Harvard Law Professor Explains Why Felony Streaming Provisions Do Put Justin Bieber At Risk Of Jail

from the not-so-simple... dept

There's been a bit of a back and forth over whether or not S.978 in the Senate and the felony streaming provisions of SOPA in the House would, in fact, put Justin Bieber at risk of jailtime for uploading videos of himself covering songs without permission of the copyright holder. There appeared to be enough that was vague in both laws that it could be interpreted that way, and that seems quite troubling for a variety of reasons. First, you don't want something that lots of people do every day to suddenly become a felony. Second, any law that is vague enough that such a result might happen is a law that should not be passed. The Bieber risks jail meme got plenty of attention. However, defenders of the law swear up and down that this is ridiculous and the law does not, in fact, put Bieber at risk. Many people (especially in our comments) rely on recent law school grad Terry Hart's analysis, in which he dismisses the arguments of those who think Bieber is at risk. Hart's analysis got picked up by other sources, including Billboard, and now supporters of the bill insist that there is no debate here. Bieber is not at risk.

I felt that Hart's analysis was lacking, especially when it came to the issue of embedding videos. Hart mainly focuses on whether or not an upload is a public performance -- since the crux of these bills is that they're making certain forms of public performances felonies. But there's more going on than just the upload. Either way, when Harvard law professor Jonathan Zittrain appeared last week on Colbert, arguing about SOPA, he used the Bieber example, claiming that Bieber faced three years in jail, rather than the five that most people had been mentioning. In my post, I pointed this out, along with my thought that perhaps Bieber had to embed the video to be liable for the performance. Zittrain emailed me to discuss, and after going through the details with him, it appears that I was mistaken, and Zittrain's analysis makes a lot of sense. Hart's analysis, on the other hand, seems to be missing lots of key points. With permission, I'm publishing sections of our email discussion.

First, on the question of whether or not it's three years or five years, Zittrain points out that if you follow carefully the details of the bill (which is tricky, because SOPA amends two existing acts, and you have to keep track of what's pointing at what, and what language changes), it's likely Bieber faces three years for his first video upload. The issue is that within Section 201 of SOPA, it would change Section 506 of copyright law in a few ways. But the one that matters, is 17 USC 506(a)(1)(b), not (a)(1)(a). In case you don't want to track it down, (b), as a part of explaining criminal copyright infringement, notes that the following qualifies:

by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000...

This is what Bieber would be accused of doing. Then, if you look at the corresponding statute (Title 18, section 2319), the part that says five years, 17 USC 506(a)(1)(a), rather than 17 USC 506(a)(1)(b). The section that covers (b) (which is 18 USC 2319(c)(1)) says "shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both." Three years it is!

Well... except that if you then read the next section, 18 USC 2319(c)(2), you realize that 3 years may only count for one video. A second video could net him 6 years:

shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a);

Oops. Even worse than five years.

But what about Hart's mantra that Bieber has nothing to fear because an upload is not a performance. That analysis appears to be quite lacking. Zittrain notes that Hart appears to be talking about something different (the upload), rather than the act of causing it to be performed:

No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 17 USC 101:

To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.

Basically, by causing the infringing work to be performed, he could be very much liable under SOPA, contrary to Hart's analysis. As Zittrain noted later in our conversation, the real problem here is just how broadly this is drafted, because no matter what the true intentions may be, the fact that it very easily could be read this way is quite troubling. He notes that there is simply

no defense for broad drafting of a new felony in U.S. criminal law. When crafting a criminal statute with serious jail time at stake, it's incumbent on the legislators to properly narrow the scope of the law, rather than to write a really broad law and then count on prosecutorial discretion to ensure it isn't misapplied.

And that's really the key issue. The fact that you can construct a very credible argument that the law puts Bieber in jail... even if others can construct an argument that it doesn't is a huge problem in and of itself. Criminal law should not be open to such broad interpretations.

