August 17, 2018

The Perpetual Peril of Open Platforms

Over at Techdirt, Mike Masnick did a great post a few weeks back on a theme I’ve written about before: peoples’ tendency to underestimate the robustness of open platforms.

Once people have a taste for what that openness allows, stuffing it back into a box is very difficult. Yes, it’s important to remain vigilant, and yes, people will always attempt to shut off that openness, citing all sorts of “dangers” and “bad things” that the openness allows. But, the overall benefits of the openness are recognized by many, many people — and the great thing about openness is that you really only need a small number of people who recognize its benefits to allow it to flourish.

Closed systems tend to look more elegant at first — and often they are much more elegant at first. But open systems adapt, change and grow at a much faster rate, and almost always overtake closed systems, over time. And, once they overtake the closed systems, almost nothing will allow them to go back. Even if it were possible to turn an open system like the web into a closed system, openness would almost surely sneak out again, via a new method by folks who recognized how dumb it was to close off that open system.

Predictions about the impending demise of open systems have been a staple of tech policy debates for at least a decade. Larry Lessig’s Code and Other Laws of Cyberspace is rightly remembered as a landmark work of tech policy scholarship for its insights about the interplay between “East Coast code” (law) and “West Coast code” (software). But people often forget that it also made some fairly specific predictions. Lessig thought that the needs of e-commerce would push the Internet toward a more centralized architecture: a McInternet that squeezed out free speech and online anonymity.

So far, at least, Lessig’s predictions have been wide of the mark. The Internet is still an open, decentralized system that allows robust anonymity and free speech. But the pessimistic predictions haven’t stopped. Most recently, Jonathan Zittrain wrote a book predicting the impending demise of the Internet’s “generativity,” this time driven by security concerns rather than commercialization.

It’s possible that these thinkers will be proven right in the coming years. But I think it’s more likely that these brilliant legal thinkers have been mislead by a kind of optical illusion created by the dynamics of the marketplace. The long-term trend has been a steady triumph for open standards: relatively open technologies like TCP/IP, HTTP, XML, PDF, Java, MP3, SMTP, BitTorrent, USB, and x86, and many others have become dominant in their respective domains. But at any given point in time, a disproportionate share of public discussion is focused on those sectors of the technology industry where open and closed platforms are competing head-to-head. After all, nobody wants to read news stories about, say, the fact that TCP/IP’s market share continues to be close to 100 percent and has no serious competition. And at least superficially, the competition between open and closed systems looks really lopsided: the proprietary options tend to be supported by large, deep-pocketed companies with large development teams, multi-million dollar advertising budgets, distribution deals with leading retailers, and so forth. It’s not surprising that people so frequently conclude that open standards are on the verge of getting crushed.

For example, Zittrain makes the iPhone a poster child for the flashy but non-generative devices he fears will come to dominate the market. And it’s easy to see the iPhone’s advantages. Apple’s widely-respected industrial design department created a beautiful product. Its software engineers created a truly revolutionary user interface. Apple and AT&T both have networks of retail stores with which to promote the iPhone, and Apple is spending millions of dollars airing television ads. On first glance, it looks like open technologies are on the ropes in the mobile marketplace.

But open technologies have a kind of secret weapon: the flexibility and power that comes from decentralization. The success of the iPhone is entirely dependent on Apple making good technical and business decisions, and building on top of proprietary platforms requires navigating complex licensing issues. In contrast, absolutely anyone can use and build on top of an open platform without asking anyone else for permission, and without worrying about legal problems down the line. That means that at any one time, you have a lot of different people trying a lot of different things on that open platform. In the long run, the creativity of millions of people will usually exceed that of a few hundred engineers at a single firm. As Mike says, opens systems adapt, change and grow at a much faster rate than closed ones.

Yet much of the progress of open systems tends to happen below the radar. The grassroots users of open platforms are far less likely to put out press releases or buy time for television ads. So often it’s only after an open technology has become firmly entrenched in its market—MySQL in the low-end database market, for example—that the mainstream press starts to take notice of it.

