What We’re Reading

Eric Goldman is the man.  His “Technology & Marketing Law Blog” is must-reading for cyberlaw geeks; packed with indispensable updates and insights about breaking development in the world of Internet law.

Anyway, he’s just published his “2008 Cyberlaw Year-in-Review,” which provides a comprehensive overview of the major developments and cases from the past year. This is the sort of compendium that I used to have to spend big bucks to get from DC law firms.  And Eric just gives it away as a public resource.  God bless him.

I’ve been hammering Jonathan Zittrain pretty hard here over the past year for the thesis he sets forth in The Future of the Internet and How to Stop It that digital “generativity” is at risk today. The reason I have been doing so is because all signs point in the exact opposite direction, and more so with each passing day. Contrary to Jonathan’s fear that the Internet and digital technologies are growing more closed, tethered, and sterile, I have argued that the facts on the ground show us how the world is actually becoming far more open, untethered, and innovative.  And that’s true even for the technology that Jonathan singles out in the book for special scorn — the iPhone.

Consider David Pogue’s post today on the New York Times‘ technology blog today entitled “So Many iPhone Apps, So Little Time.” Pogue reports that:

there are now 15,000 programs available on the App Store, and so many more are flooding in that Apple’s army of screeners can’t even keep up. I keep meaning to write a thoughtful, thorough roundup of the very best of these amazing programs, but every day that I don’t do it, the job becomes more daunting.

[…]

Apple, which runs the store, keeps 30 percent of each sale. Even so, Ocarina [an application Pogue discusses in his essay] demonstrates that a programmer can make a staggering amount of money from the iPhone store. It’s a crazy new software model that I don’t remember seeing anywhere else. It’s not a boxed software program for $600, or even a shareware program you download for $25. It’s a buck a copy.

The beauty here is that at these prices, there’s very little risk in trying something out. How many software programs have you bought for your Mac or PC? Two? Four? Well, the average iPhone owner may wind up installing 10, 20 or 30 programs. In all, according to Apple, iPhone owners have downloaded 500 million copies of these programs. Half a billion–since last July.

There’s a lot of gloom in the tech industry (and every industry, for that matter). But even when the economy is crashing down around us, there’s still amazing power in a single good idea. And the one on display here–pricing software so low that millions of people buy it without batting an eye–is turning a few clever programmers into millionaires.

I ask you: Does this sound like a world that is growing less generative, as Zittrain argues? Because it sure doesn’t sound like it to me.  Moreover, if you still don’t think the iPhone is open enough, then there’s always a simple solution to that: just buy another phone!

I’m pleased and humbled to have been named one of the Ars Technica/Tech Policy Central “People to Watch” in 2009. Along with my opposition to the REAL ID national identification scheme, they cite my work opposing the E-Verify national worker background check system (which would ultimately require a national ID).

Considering how the economic stimulus bill may be a vehicle for mandating broader use of E-Verify, the first thing you might see from watching me in 2009 might be an angry and disappointed advocate for liberty.

Planet GoogleI finally got around to reading Planet Google: One Company’s Audacious Plan to Organize Everything We Know, by Randall Stross. It’s very well done. Stross is a frequently contributor to the New York Times and the author of several other interesting books on the technology industry. He knows how to weave a story together, and it helps that Google’s story is a pretty amazing one.

Each chapter discusses a different part of Google’s growing family of services — GMail, Google Maps, Google Earth, Book Search, and YouTube. Of course, it all started with search and Stross does a good job explaining how the ingenious Google search algorithm has grown from dorm room project to the greatest aggregator of human knowledge that the world has ever known. This, in turn, has powered Google’s hugely successful online advertising system. The real secret of their success with online advertising, Stross argues, is that “Google’s impersonal, mathematical approach search also provides you with the ability to serve advertisements that are tailored to a search, rather than to the person submitting the search request, whose identity would have to be known.”

