The early internet had a lot of “technological self-determination" — you could opt out of things, protect your privacy, control your experience. The problem was that it took a fair amount of technical skill to exercise that self-determination. But what if it didn’t? What if the benefits of online privacy, security, interoperability, and free speech were more evenly distributed among all internet users?

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This is the future that award-winning author and EFF Special Advisor Cory Doctorow wants us to fight for. His term “enshittification” — a downward spiral in which online platforms trap users and business customers alike, treating them more and more like commodities while providing less and less value — was selected by the American Dialect Society as its 2023 Word of the Year. But, he tells EFF’s Cindy Cohn and Jason Kelley, enshittification analysis also identifies the forces that used to make companies treat us better, helping us find ways to break the cycle and climb toward a better future. 

In this episode you’ll learn about: 

• Why “intellectual property” is a misnomer, and how the law has been abused to eliminate protections for society 
• How the tech sector’s consolidation into a single lobbying voice helped bulldoze the measures that used to check companies’ worst impulses 
• Why recent antitrust actions provide a glimmer of hope that megacompanies can still be forced to do better for users 
• Why tech workers’ labor rights are important to the fight for a better internet 
• How legislative and legal losses can still be opportunities for future change 

Cory Doctorow is an award-winning science fiction author, activist, journalist and blogger, and a Special Advisor to EFF. He is the editor of Pluralistic and the author of novels including “The Bezzle” (2024), “The Lost Cause” (2023), “Attack Surface” (2020), and “Walkaway” (2017); young adult novels including “Homeland” (2013) and “Little Brother” (2008); and nonfiction books including “The Internet Con: How to Seize the Means of Computation” (2023) and “How to Destroy Surveillance Capitalism” (2021). He is EFF's former European director and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in Los Angeles. 

Resources: 

• YouTube: transmediale Marshall McLuhan Lecture 2024 with Cory Doctorow and Frederike Kaltheuner (Jan. 30, 2024) 
• WIRED: Big Tech Won’t Let You Leave. Here’s a Way Out (Jan. 17, 2024) 
• New York Times: Among Linguists, the Word of the Year Is More of a Vibe (Jan. 15, 2024) 
• WNYC On the Media: Enshittification (May 2023) 
• WIRED: The ‘Enshittification’ of TikTok (Jan. 23, 2023) 
• NTEN: The history of the SaveDotOrg campaign
• EFF: Broadcast Flag
• EFF: Cory Doctorow Rejoins EFF to Eradicate DRM Everywhere 

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Transcript

CORY DOCTOROW
So interop, you know, it's the idea that you don't need to buy your washing machine from the same people who sold you your clothes. You can use anyone's washing soap in that washing machine. Your dishes go in, in any dishwasher. Anyone's gas or electricity go into your car, you can bring your luggage onto any airline.
You know, there's just this kind of general presumption that things work together and sometimes that's just a kind of happy accident or a convergence where, you know, the airlines basically all said, okay, if it's bigger than seventy-two centimeters, we're probably gonna charge you an extra fee. And the luggage makers all made their luggage smaller than seventy-two centimeters, or you know, what a carry-on constitutes or whatever. Sometimes it's very formal, right? Sometimes like you go to a standards body and you're like, this is the threading gauge and size of a standard light bulb. And that means that every light bulb that you buy is gonna fit into every light bulb socket.
And you don't have to like read the fine print on the light bulb to find out if you've bought a compatible light bulb. And, sometimes it's adversarial. Sometimes the manufacturer doesn't want you to do it, right? Like, so HP wants you to spend something like $10,000 a gallon on printer ink and most of us don't want to spend $10,000 a gallon on printer ink and so out there are some people who figured out how HP printers ask a cartridge, ‘Hey, are you a cartridge that came from HP?’.
And they figured out how to get cartridges that aren't made by HP to say ‘Why yes, I am. And you know, it's not like the person buying the cartridge is confused about this. They are specifically like typing into a search engine, ‘How do I avoid paying HP $10,000 a gallon?’

CINDY COHN
That's Cory Doctorow. He's talking about all the places in our lives where, whether we call it that or not, we get to enjoy the power of interoperability.
I'm Cindy Cohn, the executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I'm Jason Kelley, EFF's Activism Director. This is our podcast series How to Fix the Internet.

CINDY COHN
We spend a lot of time here at EFF warning about the things that could go wrong online -- and then of course jumping into the fray when they do go wrong. But on this show we're trying to envision what the world looks like if we start to get things right.

JASON KELLEY
Our guest today is Cory Doctorow. He is one of the world’s leading public thinkers about the digital world, as well as an author and activist. He writes both fiction and non fiction that has more ideas per page than anyone else we know.

CINDY COHN
We’re lucky enough that he’s been one of our colleagues at EFF for over 20 years and he’s one of my dearest friends. We had Cory on the podcast during our first season. I think he was our very first guest - but we thought it was time to check in again. And that’s not only because he’s so much fun to talk to, but also because the central idea he has championed for addressing the problems of platform monopolies – an idea called interoperability which we also call competitive compatibility – it’s started to get real traction in policy spaces both in the US and in Europe.
I quote Cory a lot on this show, like the idea that we don't want to go back to the good old days. We're trying to create the good new days. So I thought that it was a good place to start. What do the good new days look like in the Coryverse?

CORY DOCTOROW
So the old good internet was characterized by a very high degree of what I call like technological self-determination. Just the right to just decide how the digital tools you use work.
The problem was that it also required a high degree of technical skill. There are exceptions right. I think ad blockers are kind of our canonical exception for, you know, describing what a low-skill, high-impact element of technological self-determination is. Like more than half of all web users now run ad blockers. Doc Searls calls it the largest consumer boycott in human history.
And you don't have to be a brain surgeon or a hacker to install an ad blocker. It's just like a couple of clicks and away you go. And I think that a new good internet is one in which the benefits of technological self-determination, all the things you get beyond an ad blocker, like, you know, I'm speaking to you from a household that's running a pie hole, which is like a specialized data appliance that actually blocks ads in other things like smart TVs and apps and whatever.
I have a personal VPN that I run off my home network so that when I'm roaming - I just got back from Germany and they were blocking the port that I used for my mail server, and I could VPN into my house and get my email as though I were connected via my home - all of those things should just accrue to you with the ease that you get from an ad blocker because we can harness markets and tinkerers and cooperatives and people who aren't just making a thing to scratch their own itch, but are actually really invested in other people who aren't technically sophisticated being able to avail themselves of these tools too. That's the new good internet

CINDY COHN
I love that. I mean, you know, what is it? The future is here. It's just not evenly distributed. You just want to evenly distribute the future, and also make it simpler for folks to use.

CORY DOCTOROW
Yeah. You know, the problem of the old good internet was not the part where skilled technical practitioners didn't have to put up with nonsense from companies that didn't have their best interests at heart. Right?
The problem was that not everybody got that. Well, the good future of the internet is one in which we more evenly distribute those benefits. The bad future of the internet we're living in now is the one in which it's harder and harder, even for skilled practitioners, to enjoy those benefits.

CINDY COHN
And harder for the rest of us to get them, right? I hear two things, both as an end user, my world's gonna have a lot more choices, but good choices about things I can do to protect myself and places I can look for that help. And then as somebody who's a hacker or an innovator, you're gonna have a lot easier way to take your good idea, turn it into something and make it actually work, and then let people find it.

CORY DOCTOROW
And I think it's even more than that, right? Because I think that there's also the kind of incentives effect. You know, I'm not the world's biggest fan of markets as the best way to allocate all of our resources and solve all of our problems. But one thing that people who really believe in markets like to remind us of is that incentives matter.
And there is a kind of equilibrium in the product planning meeting where someone is always saying, ‘If we make it this bad, will someone type into a search engine, ‘How do I unrig this game?’ Because once they do that, then all bets are off, right? Think about again, back to ad blockers, right? If, if someone in the boardroom says, Hey, I've calculated that if we make these ads 20% more invasive we’ll increase our revenue per user by 2%.
Someone else who doesn't care about users necessarily, might say, yeah, but we think 20% of users will type ‘How do I block ads’ into a search engine as a result of this. And the expected revenue from that user doesn't just stay static at what we've got now instead of rising by 2%. The expected revenue from that user falls to zero forever.
We'll never make an advertising dime off of that user once they type ‘How do I block ads’ into a search engine. And so it isn't necessary even that the tools defend you. The fact that the tools might defend you changes the equilibrium, changes the incentives, changes the conduct of firms. And where it fails to do that, it then affords you a remedy.
So it's both belt and suspenders. Plan A and plan B.

JASON KELLEY
It sounds like we're veering happily towards some of the things that you've talked about lately with the term that you coined last year about the current moment in our digital world: Enshittification. I listened to your McLuhan lecture and it brought up a lot of similar points to what you're talking about now. Can you talk about this term? In brief, what does it mean, and, you know, why did the American Dialect Society call it the word of the year?

CORY DOCTOROW
Right. So I mean, the top level version of this is just that tech has these unique, distinctive technical characteristics that allow businesses to harm their stakeholders in ways that are distinct from the ways that other companies can just because like digital has got this flexibility and this fluidity.
And so it sets up this pattern that as the regulation of tech and as the competition for tech and as the force that workers provided as a check on tech's worst, worst impulses have all failed, we've got this dynamic where everything we use as a platform, and every platform is decaying in the same way, where they're shifting value first to users, to trap users inside a walled garden, and then bringing in business customers with the promise of funneling value from those users to those business customers, trapping those business customers, and then once everybody is held hostage, using that flexibility of digital tools to take that value away without releasing the users.
So even though the service is getting worse and worse for you, and it's less and less valuable to you, you still find yourself unable to leave. And you are even being actively harmed by it as the company makes it worse and worse.
And eventually it reaches a breaking point. Eventually things are so bad that we leave. But the problem is that that's like a catastrophic ending. That's the ending that, you know, everybody who loved LiveJournal had. Where they loved LiveJournal and the community really mattered to them.
And eventually they all left, but they didn't all end up in the same place. The community was shattered.
They just ended up fragmented and you can still hear people for whom LiveJournal was really important, saying like, I never got that back. I lost something that mattered to me. And so for me, the Enshittification analysis isn't just about like how do we stop companies from being bad, but it's about how we allow people who are trapped by bad companies to escape without having to give up as much as they have to give up now.

CINDY COHN
Right, and that leads right into adversarial interoperability, which is a term that I think was coined by Seth Schoen, EFF’s original staff technologist. It's an idea that you have really thought about a lot Cory and developed out. We heard you talk at the beginning of the episode, with that example about HP printers.

CORY DOCTOROW
That adversarial interoperability, it's been in our technology story for as long as we've had digital tools, because digital tools have this flexibility we've alluded to already. You know, the only kind of digital computer we can make is the Turing complete von Neumann machine.
It runs every program that's valid and that means that, you know, whenever a manufacturer has added an anti-feature or done something else abusive to their customers, someone else has been able to unlock it.
You know, when IBM was selling mainframes on the cheap and then charging a lot of money for printers and you know, keyboards and whatever, there were these things called plug compatible peripherals.
So, you know these companies they call the Seven Dwarfs, Fujitsu and all these other tech companies that we now think of as giants, they were just cloning IBM peripherals. When Apple wanted to find a way for its users to have a really good experience using Microsoft Office, which Microsoft had very steadfastly refused them and had, uh, made just this unbelievably terrible piece of software called, uh, office for the Mac that just didn't work and had all these compatibility problems, Steve Jobs just had his technologist reverse engineer Office, and they made iWork pages numbers in Keynote.
And it can read and write all the files from Excel, PowerPoint and Word. So this has always been in our story and it has always acted as a hedge on the worst impulses of tech companies.
And where it failed to act as a hedge, it created an escape valve for people who are trapped in those bad impulses. And as tech has become more concentrated, which itself is the result of a policy choice not to enforce antitrust law, which allowed companies to gobble each other up, become very, very concentrated.
It became easier for them to speak with one voice in legislative outlets. You know, when Seth coined the term adversarial interoperability, it was about this conspiracy among the giant entertainment companies to make it illegal to build a computer that they hadn't approved of called the Broadcast Flag.
And the reason the entertainment companies were able to foist this conspiracy on the tech industry, which was even then, between one and two orders of magnitude larger than the entertainment companies, is that the entertainment companies were like seven firms and they spoke with one voice and tech was a rabble.
It was hundreds of companies. We were in those meetings for the broadcast protection discussion group where you saw hundreds of companies at each other's throats not able to speak with one voice. Today, tech speaks with one voice, and they have taken those self-help measures, that adversarial interoperability, that once checked their worst impulses, and they have removed them from us.
And so we get what Jay Freeman calls felony contempt of business model where, you know, the act of reverse engineering a printer cartridge or an office suite or mobile operating system gives rise to both civil and criminal penalties and that means no one invests in it. People who do it take enormous personal risks. There isn't the kind of support chain.
You definitely don't get that kind of thing where it's like, ‘just click this button to install this thing that makes your experience better.’ To the extent that it even exists, it's like, download this mysterious software from the internet. Maybe compile it yourself, then figure out how to get it onto your device.
No one's selling you a dongle in the checkout line at Walmart for 99 cents that just jailbreaks your phone. Instead, it's like becoming initiated into the Masons or something to figure out how to jailbreak your phone.

