Who Owns the Internet?
by Anne Wells Branscomb
Since new internet technology has opened new frontiers of opportunity, not only in education and entertainment, but in commerce, politics, and the arts, who really owns it, or has the right to control what happens within it? This is perhaps the most challenging legal question before us as we look for American Values in Cyberspace. Who Owns the internet? The short answer is very simple. Either nobody owns the internet, or everybody owns the internet, or something in between. Since nobody knows, I decided that we should start, as a lawyer does, with some definitions.
First, what is the internet? It is a protocol for permitting lots of disparate computer networks with different operating systems, speaking different computer languages, to converse with each other. Stated simply, it is the “death of distance.”
Secondly, we must define what ownership means? In simple terms it means that what is “mine” is not “yours,” what is “ours” is not “theirs,” whoever “they” are, and what is “private” is not “public.” It is a right to control, manipulate, monitor, exclude, include, patrol or govern. More than just something of value that you can purchase or sell, it is a legal right to assert sovereignty if you are a nation-state or to exert autonomy if you are an individual or organized group.
Now, we will be better off addressing questions like who owned the internet in the past rather than who owns the internet today? Then, we should move on to question who might own the internet in the future, and whether it really matters to us if anybody owns the internet?
Originally the internet was a child of the defense establishment, evolving from the Arpanet, a research project of the Department of Defense intended to facilitate the sharing of centralized computing facilities by research contractors. Later it was administered by a National Science Foundation network to aid all research scientists in more generalized, non-proprietary research. It is now in the process of being turned over to the private sector and being looked upon as the basic infrastructure of global communication. The internet is used primarily by an English speaking population which is keyboard competent. Its architecture rests largely in the hands of researchers who design the network software. Access to it is controlled largely by those who own the gateways — the telecommunications common carriers, the information service providers, the internet access providers, and the managers of private networks. There are many in the Networld who consider that all of us who own computers and modems really control our own destinies in cyberspace, but this leaves out a whole lot of people all over the world. Most inhabitants of the globe have no computers or modems, or the competence to use them, or even a telephone line to connect them to the internet. Most people don’t have the hard cash to buy these capabilities even if they were available locally.
There is no problem in identifying the original internet users. They were 95 percent males, virtually all of whom were in their early professional years, many in jobs designing or using computers for professional work. At a meeting held by the National Conference of Lawyers and Scientists a couple of years ago some of the participants came up with two descriptions of original internet users — Worldwide Highly Intelligent Technological Elite and Western Homogenous Imperialistic Telecommuting Entrepreneurs. These both translate to the same acronym: WHITE. Today’s internet population, estimated at some 37 million in North America, is a little more varied with about one-third of users now being females, but still largely limited to professionals and commercial establishments in the rest of the world.
The most obvious candidates for ownership in the future are some of the major software companies led by the most obvious and most pervasive, Microsoft, which provides 75 percent of the operating systems controlling PC computers. Microsoft virtually holds the keys to the kingdom. Apple Computer, whose software many devoted users consider far more versatile and useful, seems to be losing market share, although Apple claims about 21 percent of those having access to the internet. There are, of course, other candidates: Sun Microsystems with its Java aplets and a strong software and hardware position in the server market; or Netscape with its Navigator that now captures 84 percent of the browser market. There are others perhaps yet to make their entrance upon the racetrack to vie for dominance, but control of the software determines what we can do with our computers and our modems. Unless we are competent programmers ourselves we are simply at the mercy of those who design for us.
Another set of candidates are those professionals who can, in fact, manipulate the software to control behavior they deem unacceptable. Many of them — the computer gurus and wizards — have designed special software such as filters for screening out undesirable message content, “bozo” files for deleting messages of undesirable communicants, and “Cancelbots” to delete a set of similar messages from the electronic bit stream, or “toading” undesirables (like in a fairy tale, turning them into a frog) by banishing them from virtual communities. There are also steps taken by the managers of university systems and commercial information service providers to set forth rules of acceptable conduct that proscribe certain behavior and give the managers of the systems the right to exclude those who do not comply.
Clearly, technical access to the common carriers or access providers is a well recognized bottleneck. If one has an account with a university, or works for a major corporation, high speed access is provided on the company local area network (LAN) or Intranet to facilitate accomplishing the job for which one is hired. Others must contract directly with an ATT, or an America Online, a Netcom, or a Sprynet. In many cases, these providers use lines poorly conditioned for data access. How these suppliers of either raw information transport, or information content itself, design their systems determines what users can do within the Networld.