As a result, despite the clear trend toward open platforms in the past, it looks to many people like that pattern is going to stop and perhaps even be reversed. I think this illusion is particularly pronounced for folks who are getting their information second- or third-hand. If you’re judging the state of the technology industry from mainstream media stories, television ads, shelf space at Best Buy, etc, you’re likely not getting the whole story. It’s helpful to remember that open platforms have always looked like underdogs. They’re no more likely to be crushed today than they were in 1999, 1989, or 1979.

Predictions for 2009

Here are our predictions for 2009. These are based on input from Andrew Appel, Joe Calandrino, Will Clarkson, Ari Feldman, Ed Felten, Alex Halderman, Joseph Lorenzo Hall, Tim Lee, Paul Ohm, David Robinson, Dan Wallach, Harlan Yu, and Bill Zeller. Please note that individual contributors (including me) don’t necessarily agree with all of these predictions.

(1) DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly.

(2) Patent reform legislation will come closer to passage in this Congress, but will ultimately fail as policymakers wait to determine the impact of the Bilski case’s apparent narrowing of business model patentability.

(3) As lawful downloading of music and movies continues to grow, consumer satisfaction with lossy formats will decline, and higher-priced options that offer higher fidelity will begin to predominate. At least one major online music service will begin to offer music in a lossless format.

(4) The RIAA’s “graduated response” initiative will sputter and die because ISPs are unwilling to cut off users based on unrebutted accusations. Lawsuits against individual end-user infringers will quietly continue.

(5) The DOJ will bring criminal actions against big-time individual copyright infringers based on data culled from the server logs of a large “private” BitTorrent community.

(6) Questions over the enforceability of free / open source software licenses will move closer to resolution.

(7) NebuAd and the regional ISPs recently sued for deploying NebuAd’s advertising system will settle with the class action plantiffs for an undisclosed sum. At least in part because of the lawsuit and settlement, no U.S. ISP will deploy a new NebuAd/Phorm-like system in 2009. Meanwhile, Phorm will continue to be successful with privacy regulators in the UK and will sign up reluctant ISPs there who are facing competitive pressure. Activists will raise strong objections to no avail.

(8) The federal Court of Appeals for the Ninth Circuit will hear oral argument in the case of U.S. v. Lori Drew, the Megan Meier/MySpace prosecution. By year’s end, the Ninth Circuit panel still will not have issued a decision, although after oral argument, the pundits will predict a 3-0 or 2-1 reversal of the conviction.

(9) As a result of the jury’s guilty verdict in U.S. v. Lori Drew, dozens of plaintiffs will file civil lawsuits in 2009 alleging violations of the federal Computer Fraud and Abuse Act premised on the theory that one can “exceed authorized access” or act “in excess of authorization” by violating Terms of Service. Thankfully, the Department of Justice won’t bring any other criminal cases premised on this theory, at least not until it sees how the Ninth Circuit rules.

(10) The Computer Fraud and Abuse Act (CFAA) will be the new DMCA. Many will argue that the law needs to be reformed, but this argument will struggle to gain traction with the lay public, notwithstanding the fact that lay users face potential liability for routine behaviors due to CFAA overbreadth.

(11) An academic security researcher will face prosecution under the CFAA, anti wire tapping laws, or other computer intrusion statutes for violations that occurred in the process of research.

(12) An affirmative action lawsuit will be filed against a university, challenging the use of a software algorithm used in evaluating applicants.

(13) There will be lots of talk about net neutrality but no new legislation, as everyone waits to see how the Comcast/BitTorrent issue plays out in the courts.

(14) The Obama administration will bring an atmosphere of antitrust enforcement to the IT industry, but no major cases will be brought in 2009.

(15) The new administration will be seen as trying to “reboot” the FCC.

(16) One of the major American voting system manufacturers (Diebold/Premier, Sequoia, ES&S, or Hart InterCivic) will go out of business or be absorbed into one of its rivals.

(17) The federal voting machine certification regime will increasingly be seen as a failure. States will strengthen their own certification processes, and at least one major state will stop requiring federal certification. The failure of the federal process to certify systems or software patches in a timely fashion will be cited as a reason for this move.