Filed Under: amy klobuchar, copyright, jonathan zittrain, justin bieber, streaming

Colbert Takes On SOPA

from the can-we-get-some-internet-policement dept

By the way, I wanted to embed the clips of Colbert's show in this post -- as is clearly allowed by the site. But because Viacom is crazy, they appear to set the embeds to autoplay as soon as you load up the page. And that's freaking annoying. I tried to find hidden variables to stop the autoplay... and nothing worked. So, sorry, no embeds. Meanwhile, Colbert: please, please, turn off autoplay, or at least make it an option. Thankfully, a few folks sent over the secret code to make it work...

Want to see just how mainstream the issues of SOPA and PROTECT IP are becoming? Last night they made it on to The Colbert Report, where he had a bit of a debate about SOPA, between record label owner Danny Goldberg and Harvard professor Jonathan Zittrain. It kicked off with a short segment, where Colbert explained the issue.

As a content provider, I am wholeheartedly against the infringement of copyright... so much so that I had that phrase trademarked and then I had it emblazoned on a Mickey Mouse doll

Which, of course, he then shows to the audience.

But the awesomest part? He quotes the famous $200 to $250 billion in losses claim that always gets thrown around... but then immediately says:

That is a shocking number. Especially when you realize the FBI admits it has "no record of source data or methodology for generating the estimates and that it cannot be corroborated." Now folks, that's what happens when the FBI buys bootleg reports off a card table in Chinatown.

Honestly, this might be the first time I've seen mainstream media -- and a Viacom-owned property, no less -- call out the bogus numbers for being bogus. He finishes by pointing out that YouTube, Twitter and Facebook could be in trouble under the law, and that people uploading infringing videos may face problems as well.

From there, he went into the debate. In his typical satirical way, he introduces Zittrain by claiming he was here to "defend thieves & pirates," and asks him "why do you want artists to starve?" Zittrain did a great job:

"I want artists to thrive. The internet allows artists to find their audiences. When Justin Bieber started singing his favorite songs on YouTube, he got discovered because of the internet. And the odd thing is, under this law, SOPA, the behavior of Justin Bieber, singing his favorite songs, without authorization, over the internet, could make him a felon, in jail for three years."

It's actually five, but close enough. Goldberg, of course, says this is all an exaggeration, and then claims (incorrectly) that the bill only targets foreign sites. Zittrain did note that there were different parts of the bill (but leaves out that many of them target US companies), but then makes the second key point, about how this law uses the same mechanism that China & Iran use to censor the internet there. To which Colbert replies: "I don't know about Iran, but China is kicking our ass in business right now. Wouldn't it be good for American business? Because if we shut down parts of the internet, won't people at work actually do the work they were hired for?"

Goldberg continues to play the "but something must be done" line, leading Colbert to make his alternative proposal: "What if the artist gets something from the company stealing from them? An eye for an iPod?" to which Goldberg says "it's a good line, but..." and Colbert points out, "it's an excellent line, not a good line" and then threatens to sue anyone who "steals" it.

Wasn't expecting much for an under 5 minute interview, but overall Zittrain did a great job, and got in a few key points. The Bieber point is a little exaggerated, because Bieber would have to do a few more things (such as embedding the videos on his own site), but the overall point he's getting at is clear: the bill is overreaching and will harm legitimate activities which artists rely on today.

Filed Under: copyright, danny goldberg, jonathan zittrain, justin bieber, pipa, protect ip, sopa, stephen colbert
Companies: viacom

Video Of Last Week's Thoughtful Discussion On Wikileaks

from the take-the-time-to-watch dept

Last week, I wrote about the fascinating panel discussion about Wikileaks I attended, which had Daniel Ellsberg (of Pentagon Papers fame), Clay Shirky, Roy Singham, Peter Thiel and Jonathan Zittrain. In the discussion, I noted that there really wasn't anyone on the panel who felt that Wikileaks was definitively "bad," which made some in the comments falsely assume that the panel just involved people all agreeing with each other. Thankfully, the video is now up (and embedded below) so you can see the full discussion for yourself. It's long -- nearly two hours -- but worth it. As you can see, the panel most certainly does not agree with each other, each of the participants raises thoughtful ideas and questions, with many being challenged by others. I thought it was a very productive and worthwhile discussion that should get people thinking a lot about how they view Wikileaks.

