Again, It’s Really Hard to Bottle Up Digital Generativity / Openness

by on April 8, 2011 · 17 comments

There’s a nice piece of reporting from Ian Shapira in today’s Washington Post entitled, “Once the Hobby of Tech Geeks, iPhone Jailbreaking Now a Lucrative Industry.” In the article, Shapira documents the rise of independent, unauthorized Apple apps (especially tethering apps) and points out that what was once a small black market has now turned into a booming, maturing business sector in its own right.  In fact, Sharpia notes, there are already “market leaders” in the field:

At the top of the jailbreaking hierarchy sits Jay Freeman, 29, the founder and operator of Cydia, the biggest unofficial iPhone app store, which offers about 700 paid designs and other modifications out of about 30,000 others that are free. Based out of an office near Santa Barbara, Calif., Freeman said Cydia, launched in 2008, now earns about $250,000 after taxes in profit annually. He just hired his first full-time employee from Delicious, the Yahoo-owned bookmarking site, to improve Cydia’s design. “The whole point is to fight against the corporate overlord,” Freeman said. “This is grass-roots movement, and that’s what makes Cydia so interesting. Apple is this ivory tower, a controlled experience, and the thing that really bought people into jailbreaking is that it makes the experience theirs.”

In another sign this black market is now going mainstream, advertisers are apparently flocking to it:

In what might be the ultimate sign that the jailbreak industry is losing its anti-establishment character, Toyota recently offered a free program on Cydia’s store, promoting the company’s Scion sedan. Once installed, the car is displayed on the background of the iPhone home screen, and the iPhone icons are re-fashioned to look like the emblem on the front grill.

Interestingly, however, some people now complain that Cydia is getting too big for its britches and has come to be “as domineering as Apple is in the non-jailbreak world.”  What delicious irony! Yet, I do not for one minute believe that Cydia has any sort of “lock” on the “unlocking” marketplace. This is an insanely dynamic sector that is subject to near-constant fits of disruptive technological change.

Anyway, I feel a bit vindicated when I read articles like Shapira’s since I have spent the last few years pushing back against the theories set forth by various scholars, such as Jonathan Zittrain and Tim Wu, who claim that online openness or “generativity” are dying.  They often cite Apple as the big, bad boogeyman of closed code and claim that Steve Jobs is hellbent on destroying digital generativity and the open Internet as we know it.

Of course, it is certainly true that Jobs and Apple prefer a more “closed” model that grants them more control over their products, such as the iPhone and iPad. And they make some good arguments why a certain amount of control is a good thing. It helps to have a more standardized platform for developers, for example, by avoiding fragmentation. A certain degree of control can also help to crack down on malicious apps in the App Store. And without a certain amount of control it becomes hard to honor warranties when phones or apps break.

Despite those excuses, Apple is still just a bit too domineering for some of us.  I don’t own any of their products.  Never have; never will. If it’s not tinker-friendly right out of the box, it’s just not for me.  I cannot even begin to count how many times I have rooted and installed new ROMs on my Droid OG.  (Thank You CyanogenMod!) And I bricked my last Windows Mobile 6 phone after repeated hacking.

And, yet, Apple is still wildly successful and has millions of extremely happy customers who — for reasons that still boggle my mind — are willing to line up in the wee hours of the cold morning around the block in front Apple Stores to get their hands on the latest goodies the company has to offer.  (Seriously, what is wrong with you people!)

But this gets back to the point I have reiterated in my debates with Zittrain, Wu, and the other “openness evangelicals”: Even if I share their general love of more “open” and “generative” platforms or devices, there’s no reason to be nearly as worried as they are about them “dying.”  And there’s certainly no need for drastic action, especially of a regulatory nature, to work this out.  The market for openness is working marvelously. Innovation continues to unfold rapidly in both directions along the “open” vs. “closed” continuum. Moreover, there certainly isn’t any shortage of digital “generativity” taking place on both open and closed platforms today. Again, even though Jobs and Apple try to control their platform and App Store, some amazingly generative things are happening there every day and consumers absolutely adore their Apple devices.

