Three gathering storms that could cause collateral damage for open access
SPARC Open Access Newsletter, issue #95
March 2, 2006
by Peter Suber
After the 9/11 attacks, some network security experts said that skillful malefactors could bring down the internet.  That was a breathtaking and unexpected threat to OA that most of us had never considered.

Insofar as digital apocalypse is really a threat, then in the years since 2001 it has become almost equally threatening to non-OA journals, which have either dropped their print editions or begun to depend heavily on their online editions.

But threats to OA from left-field have not disappeared.  Here are three more, all making news in February:  (1) the webcasting treaty, (2) the opposition to network neutrality, and (3) the end of free email.

By saying they're from left-field, I don't mean to suggest that they're unlikely to materialize, only that the organizations pursuing them are not deliberately targeting OA and have never weighed the interests of OA in their calculations.  Like retrograde copyright reforms, they are policy proposals to benefit corporate behemoths regardless of the collateral damage they wreak across the landscape.

(1) The webcasting treaty

A draft treaty now before WIPO would create a new level of protection, above and beyond copyright, for "webcasters" --anyone who sends images and sounds "at substantially the same time" over the internet.  The proposal would let webcasters block the copying and redistribution of the webcasts even if the copyright holder had consented to OA, even if the webcast content had a valid Creative Commons license or equivalent, even if the content was in the public domain, and even if the content was legally uncopyrightable.

Most digital journal articles would be spared because they're just text, or just text and images.  But the treaty would apply to multimedia scholarship and could inhibit its further development, for example in conference video presentations, open courseware projects, podcasts of Stanford lectures, and LibraVox audio files of print books scanned by the Open Content Alliance.  And of course once the ISPs get their foot in the door, the treaty could be amended to apply to other kinds of content down the road. 

Wherever the treaty applies, authors and copyright-holders could not authorize OA on their own.  They would need the permission of the webcasting ISP, for which it might charge a fee.  The internet would no longer be a medium in which the intent to give away content could easily and unilaterally be matched with the deed.  Middlemen who want to make money could trump the decisions of authors who want to offer free access to their work.  Of course these middlemen are already being paid twice over for their webcasts by uploaders and downloaders.  The webcast right would last for 50 years, and the clock would start over whenever the content was re-posted online.  Fair use would not apply.

The treaty's main proponents are all based in the U.S.:  Yahoo, Fox, the National Academy of Broadcasters, and the U.S. Government.  But if WIPO adopts it, it will apply worldwide.

If you're wondering why this is supposed to be a good idea, you're not alone. 

Text of the proposed webcasting treaty.

The CPTech page on the webasting treaty.

The EFF page on the webcasting treaty.

Art Brodsky, WIPO Broadcasting Treaty Debated, In The Know, Public Knowledge, February 28, 2006.

The U.S. National Academies hosted a Public Symposium on the Proposed WIPO Webcasting Treaty, Washington D.C., February 27, 2006.
The presentations and discussion are available in a large MP3 file.

James Boyle, More rights are wrong for webcasters, Financial Times, February 17, 2006.

James Love, A UN/WIPO Plan to Regulate Distribution of Information on the Internet, Huffington Post, November 30, 2005.

* Here are three related measures, two potential and one actual, to trump the OA decision and impose an unwanted fee.

In the middle of last year, the Canadian Parliament began debating a copyright reform bill called C-60 that would force users to pay copyright royalties on OA content when used in school or for homework, but not when the same content was used from home.  Worse than the webcasting treaty, it would apply to plain text files and images.

Australia is now considering a similar policy that would charge a fee for browsing internet pages in school, even OA pages, and give the money to copyright-holders who don't provide OA.,7204,18288580%5E15343%5E%5Enbv%5E15306-15318,00.html

In the UK, a 17.5% value-added tax (VAT) applies to online journals (OA and non-OA), and not to print journals.  Traditional publishers and OA proponents have both called on the government to lift this burden from ejournals, but so far without success.,14173,1200416,00.html

(2) Opposition to net neutrality

From its birth, the internet embodied the principle of net neutrality:  the pipes were equally open for all kinds of lawful transmission.  ISPs couldn't discriminate and favor one kind over another.  The internet owes its phenomenal growth to the network neutrality principle, which allowed all comers big and small (most small when they first launched) to have the same access to users as anyone else. 