Filed Under: clay shirky, daniel ellsberg, discussion, jonathan zittrain, peter thiel, roy singham, wikileaks

Daniel Ellsberg And Others Discuss The Serious Implications Of Wikileaks

from the public-discourse-on-private-infrastructure dept

I'm not often a huge fan of panel discussions, since it's tough to get together enough people who really have something interesting to say. However, I was definitely intrigued by the lineup at The Churchill Club's event last night, entitled: WikiLeaks: Why it Matters. Why it Doesn't? The headliner on the panel, was clearly Daniel Ellsberg, of Pentagon Papers fame, who has been quite vocal about the Wikileaks situation, and outspoken in his support for both Bradley Manning and Julian Assange. However, the panel also included astute commentators on the modern tech, media and legal worlds: Clay Shirky, Jonathan Zittrain and Peter Thiel. This was clearly an A-list panel. The fifth member of the panel was Roy Singham, the founder and chair of ThoughtWorks, a company that sponsored the event -- which made me initially assume that he wouldn't have much interesting to say. This turned out to be wrong as he added quite a lot to the conversation. In fact, all five panelists added some valuable and thought-provoking insights.

What we got was a fascinating, nearly two-hour discussion, on a variety of issues related to Wikileaks, transparency, freedom of speech, politics and the law, which never got slow or boring. The event was streamed live, and the Churchill Club has promised to include the video on YouTube, so I'll post that video here as soon as it's up. While it's two hours long, I'd argue that it's well worth finding the time to watch the whole thing. I'd argue that Ellsberg's commentary is the highlight of the first hour, and Zittrain's commentary is the highlight of the second hour (in fact, I don't think he even spoke until almost an hour into the discussion). But the other three panelists all made some thought-provoking points as well.

Ellsberg kicked it off with a cogent analysis of the legal situation Wikileaks faces today. He noted that the US does not have an "Official Secrets Act," which would make revealing secrets illegal. In fact, he notes that while Congress passed one during the Clinton administration, President Clinton explicitly vetoed it. Instead, all we have is the Espionage Act, which is targeted at spies for foreign countries, not Americans leaking information to Americans. He points out that it's a huge stretch to make the Espionage Act cover leaking content, as it's clearly not designed to do that. However, he thinks that the Obama administration is going to try to do so, and he had an intriguing theory as to why. He notes that the Supreme Court has never actually tested the legality of criminal sanctions for leaking info, and that most previous Supreme Courts would have almost certainly rejected such an interpretation of the law. However, he's much less sure of the current Supreme Court, and he thinks the Obama administration is betting that the Supreme Court will back this questionable interpretation of the law.

He then explained his theory as to why Obama would do this, noting (fairly) that this is pure speculation on his part. He notes that despite all the talk about transparency that helped get President Obama voted into office, this administration has been much more secretive and involved in many more highly questionable acts than any previous administration. He noted that President Bush was involved in all sorts of questionable activities as well... but said that when push came to shove, President Bush was proud of his abuse of power, and happy to show it off when such stories leaked out. Obama, he feels, is actually quite embarrassed by his own abuse of power, and his response to such embarrassment is to try to keep stuff as secret as possible. It's as if he's declared war on whistleblowers who call attention to the things Obama is embarrassed about. Ellsberg notes that Obama has brought more indictments for leaking (five) than all other presidents (three) before. Thus, he's hoping that he can use the Espionage Act as a de facto Official Secrets Act, with which he can intimidate the press, and effectively force them to give up any leak sources to prevent future leaks. Abuse of power equals the quest for more secrecy.