CINDY COHN
Yes, we managed to free jailbreaking directly through the exceptions process in the DMCA but it hasn’t ended up really helping many people. We got an exception to one part of the law but the very next section prevents most people from getting any real benefit.

CORY DOCTOROW
At the risk of like teaching granny to suck eggs, we know what the deficiency in the, in the exceptions process is, right? I literally just explained this to a fact checker at the Financial Times who's running my Enshittification speech, who's like you said that it's illegal to jailbreak phones, and yet I've just found this process where they made it legal to jailbreak phones and it's like, yeah, the process makes it legal for you to jailbreak your phone. It doesn't make it legal for anyone to give you a tool to jailbreak your phone or for you to ask anyone how that tool should work or compare notes with someone about how that, so you can like, gnaw your own jailbreaking tool out of a whole log in secret, right? Discover the, discover the defect in iOS yourself.
Figure out how to exploit it yourself. Write an alternative version of iOS yourself. And install it on your phone in the privacy of your own home. And provided you never tell anyone what you've done or how you did it, the law will permit you to do this and not send you to prison.
But give anyone any idea how you're doing it, especially in a commercial context where it's, you know, in the checkout aisle at the Walmart for 99 cents, off to prison with you. Five-hundred-thousand-dollar fine and a five-year prison sentence for a first offense for violating Section 12 0 1 of the DMCA in a commercial way. Right? So, yeah, we have these exceptions, but they're mostly ornamental.

CINDY COHN
Well, I mean, I think that that's the, you know, it's profoundly weird, right? This idea that you can do something yourself, but if you help somebody else do it, that's illegal. It's a very strange thing. Of course, EFF is not like the digital Millennium Copyright Act since 1998 when it was passed, or probably 1995 when they started talking about it. But it is a situation in which, you know, we've chipped away at the law, and this is a thing that you've written a lot about. These fights are long fights and we have to figure out how to be in them for the long run and how to claim victory when we get even a small victory. So, you know, maybe this is a situation in which us crowing about some small victories, has led people to be misled about the overarching story which is still one where we've got a lot of work to do.

CORY DOCTOROW
Yeah, and I think that, you know, the way to understand this is as not just the DMCA, but also all the other things that we just colloquially call IP Law that constitute this thing that Jay calls felony contempt of business model. You know, there's this old debate among our tribe that, you know, IP is the wrong term to use. It's not really property. It doesn't crisply articulate a set of policies. Are we talking about trademark and patent and copyright, or do we wanna throw in broadcast rights and database rights and you know, whatever, but I actually think that in a business context, IP means something very, very specific.
When an investor asks a founder, ‘What IP do you have? What they mean is what laws can you invoke that will allow you to exert control over the conduct of your competitors, your critics, and your customers?’ That's what they mean. And oftentimes, each IP law will have an escape valve, like the DMCA's triennial exemptions. But you can layer one in front of the other, in front of the other in order to create something where all of the exemptions are plugged. So, you know, copyright has these exceptions but then you add trademark where like Apple is doing things like engraving nearly invisible apple logos on the components inside of its phones, so that when they're refurbished in the far east and shipped back as parts for independent repair, they ask the customs agency in the US to seize the parts for tarnishment of their trademark because the parts are now of an unknown quality and they bear their logo, which means that it will degrade the public's opinion of the reliability of an Apple product. So, you know, copyright and patent don't stop them from doing this, but we still have this other layer of IP and if you line the layers up in the right way, and this is what smart corporate lawyers do - they know the right pattern to line these different protections up, such that all of the exceptions that we're supposed to provide a public interest, that were supposed to protect us as the users or protect society - each one of those is choked off by another layer.

CINDY COHN
I think that’s one of my biggest frustrations in fixing the internet. We get stuck fighting one fight at a time and just when we pass one roadblock we have to navigate another. In fact, one that we haven’t mentioned yet is contract law, with terms of service and clickwrap license agreements that block innovation and interoperability. It starts to feel more like a game, you know, can our intrepid coder navigate around all the legal hurdles and finally get to the win where they can give us back control over our devices and tools?

CORY DOCTOROW
I mean, this is one of the things that's exciting about the antitrust action that we're getting now, is that I think we're gonna see a lot of companies being bound by obligations whose legitimacy they don't acknowledge and which they are going to flout. And when they do, presuming that the enforcers remain committed to enforcing the law, we are going to have opportunities to say to them, ‘Hey, you're gonna need to enter into a settlement that is gonna restrict your future conduct. You're gonna have to spin off certain things. You're gonna have to allow certain kinds of interop or whatever’.
That we got these spaces opening up. And this is how I think about all of this and it is very game-like, right? We have these turns. We're taking turns, our adversaries are taking turns. And what we want is not just to win ground, but we want to win high ground. We want to win ground from which we have multiple courses of action that are harder to head off. And one of the useful things about the Enshittification analysis is it tries to identify the forces that made companies treat us good. I think sometimes the companies treated us well because the people who ran them were honorable. But also you have to ask how those honorable people resisted their shareholders’ demands to shift value from the firm to their users or the other direction. What forces let them win, you know, in that fight. And if we can identify what forces made companies treat technology users better on the old good internet, then we can try and build up those forces for a new good internet. So, you know, one of the things that I think really helped the old good internet was the paradox of the worker power of the tech worker because tech workers have always been well compensated. They've always had a lot of power to walk out of the job and go across the street and get another job with someone better. Tech Workers had all of this power, which meant that they didn't ever really like form unions. Like tech union density historically has been really low. They haven't had formal power, they've had individual power, and that meant that they typically enjoyed high wages and quite cushy working conditions a lot of the time, right? Like the tech campus with the gourmet chef and the playground and the gym and the sports thing and the bicycles and whatever. But at the same time, this allowed the people they worked for to appeal to a sense of mission among these people. And it was, these were these like non-commercial ethical normative demands on the workforce. And the appeals to those let bosses convince workers to work crazy hours. Right? You know, the extremely hardcore Elon Musk demand that you sleep under your desk, right? This is where it comes from, this sense of mission which meant, for the bosses, that there was this other paradox, which was that if you motivate your workers with a sense of mission, they will feel a sense of mission. And when you say, ‘Hey, this product that you fought really hard for, you have to make worse, right? You've, you know, missed your gallbladder surgery and your mom's funeral and your kid's little league championship to make this product. We want you to stick a bunch of gross ads in it,’ the people who did that job were like, no, I feel a sense of mission. I will quit and walk across the street and get another job somewhere better if this is what you demand of me. One of the constraints that's fallen away is this labor constraint. You know, when Google does a stock buyback and then lays off 12,000 workers within a few months, and the stock buyback would pay their wages for 27 years, like the workers who remain behind get the message that the answer to, no, I refuse to make this product worse is fine, turn in your badge and don't let the door hit you in the ass on the way out. And one of the things we've always had a trade in at EFF is tech workers who really cared about their users. Right? That's been the core of our membership. Those have been the whistleblowers we sometimes hear from. Those have been our clients sometimes. And we often say when companies have their users’ backs, then we have the company's back. If we were to decompose that more fully, I think we would often find that the company that has its users' back really has a critical mass of indispensable employees who have their users’ back, that within the balance of power in the company, it's tipping towards users. And so, you know, in this moment of unprecedented union formation, if not union density, this is an area where, you know, you and I, Cindy have written about this, where, where tech rights can be workers' rights, where bossware can cut against labor rights and interoperable tools that defeat bossware can improve workers’ agency within their workplace, which is good for them, but it's good for the people that they feel responsibility for, the users of the internet.

CINDY COHN
Yeah. I remember in the early days when I first joined EFF and Adobe had had the FBI arrest Dmitri Sklyarov at DefCon because he developed a piece of software that allowed people to copy and move their Adobe eBooks into other formats and platforms. Some of EFF’s leadership went to Adobe’s offices to talk to their leadership and see if we could get them to back off.
I remember being told about the scene because there were a bunch of hackers protesting outside the Adobe building, and they could see Adobe workers watching them from the windows of that building. We knew in that moment that we were winning, that Adobe was gonna back down because their internal conversations were, how come we're the guys who are sending the FBI after a hacker?
We had something similar happen with Apple more recently when Apple announced that it was going to do client side scanning. We knew from the tech workers that we were in contact with inside the company that breaking end-to-end encryption was something that most of the workers didn't approve of. We actually flew a plane over Apple’s headquarters at One Infinite Loop to draw attention to the issue. Now whether it was the plane or not, it wasn't long before Apple backed down because they felt the pressure from inside, as well as outside. I think the tech workers are feeling disempowered right now, and it's important to keep telling these stories and reminding them that they do have power because the first thing that a boss who wants to control you does, is make you think you're all alone and you don't have any power. I appreciate that in the world we’re envisioning where we start to get tech right, we're not just talking about users and what users get. We're talking about what workers and creators and hackers and innovators get, which is much more control and the ability to say no or to say yes to something better than the thing that the company has chosen. I'm interested in continuing to try to tell these stories and have these conversations.

JASON KELLEY
Let’s pause for just a moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.
And now back to our conversation with Cory Doctorow. Cory is well known for his writing and speaking but what some people may not realize is that he is a capital A Activist. I work with him closely on the activism team here at EFF, and I have seen firsthand how sometimes his eyes go red and he will throw everything he has into a fight. So I wanted to get him to talk a bit more about the activism side of his work, and what fuels that.

CORY DOCTOROW
I tried to escape EFF at one point. I actually was like, God, you know, the writing and the activism, I can't do both. I'm just gonna do one. And so I went off to do the writing for a few years, and I got so pissed off with things going wrong in the world that I wasn't actively engaged in trying to fix that I just lost it. And I was like, I, whatever negative effects accrue due to overwork are far less significant to me, both like intellectually and kind of emotionally, than the negative effects I get from feeling hopeless, right, and helpless and sitting on the sidelines while things that are just untenable, go on. And, you know, Cindy said it before, it's a long game, right? The activism game. We are sowing the seeds of a crop that we may never reap. And I am willing to understand and believe and make my peace with the idea that some of the stuff that I'm doing will be victories after I've left the field, right, it'll be for people who haven't even graduated high school yet, let alone going to work for EFF or one of our allies.
And so when I see red, when I get really angry, when I don't know, you know, the the DRM in browsers at the W3C or the European Union trying for, mandatory copyright filters for online services, I think like this is a fight we may not win, but it's a fight that we must fight, right? The stakes are too high not to win it, and if we lose it this time around, we will lay the groundwork for a future victory. We will create the people who are angry that the policy came out this way, who, when some opportunity opens up in the future, because you know these fights that we fight, the side that we're on is the side of producing something good and stable and beneficial. And the thing that we're fighting against has massive downstream harms, whether that's mandatory copyright filters or client-side scanning or breaking end-to-end encryption, right? Like if we lose a breaking end-to-end encryption fight, what we have lost is the safety of millions of people in whatever country that rule has been enacted, and that means that in a way that is absolutely deplorable and that the architects of these policies should be ashamed of, some of those people are gonna come to the most terrible harms in the future. And the thing that we should be doing because we have lost the fight to stop those harms from occurring, is be ready to when those harms occur, to be able to step in and say, not just we told you so, but here's how we fix it. Here's the thing that we're going to do to turn this crisis into the opportunity to precipitate a change.

JASON KELLEY
Yeah, that's right. Something that has always pleased me is when we have a guest here on the podcast and we’ve had many, who have talked about the blue ribbon campaign. And it’s clear that, you know, we won that fight, but years and years ago, we put together this coalition of people, maybe unintentionally, that still are with us today. And it is nice to imagine that, with the wins and the losses, we gain bigger numbers as we lay that groundwork.

CINDY COHN
And I think there is something also fun about trying to build the better world, being the good guys. I think there is something powerful about that. The fights are long, they're hard. I always say that, you know, the good guys throw better parties. And so on the one hand it's, yes, it's the anger; your eyes see red, we have to stop this bad thing from happening. But the other thing is that the other people who are joining with you in the fight are really good people to hang out with. And so I guess I, I wanna make sure that we're talking about both sides of a kind of activist life because they're both important. And if it wasn't for the fun part - fun when you win - sometimes a little gallows humor when you don't, that's as important as the anger side because if you're gonna be in it for the long run you can't just run on, you know, red-eyed anger alone.

CORY DOCTOROW
You know, I have this great laptop from this company Framework. I promise you this goes somewhere that, uh, is a user serviceable laptop. So it comes with a screwdriver. Even someone who's really klutzy like me can fix their laptop. And, uh, I drop my laptops all the time - and the screws had started coming loose on the bottom, and they were like, ‘hey, this sounds like a thing that we didn't anticipate when we designed it. Why don't we ship you a free one and you ship us back the broken one, we can analyze it for future ones’. So, I just did this, I swapped out the bottom cover of my laptop at the weekend, which meant that I had a new sticker surface for my laptop. And I found a save.org ‘some things are not for sale’ sticker, which was, you know, this incredible campaign that we ran with our lost and beloved colleague Elliot and putting that sticker on felt so good. You know, it was just like, yeah, this is, this is like a, this is like a head on a pike for me. This is great.