But now cable and telecom companies want to discriminate, charge premium prices for premium service, and give second-rate service to everyone else.  If we relax the principle of net neutrality, then ISPs could, if they wanted, limit the software and hardware you could connect to the net.  They could charge you more if you send or receive more than a set number of emails.  They could block emails containing certain keywords or emails from people or organizations they disliked, and block traffic to or from competitor web sites.  They could make filtered service the default and force users to pay extra for the wide open internet.  If you tried to shop at a store that hasn't paid them a kickback, they could steer you to a store that has.

The telecom companies say that none of these scenarios has occurred or is likely to occur.  But in a white paper for Public Knowledge, John Windhausen documents eight cases of ISPs deliberately blocking certain kinds of lawful traffic or services.

The telecom companies complain that usage giants like Google and eBay are getting a "free ride" on the telecom infrastructure.  But Google and eBay pay well for network access and so do all of their users. 

U.S. law requires "communication services" like telephone companies to operate on the principle of net neutrality but does not require "information services" to do so.  Currently, broadband internet services fall into the second category, and now they want to exercise their right to discriminate.  Because re-classifying the companies, or imposing the principle of net neutrality, would "regulate the internet", the broadband companies use the rhetoric of internet freedom fighters.  But this is dishonest.  Network neutrality is the result of regulation; the absence of regulation lets ISP's play favorites.  If they win, it will be a victory for the freedom to block traffic and undercut the freedom to send and receive any lawful content.

If companies like AT&T and Verizon have their way, there will be two tiers of internet service:  fast and expensive and slow and cheap (or cheaper).  We unwealthy users --students, scholars, universities, and small publishers-- wouldn't be forced offline, just forced into the slow lane.  Because the fast lane would reserve a chunk of bandwidth for the wealthy, the peons would crowd together in what remained, reducing service below current levels.  New services starting in the slow lane wouldn't have a fighting chance against entrenched players in the fast lane.  Think about eBay in 1995, Google in 1999, or Skype in 2002 without the level playing field provided by network neutrality.  Or think about any OA journal or repository today.

If Congress changes the rules for U.S. broadband providers, users outside the U.S. will not be affected --unless they want to use content or services from U.S. providers or unless their governments decide, with or without arm-twisting, to "harmonize" with U.S. law. 

Ken Belson, Senate Bill to Address Fears of Blocked Access to Net, New York Times, March 2, 2006.  On Senator Ron Wyden's bill to codify the principle of network neutrality.

Art Brodsky, Net Neutrality Enters Murky Legislative State, In The Know, Public Knowledge, February 28, 2006.

Steven Levy, When the Net Goes From Free to Fee, Newsweek, February 27, 2006.

Peter Svensson., Future of the Internet Highway Debated, Associated Press, February 26, 2006.

Mark Lloyd, Net Neutrality (or Back to the Future), Center for American Progress, February 21. 2006.

Tollbooths on the Internet Highway, an unsigned editorial in the New York Times, February 20, 2006.

Michael Arnone, Experts: Don't shoot messenger to protect Internet, Federal Computer Week, February 17, 2006.  Quoting Paul Twomey, President and CEO of ICANN.

David Bollier, Save the Internet!  February 13, 2006.

Bill Thompson, Why the net should stay neutral, BBC News, February 12, 2006.

John Oates, Vint Cerf condemns two-tier internet, The Register, February 8, 2006.

Lawrence Lessig's Senate testimony on net neutrality, February 7, 2006.

Daniel Berninger, Net Neutrality Not An Optional Feature of Internet, a guest column in Om Malik's blog, February 6, 2006.

