Interoperability is a topic that has long been of interest to me. How networks, platforms, and devices work with each other–or sometimes fail to–is an important engineering, business, and policy issue. Back in 2012, I spilled out over 5,000 words on the topic when reviewing John Palfrey and Urs Gasser’s excellent book, Interop: The Promise and Perils of Highly Interconnected Systems.

I’ve always struggled with the interoperability issues, however, and often avoided them became of the sheer complexity of it all. Some interesting recent essays by sci-fi author and digital activist Cory Doctorow remind me that I need to get back on top of the issue. His latest essay is a call-to-arms in favor of what he calls “adversarial interoperability.” “[T]hat’s when you create a new product or service that plugs into the existing ones without the permission of the companies that make them,” he says. “Think of third-party printer ink, alternative app stores, or independent repair shops that use compatible parts from rival manufacturers to fix your car or your phone or your tractor.”

Doctorow is a vociferous defender of expanded digital access rights of many flavors and his latest essays on interoperability expand upon his previous advocacy for open access and a general freedom to tinker. He does much of this work with the Electronic Frontier Foundation (EFF), which shares his commitment to expanded digital access and interoperability rights in various contexts.

I’m in league with Doctorow and EFF on some of these things, but also find myself thinking they go much too far in other ways. At root, their work and advocacy raise a profound question: should there be any general right to exclude on digital platforms? Although he doesn’t always come right out and say it, Doctorow’s work often seems like an outright rejection of any sort of property rights in networks or platforms. Generally speaking, he does not want the law to recognize any right for tech platforms to exclude using digital fences of any sort.

Where to Draw the Lines?

As someone who has authored a book about the importance of permissionless innovation, I need to be able to answer questions about where these lines between open versus closed systems are drawn. Definitions and framing matter, however. I use “permissionless innovation” as a descriptor for one possible policy disposition when considering where legal and regulatory defaults should be set. Another conception of permissionless innovation is more of an engineering ideal; a general freedom to connect, tinker, modify, etc. (I speak more about these conceptions in my latest book, Evasive Entrepreneurs.) Of course, someone advocating permissionless innovation as a policy default will sometimes be confronted with the question of what the law should say when someone behaves in an “evasive” fashion in the latter conception of permissionless innovation.

Doctorow would generally answer that question by saying that law should not be rigged to favor exclusion through laws like the DMCA (and specifically the law’s anti- circumvention provisions), Computer Fraud and Abuse Act, patent law, and various other rules and laws. “[T]he current crop of Big Tech companies has secured laws, regulations, and court decisions that have dramatically restricted adversarial interoperability.”

Generally speaking, I agree. I’m not a fan of technocratic laws or regulations that seek to micro-manage interoperability and which stack the deck in favor of exclusionary conduct with steep penalties for evasion. But does that mean adversarial interoperability should be permitted in all cases? Should there exist any sort of common law presumption one way or the other when a user or competitor seeks access to an existing private platform or device?

Specifics matter here and I don’t have time to get into all the case studies that Doctorow goes through. Some are no-brainers, like the infamous Lexmark case involving refillable printer ink cartridges. Other cases are far more complicated, at least for me. Does Epic, creator of Fortnite, have a right of adversarial interoperability that it can exercise against Apple and their AppStore? As Dirk Auer suggests in a new essay, this episode looks more like a straightforward pricing dispute. Epic is making it out to be much more than that, suggesting Apple is guilty of unfair and exclusionary practices that require a legal remedy.

Why not take that logic further and just say Apple’s App Store us tantamount to a natural monopoly or digital essential facility that Epic and everyone else is entitled to on whatever terms they want? For that matter, why not apply the same logic to Epic’s Fortnite platform or even its Unreal Engine? Does every other gaming developer have a right to piggyback on the juggernaut that Epic has built?

This gets to the core question about Doctorow’s concept of adversarial interoperability: Exactly what should common law and the courts say platform owners make access rights a simple pricing matter and say: “You pay or you are out.” Like Doctorow and EFF, I don’t want Apple to benefit from any special favors from laws like DMCA. Where we differ is that I would still leave the door open for Apple to exercise various other common law contractual rights or property rights in court.