CINDY COHN
And for those who may not have followed that, just at the beginning of Covid actually, there was an effort by private equity to buy the control of the .org domain, which of course means EFF.org, but it means every other nonprofit. And we marshaled a tremendous coalition of nonprofits and others to essentially, you know, make the deal not happen. And save.org for, you know, the.orgs. And as Cory mentioned, our dear friend Elliot who was our activism director at the time, that was his last campaign before he got sick. And, we did, we, we won. We saved.org. Now that fight continues. Uh, things are not all perfect in .org land, but we did head that one off and that included a very funky, nerdy protest in front of an ICANN meeting that, uh, that a bunch of people came to.

CORY DOCTOROW
Top level domains still a dumpster fire. In other words, in other news, water's still wet. You know, the thing about that campaign that was so great, is it was one where we didn't have a path to victory. We didn't have a legal leg to stand on. The organization was just like operating in its own kind of bubble where it was fully insulated from, you know, formally, at least on paper, insulated from public opinion, from stakeholder opinions. It just got to do whatever it wanted. And we just like kind of threw everything at it. We tried all kinds of different tactics and cumulatively they worked and there were weird things that came in at the end. Like Xavier Becerra, who is then the Attorney General of California going like, well, you're kind of, you're a California nonprofit. Like, I think maybe we're gonna wanna look at this.
And then all of a sudden everyone was just like, no, no, no, no, no. But you know, it wasn't like Becerra saved it, right? It was like we built up the political pressure that caused the Attorney General of California who's got a thing or two on his plate, to kind of get up on his hind legs and go, ‘Hey, wait a second. What's going on here?’
And there've been so many fights like that over the years. You know, this is, this is the broadcast treaty at the UN. I remember when we went, our then colleague, Fred von Lohmann was like, ‘I know how to litigate in the United States 'cause we have like constitutional rights in the United States. The UN is not going to let NGOs set the agenda or sue. You can't force them to give you time.’ You know, it's like you have all the cards stacked against you there but we killed the broadcast flag and we did it like by being digitally connected with activists all over the world that allowed us to exploit the flexibility of digital tools to have a fluid improvisational style that allowed us at each turn to improvise in the moment, new tactics that went around the roadblocks that were put in our way. And some of them were surreal, like our handouts were being stolen and hidden in the toilets. Uh, but you know, it was a very weird fight.
And we trounced the most powerful corporations in the world in a forum that was completely stacked against us. And you know, that's the activist joy here too, right? It's like you go into these fights with the odds stacked against you. You never know whether or not there is a lurking potential for a novel tactic that your adversary is completely undefended on, where you can score really big, hard-to-anticipate wins. And I think of this as being related to a theory of change that I often discuss when people ask me about optimism and pessimism.
Because I don't like optimism and pessimism. I think they're both a form of fatalism. That optimism and pessimism are both the idea that the outcome of events are unrelated to human conduct, right? Things will get worse or things will get better. You just sit on the sidelines. It's coming either way. The future is a streetcar on tracks and it's going where it's going.
But I think that hope is this idea that if you're like, trying to get somewhere and you don't know how to get there, you're trying to ascend a gradient towards a better future - if you ascend that gradient to the extent that you can see the path from where you are now, that you can attain a vantage point from which you can see new possible ways of going that were obscured from where you were before, that doing something changes the landscape, changes where you're situated and may reveal something else you can do.

CINDY COHN
Oh, that's such a lovely place to end. Thank you so much, Cory, for taking time to talk with us. We're gonna keep walking that path, and we're gonna keep looking for the little edges and corners and ways, you know, that we can continue to push forward the better internet because we all deserve it.

JASON KELLEY
Thanks, Cory. It's really nice to talk to you.

CORY DOCTOROW
Oh, it was my pleasure.

JASON KELLEY
You know, I get a chance to talk to Cory more often than most people, and I'm still just overjoyed when it gets to happen. What did you think of that conversation, Cindy?

CINDY COHN
What I really liked about it is that he really grounds, you know, what could be otherwise, a kind of wonky thing - adversarial interoperability or competitive compatibility - in a list of very concrete things that have happened in the past and not the far past, the fairly recent past. And so, you know, building a better future really means just bringing some of the tools to bear that we've already brought to bear in other situations, just to our new kind of platform Enshittification world. Um, and I think it makes it feel much more doable than something that might be, you know, a pie in the sky. And then we all go to Mars and everything gets better.

JASON KELLEY
Yeah. You know, he's really good at saying, here's how we can learn from what we actually got right in the past. And that's something people don't often do in this, in this field. It's often trying to learn from what we got wrong. And the part of the conversation that I loved was just hearing him talk about how he got back into doing the work. You know, he said he wanted to do writing or activism, because he was just doing too much, but in reality, he couldn't do just one of the two because he cares so much about what's going on. It reminded me when he was saying, sort of, what gets his eyes to turn red of when we were speaking with Gaye Gordon-Byrne, about right to repair and how she had been retired and just decided after getting pulled back in again and again just to go wholly committed to to fighting for the right to repair after, you know that quote from The Godfather about being continually pulled back in. This is Cory and, and people like him, I think, to a tee.

CINDY COHN
Yeah, I think so too. That reminded me of what, what she said. And of course I was on the other side of it. I was one of the people that Cory was pinging over and over again.

JASON KELLEY
So you pulled him back in.

CINDY COHN
Well, I think he pulled himself back in. I was just standing there. Um, but, but it is, it is fun to watch somebody feel their passion grow so much that they just have to get back into the fight. And I think Gay really told that same trajectory of how, you know, sometimes something just bugs you enough that you decide, look, I gotta figure out how to get into this fight and, and, and make things better.

JASON KELLEY
And hopefully people listening will have that same feeling. And I know that, you know, many of our supporters do already.
Thanks for joining us for this episode of How to Fix the Internet. If you have any feedback or suggestions, we would be happy to hear from you. Visit EFF. org slash podcast and click on listener feedback. And while you're there, maybe you could become an EFF member and maybe you could pick up some merch. We've got very good t-shirts. Or you can just peruse to see what's happening in digital rights this week and every week. This podcast is licensed Creative Commons attribution. 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators. In this episode, you heard Xena's Kiss slash Madea's Kiss by M. Wick, Probably Shouldn't by J. Lang featuring Mr. Yesterday, Come Inside by Zepp Herm featuring Snowflake, and Drops of H2O the Filtered Water Treatment by J. Lang featuring Airtone. Our theme music is by Nat Keefe of Beatmower with Reed Mathis. How to Fix the Internet is supported by the Alfred P. Sloan Foundation's Program in Public Understanding of Science and Technology. I hope you'll join us again. I'm Jason Kelley.

CINDY COHN
And I’m Cindy Cohn.

No points for guessing the subject of the first question the Wall Street Journal asked FTC Chair Lina Khan: of course it was about AI.

Between the hype, the lawmaking, the saber-rattling, the trillion-dollar market caps, and the predictions of impending civilizational collapse, the AI discussion has become as inevitable, as pro forma, and as content-free as asking how someone is or wishing them a nice day.

But Chair Khan didn’t treat the question as an excuse to launch into the policymaker’s verbal equivalent of a compulsory gymnastics exhibition.

Instead, she injected something genuinely new and exciting into the discussion, by proposing that the labor and privacy controversies in AI could be tackled using her existing regulatory authority under Section 5 of the Federal Trade Commission Act (FTCA5).

Section 5 gives the FTC a broad mandate to prevent “unfair methods of competition” and “unfair or deceptive acts or practices.” Chair Khan has made extensive use of these powers during her first term as chair, for example, by banning noncompetes and taking action on online privacy.

At EFF, we share many of the widespread concerns over privacy, fairness, and labor rights raised by AI. We think that copyright law is the wrong tool to address those concerns, both because of what copyright law does and doesn’t permit, and because establishing copyright as the framework for AI model-training will not address the real privacy and labor issues posed by generative AI. We think that privacy problems should be addressed with privacy policy and that labor issues should be addressed with labor policy.

That’s what made Chair Khan’s remarks so exciting to us: in proposing that Section 5 could be used to regulate AI training, Chair Khan is opening the door to addressing these issues head on. The FTC Act gives the FTC the power to craft specific, fit-for-purpose rules and guidance that can protect Americans’ consumer, privacy, labor and other rights.

Take the problem of AI “hallucinations,” which is the industry’s term for the seemingly irrepressible propensity of chatbots to answer questions with incorrect answers, delivered with the blithe confidence of a “bullshitter.”

The question of whether chatbots can be taught not to “hallucinate” is far from settled. Some industry leaders think the problem can never be solved, even as startups publish (technically impressive-sounding, but non-peer reviewed) papers claiming to have solved the problem.

Whether the problem can be solved, it’s clear that for the commercial chatbot offerings in the market today, “hallucinations” come with the package. Or, put more simply: today’s chatbots lie, and no one can stop them.

That’s a problem, because companies are already replacing human customer service workers with chatbots that lie to their customers, causing those customers real harm. It’s hard enough to attend your grandmother’s funeral without the added pain of your airline’s chatbot lying to you about the bereavement fare.

Here’s where the FTC’s powers can help the American public:

The FTC should issue guidance declaring that any company that deploys a chatbot that lies to a customer has engaged in an “unfair and deceptive practice” that violates Section 5 of the Federal Trade Commission Act, with all the fines and other penalties that entails.

After all, if a company doesn’t get in trouble when its chatbot lies to a customer, why would they pay extra for a chatbot that has been designed not to lie? And if there’s no reason to pay extra for a chatbot that doesn’t lie, why would anyone invest in solving the “hallucination” problem?

Guidance that promises to punish companies that replace their human workers with lying chatbots will give new companies that invent truthful chatbots an advantage in the marketplace. If you can prove that your chatbot won’t lie to your customers’ users, you can also get an insurance company to write you a policy that will allow you to indemnify your customers against claims arising from your chatbot’s output.

But until someone does figure out how to make a “hallucination”-free chatbot, guidance promising serious consequences for chatbots that deceive users with “hallucinated” lies will push companies to limit the use of chatbots to low-stakes environments, leaving human workers to do their jobs.

The FTC has already started down this path. Earlier this month, FTC Senior Staff Attorney Michael Atleson published an excellent backgrounder laying out some of the agency’s thinking on how companies should present their chatbots to users.

We think that more formal guidance about the consequences for companies that save a buck by putting untrustworthy chatbots on the front line will do a lot to protect the public from irresponsible business decisions – especially if that guidance is backed up with muscular enforcement.

The ongoing Twitter exodus sparked life into a new way of doing social media. Instead of a handful of platforms trying to control your life online, people are reclaiming control by building more open and empowering approaches to social media. Some of these you may have heard of: Mastodon, Bluesky, and Threads. Each is distinct, but their differences can be hard to understand as they’re rooted in their different technical approaches. 

The mainstream social web arguably became “five websites, each consisting of screenshots of text from the other four,”  but in just the last few years radical and controversial changes to major platforms were a wake up call to many and are driving people to seek alternatives to the billionaire-driven monocultures.

Two major ecosystems have emerged in the wake, both encouraging the variety and experimentation of the earlier web. The first, built on ActivityPub protocol, is called the Fediverse. While it includes many different kinds of websites, Mastodon and Threads have taken off as alternatives for Twitter that use this protocol. The other is the AT Protocol, powering the Twitter alternative Bluesky.

These protocols, a shared language between computer systems, allow websites to exchange information. It’s a simple concept you’re benefiting from right now, as protocols enable you to read this post in your choice of app or browser. Opening this freedom to social media has a huge impact, letting everyone send and receive posts their own preferred way. Even better, these systems are open to experiment and can cater to every niche, while still connecting to everyone in the wider network. You can leave the dead malls of platform capitalism, and find the services which cater to you.

To save you some trial and error, we have outlined some differences between these options and what that might mean for them down the road.

ActivityPub and AT Protocols

ActivityPub

The Fediverse goes a bit further back,  but ActivityPub’s development by the world wide web consortium (W3C) started in 2014. The W3C is a public-interest non-profit organization which has played a vital role in developing open international standards which define the internet, like HTML and CSS (for better or worse). Their commitment to ActivityPub gives some assurance the protocol will be developed in a stable and ostensibly consensus driven process.

This protocol requires a host website (often called an “instance”) to maintain an “inbox” and “outbox” of content for all of its users, and selectively share this with other host websites on behalf of the users. In this federation model users are accountable to their instance, and instances are accountable to each other. Misbehaving users are banned from instances, and misbehaving instances are cut off from others through “defederation.” This creates some stakes for maintaining good behavior, for users and moderators alike.

ActivityPub handles a wide variety of uses, but the application most associated with the protocol is Mastodon. However, ActivityPub is also integral to Meta’s own Twitter alternative, Threads, which is taking small steps to connect with the Fediverse. Threads is a totally different application, solely hosted by Meta, and is ten times bigger than the Fediverse and Bluesky networks combined—making it the 500-pound gorilla in the room. Meta’s poor reputation on privacy, moderation, and censorship, has driven many Fediverse instances to vow they’ll defederate from Threads. Other instances still may connect with Threads to help users find a broader audience, and perhaps help sway Threads users to try Mastodon instead.

