Open Source, Open Standards & Peer Production

jailbroken phone graphicThe Digital Millenium Copyright Act makes it a crime to circumvent digital rights management technologies but allows the Librarian of Congress to exempt certain classes of works from this prohibition.

The Copyright Office just released a new rulemaking on this issue in which it allows people to “unlock” their cell phones so they can be used on other networks and “jailbreak” closed mobile phone operating systems like the iOS operating system on Apple’s iPhones so that they will run unapproved third-party software.

This is arguably good news for consumers: Those willing to void their warranties so they can teach their phone some new tricks no longer have to fear having their phone confiscated, being sued, or being imprisoned. (The civil and criminal penalties are described in 17 USC 1203 and 17 USC 1204.) Although the new exemption does not protect those who distribute unlocking and/or jailbreaking software (which would be classified under 17 USC 1201(b), and thus outside the exemption of 17 USC 1201(a)), the cases discussed below could mean that jailbreaking phones simply falls outside of the scope of all of the DMCA’s anti-circumvention provisions.

Apple opposed this idea when it was initially proposed by the Electronic Frontier Foundation, arguing that legalizing jailbreaking constituted a forced restructuring of its business model that would result in “significant functional problems” for consumers that could include “security holes and malware, as well as possible physical damage.” But who beyond a small number of geeks brave enough to give up their warranties and risk bricking their devices, is really going to attempt jailbreaking? One survey found that only 10% of iPhone users have jailbroken their phones, and the majority are in China, where the iPhone was not available legally until recently. Is it really likely that giving the tinkering minority the legal right to void their product warranties would cause any harm to the non-tinkering majority that will likely choose to instead remain within a manufacturer’s “walled garden“? I don’t think so. If, as a result of this ruling, large numbers of consumers jailbreak their phones and install pirated software, the Copyright Office can easily reconsider the exemption in its next Triennial Rulemaking.

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On the podcast this week, Eric Frank, co-founder and president of Flat World Knowledge, the leading publisher of commercial, openly licensed college textbooks, discusses the company and its business model, which he compares to that of Red Hat. In the podcast Frank addresses moral hazards of the traditional college textbook publishing model, the company’s genesis, products and services it offers, how it makes money, and why it appeals to students, professors, and authors.

Related Readings

Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included Clay Shirky on cognitive surplus, Nick Carr on what the internet is doing to our brains, Gina Trapani and Anil Dash on crowdsourcing, James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, Tom Hazlett on spectrum reform, and Tyler Cowen on just about everything.

So what are you waiting for? Subscribe!

On this week’s episode of the podcast, Clay Shirky, adjunct professor at New York University’s Interactive Telecommunications Program, discusses his new book, Cognitive Surplus: Creativity and Generosity in a Connected Age. Shirky talks about social and economic effects of Internet technologies and interrelated effects of social and technological networks.  In this podcast he discusses social production, open source software, Wikipedia, defaults, Facebook, and more.

Related Readings

Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included Nick Carr on what the internet is doing to our brains, Gina Trapani and Anil Dash on crowdsourcing, James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, Tom Hazlett on spectrum reform, and Tyler Cowen on just about everything.

So what are you waiting for? Subscribe!

Andrew Keen recently asked me to sit down and chat with him as part of a new series of video interviews he is conducting for Arts + Labs called “Keen on Media.” You can find the discussions with me here (or on Vimeo here). Keen asked me to talk about a wide variety of issues, but this first video features some thoughts about the tensions between the free culture movement and those that continue to favor property rights and proprietary business models as the foundation of the economy. Consistent with what I have argued in the past, I advocated a mushy middle-ground position of preserving the best of both worlds. I believe that free and open source software has produced enormous social & economic benefits, but I do not believe that it will or should replace all proprietary business models or methods.  Each model or mode of production has its place and purpose and they should continue to co-exist going forward, albeit in serious tension at times.

Adam Thierer (part 1) from andrewkeen on Vimeo.

I published an opinion piece today for CNET arguing against recent calls to reclassify broadband Internet as a “telecommunications service” under Title II of the Communications Act.

The push to do so comes as supporters of the FCC’s proposed Net Neutrality rules fear that the agency’s authority to adopt them under its so-called “ancillary jurisdiction” won’t fly in the courts.  In January, the U.S. Court of Appeals for the D.C. Circuit heard arguments in Comcast’s appeal of sanctions levied against the cable company for violations of the neutrality principles (not yet adopted under a formal rulemaking).  The three-judge panel expressed considerable doubt about the FCC’s jurisdiction in issuing the sanctions during oral arguments.  Only the published opinion (forthcoming) will matter, of course, but anxiety is growing.

Solving the Net Neutrality jurisdiction problem with a return to Title II regulation is a staggeringly bad idea, and a counter-productive one at that.  My article describes the parallel developments in “telecommunications services” and the largely unregulated “information services” (aka Title I) since the 1996 Communications Act, making the point that life for consumers has been far more exciting—and has generated far more wealth–under the latter than the former.

Under Title I, in short, we’ve had the Internet revolution.  Under Title II, we’ve had the decline and fall of basic wireline phone service, boom and bust in the arbitraging competitive local exchange market, massive fraud in the bloated e-Rate program, and the continued corruption of local licensing authorities holding applications hostage for legal and illegal bribes.

