Users must beware of legal trends

The IT user community has never thought of itself as making laws, except to the extent of setting down rules inside the enterprise. This is a natural consequence of doing a particular job.

Maybe it's time to think more broadly. The way you do your job is going to have more impact on society at large than you may want to know.

Recently, some top minds in law and technology assembled at the Berkman Center for Internet & Society at Harvard Law School. One was Lawrence Lessig, the Stanford University law professor who said, persuasively, that the future is bleak unless people step up to some serious issues. The forces of absolute control are on the verge of deciding what kind of creativity and innovation will be allowed, and as a result, they're damping down progress.

Lessig's key insight is that code, the zeroes and ones, can become law. IT writes, buys, licenses and uses software; code, interrelating with other forces, becomes one of the governing influences on our lives, just as the location of a road changes a community or the absence of a ramp keeps out people in wheelchairs.

Societal norms and the law say you can buy a music recording and make a copy to play in my car. You can buy a book and give it to your child. But in the age of digital content, the owners of the copyrights say these uses are a bug, not a feature.

So they write code that gives them utter control over how copyrighted material -- or, in some cases, even material in the public domain -- may be used. Using code, they forbid those formerly legal and customary uses.

Because the owners are well organized and financed, they have bought political support. Recent laws make it illegal to circumvent the code they've used to decimate old law and tradition. And a few big companies, paranoid and stuck with outdated business models, effectively get to determine the parameters of creativity.

The patent system has also run amok. Software and business-process patents are a clear and present threat to innovation.

If you use open-source software in your business, either because it works well or is a way to keep proprietary-software companies from owning you (or both), beware patents. At the Harvard event, a manager of Microsoft's "shared-source" program, in which customers can look at Windows source code under restricted conditions, repeatedly didn't answer when asked if Microsoft intended, as a senior executive has openly threatened, to use its growing patent portfolio against open-source programmers.

IT needs to consider its own needs and consequences. Many of you are telling Microsoft you want locked-down PCs -- far more so than today's models -- that can do only what systems administrators allow them to do. This, after all, can ensure adherence to corporate information policies and, perhaps, boost security.

Bake this into the operating system, and you've solved one problem. But you've helped spawn a new monster, a regime in which Microsoft and its new allies in Hollywood and government become arbiters of far more than they already control today.

It's a world where end users -- and technology innovators, including IT -- will need permission to do what's already legal and critical to lives and businesses. Is that what you want?

Dan Gillmor is technology columnist at the San Jose Mercury News. Contact him at dgillmor@sjmercury.com.

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