By Andy Deck
Last modified 4/4/2003

Not so long ago, American news magazines were covering the Browser War. Several real wars later, the terms of surrender are becoming clearer. Now both of the major Internet browsers are owned by huge media corporations, and most of the states (and Reagan-appointed judges) that were demanding the break-up of Microsoft have given up. A curious about-face occurred in U.S. Justice Department policy when John Ashcroft decided to drop the federal case. Maybe Microsoft's value as a partner in covert activity appealed to Ashcroft more than free competition. Regardless, Microsoft is now turning its wrath on new competitors, people who are doing something very, very bad: sharing the products of their own labor.

This practice of sharing source code and building free software infrastructure is epitomized by the continuing development of Linux. Everything in the Linux kernel is free, publicly accessible information. As a rule, the people building this "open source" operating system software believe that maintaining transparency is important. But U.S. courts are not doing much to help. In a case brought by the Motion Picture Association of America against Eric Corley, a federal district court blocked the distribution of source code that enables these systems to play DVDs. In addition to censoring Corley's journal, the court ruled that any programmer who writes a program that plays a DVD must comply with a host of license restrictions. In short, an established and popular media format (the DVD) cannot be used under open source operating systems without sacrificing the principle that software source code should remain in the public domain.

Should the contents of operating systems be tightly guarded secrets, or subject to public review? If there are capable programmers willing to create good, free operating systems, should the law stand in their way? The question concerning what type of software infrastructure will dominate personal computers in the future is being answered as much by disappointing legal decisions as it is by consumer choice. Rather than ensuring the necessary conditions for innovation and cooperation, the courts permit a monopoly to continue. Rather than endorsing transparency, secrecy prevails. Rather than aiming to preserve a balance between the commercial economy and the gift-economy, sharing is being undermined by the law.

Part of the mystery of the Internet for a lot of newcomers must be that it seems to disprove the old adage that you can't get something for nothing. Free games, free music, free pornography, free art. Media corporations are doing their best to change this situation. The FBI and trade groups have blitzed the American news media with alarmist reports about how children don't understand that sharing digital information is a crime. Teacher Gail Chmura, the star of one such media campaign, says of her students, "It's always been interesting that they don't see a connection between the two. They just don't get it" (Hopper). Perhaps the confusion arises because the kids do understand that digital duplication lets two people have the same thing. Theft is at best a metaphor for the copying of data, because the original is not stolen in the same sense as a material object. In the effort to liken all copying to theft, legal provisions for the fair use of intellectual property are neglected.

Teachers could just as easily emphasize the importance of sharing and the development of an electronic commons that is free for all to use. The values advanced by the trade groups are not beyond question and are not historical constants. According to Donald Krueckeberg, Rutgers University Professor of Urban Planning, native Americans tied the concept of property not to ownership but to use. "One used it, one moved on, and use was shared with others" (qtd. in Batt). Perhaps it is necessary for individuals to have dominion over some private data. But who owns the land, wind, sun, and sky of the Internet -- the infrastructure? Given that publicly-funded research and free software have been as important to the development of the Internet as have business and commercial software, it is not surprising that some ambiguity remains about the property status of the dataverse.

For many the Internet is as much a medium for expression and the interplay of languages as it is a framework for monetary transaction. In the case involving DVD software mentioned previously, there emerged a grass-roots campaign in opposition to censorship. Dozens of philosophical programmers and computer scientists asserted the expressive and linguistic bases of software by creating variations on the algorithm needed to play DVDs. The forbidden lines of symbols were printed on T-shirts, translated into different computer languages, translated into legal rhetoric, and even embedded into DNA and pictures of MPAA president Jack Valenti (see e.g. Touretzky). These efforts were inspired by a shared conviction that important liberties were at stake. Supporting the MPAA's position would do more than protect movies from piracy. The use of the algorithm was not clearly linked to an intent to pirate movies. Many felt that outlawing the DVD algorithm, which had been experimentally developed by a Norwegian teenager, represented a suppression of gumption and ingenuity. The court's decision rejected established principles of fair use, denied the established legality of reverse engineering software to achieve compatibility, and asserted that journalists and scientists had no right to publish a bit of code if it might be misused.

