Person:

Zittrain, Jonathan

The production of most mass-market software can be grouped roughly according to free and proprietary development models. These models differ greatly from one another, and their associated licenses tend to insist that new software inherit the characteristics of older software from which it may be derived. Thus the success of one model or another can become self-perpetuating, as older free software is incorporated into later free software and proprietary software is embedded within successive proprietary versions. The competition between the two models is fierce, and the battle between them is no longer simply confined to the market. Claims of improper use of proprietary code within the free GNU/Linux operating system have resulted in multi-billion dollar litigation. This article explains the ways in which free and proprietary software are at odds, and offers a framework by which to assess their value - a prerequisite to determining the extent to which the legal system should take more than a passing, mechanical interest in the doctrinal claims now being pressed against GNU/Linux specifically and free software generally.

Individuals have long had the desire but little ability to control the dissemination of personal information about their health. Law has been a weak instrument for such control, given the articulate and powerful interests that insist upon maintaining and enhancing access and use of others' personal information, with sensitive medical data proving only a sporadic exception. Technology has so far only made exploitation of personal information easier. The evolving federal framework for the protection of electronic medical records is, at the moment, one in which individuals are third-party beneficiaries of what are likely to be flexibly-interpreted, ponderously-enforced fair information practices created in the shadow of a Congressionally-mandated networking of sensitive medical data. This networking promises to greatly lower the costs of accessing and using medical data for any number of purposes including ones not central to health care, such as direct marketing. It is ushering in what some call the "Era of Promiscuous Publication". The danger this era portends is that what is gained in efficiency of health care provision may be lost in erosion of privacy. Privacy advocates could learn a new approach to this problem from an unlikely teacher: publishers of intellectual property, specifically the American music industry. The music industry until recently feared ruin from the unauthorized swapping and rebroadcasting of high-quality audio reproductions among its customers, a phenomenon enabled by increasingly cheap networks, cheap data storage, and cheap processors, again, the "Era of Promiscuous Publication". Despite access to a sympathetic Congress and extensive enforcement resources, the music industry has found recourse to law largely unavailing against this tide of technological progress. The industry is now embarking on a different strategy changing the technology itself. At the core of the technological response lies the idea of "trusted systems": computer databases of the rights and privileges of specific entities vis-a-vis information, linked to hardware and software that recognize and enforce those rights. If fully deployed, trusted systems could trump the "Era of Promiscuous Publication" with what I call an "Era of Trusted Privication": one in which a well-enforced technical rights architecture would enable the distribution of information to a large audience publication while simultaneously, and according to rules generated by the controller of the information, not releasing it freely into general circulation privication. In my view there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy. Their common desire to control the distribution of information, and the music industry's potential success at regaining control through the implementation of trusted systems, offer several lessons to privacy advocates seeking to protect the privacy interests increasingly threatened by the advent of the "Era of Promiscuous Publication". The paper explores these lessons first by mapping out the problem presented to the music industry by the advent of fast, cheap, and perfect copies, along with the music industry's legal and technological strategies for regaining control. Second, it describes the similar problem faced by privacy advocates in the arena of medical privacy, the legal solutions that have been and might be attempted, and a hypothetical technological solution that demonstrates the enforcement power of the trusted system. Finally, it looks beyond the enforcement potential of the technological solution to demonstrate how thinking in terms of privication architectures might help negotiate the allocation of rights to medical data to account for the interests of individual "producers" of personal data in ways that need not disparage the legitimate interests of the sophisticated institutional players who wish to consume that data.

The online availability of pornography and unauthorized intellectual property has driven Internet growth while giving rise to efforts to make the Internet more regulable. Early efforts to control the Internet have targeted the endpoints of the network—the sources and recipients of objectionable material—and to some extent the intermediaries who host others’ content. Recently, attention has shifted to the intermediaries near would-be recipients of content. The U.S. Commonwealth of Pennsylvania permits its attorney general to obtain a court order requiring ISPs to block Pennsylvanians’ access to Internet locations designated as containing illegal pornography. If successful, this approach could be employed for other regulatory purposes, such as controlling the online distribution of copyright-infringing materials. While the Pennsylvania law suffers from a number of technical limitations and constitutional vulnerabilities, with some adjustments to Internet architecture and data carriage practices this approach could become a comprehensive scheme for widespread content control that overcomes a number of enforcement barriers and jurisdiction-related objections.

