The new corporate threat to freedom of expression



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THE NEW CORPORATE THREAT TO FREEDOM OF EXPRESSION

Simon Davies



Department of Information Systems,

The London School of Economics and Political Science

United Kingdom


Ian Brown

Hidden Footprints Ltd,

United Kingdom
Introduction

Large companies have traditionally viewed any new media as a threat. Unconventional forms of publishing and speech challenge conventional ways of conducting business. Historically, only an exceptionally small and forward-looking group of companies take advantage of new media. Others resist their implementation, and attempt to use legal mechanisms to frustrate access to such technologies and techniques.

The recent moves by large industry groups and companies to inhibit free expression on the Internet is predictable. Attempts by the film and music industries to paralyse the development of new technologies of consumer content distribution is entirely consistent with their initial responses to photocopier and video technology.

This paper assesses the attempts being made by these industries to curtail content and distribution on the Internet, and discusses the likely result of such moves.


The new battleground of free speech

Attempts by Western Governments to curtail free speech on the internet have largely failed. Internet censorship provisions in the US Communications Decency Act 1995 and the Child Online Protection Act 1998 have been struck down by the Supreme and Federal courts (Reno v. ACLU 1996; ACLU v. Reno 2000). While some other Western countries are still attempting to censor the net, it is likely that they will achieve little more than to drive the content of websites to First Amendment-protected US Web servers, where it is only a few milliseconds further away from their citizens.

Some governments, such as those of China and Singapore, have attempted to block certain content (most notably pornography and political commentary) from entering their countries by using firewalls and restricted connectivity. These efforts have not taken account of recent developments in Internet technology, and are likely to fail in the long term because of services that anonymise Internet activity. Any Internet user can connect to services such as anonymizer.com, which will make the task of monitoring and blocking virtually impossible. The growing use of encryption will compound the task of censorship. As Internet usage increases in those countries, the reliability requirements of e-business will also force better connectivity.

Future government attempts at censorship may centre around making Web hosts liable for the content they serve, similar in some respects to conventional publishing law. Britain has a “notice and take down” system as a result of a successful defamation prosecution by UK academic Lawrence Godfrey against the Demon Internet Service Provider (ISP) (Lawrence Godfrey v Demon Internet Limited 1999). The US has a similar provision under the Digital Millenium Copyright Act 1998 with regard to copyrighted material. This latter effort is being driven by a new threat to free speech: big business.



The industry challenge

Notice-and-take-down laws have been largely driven by the music industry, which is demanding that ISPs not allow copyrighted MP3 music files (a compressed data format) to be distributed from their sites. Even MP3.com, who designed technology especially to allow users with legal copies of music to access it over the Internet, has been pursued through the courts by the big labels. The company has agreed to pay royalties to four of these companies, but may have to pay up to $250m to settle a lawsuit with Universal Music Group

New technology such as Napster has provoked an even more extreme response. The company, which provides an on-line community for the sharing of music, has faced a life-or-death court attack from the Recording Industry Association of America, currently awaiting a decision from the federal Court of Appeal in California.

The movie industry has also aggressively pursued those it claims are violating its copyright online. DeCSS, a program written to allow Digital Video Disks (DVD) to be played on Linux computers (an operating system that competes with Microsoft Windows), has been targeted on Web servers all over the world by the Motion Picture Association of America. The MPAA has attempted to obtain injunctions in New York and California courts to prevent the publication of or even linking to DeCSS. These efforts to threaten ISPs extend even outside the jurisdiction of the US courts of law [Young1998]. One of the program’s authors, 16-year old Jon Johanssen, was arrested at home in Norway and had his computer equipment seized.

The content industries have also expended substantial resources lobbying legislatures, particularly the US Congress, to pass new laws reducing citizens’ “fair use” rights that allow limited non-commercial reproduction of copyright materials. The US Digital Millenium Copyright Act has been heavily criticised for banning devices that allow circumvention of copyright control mechanisms even for these limited fair use purposes [Samuelson99]. Industry is heavily lobbying the US state legislatures to pass the Uniform Commercial Information Transactions Act, an update to the US Uniform Commercial Code that governs interstate commerce. This update gives powers to enforce information “licenses” that may exclude fair use rights [Samuelson98].