In a similar case in April 2000, a U.S. court of appeals found that First Ammendment protections did apply to software (Junger). Noting that source code has both an expressive feature and a functional feature, this court held that First Ammendment protection is not reserved only for purely expressive communication. Yet in the DVD case, the court opposed this view and enforced the inflexible demands of the Digital Millennium Copyright Act. Notwithstanding Ted Nelson's characterization of computers as literary machines, the decision meant that the linguistic and expressive aspects of software would be subordinated to other concerns. A simple series of symbols were thereby cast under a veil of legal secrecy. Although they were easy to discover, and capable of being committed to memory or translated to other languages, fair use and other intuitive freedoms were deemed expendable.

These sorts of legal obstacles are serious challenges to the continued viability of free software like Linux. The central value proposition of Linux-based operating systems -- free, open source code -- is threatening to commercial competitors. Some corporations are intent on stifling further development of free alternatives. Patents offer another vulnerability. The writing of free software has become a mine field of potential patent lawsuits. Corporations have repeatedly chosen to pursue patent litigation years after the alleged infringements have been incorporated into widely used free software. For example, although it was designed to avoid patent problems by an array of international experts, the image file format known as JPEG (Joint Photographic Experts Group) has recently been dogged by patent infringement charges. Despite good intentions, low-budget initiatives and ad hoc organizations are ill equipped to fight profiteering patent lawsuits. One wonders whether software innovation is directed more by lawyers or computer scientists. The present copyright and patent regimes may serve the needs of the larger corporations, but it is doubtful that they are the best means of fostering software innovation and quality.

Orwell wrote in his Homage to Catalonia,

There was a new rule that censored portions of the newspaper must not be left blank but filled up with other matter; as a result it was often impossible to tell when something had been cut out.

The process of retrofitting Internet software to suit ideological and commercial agendas is already well underway. For example, Microsoft has announced recently that it will discontinue support for the Java language in 2004. The problem with Java, from Microsoft's perspective, is that it provides portable programming tools that work under all operating systems, not just Windows. With Java, programmers can develop software for the large number of Windows users, while simultaneously offering software to users of other operating systems. Java is an important piece of the software infrastructure for Internet content developers. Yet, in the interest of coercing people to use only their operating systems, Microsoft is willing to undermine thousands of existing Java-language projects. Their marketing hype calls this progress.

The software industry relies on sales to survive, so if it means laying waste to good products and millions of hours of work in order to sell something new, well, that's business. The consequent infrastructure instability keeps software developers, and other creative people, on a treadmill.

From Progressive Load by Andy Deck, artcontext.org/progload

It is no secret that highly diversified media corporations can leverage their assets to favor their own media offerings and confound their competitors. Yet when media giants AOL and Time-Warner announced their plans to merge in 2000, the claim of CEOs Steve Case and Gerald Levin that the merged companies would "operate in the public interest" was hardly challenged by American journalists. Time-Warner has since fought to end all ownership limits in the cable industry; and Case, who formerly championed third-party access to cable broadband markets, changed his tune abruptly after the merger. Now that Case has been ousted, it is unclear whether he still favors oligopoly.

According to Levin, global media

will be and is fast becoming the predominant business of the 21st century . . . more important than government. It's more important than educational institutions and non-profits. We're going to need to have these corporations redefined as instruments of public service, and that may be a more efficient way to deal with society's problems than bureaucratic governments. Corporate dominance is going to be forced anyhow because when you have a system that is instantly available everywhere in the world immediately, then the old-fashioned regulatory system has to give way (Levin).

From Lexicon by Andy Deck, artcontext.org/lexicon

As an artist who has adopted telecommunications networks and software as his medium, it disappoints me that a mercenary vision of electronic media's future seems to be the prevailing blueprint. The giantism of media corporations, and the ongoing deregulation of media consolidation (Ahrens), underscore the critical need for independent media sources. If it were just a matter of which cola to drink, it would not be of much concern, but media corporations control content. In this hyper-mediated age, content -- whether produced by artists or journalists -- crucially affects what people think about and how they understand the world. Content is not impervious to the software, protocols, and chicanery that surround its delivery. It is about time that people interested in independent voices stop believing that laissez faire capitalism is building a better media infrastructure.

The German writer Hans Magnus Enzensberger reminds us that the media tyrannies that affect us are social products. The media industry relies on thousands of people to make the compromises necessary to maintain its course.