The next most likely candidates for ownership and control of the internet are the advertisers. Commercial domain names on the internet are multiplying rapidly. Most of these are companies interested in advertising their wares. The World Wide web is a dandy place for advertising products and services that can be delivered elsewhere, but an individual’s time is limited and viewers will flock to the most attractive sites. You will find many familiar corporate names on the web like IBM, or Eastman Kodak, which is giving away beautiful images in the expectation that you will buy more film. Others like Time/Warner’s Pathfinder and Hotwired are trying to break new grounds and find new paths to your pocketbooks. Even the popular searcher, Yahoo, is now supported by advertising. A tiny entrepreneur in a small town can gain access to the global market, if it can be found in the morass of information circling the globe on the web, and a tiny monastery can bolster its income by having its monks design web pages — the new scriptorium of the Information Age.
Last year marked the point that users worldwide discovered that the internet was being used to access images that many cultures found objectionable. So long as the internet was used primarily by similar members of the research tribes little outside governance disturbed the natives. Now that “cyberporn,” hate messages, and defamatory content are beginning to creep out into the real world, the “cybercops” are coming into these lawless frontiers of cyberspace and attempting to tame the natives.
We might hope, and many do, that the owners of the computers themselves — now about 100 million worldwide, and still a tiny fraction of the world’s over 5 billion population — will assert control over the internet and turn it into a genuine vehicle for exercising electronic democratic governance. The users themselves — the “netizens” of these cyber communities — have developed their own devices for self-government. “Netiquette” requires that newcomers read the frequently-asked-questions before entering a new discussion group. Software has been designed to give users more control over their own on-line environment with such filtering devices as “Netsurf” and “Net Nanny.” But many of us must admit that our children and grandchildren are far more competent at manipulating the software than we!
“Spamming” of e-mail postboxes and Usenet groups has provoked the wrath of “netizens.” They take steps to stem the tide of commercial messages by “flaming” the miscreants. Oftentimes they merely migrate from cyber communities where the environment is undesirable and the natives unfriendly. In several of the Moos (multi-user domains) serious attempts have been made by the participants to devise democratic procedures and sanctions embodying due process. Can such cyber democracy work, or is it possible that a benign anarchy may become the norm? Net users are beginning to understand that they must exercise more control to prevent the unwelcome intrusions that the information economy has in store, especially if they are to maintain some autonomy over private spaces.
The trend toward greater concern about privacy is marked in the telephone directory listings. More and more people are requesting unlisted numbers. On the other hand, some of us love the unsolicited catalogs that arrive at our door, others cringe at the wasted paper and trees that go into the trash. Unsolicited mail in electronic traffic is more troublesome than in the postal service. It uses up electronic space, interferes with the flow of meaningful “threads” of conversation in discussion groups and generally wrecks havoc with the efficient use of the system.
Transaction generated information is even more troubling than unsolicited advertising. Last Christmas, I gave to an elderly aunt a puzzle which managed to get me onto a list for distribution of catalogs of nothing but puzzles. Several years ago I started buying copper pots to put in a house I was building in Colorado. The purchases were here, there, and everywhere — some in Turkey, some in New Mexico, some from catalogs, but mostly charged to credit cards. Within a few months, what arrived in my mail — you’ve no doubt guessed by now. It was a catalog of nothing but copper pots.
These examples are pretty benign, yet troubling because it means that the computers somewhere are recording every movement in the real world. Suppose what had been revealed had been my purchases of drugs for AIDS, or downloading of pornographic images from the internet. Indeed, one of the major threats of the internet is that everything you purchase, every trip you make, everything you ever say, everything you ever do may end up in an amazingly accurate dossier about you, your personal preferences, your lifestyle, and your political preferences. Indeed, it is not so much “big brother,” the government, that is the threat so much as “big brother,” big business.
To derive advertising dollars on the web, a great deal of personal information is being collected in order to “sell” viewers and users to companies that seek their business. Such transaction generated information represents a substantial loss of privacy (or what I call autonomy over information) to the individuals whose private dossiers are being assembled. It has provoked an increased concern about privacy, and a desire to maintain more autonomy over what is being collected and how it might be used. Should we be deemed to own information about ourselves? Companies will fight it because they deem the use of our names, addresses, the sites we visit on the web to be very valuable information for which there is a brisk and growing market. Your web tracks are very revealing. What can we maintain as secret? Can we retain the privilege of participating responsibly in the Networld while remaining personally anonymous?
Of course, many people, especially those who describe themselves as having a “web presence” want to distribute as much information about themselves, their writings, and their activities as possible. Isn’t that what the web is really good for? To share the information that really wants to be free. Is not the web a perfect place where all of us who want something can use one of the many search tools to find exactly what we want?