Clay Shirky then spoke about the troubling nature of how we rely on the internet for public discourse, but that it's really privately owned, and how that puts tremendous pressure on guaranteeing that such speech will be in any way protected. He notes that, if you are looking to leak material, you should always leak it to an operation in a different country than the info is about, otherwise it makes it easy for the powers that be to pressure the private chokepoints to block the content. Peter Thiel then made an interesting point about the incredibly difficult position in which the heads of corporations are put in these situations. He notes that it's quite easy to say that you'd tell the government to take a hike if it called and said "stop hosting Wikileaks," but it's quite different to really be in that position. He claimed that the real issue is that the government simply has too much power, and that just by saying something, it can put tremendous pressure (much more than people realize) on companies to comply. He points out that the government has tremendous leverage, and mentions the stat that the average person "commits three felonies a day," and suggests that if the government wants, it can and will dig up such felonies to use against people. Thiel twice used the same joke that companies are to government like governments are to terrorists, claiming "we will never cave to terrorists/government... except in every single specific case."

Shirky pushed back on this point, noting that with a privately controlled internet, companies always have outs in their terms of service, that would let them dump any customer they don't like, and that was his main concern. However, Thiel got the better of Shirky in response by asking the audience how many people actually think Amazon dumped Wikileaks due to terms of service violations... or due to government pressure, and everyone agreed it was really government pressure. The terms of service issue is just an excuse to cover up the government pressure.

The discussion turned a bit to the players here, where Ellsberg noted that he has tremendous affinity for Bradley Manning, who is accused of leaking the cables to Wikileaks. Thankfully, the moderator pointed out that 2.5 million people had access to these documents -- a point that is often overlooked -- which suggests that others certainly could have leaked the info as well. Ellsberg also noted that he liked Julian Assange, though he believed Assange had made some mistakes -- but his real identification was with what Manning was going through, with politicians calling him a traitor and calling for his execution. History has mostly vindicated Ellsberg, but he notes that during the Pentagon Papers mess, it was not at all clear that would be the end result. Shirky tosses in a joke about how Assange is perfect for the press, in that he's "a monocle and a persian cat away from being a Bond villian," and notes how the NY Times put a massive attack piece on Assange on the front page at the same time as the first stories about the cable leaks -- and notes that no one did that with "Curveball," the source for Judith Miller's stories on WMDs in Iraq.

Ellsberg also notes that almost everything that Nixon got impeached for, through Presidential fiat, has now been declared legal -- something he finds very disturbing. He specifically calls out warrantless wiretapping (and later notes that Obama voted to give telcos retroactive immunity).

Later on (during the Q&A), Ellsberg made another salient point about Manning: According to international law, US officials are required to further investigate any claims of torture or any complicity in torture -- and Manning had tried to do that. As part of his job, he had discovered either that the US had tortured individuals, or handed them off to others to be tortured, and that was a violation of international law, which required him to investigate it. However, his superiors told him not to. Ellsberg's claim is that Manning was actually the only one who obeyed the law in this situation, and in exposing this issue, he was actually doing what the law required.

There was also a (slightly) heated debate between Zittrain and Thiel on the question of regulation. Thiel believed that less regulation would allow companies to act more independently of government, and Zittrain shot back that then you get situations like the BP oil rig. Thiel pointed out that the situations were entirely different. Zittrain summed it up by stating: "Who should I fear more: corporations or governments, because I just want to get my fears in order." That's actually a pretty good summary of much of the debate -- with the point being that both are issues, and focusing solely on one at the exclusion of the other would be a mistake.

Singham did a nice job talking about things like the massive abuse of gag orders on National Security Letters, and highlighted a group of librarians who stood up to the government, and noted Twitter's recent similar fight (though, he left out Nicholas Merrill who also stood up against a bogus gag order). However, Singham's most salient point was how Amazon's decision to shut down Wikileaks had much further reaching consequences than most people realized:

"What Amazon has done has totally set back the cloud computing movement."

As he pointed out, this move is making many individuals and companies think twice about using cloud computing -- especially if it involves servers based in the US or run by US companies. People haven't fully considered the ramifications of this.

Of course, I'd argue that Singham and the other panelists totally skipped over the other element of backlash here: the fact that much of this is spurring people into action to create distributed solutions that are more censorproof. I don't necessarily think this is a bad thing. If the response to this is to hold back a "cloud" system that is all about centralization, and instead promote a distributed cloud solution that has many fewer political and legal points of failure... that seems like it could be a good thing. Along those lines, Tim Bray pointed out that it was a bit disappointing that the panel was so US-focused, ignoring the fact that one of the key reasons why Wikileaks is still going strong is the fact that it's not in the US and can go elsewhere in the world. This is a really good point that was unfortunately not given any time at all in the discussion.