The rapid development of the mind industry, its rise to a key position in modern society, has profoundly changed the role of the intellectual. He finds himself confronted with new threats and new opportunities. Whether he knows it or not, whether he likes it or not, he has become the accomplice of a huge industrial complex which depends for its survival on him, as he depends on it for his own. He must try, at any cost, to use it for his own purposes, which are incompatible with the purposes of the mind machine. What it upholds he must subvert. He may play it crooked or straight, he may win or lose the game; but he would do well to remember that there is more at stake than his own fortune (Enzensberger).

Some cultural leaders have recognized the important role that free software already plays in the infrastructure of the Internet. Among intellectuals there is undoubtedly a genuine concern about the emerging contours of corporate, global media. But more effective solidarity is needed. Interest in open source has tended to remain superficial, leading to trendy, cosmetic, and symbolic uses of terms like "open source" rather than to a deeper commitment to an open, public information infrastructure. Too much attention is focused on what's "cool" and not enough on the road ahead.

Various media specialists -- designers, programmers, artists, and technical directors -- make important decisions that affect the continuing development of electronic media. Many developers have failed to recognize (or care) that their decisions regarding media formats can have long reaching consequences. Web sites that use media formats which are unworkable for open source operating systems should be actively discouraged. Comparable technologies are usually available to solve compatibility problems. Going with the market flow is not really giving people what they want: it often opposes the work of thousands of activists who are trying to develop open source alternatives (see e.g. Greene).

Average Internet users can contribute to a more innovative, free, open, and independent media -- and being conscientious is not always difficult or unpleasant. One project worthy of support is the Internet browser Mozilla. Currently, many content developers create their web sites so that they will look good only in Microsoft's Internet Explorer. While somewhat understandable given the market dominance of Internet Explorer, this disregard for interoperability undercuts attempts to popularize standards-compliant alternatives. Mozilla, written by a loose-knit group of activists and programmers (some of whom are paid by AOL/Time-Warner), can be used as an alternative to Microsoft's browser. If more people use Mozilla, it will be harder for content providers to ignore the way their web pages appear in standards-compliant browsers. The Mozilla browser, which is an open source initiative, can be downloaded from www.mozilla.org.

While there are many people working to create real and lasting alternatives to the monopolistic and technocratic dynamics that are emerging, it takes a great deal of cooperation to resist the media titans, the FCC, and the courts. Oddly enough, corporate interests sometimes overlap with those of the public. Some industrial players, such as IBM, now support open source software. For them it is mostly a business decision. Frustrated by the coercive control of Microsoft, they support efforts to develop another operating system platform. For others, including this writer, the open source movement is interesting for the potential it holds to foster a more heterogeneous and less authoritarian communications infrastructure. Many people can find common cause in this resistance to globalized uniformity and consolidated media ownership.

The biggest challenge may be to get people to believe that their choices really matter, that by endorsing certain products and operating systems and not others, they can actually make a difference. But it's unlikely that this idea will flourish if artists and intellectuals don't view their own actions as consequential. There is a troubling tendency for people to see themselves as powerless in the face of the market. This paralyzing habit of mind must be abandoned before the media will be free.

• Ahrens, Frank. "Policy Watch." Washington Post (June 23, 2002): pg. H03. 30, March, 2003. < http://www.washingtonpost.com/ac...>
• Batt, William. "How Our Towns Got That Way" (7, October, 1996). 31, March, 2003. <http://www.sbs.utexas.edu/...>
• Chester, Jeff. "Gerald Levin's Negative Legacy" Alternet.org (6, December, 2001). 5, March, 2003. <http://www.alternet.org/story/12039/gerald_levin...>
• Enzensberger, Hans Magnus. "The Industrialization of the Mind." Raids and Reconstructions (London: Pluto Press, 1975), p. 18.
• Greene, Thomas C. "MS to eradicate GPL, hence Linux" (25, June, 2002). 5, March, 2003. <http://www.theregus.com/content/4...>
• Hopper, D. Ian. "FBI pushes for cyber ethics education." Associated Press (10, October, 2000). 29, March, 2003. <http://abcnews.go.com/Technology...>
• Junger v. Daley. 00a0117p.06 U.S. Court of Appeals for 6th Circuit. 2000. 31, March, 2003. <http://caselaw.lp.findlaw.com/cgi-bin/...>
• Levin, Gerald. "Millennium 2000 special" CNN. 2, January, 2000.
• Touretzky, D. S. "Gallery of CSS Descramblers." (2000) 29, March, 2003. <http://www.cs.cmu.edu/~dst/DeCSS/Gallery>

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