I suspect Doctorow would deny any such claims by Apple or anyone else. If so, I would like to see him spell out in more precise terms exactly what Apple’s property rights and contractual rights are in this instance. Or, again, should we just treat the App Store as a digital commons with unfettered open access rights for developers? If so, would Apple be required to still manage the resource once it is a quasi-commons?

I think that would end miserably, but would like to hear Doctorow’s preferred approach before saying more. I suspect a lot rides on the distinction between “open” verses “proprietary” standards, but compared to Doctorow and EFF, I am willing to embrace a world of both open and proprietary systems, and many hybrids in between. I don’t want the law favoring one type over the other, but that means I need to endorse a generalized property right for digital operators such that they can still exclude others (even in the absence of artificial regulatory rights like DMCA creates). Again, I suspect Doctorow would reject that standard, preferring a generalized right of access, even if that means the platforms become de facto commons.

More Radical Steps

Elsewhere, Doctorow has said is that some of these questions would be better addressed through more aggressive antitrust regulation. Mere data portability or mandatory interoperability isn’t enough for him. “Data portability is important,” Doctorow says, “but it is no substitute for the ability to have ongoing access to a service that you’re in the process of migrating away from.”

In his latest online book on “How to Destroy Surveillance Capitalism,” Doctorow suggests that it is time to “make Big Tech small again” through an “anti-monopoly ecology movement.” That “means bans on mergers between large companies, on big companies acquiring nascent competitors, and on platform companies competing directly with the companies that rely on the platforms.” And he desires a host of other remedies.

So, here we have the convergence of interoperability policy and antitrust policy, with a layer of property confiscation layered on top apparently. “Now it’s up to us to seize the means of computation, putting that electronic nervous system under democratic, accountable control,” he insists in his latest manifesto.

What’s funny about this is that Doctorow begins most of his essays by pointing out all the ways that politics is the problem when it comes to access issues, only to end by suggesting that a lot more political meddling is the required solution. He repeatedly laments how large tech players have so often been able to convince lawmakers and regulators to pass special laws or regulations that work to their favor. Yet, in his We-Can-Build-A-Better-Bureaucrat model of things, all those old problems will apparently disappear when we get the right people in power and get rid of those nefarious capitalist schemers.

Thus, what really animates Doctorow’s advocacy for adversarial interoperability is a deep suspicion of free market capitalism and property rights in particular. In this worldview, interoperability really just becomes a Trojan Horse meant to help bring down the entire capitalist order. Am I exaggerating? “As to why things are so screwed up? Capitalism.” Those are his exact words from the conclusion of his latest book.

Adversarial Innovation & Evolutionary Interop

Still, Doctorow raises many legitimate issues about interconnection and digital access rights. But we need a better approach to work though these questions than the one he suggests.

In my lengthy review of the Palfrey and Gasser Interop book, I tried to sketch out an alternative framework for thinking seriously about these issues. I referred to my preferred approach as “experimental interoperability” or “evolutionary interoperability.” I described this as the theory that ongoing marketplace experimentation with technical standards, modes of information production and dissemination, and interoperable information systems, is almost always preferable to the artificial foreclosure of this dynamic process through state action. The former allows for better learning and coping mechanisms to develop while also incentivizing the spontaneous, natural evolution of the market and market responses.

Adversarial interoperability is important, but not nearly as important as adversarial innovation and facilities-based competition. Stated differently, access rights to existing systems is an important value, but the incentives we have in place to encourage entirely new systems is what really matters most. At some point, a generalized right of access to existing systems discourages the sort of platform-building that could help give rise to the sort of creative destruction we have seen at work repeatedly in the past and that we still need today. Taken too far, adversarial interoperability threatens to undermine this goal. Why seek to build a better alternative platform if you can just endlessly free ride off someone else’s by force of law?