Anyway, I discussed all these issues in much greater detail in my chapter on “The Case for Internet Optimism, Part 2 - Saving the Net From Its Supporters,” which was included in the book, The Next Digital Decade: Essays on the Future of the Internet (2011). Simply stated, things are getting more open all the time and there’s just no putting the generativity genie back in the bottle.  Here’s a short section that appears on page 149 of the book related to the issues discussed here:

______________________

Things Are Getting More Open All the Time Anyway

Most corporate attempts to bottle up information or close off their platforms end badly.  The walled gardens of the past failed miserably.  In critiquing Zittrain’s book, Ann Bartow has noted that “if Zittrain is correct that CompuServe and America Online (AOL) exemplify the evils of tethering, it’s pretty clear the market punished those entities pretty harshly without Internet governance-style interventions.”[1] Indeed, let’s not forget that AOL was the big, bad corporate boogeyman of Lessig’s Code and yet, just a decade later, it has been relegated to an also-ran in the Internet ecosystem.

There are few reasons to believe that today’s efforts to build such walled gardens would end much differently.  Indeed, increasingly when companies or coders erect walls of any sort, holes form quickly. For example, it usually doesn’t take long for a determined group of hackers to find ways around copy/security protections and “root” or “jailbreak” phones and other devices.[2] Once hacked, users are usually then able to configure their devices or applications however they wish, effectively thumbing their noses at the developers.   This process tends to unfold in a matter of just days, even hours, after the release of a new device or operating system.

Number of Days Before New Devices Were “Rooted” or “Jailbroken”[3]

original iPhone 10 days
original iPod Touch 35 days
iPhone 3G 8 days
iPhone 3GS 1 day
iPhone 4 38 days
iPad 1 day
T-Mobile G1 (first Android phone) 13 days
Palm Pre 8 days

Of course, not every user will make the effort—or take the risk[4]—to hack their devices in this fashion, even once instructions are widely  available for doing so.  Nonetheless, even if copyright law might sometimes seek to restrict it, the hacking option still exists for those who wish to exercise it.  Moreover, because many manufacturers know their devices are likely to be hacked, they are increasingly willing to make them more “open” right out of the gates or offer more functionality/flexibility to make users happy


[1] Bartow, supra note 17 at 1088, www.michiganlawreview.org/assets/pdfs/108/6/bartow.pdf

[2] “In living proof that as long as there’s a thriving geek fan culture for a device, it will never be long for the new version to be jailbroken: behold iOS 4.1. Most people are perfectly willing to let their devices do the talking for them, accept what’s given, and just run sanctioned software. But there are those intrepid few—who actually make up a fairly notable portion of the market—who want more out of their devices and find ways around the handicaps built into them by the manufacturers.” Kit Dotson, New iOS for Apple TV Firmware Released, Promptly Decrypted, SiliconAngle, Sept. 28, 2010, http://siliconangle.com/blog/2010/09/28/new-ios-for-apple-tv-firmware-released-promptly-decrypted

[3] Original research conducted by author and Adam Marcus based on news reports.

[4] Rooting or jailbreaking a smartphone creates the risk of “bricking” the device—rendering it completely inoperable (and thus no more useful than a brick). Additionally, hacking devices in this fashion typically voids any manufacturer warranty.

  • Anonymous

    And, yet, Apple is still wildly successful and has millions of extremely happy customers who — for reasons that still boggle my mind — are willing to line up in the wee hours of the cold morning around the block in front Apple Stores to get their hands on the latest goodies the company has to offer. (Seriously, what is wrong with you people!)

    The power of branding is something else. I’ve never understood it myself, since I’d much rather have a more powerful tablet that’s open to more applications.

    That said, the fact that they’ve managed to develop a large, fanatical following that will purchase their hardware religiously is simply ingenious in an era where information is so easily distributed and duplicated that basing your business around it is dangerous.

  • http://twitter.com/binarybits Timothy Lee

    And there’s certainly no need for drastic action, especially of a regulatory nature, to work this out. The market for openness is working marvelously.