AT Protocol

The Authenticated Transfer (AT) Protocol is newer; sparked by Twitter co-founder Jack Dorsey in 2019. Like ActivityPub, it is also an open source protocol. However, it is developed unilaterally by a private for-profit corporation— Bluesky PBLLC— though it may be imparted to a web standards body in the future. Bluesky remains mostly centralized. While it has recently opened up to small hosts, there are still some restrictions preventing major alternatives from participating. As developers further loosens control we will likely see rapid changes in how people use the network.

The AT Protocol network design doesn’t put the same emphasis on individual hosts as the Fediverse does, and breaks up hosting, distribution, and curation into distinct services. It’s easiest to understand in comparison to traditional web hosting. Your information, like posts and profiles, are held in Personal Data Servers (PDSes)—analogous to the hosting of a personal website. This content is then fetched by relay servers, like web crawlers, which aggregate a “firehose” of everyone’s content without much alteration. To sort and filter this on behalf of the user, like a “search engine,” AT has Appview services, which give users control over what they see. When accessing the Appview through a client app or website, the user has many options to further filter, sort, and curate their feed, as well as “subscribe” to filters and labels someone else made.

The result is a decentralized system which can be highly tailored while still offering global reach. However, this atomized system also may mean the community accountability encouraged by the host-centered system may be missing, and users are ultimately responsible for their own experience and moderation. This will depend on how the network opens to major hosts other than the Bluesky corporation.

User Experience

Mastodon, Threads and Bluesky have a number of differences that are not essential to their underlying protocol which affect users looking to get involved today. Mastodon and Bluesky are very customizable, so these differences are just addressing the prevalent trends.

Timeline Algorithm

Most Mastodon and most ActivityPub sites prefer a more straightforward timeline of content from accounts you follow. Threads have a Meta-controlled algorithm, like Instagram. Bluesky defaults to a chronological feed, but opens algorithmic curation and filtering up to apps and users. 

User Design

All three services present a default appearance that will be familiar to anyone who has used Twitter. Both Mastodon and Bluesky have alternative clients with the only limit being a developer’s imagination. In fact, thanks to their open nature, projects like SkyBridge let users of one network use apps built for the other (in this case, Bluesky users using Mastodon apps). Threads does not have any alternate clients and requires a developer API, which is still in beta.

Onboarding 

Threads has the greatest advantage to getting people to sign up, as it has only one site which accepts an Instagram account as a login. Bluesky also has only one major option for signing up, but has some inherent flexibility in moving your account later on. That said, diving into a few extra setup steps can improve the experience. Finally, one could easily join Mastodon by joining the flagship instance, mastodon.social. However, given the importance of choosing the right instance, you may miss out on some of the benefits of the Fediverse and want to move your account later on. 

Culture

Threads has a reputation for being more brand-focused, with more commercial accounts and celebrities, and Meta has made no secret about their decisions to deemphasize political posts on the platform. Bluesky is often compared to early Twitter, with a casual tone and a focus on engaging with friends. Mastodon draws more people looking for community online, especially around shared interests, and each instance will have distinct norms.

Privacy Considerations

Neither ActivityPub nor AT Protocol currently support private end-to-end encrypted messages at this time, so they should not be used for sensitive information. For all services here, the majority of content on your profile will be accessible from the public web. That said, Mastodon, Threads, and Bluesky differ in how they handle user data.

Mastodon

Everything you do as a user is entrusted to the instance host including posts, interactions, DMs, settings, and more. This means the owner of your instance can access this information, and is responsible for defending it against attackers and law enforcement. Tech-savvy people may choose to self-host, but users generally need to find an instance run by someone they trust.

The Fediverse muffles content sharing through a myriad of permissions set by users and instances. If your instance blocks a poorly moderated instance for example, the people on that other site will no longer be in your timelines nor able to follow your posts. You can also limit how messages are shared to further reduce the intended audience. While this can create a sense of community and closeness,  remember it is still public and instance hosts are always part of the equation. Direct messages, for example, will be accessible to your host and the host of the recipient.

If content needs to be changed or deleted after being shared, your instance can request these changes, and this is often honored. That said, once something is shared to the network, it may be difficult to “undo.”

Threads

All user content is entrusted to one host, in this case Meta, with a privacy policy similar to Instagram. Meta determines when information is shared with law enforcement, how it is used for advertising, how well protected it is from a breach, and so on.

Sharing with instances works differently for Threads, as Meta has more restricted interoperability. Currently, content sharing is one-way: Threads users can opt-in to sharing their content with the Fediverse, but won’t see likes or replies. By the end of this year, they will allow Threads users to follow accounts on Mastodon accounts.

Federation on Threads may always be restricted, and features like transferring one's account to Mastodon may never be supported. Limits in sharing should not be confused with enhanced privacy or security, however. Public posts are just that—public—and you are still trusting your host (Meta) with private data like DMs (currently handled by Instagram). Instead these restrictions, should they persist, should be seen as the minimum level of control over users Meta deems necessary.

Bluesky

Bluesky, in contrast, is a very “loud” system. Every public message, interaction, follow and block is hosted by your PDS and freely shared to everyone in the network. Every public post is for everyone and is only discovered according to their own app and filter preferences. There are ways to algorithmically imitate smaller spaces with filtering and algorithmic feeds, such as with the Blacksky project, but these are open to everyone and your posts will not be restricted to that curated space.

Direct messages are limited to the flagship Bluesky app, and can be accessed by the Bluesky moderation team. The project plans to eventually incorporate DMs into the protocol, and include end-to-end-encryption, but it is not currently supported. Deletion on Bluesky is simply handled by removing the content from your PDS, but once a message is shared to Relay and Appview services it may remain in circulation a while longer according to their retention settings.

Moderation

Mastodon

Mastodon’s approach to moderation is often compared to subreddits, where the administrators of an instance are responsible for creating a set of rules and empowering a team of moderators to keep the community healthy. The result is a lot more variety in moderation experience, with the only boundary being an instance’s reputation in the broader Fediverse. Instances coordinating and “defederating” from problematic hosts has already been effective in the Fediverse. One former instance, Gab, was successfully cut off from the Fediverse for hosting extreme right-wing hate. The threat of defederation sets a baseline of behavior across the Fediverse, and from there users can choose instances based on reputation and on how aligned the hosts are with their own moderation preferences.

At its best, instances prioritize things other than growth. New members are welcomed and onboarded carefully as new community members, and hosts only grow the community if their moderation team can support it. Some instances even set a permanent cap on participation to a few thousand to ensure a quality and intimate experience. Current members too can vote with their feet, and if needed split off into their own new instance without needing to disconnect entirely.

While Mastodon has a lot going for it by giving users a choice,  avoiding automation, and avoiding unsustainable growth, there are other evergreen moderation issues at play. Decisions can be arbitrary, inconsistent, and come with little recourse. These aren't just decisions impacting individual users, but also those affecting large swaths of them, when it comes to defederation. 

Threads

Threads, as alluded to when discussing privacy above, aims for a moderation approach more aligned with pre-2022 Twitter and Meta’s other current platforms like Instagram. That is, an impossible task of scaling moderation with endless growth of users.

As the largest of these services however, this puts Meta in a position to set norms around moderation as it enters the Fediverse. A challenge for decentralized projects will be to ensure Meta’s size doesn’t make them the ultimate authority on moderation decisions, a pattern of re-centralization we’ve seen happen in email. Spam detection tools have created an environment where email, though an open standard, is in practice dominated by Microsoft and Google as smaller services are frequently marked as spammers. A similar dynamic could play out with the federated social web, where Meta has capacity to exclude smaller instances with little recourse. Other instances may copy these decisions or fear not to do so, lest they are also excluded. 

Bluesky

While in beta, Bluesky received a lot of praise and criticism for its moderation. However, up until recently, all moderation was handled by the centralized Bluesky company—not throughout the distributed AT network. The true nature of moderation structure on the network is only now being tested.

AT Protocol relies on labeling services, aka “labelers”  for moderation. These special accounts using Bluesky’s Ozone tool labels posts with small pieces of metadata. You can also filter accounts with account block lists published by other users, a lot like the Block Together tool formerly available on Twitter. Your Appview aggregating your feed uses these labels to and block lists to filter content. Arbitrary and irreconcilable moderation decisions are still a problem, as are some of the risks of using automated moderation, but it is less impactful as users are not deplatformed and remain accessible to people with different moderation settings. This also means problematic users don’t go anywhere and can still follow you, they are just less visible.

The AT network is censorship resistant, and conversely, it is difficult to meaningfully ban users. To be propagated in the network one only needs a PDS to host their account, and at least one Relay to spread that information. Currently Relays sit out of moderation, only scanning to restrict CSAM. In theory Relays could be more like a Fediverse instance and more accurately curate and moderate users. Even then, as long as one Relay carries the user they will be part of the network. PDSes, much like web hosts, may also choose to remove controversial users, but even in those cases PDSes are easy to self-host even on a low-power computer.

Like the internet generally, removing content relies on the fragility of those targeted. With enough resources and support, a voice will remain online. Without user-driven approaches to limit or deplatform content (like defederation), Bluesky services may be targeted by censorship on the infrastructure level, like on the ISP level.

Hosting and Censorship

With any internet service, there are some legal obligations when hosting user generated content. No matter the size, hosts may need to contend with DMCA takedowns, warrants for user data, cyber attacks,  blocking from authoritarian regimes, and other pressures from powerful interests. This decentralized approach to social media also relies on a shared legal protection for all hosts, Section 230.  By ensuring they are not held liable for user-generated content, this law provides the legal protection necessary for these platforms to operate and innovate.

Given the differences in the size of hosts and their approach to moderation, it isn’t surprising that each of these platforms will address platform liability and censorship differently.

Mastodon

Instance hosts, even for small communities, need to navigate these legal considerations as we outlined in our Fediverse legal primer. We have already seen some old patterns reemerge with these smaller, and often hobbyist, hosts struggling to defend themselves from legal challenges and security threats. While larger hosts have resources to defend against these threats, an advantage of the decentralized model is censors need to play whack-a-mole in a large network where messages flow freely across the globe. Together, the Fediverse is set up to be quite good at keeping information safe from censorship, but individual users and accounts are very susceptible to targeted censorship efforts and will struggle with rebuilding their presence.

Threads

Threads is the easiest to address, as Meta is already several platforms deep into addressing liability and speech concerns, and have the resources to do so. Unlike Mastodon or Bluesky, they also need to do so on a much larger scale with a larger target on their back as the biggest platform backed by a multi-billion dollar company. The unique challenge for Threads however will be how Meta decides to handle content from the rest of the Fediverse. Threads users will also need to navigate the perks and pitfalls of sticking with a major host with a spotty track record on censorship and disinformation.

Bluesky

Bluesky is not yet tested beyond the flagship Bluesky services, and raises a lot more questions. PDSes, Relays and even Appviews play some role in hosting, and can be used with some redundancies. For example your account on one PDS may be targeted, but the system is designed to be easy for users to change this host, self-host, or have multiple hosts while retaining one identity on the network.

Relays, in contrast, are more computationally demanding and may remain the most “centralized” service as natural monopolies— users have some incentive to mostly follow the biggest relays. The result is a potential bottle-neck susceptible to influence and censorship. However, if we see a wide variety of relays with different incentives, it becomes more likely that messages can be shared throughout the network despite censorship attempts.

You Might Not Have to Choose

With this overview, you can start diving into one of these new Twitter alternatives leading the way in a more free social web. Thanks to the open nature of these new systems, where you set up will become less important with improved interoperability.

Both ActivityPub and AT Protocol developers are receptive to making the two better at communicating with one another, and independent projects like  Bridgy Fed, SkyBridge, RSS Parrot and Mastofeed are already letting users get the best of both worlds. Today a growing number of projects speak both protocols, along with older ones like RSS. It may be these paths towards a decentralized web become increasingly trivial as they converge, despite some early growing pains. Or the two may be eclipsed by yet another option. But their shared trajectory is moving us towards a more free, more open and refreshingly weird social web free of platform gatekeepers.

Did you know Disney’s Steamboat Willie entered the public domain this year? Since its 1928 debut, U.S. Congress has made multiple changes to copyright law, extending Disney’s ownership of this cultural icon for almost a century. A century.

Creativity should spark more creativity.

That’s not how intellectual property laws are supposed to work. In the United States, these laws were designed to give creators a financial incentive to contribute to science and culture. Then eventually the law makes this expression free for everyone to enjoy and build upon. Disney itself has reaped the abundant benefits of works in the public domain including Hans Christian Andersen’s “The Little Mermaid" and "The Snow Queen." Creativity should spark more creativity.

In that spirit, EFF presents to you this year’s EFF member t-shirt simply called “Fix Copyright":

Copyright Creativity is fun for the whole family.

The design references Steamboat Willie, but also tractor owners’ ongoing battle to repair their equipment despite threats from manufacturers like John Deere. These legal maneuvers are based on Section 1201 of the Digital Millennium Copyright Act or DMCA. In a recent appeals court brief, EFF and co-counsel Wilson Sonsini Goodrich & Rosati argued that Section 1201 chills free expression, impedes scientific research, and to top it off, is unenforceable because it’s too broad and violates the First Amendment. Ownership ain’t what it used to be, so let’s make it better.

