Copyright Misuse and Modified Copyleft: New Solutions to the Challenges of Internet Standardization

The Internet is a truly global community within which myriad economic, social and technological forces interplay to cause its standardization. Much of the competition in the industry has revolved around which product will become the standard for a given market sector. Some markets have seen victors; for example, TCP/IP is the Internet communication protocol, MP3 appears to be dominating music compression, and Microsoft Corporation’s Windows (“Windows”) is clearly the standard operating system. Similarly, the Internet must adopt a standard for web browsing and searching, for email, and for web programming. In many cases, the competition for this standard will be fierce, because the winner likely will have intellectual property rights in the technology and hence reap a significant reward. Such incentives often are needed for the development of objectively good standards. Yet, as a consequence of granting intellectual property rights, a monopoly is created in a product that Internet users need. Once an Internet technology becomes a standard, how can the owner of the corresponding copyright be prevented from extracting monopoly rents and thereby negating the increase in consumer welfare that the standard created?