Internet Communication Without Middlemen - The Burgfriede...

I can vaguely remember certain press articles at the beginning of the 1970s announcing the advent of the microprocessor as a central processor of a digital computer on a single semiconductor chip. Did anyone then grasp what this meant? Of course, needless to say that in those days I did not reckon anything which might come only near to the many innovations of the digital technology we have at our disposition, including the Internet. Are we now, after more than thirty years of unleashed digital revolution, in a position to determine at least vaguely some of the outlines of what future historians will describe as the characteristic processes of our age?

Well, I will have a try now, taking the risk to fail.

In the middle ages, topics like freedom of speech and freedom of opinion clearly were by far not order of the day. In the age of enlightenment, after many long and bitter political rows between traditionalists and reformers, eventually some sort of rough and working consensus was reached in many 'modern' western countries to grant freedom of speech, freedom of opinion and, in view of technical mass media, also freedom of press. All those sorts of freedom are now more or less enshrined in the constitutional law of the various western democratic countries.

But were these freedoms really granted in earnest, unlimited? Of course not. There are may exceptions and limitations. Opponents of freedom, often based on some sort of dystopian view of mankind, emphasizing the dark sides of humanity, ever have argued in favour of imposing restrictions on freedom to preserve morality and public order. So they ever did and continue to do so in our days, in particular in view of freedom of speech and freedom of press. Technically, such limitations might be laid down in laws protecting personal rights, laws for the protection of the youth, or intellectual property law.

But if there are exceptions and limitations of freedom of speech and/or freedom of press at all, they should also be enforced, if necessary.

Policing technical communication media has always been much easier than exerting control on private communication.

From the dawn of the modern age up to our times, enforcement of limitations of the freedom of speech or freedom of press was greatly facilitated due to the exposure of third parties acting as middlemen. Setting up a printing press, a telephone exchange, a broadcasting studio or a television studio always needed large investments, and all this technical equipment can effectively be operated only by quantities of trained personnel. Hence, the freedom of press always has been a freedom of large companies owning and operating the technical equipment needed for mass communication, not of single individuals. Free speech was an option for individuals only on a very limited scale; the proverbial man standing on a wooden box on Speaker's Corner in Hyde Park, London, enjoyed the right to free speech but merely before an audience that was insignificant compared to that of established mass media companies.

If, within this framework of traditional media, the prosecution of the originator of non-allowable contents proved to be difficult or impractical, then there ever was some sort of middleman who could be held liable instead. And this middleman was threatened by laws imposing hefty fines or even imprisonment for acts of non-compliance, putting the entire business model of re-financing the expensive equipment at risk. This way some level of allegiance could be assured easily.

In some sense it might be valid to say that the idea of a broad consensus in our western democracies on granting to all citizens certain communication liberties is a sort of a fiction: The present state of the affairs merely appears to represent some kind of Burgfrieden policy between unconciliatory groups of a heavily polarised population. The pessimists who ever are reluctant to accept such liberties are merely sedated based on an implicit assurance that factually there is an army of gatekeepers in place in every media outlet, ready to kill off any communication that might get nasty, indecent or simply unwanted. The proponents of liberty felt a need to acquiesce in the facts as they hitherto stood.

But now we do have the Internet.

And one of the most striking features thereof that it helps us to get rid of middlemen of various kinds.

When talking about 'middlemen' in this context, I am thinking of entities who are actively involved in the processing of meaning like the editorial offices of a newspaper or of a broadcasting organisation. Yes, even the Internet needs companies running some sort of technical infrastructure, Internet backbone operators, hosting providers or access providers. But they fulfil their duties not by processing the meaning of the bit streams flowing through their lines and systems but by simply letting bits and bytes flow.

Contrary to the 20th century's world, for today's contemporaries no investment into expensive and bulky technology and no hiring of employees are any longer prerequisites for publication. Thanks to blogs or social software websites like linkedin.com or facebook.com, individuals can in principle reach out to huge audiences without need for assistance from editorial offices or the like. And, when it comes to commercial questions, buyers and sellers on various markets can make contact directly without agents or other sorts of middlemen. For example, today it is quite common to do travel bookings via the Internet directly with the respective service provider, and no travel agent needs to get involved.

Many contemporaries are irritated or even upset by this mere fact. There are people living amongst us, even politicians serving as MPs or sitting in the Government, who - due to lack of will or maybe lack of intellectual resources - never really have understood that when millions of Internet users are busily publishing their 'user created contents' day by day, hour by hour, minute by minute, that there is no such thing like an editorial office of the Internet controlling all these zillions of acts of communication. People with good will to man but lack of understanding of the digital world are seriously demanding to impose television regulation laws to web sites offering video clips on the Internet, for example in order to restrict broadcasting time windows for certain types of video clips. Other guys do well understand the inner workings of the digital world but are upset because they were used to make their living from their traditional roles as middlemen. They are eager to wreck the Internet as a system with some inherent tendency to eliminate middlemen for their own benefit, desperately hoping that they can carry on with their traditional business models - based on some sort of middleman role - forever.

