Harvard Berkman Center professor Jonathan Zittrain has published another pessimistic, Steve-Jobs-is-Taking-Us-Straight-To-Cyber-Hell editorial building on the gloomy thesis he set forth in his 2008 book, The Future of the Internet and How to Stop It. His latest piece appears in the Financial Times and it’s entitled, “A Fight over Freedom at Apple’s Core. Concerning the recent Apple iPad announcement, Zittrain warns: “Mr Jobs ushered in the personal computer era and now he is trying to usher it out.”

I’m not going to go into yet another lengthy dissertation about what it so misguided about his thesis that cyberspace is becoming more “regulable” and that digital “generativity” is dying because of the rise of devices like the iPhone & iPad, or sites like Facebook.  Instead, I will just point you to the many things I’ve written before explaining just how far off the mark Prof. Zittrain is on this point. [See the complete list down below + video of our debate.]

But let me just say this… Ignoring that fact that he is an iPhone user himself — which makes no sense considering that he thinks of Apple as the font of all cyber-evil — he can’t muster any substantive empirical evidence proving that the Net and digital devices are being more “closed, sterile, and tethered,” as he repeatedly claims in his book and editorials.  And that’s not surprising because the reality is that the digital world is more open and generative than ever, and even if there are some “closed” devices and systems out there, they are actually quite innovative and not perfectly closed as Zittrain suggests. The spectrum of “open vs. closed” systems and devices is incredible diverse and nothing is perfectly “open” or “closed.”  We can have the best of both worlds: many open systems with some partial “walled gardens” here and there (or hybrid systems combining both). Regardless, we are witnessing greater digital “generativity” and innovation with each passing year. Until Zittrain can prove the opposite, his thesis must be considered a failure.

Finally, I want to associate myself with this excellent critique of the Zittrain thesis by Prof. Ed Felten, who points out that Zittrain’s argument doesn’t even work for the iPad, which I would agree is a fairly “closed appliance” in the Zittrainian scheme of the things:

For the iPad to become a Zittrain-type appliance, two things must happen. First, Apple must remain picky about which apps are available in the App Store. Second, Apple must limit the device’s browser so that it lacks the features that make today’s browsers viable application platforms. Will Apple be able to limit their product in this way, despite competition from other, more general-purpose tablets? I doubt it. But even this — even an appliance-style iPad — would not be enough to prove Zittrain’s thesis. Zittrain argued not just that appliances would exist, but that they would replace general purpose computers. Amazon’s kindle is an appliance, but it doesn’t prove Zittrain’s thesis because nobody is ditching their laptop in favor of a Kindle. Instead, the Kindle is an extra device which is used for its purpose, while the general-purpose device is used for everything else. If the iPad ends up like the Kindle — a complement to the laptop or netbook, rather than a replacement for it — this will not prove Zittrain’s thesis. It seems unlikely, then, that the iPad, even if it succeeds, will provide strong support for Zittrain’s thesis. General-purpose computers are so useful that we’re not likely to abandon them.

Exactly right. And here’s a few more things you might want to read to see why Zittrain’s thesis doesn’t add up (the first and the last one probably provide the best overview):

• Review of Zittrain’s “Future of the Internet” (3/23/08)
• Apple, Openness, and the Zittrain Thesis (3/30/08)
• Another Problem for the Zittrain Thesis — Old People! (4/12/08)
• [AUDIO] NPR “On Point” Debate over The Future of the Internet (5/13/08)
• iPhone 2.0 Cracked in Hours… What Was that Zittrain Thesis Again? (7/10/08)
• Enough anti-iPhone rants… just get another phone! (8/11/08)
• Another Review of Zittrain’s “Future of the Internet” (9/20/08)
• [VIDEO] My Debate with Jonathan Zittrain at New America Foundation (11/6/08)
• Zittrain’s Pessimistic Predictions and Problematic Prescriptions for the Net (7/20/09)
• Code, Pessimism, and the Illusion of “Perfect Control” (5/8/09)[1st part of Cato Unbound Debate “Ten Years of Code“ (featuring Lessig, Zittrain, Declan McCullagh, and me]
• Our Conflict of Cyber-Visions (5/14/09) [part 2 of the Cato Unbound debate]
• Cyber-Libertarianism: The Case for Real Internet Freedom (8/12/09)
• You’d Have to Be Smoking Dope to Believe the Zittrain-Lessig Thesis (9/15/09)
• Oh Farts! The Droid, the iPhone & the Lessig-Zittrain Thesis (11/12/09)

Seems like everywhere I turn someone is gushing about their new Droid phone, including my TLF colleagues Berin Szoka, Braden Cox, and Ryan Radia, who all had great fun rubbing their new toys in my nose over the past couple of days. And why not, it’s a very cool little device.  It makes my HTC Touch seems positively archaic in some ways, and it’s only a year old.  Apparently, 100,000 people already picked up a Droid in just its first weekend on the market.