Thus, I prefer to work at the margins and think through how to balance these competing claims of access / interoperability rights versus contractual / property rights. My take will be too utilitarian for not only Doctorow but also for some libertarians, who want clear answers to all these questions based upon their preferred natural law-oriented constructions of rights. The problem with that approach is that it leads to all-or-nothing extremes (complete digital property rights, or virtually none) and that approach is fundamentally unworkable and destructive. We need to work harder about how to balance these rights and values in pro-competitive, pro-innovation fashion.

There is No Such Thing as Optimal Interoperability

In sum, there is no such thing as “optimal interoperablity.” Sometimes proprietary or “closed” systems will offer the public features and options that they will find preferable to “open” ones.  “There are many reasons why consumers might prefer ‘closed’ systems – even when they have to pay a premium for them,” argues Dirk Auer in a separate essay. It could be greater convenience, security, or other things. Palfrey and Gasser correctly noted in their book that, “the state is rarely in a position to call a winner among competing technologies” (p. 174). Moreover, they concluded:

“Lawmakers need to keep in view the limits of their own effectiveness when it comes to accomplishing optimal levels of interoperability. Case studies of government intervention, especially where complex information technologies are involved, show that states tend to be ill suited to determine on their own what specific technology will be the best option for the future (p. 175)

A thousand amens to that! The law should not artificially foreclose experimentation with many different types of platforms, standards, devices and the interoperability that exists among them.

In the latest example of big government run amok, several politicians think they ought to be in charge of which applications you should be able to install on your smartphone.

On March 22, four U.S. Senators sent a letter to Apple, Google, and Research in Motion urging the companies to disable access to mobile device applications that enable users to locate DUI checkpoints in real time. Unsurprisingly, in their zeal to score political points, the Senators—Harry Reid, Chuck Schumer, Frank Lautenberg, and Tom Udall—got it dead wrong.

Had the Senators done some basic fact-checking before firing off their missive, they would have realized that the apps they targeted actually  enhance the effectiveness of DUI checkpoints while reducing their intrusiveness. And had the Senators glanced at the Constitution – you know, that document they swore an oath to support and defend – they would have seen that sobriety checkpoint apps are almost certainly protected by the First Amendment.

While Apple has stayed mum on the issue so far, Research in Motion quickly yanked the apps in question. This is understandable; perhaps RIM doesn’t wish to incur the wrath of powerful politicians who are notorious for making a public spectacle of going after companies that have the temerity to stand up for what is right.

Google has refused to pull the DUI checkpoint finder apps from the Android app store, reports Digital Trends. Google’s steadfastness on this matter reflects well on its stated commitment to free expression and openness. Not that Google’s track record is perfect on this front – it’s made mistakes from time to time – but it’s certainly a cut above several of its competitors when it comes to defending Internet freedom.

Advance Publicity & DUI Checkpoints

Trying to keep the locations of DUI checkpoints secret is bad public policy. Contrary to the Senators’ assertion that “applications that alert users to DUI checkpoints” are “harmful to public safety,” there is zero evidence that publicizing sobriety checkpoints contributes to drunk driving accidents.

If anything, advance publicity actually  saves lives. DUI checkpoints aren’t primarily about catching drunk drivers, but about deterring drunk driving in the first place. When drivers know that police have set up checkpoints nearby, they’re likely to think twice about getting behind the wheel. Instead, they might hail a cab or catch a ride from a sober friend.

The California Supreme Court recognized in Ingersoll v. Palmer that DUI checkpoints are designed to deter drunk driving:

The stated goals of several law enforcement agencies explicitly point to deterrence as a primary objective of the checkpoint program. The Burlingame manual described the objectives of its program, noting the historical use of roving patrols as the principal law enforcement response to the drunk driving problem… Two major goals of the checkpoint as stated in the manual were to increase public awareness of the seriousness of the problem and to increase the perceived risk of apprehension.

The  Ingersoll court further stated with regard to the checkpoints that, “advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.”