Everybody seems to want a web page. Indeed, in my hometown of Concord, Massachusetts, there are already some two dozen or so individual web pages posted on the Concord server — a student sharing his best jokes and another young man who announced his wedding plans and invited his friends to attend the festivities. There is a Branscomb homepage on the web, where a tireless volunteer — Ronald Branscomb — has recorded the entire history of the small village of Branscomb on the South Coast of Devon, including the names of all the Vicars of the 12th century church; the story of the King’s Arms pub; all the Branscombs he knows about; even a Who’s Who of Branscombs in which he claims to have entered not only myself, but my husband and my father-in-law. Moreover, the Clans of Scotland are finding the web a dandy way to keep up with each other. What was once “an old feudalistic system where a chief held sway over the men and women in his own isolated geographical area” has developed into “a more enlightened loose confederation of families from around the world united by common history.” The MacLean clan, for example, has a home page with details of clan history, recent news, and forthcoming events, and a MacLeannet of 50 or more members of the clan who communicate regularly from London, to Dallas, to Melbourne.
Well, suppose you do have your own web page, or even your own domain name. Who owns your web page, domain name, e-mail? Are you the complete lord and master of your web presence? Suppose, for example, that your name is Ronald McDonald — clearly of considerable interest to the food chain that has trademarked that name for its services. Even worse, suppose your name is John Doe, or Joe Smith, or Bob Jones. How do we accommodate personal identity in a Networld that can circulate information at the speed of light to over five billion humans? If your real name is Ronald McDonald, do you have a right to put your name on a web page or does this transgress the economic rights of McDonald’s in its cartoon character?
Already cases have gone to court to protect domain names. For example, an MTV employee — before MTV knew anything about the web — sought to establish a homepage for MTV but was rejected by his employers. Consequently, he applied for and obtained the domain name MTV and put up his own MTV web page. Of course, when MTV discovered what a mistake they had made, they changed their strategy and eventually reached a settlement that secured the MTV domain name for MTV. In another incident, a company obtained the domain name of its competitor as a business strategy. This might be considered an unfair business practice, but because of possible complications, many of the larger corporations are seeking and setting aside every domain name that characterizes its various product lines, just in order to insure that they have covered every possibility. Meantime, one enterprising Canadian started up a new business seeking and acquiring — for $50 a site — all the popular domain names that companies might not have already secured for themselves. His intent, of course, was to sell back the names for a profit to the companies that had been lax in protecting their own interests. So, these new on-line services provide all sorts of hidden opportunities for making a buck. Now, there is a great hue and cry over setting up some more rational system of assigning domain names.
Who can do what to your very own web page? According to the hacker ethic, everyone should share their software so everyone can benefit. The original hackers believed that it was not only their right but a moral imperative to seek out other’s programming and to improve upon it if they could. Are they likely to invade web pages to “improve” them or play around with what you thought was yours. Are you left to your own self-help to keep vigilance and keep the bastards out, or can you expect some legislative and law enforcement support? Do law enforcement officials have time or competence to worry about disruption or distortion of web pages? Suppose a clever rogue comes in and puts a goatee on your shiny picture? Is this something you should laugh off or go to your friendly local police, or should there be cyber police to maintain order. John Perry Barlow, who has written a “Declaration of Independence for Cyberspace,” talks of the right of cybernauts to make their own laws and regulate their own space, and, indeed, there are any number of efforts to do just that — some in very individualistic, chaotic, and aggressive ways.
Let us take the opposite side of the coin. If we cannot assure that we can maintain ownership and control over our own personal information, what about public spaces? Where are the truly public places in on-line communication, and who is responsible for maintaining them? The World Wide web seems to be a very public place, but even in public places, institutions have a vested interest in keeping proprietary control over their own sites. Even in public places, or perhaps especially in public places, individuals have an interest in moving about unrecognized.
Historically, in usenet groups especially, it has been assumed that these are public postings and these are public places. However, that is not the status of the copyright law. When the U.S. entered the Berne Convention, we had to remove from our copyright law the requirement that notice be given when something was “published.” Now the presumption is that anything posted is copyrighted unless otherwise designated. Yet we do not have a comparable marker to show that something was really intended to be put in the public domain.
As far as government controlled sites are concerned, it can be assumed that U.S. government generated information is the public domain because the copyright statute prohibits the government from claiming a copyright in its materials. However, that is not true of other countries. There is a Crown copyright, for example, in the United Kingdom. There is also pressure on our own government agencies to try to recoup the costs of producing the information. However, the general rule is that only the costs of reproduction may be recaptured. That does not answer the question of who maintains the “public domain” information and who may take it, modify it, improve, add value. May they then claim a copyright in what they have reproduced? Yes — not in the facts or ideas, but in the “expression.”
This concern is what prompted Richard Stahlmann to invent his ingenious “copyleft,” a contractual arrangement that permits him to maintain what he placed in the hands of the recipients, for free, will also be issued to others on the same generous conditions of sharing the information wealth with all comers if improved. There is certainly no prohibition against publishing something without claiming any further proprietary interests in it. There is just no way of knowing what the intent of the publisher was unless he or she chooses to so identify it.