But here’s the first thing that pops in my mind every time I see someone showing off their new Droid: How can a device like this even exist when America’s leading cyberlaw experts have been telling us that the whole digital world is increasingly going to hell because of “closed” devices, proprietary code, and managed networks?  I’m speaking, of course, about the lamentations of Harvard professors Lawrence Lessig, Jonathan Zittrain, and their many disciples.  As faithful readers will recall, I have relentlessly hammered this crew for their unwarranted cyber-Chicken Little-ism and hyper techno-pessimism. (See my many battles with Zittrain [1, 2, 3, 4, 5, 6 + video] and my 2-part debate with Lessig earlier this year).

“Left to itself,” Lessig warned in Code, “cyberspace will become a perfect tool of control.”  He went on to forecast a dystopian future in which nefarious corporate schemers would quash our digital liberties unless benevolent public philosopher kings stepped in to save our poor souls. Code was the Old Testament of cyber-collectivism. The New Testament arrived last year with Zittrain’s The Future of the Internet and How to Stop It. In it, we hear the grim prediction that “sterile and tethered” digital technologies and networks will triumph over the more “open and generative” devices and systems of the past.  The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia.

Apple’s “Angel of Death”

How completely out-of-control has this thinking gotten?  Well, here’s David Weinberger — another Harvard Berkman Center worrywart — talking about that supposed satanic font of all evil, the Apple AppStore:

The AppStore is the seductive angel of death for computing. It enables Apple to keep quality up and, more important, to keep support costs down. But a computer that can’t be programmed except by its manufacturer (or with the permission of its manufacturer) isn’t a real computer. The success of the AppStore is a gloomy, scary harbinger. From controlling the apps that can go on its mobile phone, it’s a short step for Apple to decide to control the apps that can go on its rumored slate/netbook device. And since so much of the future of computing will occur on mobiles and netbooks, this portends a serious de-generation of computing, as predicted by Jonathan Zittrain in The Future of the Internet and How to Stop It.

The “angel of death”? A “gloomy, scary harbinger”? Wow, who knew!  In Weinberger’s world, Apple is guilty of the heinous crime of “keep[ing] quality up and, more important, [keeping] support costs down.”  OH MY GOD, how dare they.  Somebody make them stop!  No, seriously, how silly is all this? It’s like those Republicans who, in their zeal to do anything to defeat health care nationalization, decide it’s OK to make up spooky stories about “death panels” hidden deep inside congressional bills.

I find Weinberger’s claim that “a serious de-generation of computing” is looming because of the iPhone to be especially ridiculous. It’s the same sort of rubbish Lessig was spewing in Code when he predicted that AOL’s walled garden model was going to take over the entire cyber-world and ensure “perfect control,” just one of the many things Lessig got wrong in the book.  And it’s the same silliness we see at work in Zittrain’s work when he claims that we’re doomed to live in a world of closed “sterile and tethered” digital technologies and networks. Similarly, last year, Public Knowledge analyst Alex Curtis managed to reach the zenith of this rhetorical insanity when he likened the Apple App Store to an Orwellian Big Brother that was bringing us a “1984 kind of total control.”  You know, because Apple is forcing us all to own iPhones and locking us into re-education camps.  Right.

I Fart, Therefore I Am (Generative)

Which brings me back to the Droid.  If all these dour predictions about the death of digital generativity and the rise of closed networks and walled gardens were true, how in the world does a phone with an open source operating system and a completely open applications process for developers even exist? (Android devices like the Droid don’t require users to rely exclusively on the Android Marketplace for apps; you can run other apps if you like).

Moreover, it’s not just that a remarkably innovative and generative device like the Droid gets widespread release and praise, it’s the fact that there are countless other mobile devices and applications on the market today much like it. On the Zittrainian “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide exactly what type of device you want.  But here’s the more important point: How much of a difference does it even make how “open” these phones and app stores are?  You’ve got more “closed” systems like Apple’s iPhone and Palm’s Pre on one end of the spectrum and then more “open” systems like the Droid and even many Windows Mobile devices on the other end, but do these competing models really result in many difference in terms of functionality and innovation?  The reality is this: tons of innovation is occurring across all of these devices and platforms regardless of how “open” or “closed” they may be.