We need you! Get behind this mission and support EFF's work as a member. Through EFF's 34th anniversary on July 10:

• Be an EFF member for as little as $20!
• New recurring monthly or annual donations get an automatic match thanks to a $30,000 challenge grant from Craig Newmark Philanthropies.
• Get 2 rare gifts featuring our friends, The Encryptids (get in step with Bigfoot over here).

You can help cut through the BS and make the world a little brighter—whether online or off.

Join EFF

Defend Creativity & Innovation Online

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EFF is a member-supported U.S. 501(c)(3) organization celebrating TEN YEARS of top ratings from the nonprofit watchdog Charity Navigator! Your donation is tax-deductible as allowed by law.

It’s time for the second installment of campfire tales from our friends, The Encryptids—the rarely-seen enigmas who’ve become folk legends. They’re helping us celebrate EFF’s summer membership drive for internet freedom!

Through EFF's 34th birthday on July 10, you can receive 2 rare gifts, be a member for just $20, and as a bonus new recurring monthly or annual donations get a free match! Join us today.

So...do you ever feel like tech companies still own the devices you’ve paid for? Like you don’t have alternatives to corporate choices? Au contraire! Today, Monsieur Jackalope tells us why interoperability plays a key role in giving you freedom in tech...

-Aaron Jue
EFF Membership Team

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C

all me Jacques. Some believe I am cuddly. Others deem me ferocious. Yet I am those things and more. How could anyone tell me what I may be? Beauty lives in creativity, innovation, and yes, even contradiction. When you are confined to what is, you lose sight of what could be. Zut! Here we find ourselves at the mercy of oppressive tech companies who perhaps believe you are better off without choices. But they are wrong.

Control, commerce, and lack of competition. These limit us and rob us of our potential. We are destined for so much more in tech! When I must make repairs on my scooter, do I call Vespa for their approval on my wrenches? Mais non! Then why should we prohibit software tools from interacting with one another? The connected world must not be a darker reflection of this one we already know.

The connected world must not be a darker reflection of this one we already know.

EFF’s team—avec mon ami Cory Doctorow!—advocate powerfully for systems in which we do not need the permission of companies to fix, connect, or play with technology. Oui, c’est difficile: you find copyrighted software in nearly everything, and sparkling proprietary tech lures you toward crystal prisons. But EFF has helped make excellent progress with laws supporting your Right to Repair, they speak out against tech monopolies, they lift up the free and open source software community, and they advocate for creators across the web.

Join EFF

Interoperability makes good things great

You can make a difference in the fight to truly own your devices. Support the EFF’s efforts as a member this year and reach toward the sublime web that interconnection and creativity can bring.

Cordialement,

Monsieur Jackalope

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EFF is a member-supported U.S. 501(c)(3) organization celebrating TEN YEARS of top ratings from the nonprofit watchdog Charity Navigator! Your donation is tax-deductible as allowed by law.

It’s no fun when your friends ask you to take sides in their disputes. The plans for every dinner party, wedding, and even funeral arrive at a juncture where you find yourself thinking, “Dang, if I invite her, then he won’t come.”

It’s even less fun when you’re running an online community, from a groupchat to a Mastodon server (or someday, a Bluesky server), or any other (increasingly cheap and easy) space where your friends (and their friends) can hang out online, far from the unquenchable dumpster-fires of Big Tech social media.

But there’s a circle of hell that’s infinitely worse than being asked to choose sides in a flamewar: being threatened with a lawsuit for refusing to do so (or even for complying with one side’s request over the other).

Take Action

Tell Congress: Ending Section 230 Will Hurt Users

At EFF, we’ve had decades of direct experience with the, uh, heated rhetoric that attends online disputes (there’s a reason the most famous law about online arguments was coined by the very first person EFF ever hired).

That’s one of the reasons we’re such big fans of Section 230 (47 U.S.C. § 230), a much-maligned, badly misunderstood law that protects people who run online services from being dragged into legal disputes between their users.

Getting sued can profoundly disrupt your life, even if you win. Much of the time, people on the receiving end of legal threats are forced to settle because they can’t afford to defend themselves in court. There's a whole cottage industry of legal bullies who’ll help the thin-skinned, vindictive and deep-pocketed to silence their critics.

That’s why we were so alarmed to see a bill introduced in the House Energy and Commerce Committee that would sunset Section 230 as of December 31, 2025, with no provision to protect online service providers from being conscripted into their users’ online disputes and the legal battles that arise from them.

Homely places on the internet aren’t just a curiosity anymore, nor are they merely a hangover from the Web 1.0 era.

In an age of resurgent anti-monopoly activism, small online communities, either standing on their own, or joined in loose “federations,” are the best chance we have to escape Big Tech’s relentless surveillance and clumsy, unaccountable control.

Look, running online communities is already a thankless task that can convert a generous digital host into a bitter ex-online host.

The alternatives to Big Tech come from individuals, co-ops, nonprofits and startups. These cannot exist in a world where we change the law to make people who offer a space where communities may gather vulnerable to being dragged into lawsuits between their community members.

It’s one thing to volunteer your time and resources to create a hospitable place online; it’s another thing entirely to assume an uninsurable risk that could jeopardize your life’s savings, your home, and your retirement fund. Defending against a single such case can cost hundreds of thousands of dollars.

That’s very bad news indeed, because a world without Section 230 will desperately need alternatives to Big Tech.

Big Tech has deep pockets, which means that even if it creates a system of hair-trigger moderation that takes down anything remotely controversial on sight, it will still attract a staggering number of legal threats.

There’s a useful analogy here to FTX, the disgraced, fraudulent cryptocurrency exchange. Like Big Tech, FTX has some genuinely aggrieved users, but FTX has also been targeted by opportunistic treasure hunters who have laid claims against the company totaling 23.6 quintillion dollars.

We know what Big Tech will do in a post-230 world, because some of us are already living in that world. Donald Trump signed SESTA-FOSTA into law in 2018. The law was billed as a narrowly targeted measure to make platforms liable for failing to intervene in cases where they were aware of human trafficking. In practice, the law has been used to indiscriminately target consensual sex work, placing sex workers in harm’s way (just as we predicted).

Without Section 230, Big Tech will shoot first, ask questions later when it comes to taking down controversial online speech (like #MeToo or Black Lives Matter). For marginalized users with little social power (again, like #MeToo or Black Lives Matter participants), Big Tech takedowns will be permanent, because Big Tech has no incentive to figure out whether it’s worth hosting their speech.

Meanwhile, for the wealthy and powerful, a post-230 world is one where dictators, war criminals, and fraudsters will have a new, powerful tool to silence their critics.

A post-230 world, in other words, is a world where Big Tech is infinitely worse for the users who already suffer most from the large platforms’ moderation failures.

But it’s also a world where it’s infinitely harder to start an alternative to Big Tech’s gigantic walled gardens.

No wonder tech billionaires support getting rid of Section 230: they understand that their overgrown, universally loathed services are vulnerable to real alternatives.

Four years ago, the Biden Administration declared that promoting competition was a whole-of-government priority (and we cheered). Getting rid of Section 230 will do the opposite: freeze the internet in its current, monopolized state, creating a world where the rule of today’s tech barons is never challenged by a more democratic, user-centric internet.

Take Action

Ending Section 230 Will Make Big Tech Monopolies Even Worse

The European Union’s new Digital Markets Act (DMA) is a complex, many-legged beast, but at root, it is a regulation that aims to make it easier for the public to control the technology they use and rely on.  

One DMA rule forces the powerful “gatekeeper” tech companies to allow third-party app stores. That means that you, the owner of a device, can decide who you trust to provide you with software for it.  

Another rule requires those tech gatekeepers to offer interoperable gateways that other platforms can plug into - so you can quit using a chat client, switch to a rival, and still connect with the people you left behind (similar measures may come to social media in the future). 

There’s a rule banning “self-preferencing.” That’s when platforms push their often inferior, in-house products and hide superior products made by their rivals. 

And perhaps best of all, there’s a privacy rule, reinforcing the eight-year-old General Data Protection Regulation, a strong, privacy law that has been flouted  for too long, especially by the largest tech giants. 

In other words, the DMA is meant to push us toward a world where you decide which software runs on your devices,  where it’s easy to find the best products and services, where you can leave a platform for a better one without forfeiting your social relationships , and where you can do all of this without getting spied on. 

If it works, this will get dangerously close to better future we’ve spent the past thirty years fighting for. 

There’s just one wrinkle: the Big Tech companies don’t want that future, and they’re trying their damndest to strangle it in its cradle.

 Right from the start, it was obvious that the tech giants were going to war against the DMA, and the freedom it promised to their users. Take Apple, whose tight control over which software its customers can install was a major concern of the DMA from its inception.

Apple didn’t invent the idea of a “curated computer” that could only run software that was blessed by its manufacturer, but they certainly perfected it. iOS devices will refuse to run software unless it comes from Apple’s App Store, and that control over Apple’s customers means that Apple can exert tremendous control over app vendors, too. 

 Apple charges app vendors a whopping 30 percent commission on most transactions, both the initial price of the app and everything you buy from it thereafter. This is a remarkably high transaction fee —compare it to the credit-card sector, itself the subject of sharp criticism for its high 3-5 percent fees. To maintain those high commissions, Apple also restricts its vendors from informing their customers about the existence of other ways of paying (say, via their website) and at various times has also banned its vendors from offering discounts to customers who complete their purchases without using the app.  

Apple is adamant that it needs this control to keep its customers safe, but in theory and in practice, Apple has shown that it can protect you without maintaining this degree of control, and that it uses this control to take away your security when it serves the company’s profits to do so. 

Apple is worth between two and three trillion dollars. Investors prize Apple’s stock in large part due to the tens of billions of dollars it extracts from other businesses that want to reach its customers. 

The DMA is aimed squarely at these practices. It requires the largest app store companies to grant their customers the freedom to choose other app stores. Companies like Apple were given over a year to prepare for the DMA, and were told to produce compliance plans by March of this year. 

But Apple’s compliance plan falls very short of the mark: between a blizzard of confusing junk fees (like the €0.50 per use “Core Technology Fee” that the most popular apps will have to pay Apple even if their apps are sold through a rival store) and onerous conditions (app makers who try to sell through a rival app store are have their offerings removed from Apple’s store, and are permanently  banned from it), the plan in no way satisfies the EU’s goal of fostering competition in app stores. 

That’s just scratching the surface of Apple’s absurd proposal: Apple’s customers will have to successfully navigate a maze of deeply buried settings just to try another app store (and there’s some pretty cool-sounding app stores in the wings!), and Apple will disable all your third-party apps if you take your phone out of the EU for 30 days. 

Apple appears to be playing a high-stakes game of chicken with EU regulators, effectively saying, “Yes, you have 500 million citizens, but we have three trillion dollars, so why should we listen to you?” Apple inaugurated this performance of noncompliance by banning Epic, the company most closely associated with the EU’s decision to require third party app stores, from operating an app store and terminating its developer account (Epic’s account was later reinstated after the EU registered its disapproval). 

It’s not just Apple, of course.  

The DMA includes new enforcement tools to finally apply the General Data Privacy Regulation (GDPR) to US tech giants. The GDPR is Europe’s landmark privacy law, but in the eight years since its passage, Europeans have struggled to use it to reform the terrible privacy practices of the largest tech companies. 

Meta is one of the worst on privacy, and no wonder: its entire business is grounded in the nonconsensual extraction and mining of billions of dollars’ worth of private information from billions of people all over the world. The GDPR should be requiring Meta to actually secure our willing, informed (and revocable) consent to carry on all this surveillance, and there’s good evidence that more than 95 percent of us would block Facebook spying if we could. 

Meta’s answer to this is a “Pay or Okay” system, in which users who do not consent to Meta’s surveillance will have to pay to use the service, or be blocked from it. Unfortunately for Meta, this is prohibited (privacy is not a luxury good that only the wealthiest should be afforded).  

Just like Apple, Meta is behaving as though the DMA permits it to carry on its worst behavior, with minor cosmetic tweaks around the margins. Just like Apple, Meta is daring the EU to enforce its democratically enacted laws, implicitly promising to pit its billions against Europe’s institutions to preserve its right to spy on us. 

These are high-stakes clashes. As the tech sector grew more concentrated, it also grew less accountable, able to substitute lock-in and regulatory capture for making good products and having their users’ backs. Tech has found new ways to compromise our privacy rights, our labor rights, and our consumer rights - at scale. 

After decades of regulatory indifference to tech monopolization, competition authorities all over the world are taking on Big Tech. The DMA is by far the most muscular and ambitious salvo we’ve seen. 

Seen in that light, it’s no surprise that Big Tech is refusing to comply with the rules. If the EU successfully forces tech to play fair, it will serve as a starting gun for a global race to the top, in which tech’s ill-gotten gains - of data, power and money - will be returned to the users and workers from whom that treasure came. 

The architects of the DMA and DSA foresaw this, of course. They’ve announced investigations into Apple, Google and Meta, threatening fines of 10 percent of the companies’ global income, which will double to 20 percent if the companies don’t toe the line. 