California is not alone in focusing on the deterrent effect of DUI checkpoints. In 1990, shortly after the U.S. Supreme Court upheld the constitutionality of certain kinds of DUI checkpoints in Michigan Department of State Police v. Sitz, the National Highway Traffic Safety Administration (NHTSA) published a document (PDF) laying out guidelines for police in conducting sobriety checkpoints. NHTSA’s model sobriety checkpoint guidelines include the following section:

C. ADVANCE NOTIFICATION 1. For the purpose of public information and education, this agency will announce to the media that checkpoints will be conducted. 2. This agency will encourage media interest in the sobriety checkpoint program to enhance public perception of aggressive enforcement, to heighten the deterrent effect and to assure protection of constitutional rights.

Indeed, police departments routinely publicize information about DUI checkpoints in local newspapers and other media outlets. Many police officers think such publicity is beneficial to law enforcement. Take Indiana State Police Sgt. Dave Burstein, who brushed off the Senators’ concerns about DUI checkpoint apps, saying to local news affiliate WXIN-TV, “Let everybody know they’re there because the whole idea is to get voluntary compliance.”

Regulation Through Intimidation

The Senators’ letter isn’t just uninformed and irresponsible, it’s also arrogant – a prime example of regulation through intimidation. When politicians want to dictate behavior but know they cannot lawfully legislate or regulate it, a widely favored tactic is to demonize the target by sending a threatening letter accompanied by a vitriolic press release. When that doesn’t get the job done, politicians hold congressional hearings to publicly rake the alleged wrongdoers over the coals. This reprehensible strategy has long been used to suppress constitutionally protected speech in ways that, if legislated, would almost certainly be overturned by courts on First Amendment grounds. As former U.S. Senator Paul Simon warned in 2003:

I have no problem with holding hearings and putting on pressure. But the problem with holding hearings and putting on pressure is that most of the members have no sensitivity on the First Amendment…The only oath we take says that we promise to support and defend the Constitution of the United States against all enemies, foreign and domestic. The domestic enemies of the Constitution are often on the floor of the House and the Senate.

In a free society, it is unacceptable for a handful of Senators to attempt to dictate mobile app store decisions without a floor vote or any judicial oversight. Lawmakers’ function is to make laws, not exploit their bully pulpit to try to coerce private businesses into doing their bidding. If voters let these politicians get away with going after DUI checkpoint apps, which politically unpopular apps will be next? A ban on apps that locate abortion clinics? A ban on apps that locate handgun dealers? It’s a scary slippery slope, as ACT’s Morgan Reed reminds us.

If Reid, Schumer, Lautenberg, and Udall want to examine a serious threat to public safety, they should look in the mirror. Meanwhile, they should leave mobile app stores alone. The Washington Times nailed it in a recent editorial:

Real drunk drivers deserve severe punishment, but the best way to catch them is to respect the Fourth Amendment. Instead of having cops stand around behind barricades interrogating soccer moms, have them patrol the streets looking for evidence of impaired driving. It works. In the meantime, high-tech companies ought to email these senators a free Constitution app for their smart phones.

Amen.

Oh yeah, that was me. And a lot of others. Well, we were wrong. The mobile app store market (Apple, Android, etc) is brimming with a bonanza of micro-business opportunities for producers and consumers alike. I am consistently amazing by the range of offerings available today, the vast majority of which remain free of charge. But what is more impressive is the growing array of applications and games available for mere pennies. Sure, some are more than a buck — but not that much more. I was just looking through the 40+ apps that I’ve got on my Droid right now (not really sure how many I’ve downloaded overall since I’ve deleted a lot) and I would guess that I paid for at least 25% of them–many after being “upsold” by first trying the free versions and then buying. Yes, I know there continues to be a debate about what counts as a “micropayment,” but the fact that so many more people are paying just a couple of bucks or less for content in these mobile app stores suggests that its only going to easier for people to pay even smaller sums for content in coming years.