For example, when I go to Handango, a terrific mobile application marketplace, and search for “all apps” available for my HTC Touch (which runs a Windows Mobile OS), my senses are assaulted with 6,677 choices.  It’s all a bit overwhelming.  Luckily, a quick search can get me right to the important applications I really need — like the “Pocket Fart” app.  Folks, let me tell you, no “generative” device is worth its salt without a good farting application.  I don’t care how bad of a mood my kids are in, when I fire up a fart app, it puts an instant smile on their faces!

But hey, guess what… that “angel of death,” the iPhone Store, offers fart apps, too!  Dozens and dozens of fart apps, in fact.  In terms of Zittrainian generativity, the iPhone is positively fart-tastic. Just check out that video below. And in addition to those dozens of flatulence apps, the Apple AppStore has another 100,000 apps available for downloading, making it the largest applications store in the world. And back in September, Apple announced that more than two billion apps had been downloaded from the App Store in its short existence. That’s Billion with a “B”.  Does this sound like it “portends a serious de-generation of computing” as Weinberger suggests?  Incidentally, if he’s so frightened that Steve Jobs is the Grim Reaper incarnate he can always go find another phone. Seriously, Steve Jobs doesn’t force anybody to buy one of these expensive toys.

If the iPhone is Good Enough for Zittrain, Why Isn’t It Fine for the Rest of Us?

Incidentally, despite all the fear and loathing about Steve Jobs and the iPhone that one finds in Future of the Internet, I was very entertained to discover that Jonathan Zittrain is an iPhone user himself!  I used some shameless McCarthyite tactics during our debate at New America Foundation last year — “Are you now, or have you ever been, an iPhone user!” — to publicly out him. [Go to the 55:00 minute mark of the video to see.]  But my point to him that day was a serious one: If you so fear the death of generativity because of that little demonic device, than why carry one in your coat pocket?  Why not use a device that lets you break all the rules because it essentially has no rules?  There are multiple open source mobile operating systems and a thriving community of “homebrew” developers. Go spend a few minutes at PCC Geeks or Howard’s Forums and see what I mean.

But the Berkman boys don’t seem content with all that.  And I wouldn’t usually give a damn about the lunacy of these hyper-pessimistic prognostications from the Harvard crew if it was all just harmless cyber-sourpuss ramblings from the ivory tower geeks with too much time on their hands.  But the problem is that these people want regulators to take steps to correct these supposed “code failures,” as Lessig calls them.  Zittrain calls for “API neutrality” in his book, which would force net neutrality-like mandates on digital devices. And in a New York Times editorial this summer entitled “Lost in the Cloud,” he made it clear that cloud neutrality regulation was next on the list. [Others are joining that call.] I’ve got a serious problem with that, as I detailed extensively in earlier essays (here and here), and Berin Szoka and I have discussed how these escalating neutrality wars are bound to lead to the digital equivalent of “mutually assured destruction” within the tech community before it’s all over.

Finally, when the Berkman gang, which is the most respected cyberlaw shop in the land, go around casting these debates with terms like “evil” applications and “angels of death,” then I have a serious problem because the game you are playing becomes hazardous to the health of the digital economy.  This poisons the public policy debate by using absurd moralistic rhetoric about something as fundamentally agnostic as digital platforms and protocols.  These things are neither good nor evil; they are just choices.  They represent different ways of promoting innovation.  And we should be happy that our current digital marketplace is offering us a rich mosaic of business models and options that can fill almost any need and fit almost any picky user’s desires.  If that ain’t progress, I don’t what is.

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!

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.)

Second, it seems pretty obvious that there’s room, and demand, for both kinds of devices, relatively secure and relatively open. It’s not got to be an all-or-nothing proposition. It’s not like “the Internet” is ever only going to be one thing. We can’t expect every user of every new device to master the very steep learning curves entailed by the wide-open do-it-yourself user interfaces that Zittrain clearly favors.

Some products will sell to some markets because they are relatively secure, common-sense, and uniform. Other products will sell to other markets because they are open to change, because they require high-level knowledge, and because with that knowledge comes the power to extensively modify the device itself, often at your own risk. So much the better — let everyone take their choice. Indeed, the very same person may want devices at opposite ends of the continuum. … We need not be afraid of any of this.

Amen. Read the whole thing. Zittrain’s book may be the most important of 2008, but his thesis is fatally flawed. Generativity is alive and well.

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.