Despite the benefits of such generally anonymous searching, as Google has grown and added new services and capabilities, concerns about the sheer volume of data that the company collects have led to heightened privacy concerns. Indeed, privacy is a core theme that Stross uses in the book to tie many of the chapters and issues together. Google is constantly struggling to strike the right balance between providing more access to the world’s information while also being careful not to raise privacy concerns. But it’s unclear exactly how much more information collection that users (or public officials) will tolerate before advocating stricter limits on Google’s reach.  As Stross points out:

Guided by its founding mission, to organize all the world’s information, Google has created storage capacity that allows it to gain control of what its users are you doing in a comprehensive way that no other company has done, and to preserve those records indefinitely, without the need to clear out old records to make way for new ones. Moreover, Google differentiates its service by refining its own proprietary software formula to mine and massage the data, technology that it zealously protects from the sight of rivals. This sets up a conflict between Google’s wish to operate a “black box” (completely opaque to the outside) and its users’ wish for transparency.

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Post Jeffersons MooseI used to have a (semi-crazy) uncle who typically began conversations with lame jokes or bad riddles. This sounds like one he might have used had he lived long enough: What do Thomas Jefferson, a moose, and cyberspace have in common?

The answer to that question can be found in a new book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, by David G. Post, a Professor of Law at Temple University. Post, who teaches IP and cyberspace law at Temple, is widely regarded as one of the intellectual fathers of the “Internet exceptionalist” school of thinking about cyberlaw.  Basically, Post sees this place we call “cyberspace” as something truly new, unique, and potentially worthy of some special consideration, or even somewhat different ground rules than we apply in meatspace. More on that in a bit.

[Full disclosure: Post’s work was quite influential on my own thinking during the late 1990s, so much so that when I joined the Cato Institute in 2000, one of the first things I did was invite David to become an adjunct scholar with Cato. He graciously accepted and remains a Cato adjunct scholar today. Incidentally, Cato is hosting a book forum for him on February 4th that I encourage you to attend or watch online. Anyway, it’s always difficult to be perfectly objective when you know and admire someone, but I will try to do so here.]

Post’s book is essentially an extended love letter — to both cyberspace and Jefferson. Problem is, as Post even admits at the end, it’s tough to know which subject this book is suppose to teach us more about. The book loses focus at times — especially in the first 100 pages — as Post meanders between historical tidbits of Jefferson’s life and thinking and what it all means for cyberspace. But the early focus is on TJ.  Thus, those who pick up the book expecting to be immediately immersed in cyber-policy discussions may be a bit disappointed at first.  As a fellow Jefferson fanatic, however, I found all this history terrifically entertaining, whether it was the story of Jefferson’s Plow and his other agricultural inventions and insights, TJ’s unique interest in science (including cryptography), or that big moose of his.

OK, so what’s the deal with the moose? When TJ was serving as a minister to France in in the late 1780s, at considerable expense to himself, he had the complete skeleton, skin and horns of a massive American moose shipped to the lobby of his Paris hotel. Basically, Jefferson wanted to make a bold statement to his French hosts about this New World he came from and wake them up to the fact that some very exciting things were happening over there that they should be paying attention to. That’s one hell of way to make a statement!

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You wouldn’t think that a book called In Search of Jefferson’s Moose could be about the Internet, but it is.

In his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, Temple University Law Professor David Post draws remarkable and entertaining parallels between the Internet and the natural and intellectual landscape that Thomas Jefferson explored, documented, and shaped.

Post will be at the Cato Institute for a lunch-hour book forum on Wednesday, February 4th. Clive Crook and Jeffrey Rosen will comment.

Register here to see just how nicely Thomas Jefferson, cyberspace, and a rather large moose fit between the covers of Post’s new book.

Jason Kuznicki of the Cato Institute is asking some very sharp questions about Jonathan Zittrain’s book The Future of the Internet and How to Stop. He’s echoing a lot of the same concerns and criticisms I have raised here many times before about how overblown Zittrain’s fears are regarding the supposed death of digital generativity and online openness. Kuznicki argues:

First, the example he uses is far from perfect. The Internet abounds with descriptions of iPhone hacks, many of them well-documented and remarkably successful. The menacing control exists, but it’s often a paper tiger. And although Apple didn’t originally publish an iPhone software development kit, it does now. So which one is it? Is the iPhone still not hacky enough? Or should we find another, better example? But the hacking community delights in finding supposedly uncrackable devices, and in cracking them — often within days of release. Offhand, I can’t think of a single recently released Internet-enabled device that someone hasn’t hacked. (Another of Zittrain’s purported bad examples, the Xbox 360, supports an avid hacking community, albeit with far less support from Microsoft. It isn’t a community for everyone, but then, hacking isn’t for everyone. Neither is macrame.)