What got me thinking about all this was slide #75 in Mary Meeker’s latest slideshow about Internet trends. The Morgan Stanley web guru notes that users are more willing to pay for content on mobile devices than they are on desktop computers for a number of reasons, but the first of which she listed was: “Easy-to-Use/Secure Payment Systems — embedded systems like carrier billing and iTunes allow real-time payment.”  The important point here is that the combination of these slick, well-organized online app stores + secure, super-easy billing systems have combined to overcome the so-called”mental transaction cost problem,” at least to some extent. We’re not nearly as reluctant today to surf away when something says “$0.99” on our screen. Increasingly, we’re hitting the “Buy” button.

The really interesting question, of course, is to what extent we can expect this model to grow and become more widely utilized for other types of content.  A lot of folks in the news business remain hopeful that a micropayment model can help them monetize their content in an age of business model uncertainty and highly disruptive change.  I’m skeptical that micropayments are going to “save the news,” since funding hard news and “broccoli journalism” is really expensive, and micropayments alone will never cover the costs. But perhaps they don’t have to. Micropayments could become just one part of an array of new business models that media operators could tap in an effort to reinvent themselves and thrive going forward. Subscriptions, advertising support, foundational / philanthropic funding, and more could also be part of the answer. We just don’t know what will work going forward. But I’ve grown at least a tad bit more optimistic that micropayments can at least be considered part of the conversation again.

Oh my, here we go again with bogus accusations of “censorship” flying about a private company’s efforts to self-regulate its own media platform. Yesterday over at Silicon Alley Insider, Nick Saint penned a piece on how, “Apple’s War On Porn Is Just Getting Started.” And then over at TechCrunch, Jason Kincaid wrote about “Why Apple’s New Ban Against Sexy Apps Is Scary.” That yielded a flurry of similarly-titled rants about Apple’s supposedly totalitarian ways for taking away our new-found inalienable human right to unfettered porn and adult entertainment applications via our iPhones.  To Mr. Saint, Mr. Kincaid, and the many others who apparently believe Apple is the reincarnation of Big Brother for self-regulating their own Apps Store, all I can say is: Grow up!

Here are a few things they need to consider:

1. What Apple decides to do with its application store, and what it chooses to provide in it, is Apple’s own business—quite literally. Like a traditional bricks-and-mortar retailer, they can make policies about what types of content might be deemed too sensitive for the broad community of customers they serve. WalMart, for example, doesn’t carry certain types of music in their stores.  If customers don’t like what those retailers are doing, there’s always another place for them to take their business and find what they are looking for.
2. When it comes to the Apple controversy, we are generally talking about porn. Note to Mr. Saint and Mr. Kincaid and other whiners… there are plenty of other places to find porn on the Net! Seriously, have you looked?
3. A private company’s decision to self-censor by not carrying something in their store is not even in the same universe as the sort of censorship we see government officials engage in, which blocks all content from all platforms. There is no escape from that sort of all-encompassing censorship. 
4. Did I mention that there’s plenty of porn on the Net? OK, just checking. (Really, there’s lots.)
5. It’s important to realize that if Apple did not take some steps to self-regulate it’s App Store for the really nasty, envelop-pushing stuff, it would lead to enormous pressure from many parents and regulatory advocates for Congress to step in start regulating the Internet ecosystem. Better that Apple and other retailers choose to self-regulate than to have Congress and the nanny state start controlling online speech.
6. Finally, uh… why do you own an iPhone again? You don’t have to, you know.  I’ve been going round and round with Jonathan Zittrain and his disciples about this point over the past couple of years when they complain about Apple’s heavy-handed control of the App Store or the iPhone itself.  Sorry, but I have little sympathy in light of the fact that (a) Apple’s App Store has over 100,000 apps in 20 different categories to choose from, so it’s not like there’s really any shortage of other stuff to choose from and, (b) there are many other non-Apple options on the market from which to choose if you don’t like Apple’s policies on porn apps.  Get yourself a Android-based phone or something else. (Like Apple, Google bars the use of its apps store, the Android Market, for porn apps. But Google does allow users to install a separate apps store for adult apps, called MiKandi. MiKandi promises Blackberry and Windows Mobile marketplaces soon.)
7. (I can’t resist…) Once more, all this whining is about porn! There’s tons of it online! Go get your rocks off somewhere else besides the Apple Apps Store!  Gheesh.

