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Laura Silver, “Digital connectivity growing rapidly in emerging economies,” Pew Research Center, 02-05-2019, https://www.pewresearch.org/global/2019/02/05/digital-connectivity-growing-rapidly-in-emerging-economies/

Internet use is nearly universal in most advanced economies surveyed. In the United States, Sweden, Australia, the Netherlands, Israel and South Korea, more than nine-in-ten use the internet. And in emerging economies, about half or more use the internet in every country but India.

IndustryWired, “The pros and cons of splinternet: digital barriers in 2022,” IndustryWired, 04-08-2022, https://industrywired.com/the-pros-and-cons-of-splinternet-digital-barriers-in-2022/

Pros of splinternet

Hello Future, “Will Internet collapse in 2023? Unlikely, but we mustn’t get complacent!,” Hello Future, 04-29-2024, https://hellofuture.orange.com/en/will-internet-collapse-in-2023-unlikely-but-we-mustnt-get-complacent/

The end of the Internet has been predicted many times over the years. The most famous of these came in 1995 from Bob Metcalfe, one of the founding fathers of the Internet, when he predicted ‘a catastrophic collapse’ for the Internet by the end of 1996. As the story goes, he had to literally eat his words during the 1996 World Wide Web conference. Since then, more splashy headlines have been written about the ‘end of the Internet’, citing many different reasons:

Mike Elgan, “How I learned to stop worrying and love the splinternet,” Computer World, 07-27-2019, https://www.computerworld.com/article/1671324/how-i-learned-to-stop-worrying-and-love-the-splinternet.html

The web was never going to be worldwide. The idea of one single global internet is an obsolete fantasy.

Alex Hern, “TechScape: Warnings of a ‘splinternet’ were greatly exaggerated – until now,” The Guardian, 03-23-2023, https://www.theguardian.com/technology/2023/may/23/techscape-splinternet-meta-facebook-fine

Those fights led to this week’s ruling, which found that by transferring data from European citizens to servers in the US, Facebook was exposing them to unacceptable risk that their “fundamental rights and freedoms” would be infringed.

Andrew Bennett and Melanie Garson, “The Open Internet on the Brink: A Model to Save Its Future,” Tony Blair Institute for Global Change, 09-30-2021, https://www.institute.global/insights/tech-and-digitalisation/open-internet-brink-model-save-its-future

The global, open internet is under threat. Restrictions on internet freedoms are increasing globally, governments are competing to assert their authority and a decades-long governance system of voluntary, technical bodies is now creaking. China is a growing competitor and adversary in many areas of internet governance yet remains an important partner in others, such as global infrastructure rollout.

Ian Levy, “Get ready for the death of the global internet. It won’t be pretty,” WIRED, 01-29-2021, https://www.wired.com/story/internet-balkanisation-ian-levy/

States compete and – as we now know – are increasingly weaponising information to gain advantage, breaking into other countries’ networks to steal data, seed misinformation or disrupt infrastructure. But now we are seeing states use the development of and access to technology as tools of statecraft.

Andrew Sullivan, “Misguided Policies the World over Are Slowly Killing the Open Internet,” Internet Society, 03-01-2023, https://www.internetsociety.org/blog/2023/03/misguided-policies-the-world-over-are-slowly-killing-the-open-internet/

China’s connection to the Internet has long been vastly different from the online experience elsewhere. The Internet in China is tightly controlled through central operation and the so-called “Great Firewall.” Many parts of the global Internet cannot be reached from China, yet this way of operating seems to attract the interest of other governments.

Nicos Tsilas, “The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of “Open Standards”,” International Journal of Communications Law & Policy, https://ciaotest.cc.columbia.edu/olj/ijclp/ijclp_10/ijclp_10h.pdf

Intellectual property laws encourage investment in innovative research and development by rewarding creators with certain proprietary rights.31 Patents give inventors the right to earn a return on their investment by exploiting their innovations on an exclusive basis. Patent holders also can decide to license their innovations to third parties. Patent licensing promotes competition and consumer interests in several ways. Notably, licensing gives both inventors and users of new technologies strong incentives to work together to maximize the efficient use of their respective resources. Licensing also promotes the broad dissemination of technology innovations, which benefits consumers in the form of new, competing products, and lower prices. Additionally, licensing may provide innovative firms with funds to reinvest in research and development, leading to further advances in technology.

Koren W. Wong-Ervin and Joshua Wright, “Intellectual Property and Standard Setting,” The Federalist Society Review, 12-05-2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878955

“Standards enable virtually all the products we rely upon in modern society, including mechanical, electrical, information, telecommunications, and other systems, to interoperate.”1 Standards reside at the heart of, among other things, the mobile industry, allowing users to experience worldwide interoperability and interconnectivity across mobile devices. If the mobile industry lacked standards, you might enjoy your iPhone but be unable to call your friend on his Galaxy due to incompatible technology.

National Institute of Standards and Technology, “An In-Depth Look into Intellectual Property: Part One,” National Institute of Standards and Technology, 01-10-2020, https://www.nist.gov/news-events/news/2020/01/depth-look-intellectual-property-part-one

The development and management of intellectual property (IP) is a vital component of technology transfer that can enhance and accelerate adoption of results by businesses to make products and services available in the overall economy. While there are federal laws, regulations and government-wide policies, NIST’s own internal policies and strategy for identification, protection and management of intellectual property rights of all parties will form a common understanding and basis for more rapid technology transfer. While a clearly articulated strategy is important, each business transaction has unique aspects and some flexibility is needed to address issues based on the numerous variables involved.