It’s not just Big Tech that’s playing for all the marbles - it’s also the systems of democratic control and accountability. If Apple can sabotage the DMA’s insistence on taking away its veto over its customers’ software choices, that will spill over into the US Department of Justice’s case over the same issue, as well as the cases in Japan and South Korea, and the pending enforcement action in the UK. 

Imagine an internet in which economic power is more broadly distributed, so that more people can build and maintain small businesses online to make good livings. In this world, the behavioral advertising that has made the internet into a giant surveillance tool would be banned, so people could share more equally in the riches without surrendering their privacy.

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That’s the world Tim Wu envisions as he teaches and shapes policy on the revitalization of American antitrust law and the growing power of big tech platforms. He joins EFF’s Cindy Cohn and Jason Kelley to discuss using the law to counterbalance the market’s worst instincts, in order to create an internet focused more on improving people’s lives than on meaningless revenue generation. 

In this episode you’ll learn about: 

• Getting a better “deal” in trading some of your data for connectedness. 
• Building corporate structures that do a better job of balancing the public good with private profits. 
• Creating a healthier online ecosystem with corporate “quarantines” to prevent a handful of gigantic companies from dominating the entire internet. 
• Nurturing actual innovation of products and services online, not just newer price models. 

Timothy Wu is the Julius Silver Professor of Law, Science and Technology at Columbia Law School, where he has served on the faculty since 2006. First known for coining the term “net neutrality” in 2002, he served in President Joe Biden’s White House as special assistant to the President for technology and competition policy from 2021 to 2023; he also had worked on competition policy for the National Economic Council during the last year of President Barack Obama’s administration. Earlier, he worked in antitrust enforcement at the Federal Trade Commission and served as enforcement counsel in the New York Attorney General’s Office. His books include “The Curse of Bigness: Antitrust in the New Gilded Age” (2018), "The Attention Merchants: The Epic Scramble to Get Inside Our Heads” (2016), “The Master Switch: The Rise and Fall of Information Empires” (2010), and “Who Controls the Internet? Illusions of a Borderless World” (2006).

Resources: 

• Columbia Law School: “How to Change 40 Years of Policy in 22 Months: Professor Wu in Washington" (Feb. 8. 2023) 
• New York Times: “In Regulating A.I., We May Be Doing Too Much. And Too Little.” (Nov. 7, 2023) 
• New York Times: “The Google Trial Is Going to Rewrite Our Future” (Sept. 18, 2023)
• CNBC: “Tech companies have exploited human tendencies to maintain their monopolies, says Columbia's Tim Wu” (Oct. 3, 2023)

What do you think of “How to Fix the Internet?” Share your feedback here. 

Transcript

TIM WU
I think with advertising we need a better deal. So advertising is always a deal. You trade your attention and you trade probably some data, in exchange you get exposed to advertising and in exchange you get some kind of free product.

You know, that's the deal with television, that's been the deal for a long time with radio. But because it's sort of an invisible bargain, it's hard to make the bargain, and the price can be increased in ways that you don't necessarily notice. For example, we had one deal with Google in, let's say, around the year 2010 - if you go on Google now, it's an entirely different bargain.

It's as if there's been a massive inflation in these so-called free products. In terms of how much data has been taken, in terms of how much you're exposed to, how much ad load you get. It's as if sneakers went from 30 dollars to 1,000 dollars!

CINDY COHN
That's Tim Wu – author, law professor, White House advisor. He’s something of a swiss army knife for technology law and policy. He spent two years on the National Economic Council, working with the Biden administration as an advisor on competition and tech policy. He worked on antitrust legislation to try and check some of the country’s biggest corporations, especially, of course, the tech giants.

I’m Cindy Cohn - executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I’m Jason Kelley - EFF’s Activism Director. This is our podcast, How to Fix the Internet. Our guest today is Tim Wu. His stint with the Biden administration was the second White House administration he advised. And in between, he ran for statewide office in New York. And that whole thing is just a sideline from his day job as a law professor at Columbia University. Plus, he coined the term net neutrality!

CINDY COHN
On top of that, Tim basically writes a book every few years that I read in order to tell me what's going to happen next in technology. And before that he's been a programmer and a more traditional lab based scientist. So he's kind of got it all.

TIM WU
Sounds like I'm a dilettante.

CINDY COHN
Well, I think you've got a lot of skills in a lot of different departments, and I think that in some ways, I've heard you call yourself a translator, and I think that that's really what all of that experience gives you as a superpower is the ability to kind of talk between these kinds of spaces in the rest of the world.

TIM WU
Well, I guess you could say that. I've always been inspired by Wilhelm Humboldt, who had this theory that in order to have a full life, you had to try to do a lot of different stuff. So somehow that factors into it somewhere.

CINDY COHN
That's wonderful. We want to talk about a lot of things in this conversation, but I kind of wanted to start off with the central story of the podcast, which is, what does the world look like if we get this right? You know, you and I have spent a lot of years talking about all the problems, trying to lift up obstacles and get rid of obstacles.

But if we reach this end state where we get a lot of these problems right, in Tim Wu's world, what, what does it look like? Like, what does your day look like? What do people's experience of technology look like?

TIM WU
I think it looks like a world in which economic power surrounding the internet and surrounding the platforms is very much more distributed. And, you know, what that means practically is it means a lot of people are able to make a good living, I guess, based on being a small producer or having a service based skill in a way that feels sustainable and where the sort of riches of the Internet are more broadly shared.

So that's less about what kind of things you click on or, you know, what kind of apps you use and more about, I guess, the economic structure surrounding the Internet, which I think, you know, um, I don't think I'm the only person who thinks this, you know, the structure could be fairer and could work for more people.

It does feel like the potential and, you know, we've all lived through that potential starting in the 90s of this kind of economically liberating force that would be the basis for a lot of people to make a decent living has seemed to turn into something more where a lot of money aggregates in a few places.

CINDY COHN
Yeah, I remember, people still talk about the long tail, right, as a way in which the digitization of materials created a revenue stream that's more than just, you know, the flavor of the week that a movie studio or a book publisher might want us to pay attention to on kind of the cultural side, right?

That there was space for this. And that also makes me think of a conversation we just had with the folks in the right to repair movement talking about like their world includes a place where there's mom and pop shops that will help you fix your devices all over the place. Like this is another way in which we have centralized economic power.

We've centralized power and if we decentralize this or, or, or spread it more broadly, uh, we're going to create a lot of jobs and opportunities for people, not just as users of technology, but as the people who help build and offer it to us.

TIM WU
I'm writing a new book, um, working title, Platform Capitalism, that has caused me to go back and look at the, you know, the early promise of the internet. And I went back and I was struck by a book, some of you may remember, called "An Army of Davids," by Glenn Reynolds the Instapundit.
Yeah, and he wrote a book and he said, you know, the future of the American economy is going to be all these kind of mom and pop sellers who, who take over everything – he wrote this about 2006 – and he says, you know, bloggers are already competing with news operations, small sellers on eBay are already competing with retail stores, and so on, journalists, so on down the line that, uh, you know, the age of the big, centralized Goliath is over and the little guys are going to rule the future.

Kind of dovetailed, I went back and read Yochai Benkler's early work about a production commons model and how, you know, there'll be a new node of production. Those books have not aged all that well. In fact, I think the book that wins is Blitzscaling. That somewhere along the line, instead of the internet favoring small business, small production, things went in the exact opposite direction.

And when I think about Yochai Benkler's idea of sort of production-based commons, you know, Waze was like that, the mapping program, until one day Waze was just bought by Google. So, I was just thinking about those as I was writing that chapter of the book.

CINDY COHN
Yeah, I think that's right. I think that identifying and, and you've done a lot of work on this, identify the way in which we started with this promise and we ended up in this other place can help us figure out, and Cory Doctorow, our colleague and friend has been doing a lot of work on this with choke point capitalism and other work that he's done for EFF and elsewhere.

And I also agree with him that, like, we don't really want to create the good old days. We want to create the good new days, right? Like, we want to experience the benefits of an Internet post-1990s, but also have those, those riches decentralized or shared a little more broadly, or a lot more broadly, honestly.

TIM WU
Yeah, I think that's right, and so I think part of what I'm saying, you know, what would fix the internet, or what would make it something that people feel excited about. You know, I think people are always excited about apps and videos, but also people are excited about their livelihood and making money.

And if we can figure out the kind of structure that makes capitalism more distributed surrounding platforms, you know, it's not abandoning the idea of you have to have a good site or a product or something to, to gain customers. It's not a total surrender of that idea, but a return to that idea working for more people.

CINDY COHN
I mean, one of the things that you taught me in the early days is how kind of ‘twas ever so, right? If you think about radio or broadcast medium or other previous mediums, they kind of started out with this promise of a broader impact and broader empowerment and, and didn't end up that way as much as well.

And I know that's something you've thought about a lot.

TIM WU
Yeah, the first book I wrote by myself, The Master Switch, had that theme and at the time when I wrote it, um, I wrote a lot of it in the, ‘09, ‘08, ‘07 kind of period, and I think at that point I had more optimism that the internet could hold out, that it wouldn't be subject to the sort of monopolizing tendencies that had taken over the radio, which originally was thousands of radio stations, or the telephone system – which started as this ‘go west young man and start your own telephone company’ kind of technology – film industry and and many others. I was firmly of the view that things would be different. Um, I think I thought that, uh, because of the CCP IP protocol, because of the platforms like HTML that were, you know, the center of the web, because of net neutrality, lasting influence. But frankly, I was wrong. I was wrong, at least when I was writing the book.

JASON KELLEY
As you've been talking about the sort of almost inevitable funneling of the power that these technologies have into a single or, or a few small platforms or companies, I wonder what you think about newer ideas around decentralization that have sort of started over the last few years, in particular with platforms like Mastodon or something like that, these kinds of APIs or protocols, not platforms, that idea. Do you see any promise in that sort of thing? Because we see some, but I'm wondering what you think.

TIM WU
I do see some promise. I think that In some ways, it's a long overdue effort. I mean, it's not the first. I can't say it's the first. Um, and part of me wishes that we had been, you know, the idealistic people. Even the idealistic people at some of these companies, such as they were, had been a bit more careful about their design in the first place.

You know, I guess what I would hope … the problem with Mastodon on some of these is they're trying to compete with entities that already are operating with all the full benefits of scale and which are already tied to sort of a Delaware private corporate model. Uh, now this is a little bit, I'm not saying that hindsight is 20/20, but when I think about the major platforms and entities the early 21st century, it's really only Wikipedia that got it right in my view by structurally insulating themselves from certain forces and temptations.

So I guess what I'm trying to say is that, uh, part of me wishes we'd done more of this earlier. I do think there's hope in them. I think it's very challenging in current economics to succeed. And sometimes you'd have to wonder if you go in a different, you know, that it might be, I don't want to say impossible, very challenging when you're competing with existing structures. And if you're starting something new, you should start it right.
That said, AI started in a way structurally different and we've seen how that's gone recently.

CINDY COHN
Oh, say more, say more!

JASON KELLEY
Yeah. Yeah. Keep, keep talking about AI.

CINDY COHN
I'm very curious about your thinking about that.

TIM WU
Well, you know, I said that, The Holy Roman Empire was neither holy, nor Roman, nor an empire. And OpenAI is now no longer open, nor non-profit, nor anything else. You know, it's kind of, uh, been extraordinary that the circuit breakers they tried to install have just been blown straight through. Um, and I think there's been a lot of negative coverage of the board. Um, because, you know, the business press is kind of narrow on these topics. But, um, you know, OpenAI, I guess, at some point, tried to structure itself more carefully and, um, and, uh, you know, now the board is run by people whose main experience has been, um, uh, taking good organizations and making them worse, like Quora, so, yeah, I, I, that is not exactly an inspiring story, uh, I guess of OpenAI in the sense of it's trying to structure itself a little differently and, and it, uh, failing to hold.

CINDY COHN
I mean, I think Mozilla has managed to have a structure that has a, you know, kind of complicated for profit/not-for-profit strategy that has worked a little better, but II hear you. I think that if you do a power analysis, right, you know, a nonprofit is going to have a very hard time up against all the money in the world.

And I think that that seems to be what happened for OpenAI. Uh, once all the money in the world showed up, it was pretty hard to, uh, actually impossible for the public interest nonprofit side to hold sway.

TIM WU
When I think about it over and over, I think engineers and the people who set up these, uh, structures have been repeatedly very naive about, um, the power of their own good intentions. And I agree. Mozilla is a good example. Wikipedia is a good example. Google, I remember when they IPO'd, they had some set up, and they said, ‘We're not going to be an ordinary company,’ or something like that. And they sort of had preferred stock for some of the owners. You know, Google is still in some ways an impressive company, but it's hard to differentiate them from any other slightly money grubbing, non-innovative colossus, um, of the kind they were determined not to become.

And, you know, there was this like, well, it's not going to be us, because we're different. You know, we're young and idealistic, and why would we want to become, I don't know, like Xerox or IBM, but like all of us, you begin by saying, I'm never going to become like my parents, and then next thing you know, you're yelling at your kids or whatever.

CINDY COHN
Yeah, it's, it's the, you know, meet the new boss the same as the old boss, right? When we, what we were hoping was that we would be free of some of the old bosses and have a different way to approach, but, but the forces are pretty powerful that stick people back in line, I think.