(18) Estonia and other countries will continue experimenting in real elections with online or mobile phone voting. They will claim that these trials are successful because “nothing went wrong.” Security analysts will continue to claim that these systems are fundamentally flawed and will continue to be ignored. Exactly the same thing will continue to happen with U.S. overseas and military voters.

(19) We’ll see the first clear-cut evidence of a malicious attack on a voting system fielded in a state or local election. This attack will exploit known flaws in a “toe in the water” test and vendors will say they fixed the flaw years ago and the new version is in the certification pipeline.

(20) U.S. federal government computers will suffer from at least one high-profile compromise by a foreign entity, leaking a substantial amount of classified or highly sensitive information abroad.

(21) There will be one or more major Internet outages attributed to attacks on DNS, BGP, or other Internet plumbing that is immediately labeled an act of “cyber-warfare” or “cyber-terrorism.” The actual cause will be found to be the action of spammers or other professional Internet miscreants.

(22) Present flaws in the web’s Certification Authority process, such as the MD5 issue or the leniency of some CAs in issuing certificates, will lead to regulation of the CA process. Among other things, there will be calls for restrictions on which CAs can issue certs for which Top Level Domains.

(23) One or more major Internet services or top-tier network providers will experience prolonged failures and/or unrecoverable data severe enough that the company’s president ends up testifying before Congress about it.

(24) Shortly after the start of the new administration, the TSA will quietly phase out the ban on flying with liquids or stop enforcing it in practice. The color-coded national caution levels (which have remained at “orange” forever) will be phased out.

(25) All 20 of the top 20 U.S. newspapers by circulation will experience net reductions in their newsroom headcounts in 2009. At least 15 of the 20 will see weekday circulation decline by 15% or more over the course of the year. By the end of the year, at least one major U.S. city will lack a daily newspaper.

(26) Advertising spending in older media will plummet, but online ad spending will be roughly level, as advertisers warm to online ads whose performance is more easily measured. Traditional media will be forced to offer advertisers fire sale prices, and the ratio of content to advertising in many traditional media outlets will increase.

(27) An embarrassing leak of personal data will emerge from one or more of the social networking firms (e.g., Facebook), leading Congress to consider legislation that probably won’t solve the problem and will never actually reach the floor for a vote.

(28) Facebook will be sold for $4 billion and Mark Zuckerberg will step down as CEO.

(29) Web 2.0 startups will not be hammered by the economic downtown. In fact, web 2.0 innovation may prove to be countercyclical. Costs are controllable: today’s workstyles don’t require lavish office space, marketing can be viral, and pay-as-you-go computing services eliminate the need for big upfront investments in infrastructure. Laid off big-company workers and refugees from the financial world will keep skilled wages low. The surge in innovation will be real, but its effects will mostly be felt in future years.

(30) The Blu-ray format will increasingly be seen as a failure as customers rely more on online streaming.

(31) Emboldened by Viacom’s example against Time Warner, TV network owners will increasingly demand higher payments from cable companies with the threat of moving content online instead. Cable companies will attempt to more heavily limit the content that network owners can host on Hulu and other sites.

(32) The present proliferation of incompatible set-top boxes that aim to connect your TV to the Internet will lead to the establishment of a huge industry consortium with players from three major interest groups (box builders, content providers, software providers), reminiscent of the now-defunct SDMI consortium, and with many of the same members. In 2009, they will generate a variety of press releases but will accomplish nothing.

(33) A hot Christmas item will be a cheap set-top box that allows normal people to download, organize, and view video and audio podcasts in their own living rooms. This product will work with all of the major free online sources of audio and video, and a few of the paid sources.

(34) Internet Explorer’s usage share will fall below 50 percent for the first time in a decade, spurred by continued growth of Firefox and Safari and deals with OEMs to pre-load Google Chrome.

(35) Somebody besides Apple will sell an iPod clone that’s a drop-in replacement for a real iPod, complete with support for iTunes DRM, video playback, and so forth. Apple will sue (or threaten to sue), but won’t be able to stop distribution of this product.