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):

(1) Jonathan Zittrain ­– The Future of the Internet, and How to Stop It

Zittrain’s book is the most important of 2008 because it’s the one we will still be talking the most about a decade from now. However, I think we’ll be talking about how wrong his thesis was that the “generative” Internet and general purpose PCs are dying.  Indeed, I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here].

Despite my serious reservations, Jonathan’s book is important, well-written, and absolutely deserves your attention if you care about the future of technology policy.

(2) Nick Carr – The Big Switch: Rewiring the World, From Edison to Google

Part 1 of Nick Carr’s book is an eloquent early history of cloud computing, nicely comparing it to previous technological revolutions. It’s beautifully done. In Part 2 of the book, however, Carr turns sour and argues that the impact of cloud computing will be quite miserable for our economy, culture, and society. The Big Switch probably makes the best case than any Net pessimist has been penned thus far, and for that reason alone it deserves your attention. Ultimately, however, I found his case unconvincing.

You can find my complete review of Carr’s book here.

(3) John Palfrey and Urs Gasser – Born Digital: Understanding the First Generation of Digital Natives

Palfrey and Gasser’s fine early history of this generation of “Digital Natives” serves as a starting point for any conversation about how to mentor and interact with the children of the Web. It’s a comprehensive and very even-handed discussion about a variety of concerns or Internet pathologies, including: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and much more. Despite a few nitpicks, I really enjoyed this book and highly recommend it. Importantly, it is a very accessible book that even the non-tech layman can pick up and appreciate. [Note: Don Tapscott’s Grown Up Digital: How the Net Generation is Changing Your World, shares a lot in common with Born Digital, but Tapscott doesn’t spend much time on policy issues and that’s why his book isn’t on my list.]

My review of Palfrey and Gasser’s Born Digital is here. [Update Feb 2009: I also hosted a podcast about the book featuring Prof. Palfrey.]

(4) Clay Shirky – Here Comes Everybody: The Power of Organizing without Organizations

While Nick Carr [see #2 above] and Lee Siegel [see #5 below] are leading the “techno-pessimist” parade this year, Clay Shirky is this year’s leading cheerleader for “cyber-optimism.” Shirky argues that the falling costs and growing ease of digital distribution are making it increasingly easy for individuals to engage in group-forming and collective action endeavors. The resulting rise of “mass amateurization” poses a significant challenge to old media operations and traditional business models and practices. In this sense, Shirky is building on many of the themes and arguments previously set forth in books like The Wealth of Networks (Benkler), Wikinomics (Tapscott and Williams), and Convergence Culture (Jenkins). If you’ve already read those titles, you’ll find a great deal of familiar thinking here.

I never got around to putting together a full review of Here Comes Everybody, but Tim Lee had a nice write-up over at Ars earlier this year.

(5) Lee Siegel – Against the Machine: Being Human in the Age of the Electronic Mob

Siegal is this year’s Andrew Keen; a cyber-sourpuss who thinks the whole world is going to hell and that the Internet is to blame. Like Keen’s Cult of the Amateur, Siegel’s Against the Machine is an anti-Web 2.0 screed that finds no redeeming qualities about the Internet or user-generated content.  In particular, Wikipedia and amateur production are blasted as being detrimental to professional media.

Both Siegel and Keen are essentially channeling the ghost of the late Neil Postman, whose 1992 book Technopoly remains the classic statement of techno-pessimism. They prove worthy disciples as they preach the Gospel According to Chicken Little and push for a neo-Luddite revival. But Siegel’s techno-pessimism is boundless and his hatred for all things digital is truly breathtaking. For that reason, however, his book deserves attention.

My lengthy critique of Siegel’s book can be found here.

(6) Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds.) – Access Denied: The Practice and Policy of Global Internet Filtering

This is essential reading for anyone studying the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks. Even if you don’t read the whole thing, this is a must-have title for your bookshelf since there is no other resource out there like this. And it should be required reading in every cyberlaw class in America. [Note: It also contains a very helpful chapter on the mechanics of Net filtering.]  Very highly recommended.

(7) Hal Abelson, Ken Ledeen, and Harry Lewis – Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion

Think of this book as “Internet Policy for the Educated Layman.” Abelson, Ledeen, and Lewis survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a nice history and technology primer on each topic. Like Palfrey and Gasser’s Born Digital [see #3 above], Blown to Bits is very accessible and each chapter contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. Recommended.

My review of Blown to Bits can be found here.