One other key thing that many people noted was lacking: no one on the panel was there to argue that Wikileaks was an unquestionably bad thing. Zittrain came the closest (but not that close) in suggesting that everyone had different roles to play, and that people like Senator Lieberman were simply using every power available him to make the case that Wikileaks was bad, suggesting this was his role to play, as it was others' roles to push back on that.

I'm a bit torn on whether or not the panel would have been better off with an anti-Wikileaks panelist. While it might have added more fireworks to the panel, I'd argue that the panel was plenty interesting as is, with lots of insightful points made and discussed. If there was someone on the panel who was anti-Wikileaks, most of the debate would have likely focused on the basic "Wikileaks good/Wikileaks bad" argument where neither side would have been convincing anyone who believed otherwise, and it would have diminished or drowned out completely the other more nuanced points that were made during the discussion.

All in all, I found the discussion to be fascinating to anyone interested in this subject. I wasn't quite sure what to expect going in, and I found that each of the panelists gave me something to think about -- often presenting things in a framework I hadn't really thought about. I didn't fully agree with any of the panelists on specific points, but all in all felt I learned a lot listening to the discussion, something that I rarely find to be true on panels. These notes only scratch the surface of what was said, so if you want to catch the whole thing, check out the video once it's available.

Filed Under: clay shirky, daniel ellsberg, jonathan zittrain, peter theil, roy singham, wikileaks
Companies: wikileaks

Open Sourcing A Disease Diagnosis

from the with-enough-eyes,-all-biological-bugs-are-shallow dept

If you follow Larry Lessig on Twitter, you noticed that all day Monday he was putting messages on Twitter about how "JZ" was sick and was trying to "open source" his diagnosis. This pointed to a blog that only referred to "JZ" as "Z" and had some basic info on the symptoms of "the patient." There were a series of blog posts, detailing some of the details of the sickness, tests that had been done, and some of the general questions that the doctors were trying to zone in on. It even included a list of possible diagnoses, crossing out the ones that had been ruled out. Relatively quickly, two separate readers came up with an obscure medical journal article from South Korea from 1994 "about heptatic mega-hemagionas and FUOs," which apparently quite accurately described the situation.

It didn't take long for people to realize that the JZ was Harvard professor Jonathan Zittrain, and once revealed, he put up a blog post of his own clarifying the situation, noting that they no longer needed help with the diagnosis, and everything sounds fine (what they diagnosed sounds treatable). He especially wanted to downplay the situation, and not create too much concern for his well-being or the need for any immediate help. The original blog where the details were being shared was taken down, and it now just points to Zittrain's own explanation.

It's great to hear that this worked out, and so rather than worrying about Jonathan, I thought it was interesting to think about this aspect of "open sourcing" a diagnosis. Obviously, when it comes to medical info, there are always serious privacy concerns, but this definitely does seem like a case where when there's confusion, more eyes and more brains can help. I'm reminded of the silly complaint often lodged against Wikipedia, that people wouldn't want brain surgery done by "a crowd," but by an expert. But, as has been noted over and over again, that presumes the crowd includes no experts, and that the real experts won't quickly establish themselves as such. On top of that, it ignores that once you have many different people -- some experts, some not -- you may get obscure or different perspectives that help lead to the important nugget of info you were seeking out, such as a medical journal article from Korea in 1994.

All this has me wondering if there's an opportunity out there for the medical profession to make more use of something like this, with patient consent, obviously. I know doctors converse informally all the time, but opening up some aspects of the diagnosis could be interesting. Of course, I also don't know how often situations like this occur, where the diagnosis is obscure enought that additional help might be useful, but it seems like an area that has possibilities.