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It’s been a big year for tech policy books. Several important titles were released in 2008 that offer interesting perspectives about the future of the Internet and the impact digital technologies are having on our lives, culture, and economy. Back in September, I compared some of the most popular technology policy books of the past five years and tried to group them into two camps: “Internet optimists” vs. “Internet pessimists.” That post generated a great deal of discussion and I plan on expanding it into a longer article soon. In this post, however, I will merely list what I regard as the most important technology policy books of the past year.
Best Tech Books of 2008 (covers)

What qualifies as an “important” tech policy book? Basically, it’s a title that many people in this field are currently discussing and that we will likely be talking about for many years to come. I want to make it clear, however, that merely because a book appears on this list it does not necessarily mean I agree with everything said in it. In fact, I found much with which to disagree in my picks for the two most important books of 2008, as well as many of the other books on the list. [Moreover, after reading all these books, I am more convinced than ever that libertarians are badly losing the intellectual battle of ideas over Internet issues and digital technology policy. There’s just very few people defending a “Hands-Off-the-Net” approach anymore. But that’s a subject for another day!]

Another caveat: Narrowly focused titles lose a few points on my list. For example, as was the case in past years, a number of important IP-related books have come out this year. If a book deals exclusively with copyright or patent issues, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues that have a bearing on digital technology policy. The same could be said of a book that deals exclusively with privacy policy, like Solove’s Understanding Privacy. It’s an important book with implications for the future of tech policy, but I demoted it a bit because of its narrow focus.

With those caveats in mind, here are my Top 10 Most Important Tech Policy Books of 2008 (and please let me know about your picks for book of the year):

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Ellen McGirt is undoubtedly a good business reporter.  Her recent cover story for Fast CompanyHow Cisco’s CEO John Chambers is Turning the Tech Giant Socialist,” is a great piece that shows the many interesting and truly innovative reforms that Chambers has instituted at Cisco.

However, I think McGirt is trying too hard to be clever or just doesn’t understand what socialism really means.  Socialism is a political system that uses the force of government to take money from some and give it to others.  Cisco is a private enterprise that’s only asking for you to buy their products.

McGirt’s confusion seems to arise from the socialist-sounding rhetoric of CEO John Chambers.  He uses what McGirt calls “Collectivist Catchphrases” like “Co-Labor” to describe Cisco’s approach to management.  He’s replaced managers (what many consider the avatars of capitalism) with councils and boards; emphasizes information sharing, rather than hoarding; rewards cooperation, rather than back-stabbing ladder-climbing.

But Chambers is no socialist, he’s a capitalist responding to a problem as old as business itself: How do you give those with good information and good ideas, the power to get things done?

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Lessig Remix coverI’m finishing up Stanford Law School professor Lawrence Lessig’s latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy and wanted to make a brief comment about his call for a “simple blanket license” to solve online music piracy.

Overall, I thought Prof. Lessig made a good case regarding the benefits of “remix culture” and why copyright law should leave breathing room for the various derivative works of amateur creators. On the other hand, Lessig still too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it).

To solve that latter problem, Lessig again endorses a proposal that William Fisher, Electronic Frontier Foundation, and others have made for collective licensing of all online music, but he fails to drill down into the devilish details. He says, for example, that “by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file-share” we could “decriminalize file sharing.” (p. 271)

I respect the fact that Lessig is at least acknowledging a problem exists and proposing a solution to it, but the collective licensing approach will be anything but “simple” in practice. As I have pointed out here before, collective licensing proposals and efforts almost always become compulsory in practice.  They inevitably involve government mandates to determine (1) who pays in, (2) how much they pay in, as well as (3) how much gets paid out and, (4) who gets the money.

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