Supreme Court concedes is constitutionally protected speech.
On the upholding of CIPA
On the Edelman-ACLU defeat
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