Effectively canceling the past Burgfrieden mentioned above, all these forces are now eagerly looking for some pivoting point on which they can exert political force in order to bring the Internet back to a more traditional system which can easily controlled not only by - often difficult - policing of originators of illegitimate communication but also by some more easy policing of exposed middlemen. In this situation, Internet companies get into crosshairs. There is an increasing chorus of proponents of the ancient regime of the 20th century, ever repeating demanding that there shall be a new class of gatekeepers to the Internet.

But as soon as there are gatekeepers in the Internet the business of which is not only mere conduit of data streams but dealing with the meaning of information exchanged over the Internet, things get really expensive.

For example, if laws were enacted making Internet access providers liable for wrongdoing of their customers, things get very nasty. How could an Internet access provider e.g. discharge legal duties to monitor the data traffic of its customers in order to detect acts of beaching copyright law? If such undertaking were technically feasible at all, it surely would be very expensive. Or, the Internet access provider could be pressed into a business policy of cancelling a subscription of a customer at the slightest cause for suspicion without be bound to some sort of due process. The same considerations are valid for providers technically hosting websites for their customers.

The more liabilities and duties to police their customers are imposed on Internet companies, the more the transforming power of the digital revolution will vanish.

An example of a striking failure of the Italian jurisdiction attempting to turn an Internet company into a 'middleman' liable for wrongdoing of its customers has recently been published by Google, Inc.:

"In late 2006, students at a school in Turin, Italy filmed and then uploaded a video to Google Video that showed them bullying an autistic schoolmate. The video was totally reprehensible and we took it down within hours of being notified by the Italian police. We also worked with the local police to help identify the person responsible for uploading it and she was subsequently sentenced to 10 months community service by a court in Turin, as were several other classmates who were also involved. In these rare but unpleasant cases, that's where our involvement would normally end.

But in this instance, a public prosecutor in Milan decided to indict four Google employees  - David Drummond, Arvind Desikan, Peter Fleischer and George Reyes (who left the company in 2008). The charges brought against them were criminal defamation and a failure to comply with the Italian privacy code. To be clear, none of the four Googlers charged had anything to do with this video. They did not appear in it, film it, upload it or review it. None of them know the people involved or were even aware of the video's existence until after it was removed.

Nevertheless, a judge in Milan today convicted 3 of the 4 defendants - David Drummond, Peter Fleischer and George Reyes - for failure to comply with the Italian privacy code. All 4 were found not guilty of criminal defamation. In essence this ruling means that employees of hosting platforms like Google Video are criminally responsible for content that users upload. We will appeal this astonishing decision because the Google employees on trial had nothing to do with the video in question. Throughout this long process, they have displayed admirable grace and fortitude. It is outrageous that they have been subjected to a trial at all.

But we are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.

These are important points of principle, which is why we and our employees will vigorously appeal this decision."

As Matt Sucherman has pointed out, the final point of such kind of legal practice of the Court means in the ultimate effect that free services offered via the Internat shall not exist any longer. This is ridiculous and urgently needs to be fixed on a political level.

Therefore, the core of the concept of 'net neutrality' is to preserve the ability of the Internet to eliminate middlemen from communication processes. For those Internet users who think that doing away with middlemen in various aspects of human private and business life by means of Internet-based communication processes is a central innovative point of the ongoing digital revolution, the conclusion is crucial that net neutrality must be preserved at virtually any cost. In Germany, Kristian Köhntopp recently has suggested to campaign to enshrine network neutrality in the framework of the German constitutional 'Basic Law' ('Grundgesetz').

A merciless political battle between supporters of the ancient regime of the past 20th century, demanding Internet companies to police their customers in a framework of HADOPI-like 'graduate response', duties to be imposed on Internet companies like those currently negotiated in secrecy in the multi-lateral ACTA talks, or setting up a mandatory Internet filtering infrastructure like that required by the infamous German Zugangserschwerungsgesetz, on the one hand, and defenders of an adequate concept of network neutrality, on the other hand, is currently raging on an international scale, and the rise of the various Pirate Parties is only one symptom thereof.

After a long journey we now finally have reached the point of Intellectual Property law. I know it might be tempting (especially if one is a professional making a living by giving advice to third parties on this field of law) to hail every initiative that promises to make it even more important for the society. And, what is a piece of law if it can't be enforced effectively? So, shouldn't we all warmly greet each and every IP enforcement lawmaking initiative making a hard line with Internet providers and other related companies, attempting to harness their command over a huge technical infrastructure in order to make IP violations by common people virtually impossible?

The leaked draft of the ACTA Internet chapter seems to propose going ahead just in this way.

Thinking this way might soon turn out to be quite a slippery slope. Everyone should stop and think twice. Trivially, IP law should, in the effect, serve the economic well-being of the society. But simply joining the forces of the ancient regime in their desperate attempts to defend their 20th century concepts of morality and public order and/or their 20th century business models against the ongoing modernisation in all fields of life by introduction of extremely low-cost communication free of expensive middlemen might some day turn out to be a big mistake. The overall benefits of a free Internet (free in the sense as discussed hereinabove) might well outweigh the costs of abandoning traditional ways of life as well as traditional ways of doing business. If this should ever happen, any severe obstruction against the digital modernisation of the society committed by the IP community might give some day in future a deadly blow to the entire concept of IP.

(Picture: (C) 2009 by new_illuminati1 via Flickr under a CC Licence)