Filed Under: confidentiality, crowd sourcing, jonathan zittrain, larry lessig, medicine

All-Star Witness List In Lawsuit Over Constitutionality Of RIAA Lawsuits

from the that's-quite-a-witness-list dept

Last month we had mentioned how Harvard Law professor Charles Nesson was taking on the RIAA's strategy of suing music uploaders by claiming that the laws the RIAA was relying on were unconstitutional. That case ("the Tenenbaum case") started moving forward this week, and the Associated Press had a story at the beginning of the week, which about fifty people submitted (with some angrily wondering why we hadn't written about it). We didn't write about it because it was basically the same story we had covered in October.

However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:

• John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
• Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
• Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
• Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
• Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
• Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
• Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
• Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
• Andrew Grant (former antipiracy specialist at DRM company Macrovision)

That is quite the all-star list. This case is going to be a fun one to watch.

Filed Under: andrew grant, charles nesson, john palfrey, john pouwelse, jonathan zittrain, larry lessig, matthew oppenheim, tenenbaum, terry fisher, wendy seltzer
Companies: riaa

Why Zittrain's Techno-Pessimism Is Unwarranted

from the no-worries dept

Ars Technica reviews Jonathan Zittrain's new book, The Future of the Internet and How to Stop It. Zittrain is by all accounts a smart guy and an engaging speaker, and it sounds like his book makes a lot of worthwhile points about the importance of open, "generative" technologies. But I just can't get worked up about Zittrain's warnings that the dominance of open systems is a fragile, temporary thing. It seems to me that there's a basic tension at the heart of Zittrain's argument. On the one hand, he argues (correctly in my view) that open platforms are better for innovation because of their lower barriers to entry. On the other hand, he wants us to believe that despite that inherent advantage, open technologies are on the brink of being eclipsed by closed platforms like the iPhone.

I think this misses a couple of important points. In the first place, I think Zittrain draws the wrong lessons from history. Zittrain himself notes that until the 1990s, the world was full of proprietary networking technologies and computing platforms that had big advantages over open technologies like TCP/IP, Unix, and the mostly-open PC platform. Open technologies had a few advantages of their own -- most notably government support of TCP/IP -- but open platforms were definitely the underdogs in many respects. And then, of course, the open platforms utterly destroyed the closed ones. Almost everyone now uses TCP/IP, while AOL is now little more than a mediocre website. Virtually all desktops and laptops -- including Macs and a lot of Unix workstations -- now largely share a common architecture. And almost every operating system not made by Microsoft is built on some versian of Unix.

Zittrain would have us regard all of this as some kind of fluke or lucky break, that the whole thing could come crashing down at any minute. But I think it's evidence that better technologies tend to win out in the marketplace. TCP/IP beat out AOL and other proprietary services precisely because open architectures enable more innovation. And once an open architecture comes to dominate a given market, it becomes harder, not easier for a proprietary product to displace it, because network effects create tremendous intertia on behalf of established open standards. I'm hard pressed to come up with any examples of a well-established open standard getting displaced by a closed one. Rather, what tends to happen is that new, proprietary technologies tend to get built on top of open ones. The top layers of the iPhone software stack may be closed, but it's built on TCP/IP, HTTP, and a host of other open standards.

It doesn't, therefore, make sense to view the iPhone as a threat to "generativity." The iPhone itself may not be "generative," but it's built on the same open standards as more open devices. That means that growing the iPhone market is a net positive for openness overall. True, people who buy an actual iPhone aren't getting the full advantage of generativity, but they are helping to further entrench TCP/IP and the web, platforms on which other more generative technologies can thrive alongside the iPhone. Moreover, if Zittrain is right that open platforms promote more innovation, which I think he is, then we should expect the same thing to happen at the top of the stack as happened at lower layers of the stack: over time, open mobile platforms like Android should enjoy more innovation than closed platforms like the iPhone, and the former should gradually displace the latter. Consumers tend to choose more open platforms over time not because consumers care about "generativity," per se, but because they want the phone with the best software, and open platforms tend to get the best software over time. And smart companies will tend to open up their platforms over time, lest competitors leapfrog them with a more open product. Indeed, as Mike pointed out a few days ago, that's already happening with Nokia's decision to open source its Symbian operating system.

Filed Under: closed, jonathan zittrain, open