(8) Lawrence Lessig – Remix: Making Art and Commerce Thrive in the Hybrid Economy

Remix treads a lot of ground already covered in Lessig’s other books and essays (perhaps it should have been called “Rehash”), but it more fully develops his thinking on the legal treatment of derivative works. Actually, in some ways (especially in the second half of the book), it’s more of a restatement of much of what is found in Benkler’s Wealth of Networks, albeit in a far less verbose fashion. Regardless, Prof. Lessig has attained rock-star status in tech policy circles and the release of each of his new books or papers becomes a bit of an event. Remix has been no different. It has already attracted a great deal of attention and deserves to be on this list for that reason alone. But if you have read his previous work, you’ll already be familiar with much of what you find in Remix.

Generally speaking, 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. But he 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, he endorses a “simple” blanket licensing scheme for the Internet. In this essay, I addressed why blanket online licensing would be anything but simple.

(9) James Bessen and Michael J. Meurer – Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk

Bessen and Meurer argue that America’s patent system is in trouble because “it fail[s] to provide clear and efficient notice of the boundaries of the rights granted.” Patent litigation has exploded, they say, and the costs of the system now outweigh the benefits. Generally speaking, with the exception of the chemical and pharmaceutical industries, Bessen and Meurer don’t feel the patent system does a lot of good.”[I]t seems unlikely that patents today are an effective policy instrument to encourage innovation overall,” they conclude. They detail several reforms to help improve notice and to “make patents work as property” again the way they claim they once did.

Although the authors deal with patents broadly, the book has great relevance to digital technology policy because of their discussion of business method patents and software patents. (Incidentally, that chapter from the book is available online). They argue that software technology is especially prone to problems of “abstraction” and obviousness. As a result, software patenting has been a major contributor to the litigation explosion we have seen in recent years.

Although I agree with their case against software patents, I remain unconvinced that the patent system is failing as badly as Bessen and Meurer claim. Nonetheless, they present a powerful case that deserves to be taken seriously. Patent Failure will have an enormous impact on these debates going forward.

For more opinions on the book… Tim Lee posted a favorable review of Patent Failure over at Ars this summer. And, back in March, there was a lively discussion about the book over at Patently-O. Finally, at last year’s PFF “Aspen Summit,” Michael Meurer debated these issues with some of America’s leading patent law experts. Bronwyn H. Hall, Professor of Economics at Cal-Berkeley, challenges his findings. The video of that panel is here.

(10) Daniel Solove – Understanding Privacy

Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.  On the other hand, Solove’s claim that he can construct a new paradigm based strictly on a pragmatic, utilitarian, “?problem-solving” approach, is ultimately a failure. There is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another. I elaborate in this lengthy critique of Solove’s Understanding Privacy.

Honorable Mentions: Here are a couple of titles that I couldn’t fit on my list but that you might want to also consider reading: Neil Netanel – Copyright’s Paradox; Matt Mason – The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism; David Friedman – Future Imperfect: Technology and Freedom in an Uncertain World; Cory Doctorow — Content; and Don Tapscott — Grown Up Digital: How the Net Generation is Changing Your World.

Please let me know if there are other titles I have overlooked, and let me know your opinion about the best technology policy book(s) of 2008 by voting in our poll and commenting more down below.

[poll id=”3″]

This afternoon at the New America Foundation, Jonathan Zittrain and I engaged in a spirited debate about his provocative new book, The Future of the Internet and How to Stop It. As always, Jonathan gave an us an interesting and highly entertaining show, and it was a great honor for me to be given the opportunity to provide some feedback about his book. I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).

Jonathan opens with about 45 minutes of remarks and I come into the conversation around the 49 mark of the video. Michael Calabrese of NAF also has some comments about Jonathan’s book after I speak and then there is some interaction with the audience.

If you’re here in D.C. next Thursday, you might want to drop by the New America Foundation to watch Jonathan Zittrain and me go at it about his important new book, The Future of the Internet and How to Stop It.  Our debate will take place on Thursday, November 6th from 3:30 – 5:00 p.m. at New America Foundation headquarters (1630 Connecticut Ave, NW, 7th Floor).  My old friend (but frequent intellectual sparring partner) Michael Calabrese will also be speaking.  Michael is the Director of New America’s “Wireless Future Program” and one of the all-around nicest guys in the world of tech policy.  You can RSVP for the event here.

I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5). We’ve also debated his book on the an NPR-Boston affiliate station if you care to hear a preview of our debate next week.  That show is online here.

I encourage you to join us for what promises to be a very interesting discussion.  As I pointed out in my original review of his book, if you have never had the chance to hear Jonathan speak, you’re in for a real treat.  He is, bar none, the most entertaining tech policy wonk in the world.

Again, RSVP here.