Cypris, “How Do Patents and Copyrights Promote Innovation?,” Cypris, 04-20-2023, https://www.cypris.ai/insights/how-do-patents-and-copyrights-promote-innovation#:~:text=Legally%20protecting%20the%20owners%20of,which%20in%20turn%20promotes%20innovation.

Legally protecting the owners of intellectual property, patents, and copyrights enable them to gain monetary benefits from their inventions. This provides a powerful incentive for inventors and creators, which in turn promotes innovation. Moving on, let us now explore how patents and copyrights can promote innovation even further.

Bartlett Cleland, “Copyright and Innovation? No. Copyright IS innovation.,” Institute for Policy Innovation, 01-30-2013, https://www.ipi.org/policy_blog/detail/copyright-and-innovation-no-copyright-is-innovation

Timothy H. Lee's article got me thinking about his comments that opponents to copyright make that claim that innovation has been stifled. His historical perspective certainly makes that a tough claim for those who would erode or erase all copyright protections. He goes on to provide an excellent argument about the similarities of intellectual and real property. As I have noted before, there are differences but there are also many similarities. Those who oppose copyright protection only want to focus on one side of the balance sheet, Mr. Lee provides the necessary and intellectually honest other side.

Stacy Baird, “The Government at the Standards Bazaar,” Stanford Law and Policy Review, 04-17-2007, https://law.stanford.edu/wp-content/uploads/2018/03/baird.pdf

VI. THE TEST (PART THREE): GOVERNMENT INTERVENTION MUST BE REASONABLY TAILORED

Stacy Baird, “The Government at the Standards Bazaar,” Stanford Law and Policy Review, 04-17-2007, https://law.stanford.edu/wp-content/uploads/2018/03/baird.pdf

In recent years, there has been heightened interest in having government intervene in what has become primarily a market activity to mandate information technology standards. This article will provide an analytical framework by which government can consider such actions. I premise my proposal on the conclusion that government should be reluctant to intervene in the setting of information technology standards (and particularly, to mandate a particular standard that has not been developed and/or widely adopted by the market) because: (1) the relevant industries are sophisticated in regard to standards setting and have many well-developed types of standards, and forums in which to develop standards; (2) the U. S. government has a strong preference for market-developed information technology standards and promotes this preference as a matter of both domestic law and policy and foreign trade policy; (3) international trade agreements limit the degree to which participating governments can mandate standards; and (4) in contrast to the sophistication of the marketplace, government is rarely as informed, sophisticated in its understanding of the market, or nimble enough to respond to market conditions; therefore, the risk of government failure is significant, and indeed greatest where the market is young and dynamic, as is the case with regard to the current market affected by information technology standards.

Nicos Tsilas, “The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of “Open Standards”,” International Journal of Communications Law & Policy, https://ciaotest.cc.columbia.edu/olj/ijclp/ijclp_10/ijclp_10h.pdf

There are significant problems with this approach. First, as noted, it is inconsistent with the approach taken in the IPR policies of leading open standards organizations worldwide which expressly acknowledge the right of patent holders to charge reasonable royalties, and to place reasonable restrictions - such as field-of-use restrictions, 14 reciprocity requirements, 15 and restrictions on sublicensing16 - on the licensing of their essential technology covering an open standard. For example, the IPR policies and/or the model patent licensing declaration forms of ITU,17 W3C,18 IETF,19 and the WiFi Alliance,20 among many others, make clear that such terms are acceptable RAND provisions.

Nicos Tsilas, “The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of “Open Standards”,” International Journal of Communications Law & Policy, https://ciaotest.cc.columbia.edu/olj/ijclp/ijclp_10/ijclp_10h.pdf

Destroying the Balance

Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/

Elimination of Copyright Protection for Incorporated Standards. If incorporated standards were not copyrighted, agencies could freely publish their full text in the Federal Register and CFR or online. Copyright protection for incorporated materials, including standards, could be eliminated legislatively, through an amendment to the Copyright Act, or judicially, through application of the copyright doctrines discussed above. Under such a regime, would the incorporation by reference of a standard into a regulation effectuate a taking that requires compensation under the Constitution's Takings Clause? 92 How would the loss of copyright as a central feature of the SSO funding model affect the private standardization system? In the absence of a right and incentive to prevent third parties from publishing the standards, who would ensure that only accurate copies are being used for both regulatory and non-regulatory purposes? If the answer is "no one," would that threaten public safety, economic efficiency, or other values?

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

a. Abolishing copyright over incorporated and harmonized standards

Cary Coglianese, “Private Standards and Public Governance, by Cary Coglianese,” Yale Journal of Regulation, 10-09-2019, https://www.yalejreg.com/nc/private-standards-and-public-governance-by-cary-coglianese/

All those in the legal profession ought to know more about the world of private standard setting. In the first instance, private standards interact with the law and the legal system on a regular basis. Private standards, for instance, actually “govern” the handling of criminal evidence in many forensic laboratories around the country. They also often define the duty of reasonable care in tort law. The requirements of private standards are woven into—or incorporated by reference into—myriad business contracts and, increasingly, even government regulations. Private standards also hold significant implications for intellectual property lawyers—and their clients—as often the only way companies can conform to private standards is to obtain licenses to use other companies’ patents.