There are now under way a number of efforts to set up information management systems that will electronically give the details of the status of a work, thus facilitating users to know exactly what the issuer intended. Bruce Lehman, Commissioner of Patents and Chairman of the National Information Infrastructure (NII) Task Force on Intellectual Property, has identified this issue as a major deterrent, but his task force was unwilling to tackle the thorny issue because there is so much antipathy for formal requirements of registration in the Berne member countries. One might wish that the United States, which has a dominant position in the global on-line market might have been more courageous by going to the Berne and stating that this was a major problem that needs correcting if on-line communication and especially on-line commercial activities are to flourish. The NII Task Force did recommend that efforts to remove electronic identifiers be made a criminal act. However, I was fascinated that at the same conference, the NII Task Force recommendation was questioned because it would make actions like those of David LaMacchia an indictable offense.
If you remember, David LaMacchia was the MIT graduate student who put up a site on the MIT computing system on which proprietary software was uploaded and downloaded, not by David, but by others with his knowledge and perhaps encouragement. However, he did not charge for the service and the law is quite explicit that in order to claim criminal infringement the infringer must have committed the offense with commercial gain intended. While the judge found what David did utterly reprehensible, he declined to “pour new wine into old bottles.” At the Berne conference, David’s brother — in all earnestness — argued that what David did was no more than many others had done, and that he himself had enjoyed an Apple computer early on when everybody shared their software with each other.
In the early years of microcomputers, that was in the best commercial self-interest of Apple, which did encourage its buyers to write and exchange software. This, then, is the “hacker” ethic that sharing is the better way. However, this is not the mantra of a market oriented society, nor one in which “information” is the coin of the realm. Indeed, one might as easily argue that it is acceptable to go through the farmer’s market and take the farmer’s apples and eat them and hand them out to one’s friends so long as one does not charge for the apples. Still, what about the farmer, his wife and children, who are depending upon the sale of the apples to sustain them?
So long as we do not have a consensus concerning what is or is not acceptable behavior on-line, we will not be able to enact sensible enforceable statutes to protect what we cherish. So long as we are unable to distinguish between public and private domains of information, we will be unable to reap the full benefits of an information economy, an information society, and an information age. We are currently in a stage of transition, turbulence and uncertainty. We cannot see the future clearly. However, we can look at the past to see from whence we came in order to shed more light on where we would like to go.
In tribal societies, there is usually a sense of shared information. Here, whatever benefits one benefits all. Indeed, most Native American tribes, I understand, find property interests contrary to their social mores, and there is a sense of stewardship of the natural environment in which they were blessed to be born. In Western societies, for many hundreds of years, there have arisen concepts of proprietary rights in real estate, in personal property, and, indeed, more and more often in recent years, in information of all kinds. We speak of living in the information age. How does it differ from the previous agricultural and industrial ages?
In the agricultural age a single farmer could not amass either the time or the money to do much more research than looking at the Almanac to see when rains might benefit the fields and water the seeds. In the industrial age, in the U.S. for example, much of the agricultural research was funded through the system of land grant colleges, published through the Government Printing Office, and disseminated through a government subsidized mail system. The industrial age, likewise, supported a substantial amount of other types of research and development through centralized funding, but much of it was also decentralized to private companies who pursued their interests and developed patents for the protection of proprietary information that could become the fuel for the production of real goods within which the information was imbedded and sold with the product. Anyone who could reverse engineer the product and come up with a better way of making mousetraps was free to do so. In this sense, valuable information was more or less free for the taking.
In an information age, however, information becomes disembodied from the product, unattached to the object, or more significantly becomes a competitive asset in a global marketplace of many players. Lawyers and bankers, as well as journalists, screen writers, consultants, and database managers are engaged in information production and processing. As Walter Wriston reminded us some years ago in the Twilight of Sovereignty, “information has become the coin of the realm.”
Who can use what information for what purposes? With the general trend toward privatization of information, what should remain in the public domain? How do we recognize the “public domain”? Who maintains the public domain? Which public is served? Which public decides? These are all issues related to who owns and controls access to the internet? Is it we as users, the telecommunications carriers, the software providers, the information providers, or some intricate combination of all of the above?
Fortunately, not everyone wants to own the internet. I suspect, however, that many of you in the audience will want to try. If the Networld is to live up to its advance publicity; if we are to make the Networld a place where electronic democracy prevails; where the future of the information society will be as full, as flexible, and as promising as the pioneers of the electronic frontier had hoped; then we, the users, must take charge. We must mold the system to our shared visions of the future. We must preserve an electronic environment in which we, our children and their children, can reach their potential.