Sorry if it seems like I am beating a dead horse here, but the folks at the City Journal asked me a pen a review of Jonathan Zittrain’s new book, The Future of the Internet and How to Stop It.  Faithful readers here will no doubt remember that I have already penned a review of the book and several follow-up essays. (Part 1, 2, 3, 4). I swear I am not picking on Jonathan, but his book is probably the most important technology policy book of the year–Nick Carr’s Big Switch would be a close second–and deserves attention.  Specifically, I think it deserves attention because I believe that Jonathan’s provocative thesis is wildly out of touch with reality.  As I state in the City Journal review of his book:

[C]ontrary to what Zittrain would have us believe, reports of the Internet’s death have been greatly exaggerated. […] Not only is the Net not dying, but there are signs that digital generativity and online openness are thriving as never before. […] Essentially, Zittrain creates a false choice regarding the digital future we face. He doesn’t seem to believe that a hybrid future is possible or desirable. In reality, however, we can have a world full of some tethered appliances or even semi-closed networks that also includes generative gadgets and open networks. After all, millions of us love our iPhones and TiVos, but we also take full advantage of the countless other open networks and devices at our disposal. […]

Further, while it’s true that the creators of iPhone and TiVo maintain a high degree of control over the guts of the devices or their operating systems, the technologies themselves are hardly sterile or non-generative. In fact, these devices have amazing uses, and they have both recently become more open to third-party add-ons and applications. Geeks who demand still more are also hacking away at these and other digital devices to get them to do everything but wash their dishes.Most of us want networks and digital devices that work.

Zittrain, by contrast, seems to long for the era when we all had to load floppy disks into our PCs each morning to get our operating systems running. But those were hardly the good old days. Device makers realized that only techno-geeks would tolerate such hassles, and so our PCs and phones now come with more software and services built in to make our lives easier. Nothing stands in the way of those who still prefer the rugged individualist approach to conquering cyber-frontiers and digital devices. But what Zittrain does in The Future of the Internet is generalize his personal preferences to the whole of cyber-society. What’s good for the ivory-tower digerati may not be what the rest of us want or need.

If you are interested you can read the entire review here.  Again, I encourage you to read Zittrain’s entire book and decide for yourself if my critique is unfair.  Despite my criticisms, it’s a very well-written and interesting book.  As with everything Jonathan does, he has a special gift for making nerdy tech policy issues both interesting and entertaining.

Well, I actually didn’t exactly get a chance to say quite enough for this to qualify as much of a “debate,” but I was brought in roughly a half hour into this WBUR (Boston NPR affiliate) radio show featuring Jonathan Zittrain, author of the recently released: The Future of the Internet–And How to Stop It. Jonathan was kind enough to suggest to the producers that I might make a good respondent to push back a bit in opposition to the thesis set forth in his new book.

Jonathan starts about 6 minutes into the show and they bring me in around 29 minutes in. Although I only got about 10 minutes to push back, I thought the show’s host Tom Ashbrook did an excellent job raising many of the same questions I do in my 3-part review (Part 1, 2, 3) of Jonathan’s provocative book.

In the show, I stress the same basic points I made in those reviews: (1) he seems to be over-stating things quite a bit in saying that the old “generative” Internet is “dying”; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–-a world full of plenty of tethered appliances, but also plenty of generativity and openness.

If you’re interested, listen in.

I swear I’m not trying to pick on Jonathan Zittrain, but I continue to find examples that create problems for his thesis from The Future of the Internet–And How to Stop It that the whole world is going to hell because of the rise of what he contemptuously calls “sterile, tethered devices.” Again, in his provocative book, Zittrain argues that, for a variety of reasons, the glorious days of the generative, open Internet and general-purpose PCs are supposedly giving way to closed networks and closed devices. In my lengthy review of his book, I argued that Zittrain was over-stating things and creating a false choice of possible futures from which we must choose. I see no reason why we can’t have the best of both worlds–a world full of plenty of tethered appliances, but also plenty of generativity and openness. In a follow-up essay, I pointed out how Apple’s products create a particular problem for Zittrain’s thesis because even though they are “sterile and tethered,” there is no doubt that the company’s approach has produced some wonderful results. As I said..

Personally… I prefer all those “general purpose” devices that Zittrain lionizes. But, again, we can have both. Let Steve Jobs be a control freak and keep those walls around Apple’s digital garden high and tight if he wants. There are plenty of other wide open gardens for the rest of us to play in.