Gigi Sohn, Don't blow it, Congress, C|Net, February 6, 2006.,+Congress/2010-1023_3-6035094.html?tag=fd_carsl

John Windhausen, Good Fences Make Bad Broadband, a white paper from Public Knowledge, February 6, 2006.

There's been a Slashdot thread on the two-tier internet since January 19, 2006.

Michael Geist, Towards a two-tier internet, BBC News, December 22, 2005.

Common Cause position (undated)
Common Cause action alert (US citizens only)

(3) The end of free email

Yahoo and AOL have announced plans to charge extra for guaranteed delivery of email.  If you think that delivery is good enough now, then Yahoo and AOL ominously explain that those who don't pay extra may find that their messages end up in spam filters.  The new surcharge on mail wouldn't buy a glitch-free network; Yahoo and AOL can't provide that.  The surcharge would pay for an escort past filters with varying and unknown criteria.

If you don't pay, will you at least have the same service you have today --unimproved but also undiminished?  The answer is no.  AOL has already said that customers who don't pay will receive email without images or active links.  If AOL users couldn't leave, this would be extortion.  But they can leave and should start thinking about doing it.

Yahoo and AOL are not saying that the purpose is to gouge users.  They're saying that the purpose is to defeat spammers, who would presumably not want to pay the surcharge on each of their millions of messages.  But of course if you trust email that your ISP has carefully escorted past the spam filters, then some spammers will find that higher costs on a smaller mailing list will pay for themselves in gullible user strikes.  Nor will it stop spam sent to the people who don't pay the new fee.  Moreover, most filters are not under the control of Yahoo and AOL and will continue to block whatever they block now.  And you'll be gouged too.

The program is insidious and would lead almost everyone to pay the fees if they could --account holders at Yahoo and AOL and the bulk mailers who send to Yahoo and AOL addresses.  It would also lead other email providers to adopt similar policies or fear that they were leaving money on the table.  This would harm everyone who sends or receives non-spam mass mailings.  This newsletter is an example but only one of many.  The program would harm every form of OA content delivered by email, from emailed eprints and listserv postings to journal current-awareness messages like tables of contents and the results of stored searches.  It would hurt non-profit groups and informal communities that network by email, including academic and political groups.  Cash-strapped operations relying on email for distribution would either be forced to shut down or face higher costs that threaten their stability. 

In 2003 I wrote about some other crude measures to stop spam that would cause similar collateral damage for OA.  The new Yahoo/AOL plan is just another example in a long history of overreaching spam remedies.  This one has the distinction of increasing corporate revenue and using spam reduction as the pretext.

Associated Press, AOL vows to institute fee-based service despite protests,, February 28, 2006.

Saul Hansell, Plan for Fees on Some E-Mail Spurs Protest, New York Times, February 28, 2006.

Michael Geist, The Slippery Slope of Two Tier Email, Toronto Star, February 13, 2006.

Russell, Monetizing the Mailbox, ContentBlogger, February 10, 2006.

Suzanne Goldenberg, Internet giants announce plans to charge for speedier emails, The Guardian, February 6, 2006.,,1703192,00.html's position statement (undated)'s action alert

Strange Bedfellows Unite to Fight AOL's "Email Tax" (press release from EFF), February 24, 2006.  (The strange bedfellows are the EFF, the Free Press, Craig Newmark of Craiglist, representatives from the Gun Owners of America,, the Association of Cancer Online Resources, and dozens of other non-profits.)

* Postscript.  If you're worried about terrorists taking down the internet, here's *some* reassurance. 

John C. Doyle and seven co-authors, The "robust yet fragile" nature of the Internet, Proceedings of the National Academy of Sciences, October 11, 2005.

Excerpt:  "Here, we have shown that there exist technological, economic, and graph theoretic reasons why the most important SF [Scale-Free] claim (i.e., that the Internet has 'hubs' that form an Achilles' heel through which most traffic flows and the loss of which would fragment the Internet and constitute its attack vulnerability) cannot be (and is not) true for the current router-level Internet."


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