TIM WU
And some of the old structures, you know, look a little better. Like, I'm not going to say newspapers are perfect, but a structure like the New York Times structure, for example, basically is better than Google's. And I just think there was this sense that, Well, we can solve that problem with code and good vibes. And that turned out to be the great mistake.

CINDY COHN
One of the conversations that you and I have had over the years is kind of the role of regulation on, on the internet. I think the fight about whether to regulate or not to regulate the Internet was always a little beside the point. The question is how. And I'm wondering what you're thinking now. You've been in the government a couple times. You've tried to push some things that were pretty regulatory. How are you thinking now about something like a centralized regulatory agency or another approach to, you know, regulating the Internet?

TIM WU
Yeah, I, you know, I continue to have mixed feelings about something like the central internet commission, mostly for some of the reasons you said, but on the other hand, sometimes, if I want to achieve what I mentioned, which is the idea of platforms that are an input into a lot of people being able to operate on top of them and run businesses-like, you know, at times, the roads have been, or the electric system, or the phone network, um, it's hard to get away from the idea of having some hard rules, sometimes I think my sort of platonic form of, of government regulation or rules was the 1956 AT&T consent decree, which, for those who are not as deep in those weeds as I am, told AT&T that it could do nothing but telecom, and therefore not do computing and also force them to license every single one of their patents for free. And the impact of that was more than one -  one is because they were out of computing. They were not able to dominate it and you had companies then new to computing like IBM and others that got into that space and developed the American computing industry completely separate from AT&T.

And you also ended up, semiconductor companies start that time with the transistor patent and other patents they used for free. So you know, I don't know exactly how you achieve that, but I'm drawn to basically keeping the main platforms in their lane. I would like there to be more competition.
The antitrust side of me would love it. And I think that in some areas we are starting to have it, like in social media, for better or for worse. But maybe for some of the more basic fundamentals, online markets and, you know, as much competition as we can get – but some rule to stay out of other businesses, some rule to stop eating the ecosystem. I do think we need some kind of structural separation rules. Who runs those is a little bit of a harder question.

CINDY COHN
Yeah, we're not opposed to structural separation at EFF. I think we, we think a lot more about interoperability to start with as a way to, you know, help people have other choices, but we haven't been opposed to structural separation, and I think there are situations in which it might make a lot of good sense, especially, you know, in the context of mergers, right?

Where the company has actually swallowed another company that did another thing. That's, kind of the low hanging fruit, and EFF has participated a lot in commenting on potential mergers.

TIM WU
I'm not opposed the idea of pushing interoperability. I think that it's based on the experience of the last 100 years. It is a tricky thing to get right. I'm not saying it's impossible. We do have examples: Phone network, in the early 20th century, and interconnection was relatively successful. And right now, you know, when you change between, let's say, T-Mobile and Verizon, there's only three left, but you get to take your phone number with you, which is a form of interoperability.

But it has the risk of being something you put a lot of effort into and it not necessarily working that well in terms of actually stimulating competition, particularly because of the problem of sabotage, as we saw in the ‘96 Act. So it's actually not about the theory, it's about the practice, the legal engineering of it. Can you find the right thing where you've got kind of a cut point where you could have a good interoperability scheme?

JASON KELLEY
Let’s take a quick moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.

And now back to our conversation with Tim Wu. I was intrigued by what he said about keeping platforms in their lane. I wanted to hear him speak more about how that relates to antitrust – is that spreading into other ecosystems what sets his antitrust alarm bells off? How does he think about that?

TIM WU
I guess the phrase I might use is quarantine, is you want to quarantine businesses, I guess, from others. And it's less of a traditional antitrust kind of remedy, although it, obviously, in the ‘56 consent decree, which was out of an antitrust suit against AT&T, it can be a remedy.

And the basic idea of it is, it's explicitly distributional in its ideas. It wants more players in the ecosystem, in the economy. It's almost like an ecosystem promoting a device, which is you say, okay, you know, you are the unquestioned master of this particular area of commerce. Maybe we're talking about Amazon and it's online shopping and other forms of e-commerce, or Google and search.

We're not going to give up on the hope of competition, but we think that in terms of having a more distributed economy where more people have their say, um, almost in the way that you might insulate the college students from the elementary school students or something. We're going to give other, you know, room for other people to develop their own industries in these side markets. Now, you know, there's resistance say, well, okay, but Google is going to do a better job in, uh, I don't know, shopping or something, you know, they might do a good job. They might not, but you know, they've got their returns and they're always going to be an advantage as a platform owner and also as a monopoly owner of having the ability to cross-subsidize and the ability to help themselves.

So I think you get healthier ecosystems with quarantines. That's basically my instinct. And, you know, we do quarantines either legally or de facto all the time. As I said, the phone network has long been barred from being involved in a lot of businesses. Banking is kept out of a lot of businesses because of obvious problems of corruption. The electric network, I guess they could make toasters if they want, but it was never set up to allow them to dominate the appliance markets.

And, you know, if they did dominate the appliance markets, I think it would be a much poorer world, a lot less interesting innovation, and frankly, a lot less wealth for everyone. So, yeah, I have strong feelings. It's more of my net neutrality side that drives this thinking than my antitrust side, I’ll put it that way.

JASON KELLEY
You specifically worked in both the Obama and Biden administration sort of on these issues. I'm wondering if your thinking on this has changed. In experiencing those things from from the sort of White House perspective and also just how different those two, sort of, experiences were, obviously the moments are different in time and and and everything like that, but they're not so far apart – maybe light years in terms of technology, but what was your sort of experience between those two, and how do you think we're doing now on this issue?

TIM WU
I want to go back to a slightly earlier time in government, not the Obama, actually it was the Obama administration, but my first job in the, okay, sorry, my third job in the federal government, uh, I guess I'm a, one of these recidivists or something, was at the Federal Trade Commission.

CINDY COHN
Oh yeah, I remember.

TIM WU
Taking the first hard look at big tech and, in fact, we're investigating Google for the first time for antitrust possible offenses, and we also did the first privacy remedy on Facebook, which I will concede was a complete and absolute failure of government, one of the weakest remedies, I think. We did that right before Cambridge Analytica. And obviously had no effect on Facebook's conduct at all. So, one of the failed remedies. I think that when I think back about that period, the main difference was that the tech platforms were different in a lot of ways.

I believe that, uh, monopolies and big companies have, have a life cycle. And they were relatively early in that life cycle, maybe even in a golden age. A company like Amazon seemed to be making life possible for a lot of sellers. Google was still in its early phase and didn't have a huge number of verticals. Still had limited advertising. Most searches still didn't turn up that many ads.

You know, they were in a different stage of their life. And they also still felt somewhat, they were still already big companies. They still felt relatively in some sense, vulnerable to even more powerful economic forces. So they hadn't sort of reached that maturity. You know, 10 years later, I think the life cycle has turned. I think companies have largely abandoned innovation in their core products and turned to defense and trying to improve – most of their innovations are attempting to raise more revenue and supposed to make the product better. Uh, kind of reminds me of the airline industry, which stopped innovating somewhere in the seventies and started making, trying to innovate in, um, terms of price structures and seats being smaller, that kind of thing.

You know, there's, you reach this end point, I think the airlines are the end point where you take a high tech industry at one point and just completely give up on anything other than trying to innovate in terms of your pricing models.

CINDY COHN
Yeah, I mean, I, you know, our, our, we, Cory keeps coming up, but of course Cory calls it the “enshittification” of, uh, of services, and I think that is, uh, in typical Corrie way captures, this stage of the process.

TIM WU
Yeah, I just to speak more broadly. I you know, I think there's a lot of faith and belief that the, uh, company like Google, you know, in its heart meant well, and I do still think the people working there mean well, but I feel that, you know, the structure they set up, which requires showing increasing revenue and profit every quarter began to catch up with it much more and we’re at a much later stage of the process.

CINDY COHN
Yep.

TIM WU
Or the life cycle. I guess I'd put it.

CINDY COHN
And then for you, kind of coming in as a government actor on this, like, what did that mean in terms of, like, was it, I'm assuming, I kind of want to finish the sentence for you. And that, you know, that meant it was harder to get them to do the right thing. It meant that their defenses were better against trying to do the right thing.

Like how did that impact the governmental interventions that you were trying to help make happen?

TIM WU
I think it was both. I think there was both, in terms of government action, a sense that the record was very different. The Google story in 2012 is very different than 2023. And the main difference is in 2023 Google is paying out 26.3 billion a year to other companies to keep its search engine where it is, and arguably to split the market with Apple.

You know, there wasn't that kind of record back in 2012. Maybe we still should have acted, but there wasn't that much money being so obviously spent on pure defensive monopoly. But also people were less willing. They thought the companies were great. They overall, I mean, there's a broader ideological change that people still felt, many people from the Clinton administration felt the government was the problem. Private industry was the solution. Had kind of a sort of magical thinking about the ability of this industry to be different in some fundamental way.

So the chair of the FCC wasn't willing to pull the trigger. The economists all said it was a terrible idea. You know, they failed to block over a thousand mergers that big tech did during that period, which it's, I think, very low odds that none of those thousands were anti-competitive or in the aggregate that maybe, you know, that was a way of building up market power.

Um, it did enrich a lot of small company people, but I, I think people at companies like Waze really regret selling out and, you know, end up not really building anything of their own but becoming a tiny sub-post of the Google empire.

CINDY COHN
Yeah, the “acquihire” thing is very central now and what I hear from people in the industry is that like, if that's not your strategy to get acquired by one of the ones, it's very hard to get funded, right? It feeds back into the VC and how you get funded to get something built.

If it's not something that one of the big guys is going to buy, you're going to have a hard time building it and you're going to have a hard time getting the support to get to the place where you might actually even be able to compete with them.

TIM WU
And I think sometimes people forget we had different models. You know, some of your listeners might forget that, you know, in the ‘70s, ‘80s, and ‘90s, and early 2000s, people did build companies not just to be bought...

CINDY COHN
Right.

TIM WU
...but to build fortunes, or because they thought it was a good company. I mean, the people who built Sun, or Apple, or, you know, Microsoft, they weren't saying, well, I hope I'm gonna be bought by IBM one day. And they made real fortunes. I mean, look, being acquired, you can obviously become a very wealthy person, but you don't become a person of significance. You can go fund a charity or something, but you haven't really done something with your life.

CINDY COHN
I'm going to flip it around again. And so we get to the place where the Tim Wu vision that the power is spread more broadly. We've got lots of little businesses all around. We've got many choices for consumers. What else, what else do you see in this world? Like what role does the advertising business model play in this kind of a better future. That's just one example there of many, that we could give.

TIM WU
Yeah, no, I like your vision of a different future. I think, uh, just like focus on it goes back to the sense of opportunity and, you know, you could have a life where you run a small business that's on the internet that is a respectable business and you're neither a billionaire nor you're impoverished, but you know, you just had to have your own business the way people have, like, in New York or used to run like stores and in other parts of the country, and in that world, I mean, in my ideal world, there is advertising, but advertising is primarily informational, if that makes sense.

It provides useful information. And it's a long way to go between here and there, but where, um, you know, it's not the default business model for informational sources such that it, it has much less corrupting effects. Um, you know, I think that advertising obviously everyone's business model is going to affect them, but advertising has some of the more, corrupting business models around.

So, in my ideal world, we would not, it's not that advertising will go away, people want information, but we'd strike a better bargain. Exactly how you do that. I guess more competition helps, you know, lower advertising, um, sites you might frequent, better privacy protecting sites, but, you know, also passing privacy legislation might help too.

CINDY COHN
I think that’s right, I think EFF has taken a position that we think we should ban behavioral ads. That's a pretty strong position for us and not what we normally do, um, to, to say, well, we need to ban something. But also that we need, of course, comprehensive privacy law, which is, you know, kind of underlines so many of the harms that we're seeing online right now is this, this lack of a baseline privacy protection.

I don't know if you see it the same way, but it's certainly it seems to be the through line for a lot of harms that are coming up as things people are concerned about. Yeah.

TIM WU
I mean, absolutely, and I, you know, don't want to give EFF advice on their views, but I would say that I think it's wise to see the totally unregulated collection of data from, you know, millions, if not billions of people as a source of so many of the problems that we have.

It drives unhealthy business models, it leads to real-world consequences, in terms of identity theft and, and so many others, but I think I, I'd focus first on what, yeah, the kind of behavior that encourages the kind of business model is encourages, which are ones that just don't in the aggregate, feel very good for the businesses or for, for us in particular.

So yeah, my first priority legislatively, I think if I were acting at this moment would be starting right there with, um, a privacy law that is not just something that gives supposed user rights to take a look at the data that's collected, but that meaningfully stops the collection of data. And I think we'll all just shrug our shoulders and say, oh, we're better off without that. Yes, it supported some, but we will still have some of the things – it's not as if we didn't have friends before Facebook.

It's not as if we didn't have video content before YouTube, you know, these things will survive with less without behavioral advertising. I think your stance on this is entirely, uh, correct.