    Adam, what about the DMCA? My reading of section 1201 says that Cydia is guilty of a felony, and that Jay Freeman could get up to 5 years in prison for his actions. If Cydia is a great example of the market at work, then shouldn’t Congress reform those provisions of copyright law? It seems likely that Cydia would be a much larger and more successful product if it didn’t have this legal cloud hanging over it.

  • http://www.techliberation.com Adam Thierer

    I’m certainly open to reforming DMCA to make sure innovations like this are clearly permissible, but don’t you think last summer’s Library of Congress exemption on jailbreaking already blessed stuff like Cydia to some extent? Again, legislative clarity would be preferable to guessing as to LoC intent.

  • http://twitter.com/binarybits Timothy Lee

    No the LoC exemption only applies to one of the two circumvention activities, and doesn’t apply at all to trafficking and circumvention tools.

    But more to the point, why should a government bureaucrat at the LoC get to decide which innovations are permissible?

  • http://twitter.com/binarybits Timothy Lee

    No the LoC exemption only applies to one of the two circumvention activities, and doesn’t apply at all to trafficking and circumvention tools.

    But more to the point, why should a government bureaucrat at the LoC get to decide which innovations are permissible?

  • http://www.techliberation.com Adam Thierer

    The last time I put much thought — and it wasn’t much — into the DMCA issues here it was back in 2006 exchange we had on the issue (http://techliberation.com/2006/11/16/my-drm-agnosticism-indifference-toward-media-format-compatibility/) where I said:

    “I am not in favor of the DMCA’s anti-circumvention provisions. I believe consumers should be at liberty to evade certain control measures so long as they do not engage in widespread illegal distribution of the content after they do so.”

    That would still pretty much be my normative position on the issue, but I know there are devilish details to be worked out.

  • Ryan Radia

    DRM circumvention tools should be lawful, although their makers should be liable for secondary copyright infringement if their tools willfully designed to facilitate copyright infringement.

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  • http://twitter.com/binarybits Timothy Lee

    Glad to hear it! I wish you’d make a point of saying so explicitly when you write posts lauding services that are probably illegal under the DMCA.

  • http://www.cyber-punk.cz.cc/ ShadowRunner

    DRM should never be lawful, nobody should tell me what to do with MY property that I paid for.

  • http://www.cyber-punk.cz.cc/ ShadowRunner

    AHH you speak of the cool factor that microsoft has never been able to duplicate(except maybe with Xbox).

  • http://twitter.com/binarybits Timothy Lee

    Right. As I wrote for Cato a few years ago, the pre-DMCA copyright caselaw, and specifically the secondary liability doctrines, is a much better, common-law oriented, way to deal with circumvention issues than the clumsy regulatory approach of section 1201.

  • http://twitter.com/binarybits Timothy Lee

    If a company wants to design its product in a way that makes copying inconvenient that’s their business. You should be free to circumvent or buy another product, but the government shouldn’t be in the business of dictating product designs to businesses.

  • http://www.cyber-punk.cz.cc/ ShadowRunner

    I’m sure the government would have something to say if they sold cars with the hood welded shut. basically once someone pays for something it should be theirs to do with what they wish.
    DRM is like ford telling you that you can only park your car in one type of garage.

  • Ryan Radia

    Posner and Landes argue in their excellent book on the economic structure of intellectual property that if DRM technologies were to become excessively difficult for users to circumvent, we might want to consider forbidding it (or at least limiting its uses) as a condition of copyright. However, given how futile most modern DRM schemes have been — in spite 17 USC 1201 — I don’t think the case for government limiting DRM at this point is particularly strong.

  • http://www.cyber-punk.cz.cc/ ShadowRunner

    In that case the government should not be involved at all including prosecuting those accused of circumventing DRM. the RIAA and the MPAA are a menace and the government should not play as their personal police force. Microsoft can scream piracy all they want but they created the black market themselves. openness is the only way to end these evils. closed proprietary ways of doing things helps nobody especially not the end user.

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