As the Internet becomes part of daily living rather than a place to visit, its rough edges are smoothed and its extremes tamed by sovereigns wanting to protect consumers, prevent network resource abuse, and eliminate speech deemed harmful. The tools are now within reach to permit sovereigns with competing rulesets to play down their differences - whether by countenancing global privatization of some Internet governance issues through organizations like ICANN, coming to new international agreements on substance and procedure to reduce the friction caused by transborder data flows, or by a "live and let live" set of localization technologies to shape the Internet to suit the respective societies it touches. These shifts will help ease the tension between the certitudes that the Internet is global, while the imposition of regulation is almost always local. Such cures for the longstanding dilemmas of Internet jurisdiction and governance eliminate the originally cherished aspects of a global Internet as well - urging us to consider the iatrogenic effects of bulldozing online activity to conform more to the boundaries of the physical world that preceded it, and explaining why, in the United States and elsewhere, there are contradictory policies emerging about the Internet's future.

"Sysop" has gone from a term of art known only to the bleeding-edge few to a dusty anachronism known only to the bleeding-gums few, without the usual years-long general linguistic acceptance and respect in between. In case the reader is not among the bleeders: sysops (from "system operators") run electronic areas accessible by typing furiously on one’s networked computer, through which one can meet, talk to (well, at least type at), and develop nuanced social relationships with other people similarly typing and reading. Few know what a sysop is because these electronic areas — aspirationally, and sometimes accurately, known as "online communities" — have never quite flourished and today are in decline. Indeed, "online community" joins "sysop" in the oversize dustbin of trite or hopelessly esoteric, hence generally meaningless, cyberspace vernacular. Not that "online community" is obscure, like "sysop"; rather, the term’s emptiness results from its abuse. "Online community" is used by Internet companies the way a motivational speaker uses "excellence," an academic uses "new paradigm," or a lawyer uses "justice": it represents something once craved and still invoked (if only as a linguistic placeholder) even as it is believed by all but the most naïve to be laughably beyond reach. Since it’s applied to almost anything, it now means vague warm fuzzies and nothing more. The craft of sysoping and the phenomenon of online community (non-hollowly defined) have gone down together even as the Internet has burgeoned, and I want to explain what has happened to sysops as a way of explaining what has happened to the truly great and transformative promise of online communities. Law has played a major role in two distinct ways. First, sysops and the members of the communities they lead have struggled through lawlike reflection to arrive at just solutions to the disputes that inevitably arise in the course of their interactions. This struggle is a large part of what has made the communities so interesting. Second, fear of the formalistic application of the machinery of the real-world legal system is threatening to drive the amateur sysop to extinction and thereby to destroy what’s left of online community.

Current tax law--and the current technical architecture of the Internet--make it difficult to enforce sales taxes on most Internet commerce. This has generated considerable policy debate. In this paper, we analyze the costs and benefits of enforcing such taxes including revenue losses, competition with retail, externalities, distribution, and compliance costs. The results suggest that the costs of not enforcing taxes are quite modest and will remain so for several years. At the same time, compliance costs are also likely to be low as Internet infrastructure evolves to make enforcement easier, and states coordinate to harmonize their statutes. There are benefits to nurturing/subsidizing the Internet but they tend to diminish over time. When tax costs and benefits take this form, a moratorium provides a natural compromise.

Microsoft has brilliantly exploited its current control of the personal computer operating system (OS) market to grant itself advantages towards controlling tomorrow's operating system market as well. This is made possible by the control Microsoft has asserted over user "defaults," a power Microsoft possesses thanks to a combination of (1) Windows' high market share, (2) the "network effects" that make switching to an alternative so difficult for any given consumer or computer manufacturer, and (3) software copyright, which largely prevents competitors from generating software that defeats network effects. The author suggests a much-reduced term of copyright for computer software--from 95 years to around five years--as a means of preventing antitrust problems before they arise.