CINDY COHN
Great. Thank you, I always love it when Tim agrees with me and you know, it pains me when we disagree, but one of the things I know is that you are one of the people who was inspired by Larry Lessig and we cite Larry a lot on the show because we like to think about things or organize them in terms of the four levels of, um, You know, digital regulation, you know, laws, norms, markets, and code as four ways that we could control things online. And I know you've been focusing a lot on laws lately and markets as well.

How do you think about, you know, these four levers and where we are and, and how we should be deploying them?

TIM WU
Good question. I regard Larry as a prophet. He was my mentor in law school, and in fact, he is responsible for most of my life direction. Larry saw that there was a force arising through code that already was somewhat, in that time, 90s, early 2000s, not particularly subject to any kind of accountability, and he saw that it could take forms that might not be consistent with the kind of liberties you would like to have or expect and he was right about that.

You know, you can say whatever you want about law or government and there are many examples of terrible government, but at least the United States Constitution we think well, there is this problem called tyranny and we need to do something about it.

There's no real equivalent for the development of abusive technologies unless you get government to do something about it and government hasn't done much about it. You know, I think the interactions are what interests me about the four forces. So if we agree that code has a certain kind of sovereignty over our lives in many ways and most of us on a day-to-day basis are probably more affected by the code of the devices we use than by the laws we operate under.

And the question is, what controls code? And the two main contenders are the market and law. And right now the winner by far is just the market, which has led codemakers in directions that even they find kind of unfortunate and disgraceful.

I don't remember who had that quote, but it was some Facebook engineer that said the greatest minds of our generation are writing code to try to have people click on random ads, and we have sort of wasted a generation of talent on meaningless revenue generation when they could be building things that make people's lives better.

So, you know, the answer is not easy is to use law to counter the market. And that's where I think we are with Larry's four factors.

CINDY COHN
Yeah, I think that that's right, and I agree that it's a little ro-sham-bo, right, that you can control code with laws and, and markets and you can control markets with code, which is kind of where interoperability comes in sometimes and laws and you know, norms play a role in kind of a slightly different whammy role in all of these things, but I do think that those interactions are really important and we've, again, I've always thought it was a somewhat phony conversation about, you know, "to regulate or not to regulate, that is the question" because that's not actually particularly useful in terms of thinking about things because we were embedded in a set of laws. It's just the ones we pay attention to and the ones that we might not notice, but I do think we're in a time when we have to think a lot harder about how to make laws that will be flexible enough to empower people and empower competition and not lock in the winners of today's markets. And we spend a lot of time thinking about that issue.

TIM WU
Well, let me say this much. This might sound a little contradictory in my life story, but I'm not actually a fan of big government, certainly not overly prescriptive government. Having been in government, I see government's limits, and they are real. But I do think the people together are powerful.

I think laws can be powerful, but what they most usefully do is balance out the market. You know what I'm saying? And create different incentives or different forces against it. I think trying to have government decide exactly how tech should run is usually a terrible idea. But to cut off incentives – you talked about behavioral advertising. So let's say you ban behavioral advertising just the way we ban child labor or something. You know, you can live without it. And, yeah, maybe we're less productive because we don't let 12 year olds work in factories. There's a marginal loss of revenue, but I frankly think it's worth it.

And, you know, and some of the other practices that have shown up are in some ways the equivalent. And we can live without them. And that's the, you know, it's sort of easy to say. we should ban child labor. But when you look for those kind of practices, that's where we need law to be active.

JASON KELLEY
Well, Cindy, I came away from that with a reading list. I'm sure a lot of people are familiar with those authors and those books, but I am going to have to catch up. I think we'll put some of them, maybe all the books, in the, in the show notes so that people who are wondering can, can catch up on their end.

You, as someone who's already read all those books, probably have different takeaways from this conversation than me.

CINDY COHN
You know what I really, I really like how Tim thinks he's, you know, he comes out of this, especially most recently from an economics perspective. So his future is really an economics one.

It's about an internet that has lots of spaces for people to make a reasonable living as opposed to the few people make a killing, or sell their companies to the big tech giants. And I think that that vision dovetails a lot with a lot of the people that we've talked. to on this show that, you know, in some ways we've got to think about how do we redistribute the internet and that includes redistributing the economic benefits.

JASON KELLEY
Yeah. And thinking about, you know, something you've said many times, which is this idea of rather than going backwards to the internet we used to have, or the world we used to have, we're really trying to build a better world with the one we do have.

So another thing he did mention that I really pulled away from this conversation was when antitrust makes sense. And that sort of idea of, well, what do you do when companies start spreading into other ecosystems? That's when you really have to start thinking about the problems that they're creating for competition.

And I think the word he used was quarantine. Is that right?

CINDY COHN
Yeah I love that image.

JASON KELLEY
Yeah, that was just a helpful, I think, way for people to think about how antitrust can work. And that was something that I'll take away from this probably forever.

CINDY COHN
Yeah, I also liked his vision of what kind of deal we have with a lot of these free tools or AKA free tools, which is, you know, at one time when we signed up for, you know, a Gmail account, it's, you know, the, the deal was that it was going to look at what you searched on and what you wrote and then place you ads based on the context and what you did.

And now that deal is much, much worse. And I think he, he's right to likening that to something that, you know, has secretly gotten much more expensive for us, that the deal for us as consumers has gotten worse and worse. And I really like that framing because again, it kind of translates out from the issues that where we live, which is, you know, privacy and free speech and fairness and turns it into something that is actually kind of an economic framing of some of the same points.

I think that the kind of upshot of Tim and, and honestly, some of the other people we've talked to is this idea of ‘blitzscaling’, um, and growing gigantic platforms is really at the heart of a lot of the problems that we're seeing in free speech and in privacy and also in economic fairness. And I think that's a point that Tim makes very well.

I think that from, you know, The Attention Merchants, The Curse of Bigness, Tim has been writing in this space for a while, and he, what I appreciate is Tim is really a person, um, who came up in the Internet, he understands the Internet, he understands a lot of the values, and so he's, he's not writing as an outsider throwing rocks as much as an insider who is kind of dismayed at how things have gone and looking to try to unpack all of the problems. And I think his observation, which is shared by a lot of people, is that a lot of the problems that we're seeing inside tech are also problems we're seeing outside tech. It's just that tech is new enough that they really took over pretty fast.

But I think that it's important for us to both recognize the problems inside tech and it doesn't let tech off the hook. To note that these are broader societal problems, but it may help us in thinking about how we get out of them.

JASON KELLEY
Thanks for joining us for this episode of How to Fix the Internet. If you have feedback or suggestions, we'd love to hear from you. Visit EFF. org slash podcast and click on listener feedback. While you're there, you can become a member, donate, maybe pick up some merch and just see what's happening in digital rights this week and every week.

We’ve got a newsletter, EFFector, as well as social media accounts on many, many, many platforms you can follow

This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators.

In this episode you heard Perspectives *** by J.Lang featuring Sackjo22 and Admiral Bob, and Warm Vacuum Tube by Admiral Bob featuring starfrosch.

You can find links to their music in our episode notes, or on our website at eff.org/podcast.

Our theme music is by Nat Keefe of BeatMower with Reed Mathis

How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology.

We’ll talk to you again soon.

I’m Jason Kelley

CINDY COHN
And I’m Cindy Cohn.

Copyright’s reach is already far too broad, and courts have no business expanding it any further, particularly where that reframing will undermine adversarial interoperability. Unfortunately, a federal district court did just that in the latest iteration of Oracle v. Rimini, concluding that software Rimini developed was a “derivative work” because it was intended to interoperate with Oracle's software, even though the update didn’t use any of Oracle’s copyrightable code.

That’s a dangerous precedent. If a work is derivative, it may infringe the copyright in the preexisting work from which it, well, derives. For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is “substantially similar” to a preexisting work in both ideas and expression. Thanks to that rule, software developers can build innovative new tools that interact with preexisting works, including tools that improve privacy and security, without fear that the companies that hold rights in those preexisting works would have an automatic copyright claim to those innovations.

That’s why EFF, along with a diverse group of stakeholders representing consumers, small businesses, software developers, security researchers, and the independent repair community, filed an amicus brief in the Ninth Circuit Court of Appeals explaining that the district court ruling is not just bad policy, it’s also bad law.  Court after court has confronted the challenging problem of applying copyright to functional software, and until now none have found that the copyright monopoly extends to interoperable software absent substantial similarity. In other words, there is no “software exception” to the definition of derivative works, and the Ninth Circuit should reject any effort to create one.

The district court’s holding relied heavily on an erroneous interpretation of a 1998 case, Micro Star v. FormGen. In that case, the plaintiff, FormGen, published a video game following the adventures of action hero Duke Nukem. The game included a software tool that allowed players themselves to build new levels to the game and share them with others. Micro Star downloaded hundreds of those user-created files and sold them as a collection. When FormGen sued for copyright infringement, Micro Star argued that because the user files didn’t contain art or code from the FormGen game, they were not derivative works.

The Ninth Circuit Court of Appeals ruled against Micro Star, explaining that:

[t]he work that Micro Star infringes is the [Duke Nukem] story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels and the stories told in the [user files] are surely sequels, telling new (though somewhat repetitive) tales of Duke’s fabulous adventures.

Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21^st century human in jeans and a t-shirt, not so much.

Still, even confined to its facts, Micro Star stretched the definition of derivative work. By misapplying Micro Star to purely functional works that do not incorporate any protectable expression, however, the district court rewrote the definition altogether. If the court’s analysis were correct, rightsholders would suddenly have a new default veto right in all kinds of works that are intended to “interact and be useable with” their software. Unfortunately, they are all too likely to use that right to threaten add-on innovation, security, and repair.

Defenders of the district court’s approach might argue that interoperable software will often be protected by fair use. As copyrightable software is found in everything from phones to refrigerators, fair use is an essential safeguard for the development of interoperable tools, where those tools might indeed qualify as derivative works. But many developers cannot afford to litigate the question, and they should not have to just because one federal court misread a decades-old case.

“Privacy First” is a simple, powerful idea: seeing as so many of today’s technological problems are also privacy problems, why don’t we fix privacy first?

Whether you’re worried about kids’ mental health, or tech’s relationship to journalism, or spying by foreign adversaries, or reproductive rights, or AI deepfakes, or nonconsensual pornography, you’re worried about a problem rooted in the primitive, deplorable state of American privacy law.

It’s really impossible to overstate how bad the state of federal privacy law is in America. The last time the USA got a big, muscular, broadly applicable new consumer privacy law, the year was 1988, and the law was targeted at video-store clerks who leaked your VHS rental history.

It’s been a minute. America is long overdue for a strong, comprehensive privacy law. 

A new privacy law will help us with all those issues, and more. It would level the playing field between giants with troves of user data and startups who want to build something better. Such a law would keep competition from becoming a race to the bottom on user privacy.

Importantly, a strong privacy law will go a long way to improving the dismal state of competition in America’s ossified and decaying tech sector.

Take the tech sector’s relationship to the news media. The ad-tech duopoly has rigged the advertising market and takes $0.51 out of every advertising dollar. Without their vast troves of nonconsensually harvested personal data, Meta and Google wouldn’t be able to misappropriate billions from the publishers. Banning surveillance advertising wouldn’t just be good for our privacy - it would give publishers leverage to shift those billions back onto their own balance sheets. 

Undoing market concentration will require interoperability so that users can move from dominant services to new, innovative rivals without losing their data and relationships. The biggest challenge to interoperability? Privacy. Every time a user moves from one service to another, the resulting data-flows create risks for those users and their friends, families, customers and other social connections. Congress knows this, which is why every proposed interoperability law incorporates its own little privacy law. Privacy shouldn’t be an afterthought in a tech regulation. A standalone privacy law would give lawmakers the freedom to promote interoperability without having to work out a new privacy system for each effort.

That’s also true of Right to Repair laws: these laws are routinely opposed by tech monopolists who insist that giving Americans the right to choose their own repair shop or parts exposes them to privacy risks. It’s true that our devices harbor vast troves of sensitive information - but that doesn’t mean we should let Big Tech (or Big Car) monopolize repair. Instead, we should require everyone - both original manufacturers and independent repair shops - to honor your privacy.

America’s legal privacy vacuum is largely the result of the commercial surveillance industry’s lobbying power. Increasing competition in the tech sector won’t just help our privacy: it’ll also weaken tech’s lobbying power, which is a function of the vast profits that can be extracted in the absence of “wasteful competition” and the ease with which a concentrated sector can converge on a common lobbying position. 

That’s why EFF has urged the FTC and DOJ to consider privacy impacts when scrutinizing proposed mergers: not just to protect internet users from the harms of surveillance business models, but to protect democracy from the corrupting influence of surveillance cartels.

Privacy isn’t dead. Far from it. For a quarter of a century, would-be tech monopolists have been insisting that we have no privacy and telling us to “get over it.” The vast majority of the public wants privacy and will take it if offered, and grab it if it’s not.  

Whenever someone tells you that privacy is dead, they’re just wishcasting. What they mean is: “If I can convince you privacy is dead, I can make more money at your expense.”

Monopolists want us to believe that their power over our lives is inevitable and unchangeable, just as the surveillance industry banks on convincing you that the fight for privacy was and always will be a lost cause. But we once had a better internet, and we can get a better internet again. The fight for that better internet starts with privacy, a battle that we all want to win.