In my original review, I briefly mentioned another problem for the Zittrain thesis: old people! I was reminded about this when I was reading this New York Times article today entitled, “At a Certain Age, Simplicity Sells in High-Tech Gadgets,” by Alina Tugend. Tugend argues:

All right, everyone under the age of 40, go run around the block or something. This column is not for you. It is for people like me, inching toward 50, who are, let us say, not technology-averse, but do not embrace it with the unquestioning love that our children do. For them, no gadget is unnecessary, no add-on excessive, no upgrade superfluous. Now, I know this is not just a generational divide. Some people of any age — we all know a few — buy every new gizmo, the more bells and whistles and buttons, the better. And some people in their 20s and 30s are not enamored with the high-tech side of life. But for those of us who remember getting off the couch to change the channel, technology is not necessarily as innate a part of our lives as it is for those chronologically behind us. I’m sure many of you have played the game with your children, seeing what most shocks them: “We had to watch movies in theaters!” “Phones were attached to the wall!” “We only had an AM-FM radio in the car!” And my personal favorite, “I typed my college senior thesis on an electric typewriter, and used Wite-Out for mistakes!” O.K., enough dawdling on memory lane. The point is that technology does not always come naturally. And everything seems to be getting more diminutive and more complex just as I am getting older and slower. “There are folks who are feeling that things are getting too complicated,” said Jim Barry, a spokesman for the Consumer Electronics Association. “The good news is that you have a lot of choices. The bad news is that you have a lot of choices.”

What this proves is that preferences cannot be generalized. What’s good for tech geeks and the digerati may not be best for everyone else. Here’s how I put it in my original review of Zittrain’s book:

put yourself in the shoes of a mere mortal. It’s easy for many us who are tech geeks to look down our noses at those who seem to want to have the hand held through cyberspace or digital experiences. But there’s nothing wrong with those people who seek stability and security in digital devices and their networking experiences—even if they find those solutions in the form of “tethered appliances.” Not everyone wants to have the same cyber-experiences we do. Not everyone wants to reprogram their mobile phones, hack their consoles, write their own code, or even just write a blog or join a social networking site. Millions upon millions of people live perfectly normal lives without ever doing any of these things! (It’s true, I even met a couple of these people… They are called my parents!) Still, many of those mere mortals WILL want to use many of the same toys we tech geeks use, or take cautious steps into the occasional cold pool called cyberspace—one tippy toe at a time. Why shouldn’t those folks be accommodated with “lesser” devices?

Tugend’s NYT article points out that the market for such devices is developing rapidly because there is hot demand for “simpler” devices (i.e., Zittrain’s much-lamented “sterile, tethered devices”):

Consider the ubiquitous cellphone. Two models of phones, Jitterbug by GreatCall Inc. and Coupe by Verizon, offer the most basic services available. One version of the Samsung Jitterbug, for example, has only three buttons: one you can program to call one number, say a friend, work or home; another to call a live operator; and a third to call 911. The other Jitterbug is more like a regular phone, but both have dial tones and larger keypads. Each Jitterbug costs $147, with minutes extra. There is no contract required. Although the Jitterbug is being marketed primarily to older people (hearing aid compatible), with no cameras, games or confusing icons, I can certainly see the appeal. My children, however, laughed when they heard about the phone. “What’s the point with no games?” my older son asked. Consumer Reports, in fact, called the Jitterbug a cellphone “for the technology weary.” The Coupe ($40 with a two-year calling plan) is aimed at a similar market. It has a few more features than the Jitterbug. Both phones have received mixed reviews from users. Microsoft and Apple have certainly noticed this growing market. Last year, Microsoft began selling the SeniorPC (Memo: may want to think about a name change). Hewlett-Packard’s computers, available as desktops or laptops, come with mental acuity games, prescription software (that provides reminders when to take medication at the correct dosage and when to reorder, as well as medical history), financial software and the option of a keyboard with larger buttons. They can also be used with a simplified desktop screen that hides options, for those who need just a few functions, said Rob Sinclair, director for accessibility at Microsoft. “A lot of technology was originally developed for people with severe disabilities,” Mr. Sinclair said. “But these solutions are proving valuable to a much broader range of people.” Many of these features, known as “ease of access settings,” are automatically available with Windows Vista, like screen readers that audibly describe what is on the screen, screen magnifiers, colors and fonts for easy reading and speech recognition, which allows you to direct the computer with your voice. We have Windows XP, the earlier version of the operating system, and it is easy to click into the accessibility options, which do not include speech recognition, through the control panel. But it has a wheelchair icon, which has been eliminated in the later version. “We now talk about ‘ease of access’ to a computer rather than ‘accessibility,’ ” Mr. Sinclair said. “The subtle change in language reflects a significant change in our approach.”