(36) Apple will release a netbook, which will be a souped-up iPhone with an 8″ screen and folding keyboard. It will sell for $899.

(37) No white space devices will be approved for use by the FCC. Submitted spectrum sensing devices will fare well in both laboratory and field tests, but approval will be delayed politically by the anti-white space lobby.

(38) More and more Internet traffic will encrypted, as concern grows about eavesdropping, content modification, filtering, and security attacks.

Feel free to offer your own predictions in the comments.

2008 Predictions Scorecard

As usual, we’ll kick off the new year by reviewing the predictions we made for the previous year. Here now, our 2008 predictions, in italics, with hindsight in ordinary type.

(1) DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly.

We predict this every year, and it’s always right. This prediction is so obvious that it’s almost unfair to count it. Verdict: right.

(2) Copyright issues will still be gridlocked in Congress.

We could predict this every year, and it would almost always be right. History teaches that it usually takes a long time to build consensus for any copyright changes. Verdict: right.

(3) No patent reform bill will be passed. Baby steps toward a deal between the infotech and biotech industries won’t lead anywhere.

Verdict: right.

(4) DRM-free sales will become standard in the music business. The movie studios will flirt with the idea of DRM-free sales but won’t take the plunge, yet.

This was basically right. DRM-free music sales are much more common than before. Whether they’re “standard” is a matter for debate. The movie studios haven’t followed the record industry, yet. Verdict: mostly right.

(5) The 2008 elections will not see an e-voting meltdown of Florida 2000 proportions, but a bevy of smaller problems will be reported, further fueling the trend toward reform.

As predicted, there was no meltdown but we did see a bevy of smaller problems. Whether this fueled the trend toward reform is debatable. The problems that did occur tended to be ignored because the presidential election wasn’t close. Verdict: mostly right.

(6) E-voting lawsuits will abound, with voters suing officials, officials suing other officials, and officials suing vendors (or vice versa).

There were some lawsuits, but they didn’t “abound”. Verdict: mostly wrong.

(7) Second Life will jump the shark and the cool kids will start moving elsewhere; but virtual worlds generally will lumber on.

Second Life seems to have lost its cool factor, but then so have virtual worlds generally. Still, they’re lumbering on. Verdict: mostly right.

(8) MySpace will begin its long decline, losing customers for the first time.

I haven’t seen data to confirm or refute this one. (Here’s one source.) Comscore said that Facebook passed MySpace in user share, but that doesn’t imply that MySpace decreased. Verdict: unknown.

(9) The trend toward open cellular data networks will continue, but not as quickly as optimists had hoped.

This one is hard to call. The growth of Android and iPhone unlocking would seem to be steps toward open cellular data networks, but the movement has not been rapid. Verdict: mostly right.

(10) If a Democrat wins the White House, we’ll hear talk about reinvigorated antitrust enforcement in the tech industries. (But of course it will all be talk, as the new administration won’t take office until 2009.)

Verdict: right.

(11) A Facebook application will cause a big privacy to-do.

There were Facebook privacy issues, but mostly about non-application issues. Overall, interest in Facebook apps declined during the year. Verdict: mostly wrong.

(12) There will be calls for legislation to create a sort of Web 2.0 user’s bill of rights, giving users rights to access and extract information held by sites; but no action will be taken.

Verdict: right.

(13) An epidemic of news stories about teenage webcam exhibitionism will lead to calls for regulation.

Verdict: wrong.

(14) Somebody will get Skype or a similar VoIP client running on an Apple iPhone and it will, at least initially, operate over AT&T’s cellular phone network. AT&T and/or Apple will go out of their way to break this, either by filtering the network traffic or by locking down the iPhone.

Various VoIP clients did run on the iPhone. Apple said they would allow this over conventional WiFi networks but intended to prevent it on the cellular network, presumably by banning from the iPhone App Store any application that provided VoIP on the cell network. Verdict: right.

Our final scorecard: six right, four mostly right, two mostly wrong, one wrong, one unknown.

Stay tuned for our 2009 predictions.