[P.S. Lest I need to prove my First Amendment credentials to repel the eventual attacks from those who might accuse me of being a prude, please read this and watch this.]

Just when you thought the FCC’s investigation of the wireless industry couldn’t get any stranger, TechCrunch reports that the Commission has sent letters to AT&T, Apple, and Google inquiring about Apple’s recent decision to reject the Google Voice app from the iPhone App Store (as Berin discussed yesterday).

It’s been over two years since the original iPhone was launched, but it seems the FCC still doesn’t get it: the iPhone is very clearly a closed platform — a prototypical walled garden — and Apple has the final say on what applications users can install. When you buy an iPhone, you’re not simply buying a piece of hardware, but actually a package deal that includes software, hardware, and a wireless contract. Is this anti-consumer? 26 million consumers don’t think so. The iPhone 3GS, the latest version of the phone, is selling so fast that Apple’s CFO says they can’t make enough to meet demand!

Of course, the iPhone model isn’t for everyone. I, for one, don’t own one because I’m an obsessive tinkerer and prefer a phone that’s as open as possible. But not everyone shares my preferences. As mentioned above, over 26 million iPhones have been sold since June 2007, so openness clearly isn’t make-or-break for a lot of consumers. Who knows, maybe some people actually trust Apple and like the comfort of knowing that every app they can get comes with a seal of approval from Cupertino.

The FCC’s letter to Apple demands an explanation for why Google Voice was rejected. If Apple’s explanation doesn’t satisfy the FCC’s criteria — which, by the way, are entirely unclear — then what? Will the FCC force Apple to accept Google Voice? Say what you will about Apple’s app store track record, but the prospect of federal regulators having the final word on which applications smartphone owners can install hardly seems pro-consumer. The FCC can’t even figure out how to run its own website!

In some ways, the iPhone has perhaps been too successful for its own good. It’s so popular that many consumers seem to no longer view it as just another product but instead as an item to which they are entitled. Thus, bureaucrats and Congresscritters in search of political points are making a big fuss over the fact that the iPhone isn’t everything to everyone. Why can’t it be wide open? Why isn’t in available on every carrier nationwide? Why is it so expensive to purchase without a service contract?

The answers to these questions lie in the rational self-interested decisions made by Apple and AT&T. The iPhone exists not just to make consumers happy (which it’s been exceedingly successful at doing), but also to make money for Apple and AT&T. And what’s wrong with that? Both firms arguably took a big risk on the iPhone, with Apple putting big bucks on the line to develop it and AT&T accepting an unprecedented arrangement with Apple to hand over a sizable chunk of wireless revenues.

Rewarding penalizing Apple and AT&T’s iPhone gamble with stricter regulations may make some iPhone owners happy in the short run, but it will also make phone developers wary about taking iPhone-esque gambles in the future. Why invest hundreds of millions to hopefully concoct the next big device if the price of success is political predation? (See Barbara Esbin and Berin Szoka’s paper, Should the FCC Kill The Goose That Laid The Golden iPhone, for more on this).

As we often say on TLF, if you don’t care for the iPhone’s App Store, get another phone! There are dozens of smartphones out there that compete with the iPhone. The Palm Pre, LG Versa, Samsung Omnia, and HTC G1 are just a few notable examples.

Want a phone that’s wide-open? Try the G1 — its Android OS is open source and even comes in an unlocked flavor that’s designed for developers. If you love Google Voice, then try a Blackberry — unlike the iPhone, Google Voice works great on Blackberries.

The FCC should stop wasting its time on futile attempts to make already-competitive markets even more so.  Instead, the Commission should be focusing on how to free up the airwaves, most of which remain out of reach of innovators because of outdated rules.