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The Treasury Department today announced that it would grant the State Department’s December request (see the Iran letter here) for a waiver from U.S. embargoes that would allow Iranians, Sudanese and Cubanese to download “free mass market software … necessary for the exchange of personal communications and/or sharing of information over the internet such as instant messaging, chat and email, and social networking.”

I’m delighted to see that the Treasury Department is implementing Secretary Clinton’s pledge to make it easier for citizens of undemocratic regimes to use Internet communications tools like e-mail and social networking services offered by US companies (which Adam discussed here). It has been no small tragedy of mindless bureaucracy that our sanctions on these countries have actually hampered communications and collaboration by dissidents—without doing anything to punish oppressive regimes. So today’s announcement is a great victory for Internet freedom and will go a long way to bringing the kind of free expression we take for granted in America to countries like Iran, Sudan and Cuba.

But I’m at a loss to explain why the Treasury Department’s waiver is limited to free software. The U.S. has long objected when other countries privilege one model of software development over another—and rightly so: Government should remain neutral as between open-source and closed-source, and between free and paid models. This “techno-agnosticism” for government is a core principle of cyber-libertarianism: Let markets work out the right mix of these competing models through user choice!

Why should we allow dissidents to download free “Web 2.0” software but not paid ones? Not all mass-market tools dissidents would find useful are free. Many “freemium” apps, such as Twitter client software, require purchase to get full functionality, sometimes including privacy and security features that are especially useful for dissidents. To take a very small example that’s hugely important to me as a user, Twitter is really only useful on my Android mobile phone because I run the Twidroid client. But the free version doesn’t support multiple accounts or lists, which are essential functions for a serious Tweeter. The Pro version costs just $4.89—but if I lived in Iran, U.S. sanctions would prevent me from buying this software. More generally, we just don’t know what kind of innovative apps or services might be developed that would be useful to dissidents, so why foreclose the possibility of supporting them through very small purchases? Continue reading →

Tim Lee points to “The Toyota Recall and the Case for Open, Auditable Source Code.”

Knowing how the technology in our cars work is not just a safety issue, but a privacy issue—and maybe even a tax issue.

Clearly many groups contend there’s a “crisis” in journalism, even to the extent of advocating government support of news organizations, despite the dangers inherent in the concept of government-funded ideas and their impact on critique and dissent. 

Georgetown is hosting a conference today called “The Crisis In Journalism: What should Government Do,” (at which Adam Thierer is speaking), with the defining question, “How can government entities, particularly the Federal Trade Commission and the Federal Communications Commission, help to form a sustainable 21st century model for journalism in the United States?”

We actually resolved the question of “What Government Should Do,” Continue reading →

Of the many tech policy-related books I’ve read in recent years, I can’t recall ever being quite so torn over one of them as much as I have been about Jaron Lanier‘s You Are Not a Gadget: A Manifesto.  There were moments while I was reading through it when I was thinking, “Yes, quite right!,” and other times when I was muttering to myself, “Oh God, no!”

The book is bound to evoke such strong emotions since Lanier doesn’t mix words about what he believes is the increasingly negative impact of the Internet and digital technologies on our lives, culture, and economy. In this sense, Lanier fits squarely in the pessimist camp on the Internet optimists vs. pessimists spectrum. (I outlined the intellectual battle lines between these two camps my essay, “Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society.”) But Lanier is no techno-troglodyte. Generally speaking, his pessimism isn’t as hysterical in tone or Luddite-ish in its prescriptions as the tracts of some other pessimists.  And as a respected Internet visionary, a gifted computer scientist, an expert on virtual reality, and a master wordsmith, the concerns Lanier articulates here deserve to be taken seriously— even if one ultimately does not share his lugubrious worldview.

On the very first page of the book, Lanier hits on three interrelated concerns that other Net pessimists have articulated in the past:

  1. Loss of individuality & concerns about “mob” behavior (Lanier: “these words will mostly be read by nonpersons–automatons or numb mobs composed of people who are no longer acting as individuals.”)
  2. Dangers of anonymity (Lanier: “Reactions will repeatedly degenerate into mindless chains of anonymous insults and inarticulate controversies.”)
  3. “Sharecropper” concern that a small handful of capitalists are getting rich off the backs of free labor (Lanier: “Ultimately these words will contribute to the fortunes of those few who have been able to position themselves as lords of the computing clouds.”)

Again, others have tread this ground before, and it’s strange that Lanier doesn’t bother mentioning any of them. Neil Postman, Mark Helprin, Andrew Keen, and Lee Siegel have all railed against the online “mob mentality” and argued it can be at least partially traced to anonymous online communications and interactions. And it was Nick Carr, author of The Big Switch, who has been the most eloquent in articulating the “sharecropper” concern, which Lanier now extends with his “lords of the computing clouds” notion. [More on that towards the end.] Continue reading →

This looks like a good one to me. An ITIF event tomorrow called “Info-Communism:” A Progressive Path Forward or a Political and Intellectual Dead End?

Overheated rhetoric around information policy and intellectual property damages the quality of the debate. In this paper, featured speaker and Syracuse University information studies professor Milton Mueller warns against pouring these debates into old ideological molds. Doing so preserves controversy rather than fostering the discovery of common ground. (Or “commons” ground—couldn’t help it!)

I don’t know that this forum will solve the problem, but I know it will be interesting. The sign-up page indicates that the event will be streamed.