Various music groups have also been taking technical measures to try and stop the distribution of their music via services such as Napster. Metallica and Dr. Dre both monitored Napster’s servers to obtain lists of users making their songs available, and then demanded that Napster block those people’s access. They then have the option to take legal action against any of those individuals. A Xerox Parc study found that only a small percentage of file swappers made their own music files available to others [Adar00]: these people would be the obvious first legal targets.


Stopping whistleblowers

Various companies have used related technical and legal attacks to uncover the identities behind pseudonymous critics and whistleblowers. In many cases, ISPs will comply with corporate requests for information on their users without any judicial authorisation.

Companies have a long history of using telephone records to identify whistleblowers and other sources of embarrassing information. They are now turning to Internet surveillance for the same purpose. Corporate mail servers may provide copies of e-mails sent and received. The addresses of Web pages visited by employees may also be logged. Many companies are eager to use these powers.

Governments are reluctant to provide protection against such measures. The United States has fought pressure both from its own citizens and from the European Union to pass privacy protection legislation. The United Kingdom has explicitly authorised employee monitoring for a wide range of purposes. It has also provided powers for a large group of government authorities to obtain “traffic data” on Internet users’ activities, and to require ISPs to store such data. This measure has the unintended effect that such information will be available to any organisation willing to bribe unethical individuals with access.

The US and UK law enforcement and intelligence communities have been prime movers in extending these powers to governments around the world via the Council of Europe’s draft Cybercrime treaty.
New technologies

Napster and Gnutella (another popular file-sharing program) have different, but similarly damaging, flaws. Napster uses central servers to index the files available on its users’ hard disks. These central points are easy targets for legal and technical attacks, as the record companies have been quick to realise. Gnutella identifies the source of any file downloaded, providing a target for prospective legal action.

The record industry has been attempting to prevent duplication of music through their Secure Digital Music Initiative. Their vision is of a world of music devices—CD players, walkmans, radios—that will refuse to allow copies of songs marked by their publishers as “not for copying”. However, attempts to create the building blocks of these technologies have so far failed. Just one group of researchers broke all four of the candidate marking algorithms SDMI had selected. Due to fundamental problems in securing mass-market devices, SDMI is unlikely to succeed.

New file-sharing technologies designed to avoid the weaknesses of Napster and Gnutella are now becoming available to distribute these de-protected songs. Freenet uses a distributed search and copy mechanism that masks the identities of users and caches files so they are available quickly to users around the world. Mojonation allows files to be split redundantly between several users: each split is hard to find, but even if removed can still be reconstituted from other splits if available. It also provides a micropayment mechanism that rewards users who make resources such as disk space available to the network, avoiding the problem of users willing to download but not share files, as identified by the Xerox study.


Conclusion

These new technologies are very likely to overcome the content industries’ censorship attempts. Unfortunately the companies’ determination to change the balance of copyright law in their favour may diminish many other conventional rights in the process. It would be tragic if the content industries adapted to new Internet business models, but left a legacy of restrictive laws before doing so. The business world moves far faster than the legal environment.

It is ironic that media companies have historically been some of the staunchest defenders of First Amendment rights. It would be unfortunate if this was now to change as their profits were threatened.

Copyright is a balance struck between society and authors, not an inalienable right of the copyright holder. The US Constitution allows Congress “To promote the progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” If society feels the benefits of copyright are flowing too heavily to intellectual property owners, it will slowly but surely start to move that balance back in its own direction. Legislators are influenced heavily by lobbyists, but even more by the prospect of large numbers of votes from citizens who may come to resent attacks on their freedom of expression.


References

[Adar00] Eytan Adar and Bernardo A. Huberman. Free Riding on Gnutella. First Monday, October 2000. http://www.firstmonday.dk/issues/issue5_10/adar/index.html

[Samuelson98] Pamela Samuelson. Does information really have to be licensed? Communications of the ACM, 41(9) pp.15-20, September 1998. http://www.acm.org/pubs/citations/journals/cacm/1998-41-9/p15-samuelson/

[Samuelson99b] Pamela Samuelson. Why the anticircumvention regulations need revision. Communications of the ACM 42(9)pp.17-21, September 1999. http://www.acm.org/pubs/citations/journals/cacm/1999-42-9/p17-samuelson/



[Young2000] John Young (ed.). DeCSS and Demon Internet. Cryptome, September 2000. http://cryptome.org/decss-demon.htm






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