And what’s wrong with this? Answer: Nothing! People are getting the choices and configurations they want. Older generations are simply not comfortable with the “general purpose” devices that tinker-happy gadgeteers like Zittrain and me prefer. Shouldn’t those people get to enjoy some of the same digital experiences and communications options that the rest of us do without being expected to configure their cell phones or program their PCs?

Again, markets are responding to these needs, but not in ways that Prof. Zittrain prefers. Perhaps in another 25 years, when today’s generation of techno-geeks are grandparents, we’ll all be perfectly comfortable with the devices and networks that Zittrain (and I) prefer. For now, that is not enough. People demand more choices–even if they are “sterile and tethered.” They should get them, and luckily they are.

[Note: You might want to first read my review of Jonathan Zittrain’s book to give this essay some context.]

Jonathan Zittrain must have been smiling as he read Leander Kahney’s excellent Wired cover story this month, “How Apple Got Everything Right By Doing Everything Wrong.” In a sense, the article vindicates Zittrain’s thesis in The Future of the Internet–And How to Stop It. Again, in his provocative book, Zittrain argues that, for a variety of reasons, the glorious days of the generative, open Internet and general-purpose PCs are supposedly giving way to closed networks and a world of what he contemptuously calls “sterile, tethered devices.” And Apple products such as the iPhone, the iPod, and iTunes serve as prime examples of the troubling world that await us. And Kahney’s article confirms that Apple is every bit as closed and insular as Zittrain suggests. Kahney nicely contrasts Apple with Google, a company that “embraces openness,” trusts “the wisdom of crowds,” and has its famous “Don’t be evil” philosophy:

It’s ironic, then, that one of the Valley’s most successful companies ignored all of these tenets. Google and Apple may have a friendly relationship — Google CEO Eric Schmidt sits on Apple’s board, after all — but by Google’s definition, Apple is irredeemably evil, behaving more like an old-fashioned industrial titan than a different-thinking business of the future. Apple operates with a level of secrecy that makes Thomas Pynchon look like Paris Hilton. It locks consumers into a proprietary ecosystem. And as for treating employees like gods? Yeah, Apple doesn’t do that either.

On the other hand, Kahney’s article serves as vindication of my response to Zittrain’s book since the article illustrates how, despite breaking all the typical rules of Silicon Valley, the company is more successful than ever and has legions of happy customers. Again, in my review of his book, I argued that there is no reason that we can’t have the best of both worlds. Much of the time, “open” systems produce the best results. Other times, more closed, proprietary models give rise to great products. Today’s digital marketplace is full of wonderful devices and services of both flavors. Apple’s success proves that point, as Kahney’s Wired article shows:

by deliberately flouting the Google mantra, Apple has thrived. When Jobs retook the helm in 1997, the company was struggling to survive. Today it has a market cap of $105 billion, placing it ahead of Dell and behind Intel. Its iPod commands 70 percent of the MP3 player market. Four billion songs have been purchased from iTunes. The iPhone is reshaping the entire wireless industry. Even the underdog Mac operating system has begun to nibble into Windows’ once-unassailable dominance; last year, its share of the US market topped 6 percent, more than double its portion in 2003. It’s hard to see how any of this would have happened had Jobs hewed to the standard touchy-feely philosophies of Silicon Valley. Apple creates must-have products the old-fashioned way: by locking the doors and sweating and bleeding until something emerges perfectly formed. It’s hard to see the Mac OS and the iPhone coming out of the same design-by-committee process that produced Microsoft Vista or Dell’s Pocket DJ music player. Likewise, had Apple opened its iTunes-iPod juggernaut to outside developers, the company would have risked turning its uniquely integrated service into a hodgepodge of independent applications — kind of like the rest of the Internet, come to think of it.

Importantly, it’s not just that Apple has thrived, it’s that consumers have loved their products to the point that there is a sort of “cult of Apple” out there. I should make clear that I am no Apple fanboy. As my TLF colleagues Tim Lee and Jerry Brito can attest, I am constantly making fun of them for their love of Apple products. I am willing to deal with the warts associated with the PC environment because I love the more open-ended nature of it. That being said, there are times when I have to swallow my pride and admit to Tim and Jerry that, in many ways, their Apple products are superior to my PC and Windows-based toys. It’s impossible to spend a few minutes with the iPhone or the latest iPods and Macs and not fall in love with those devices and their interfaces. They are truly spectacular. Thus, as Kahney’s article makes clear, whether you love him or hate him, you have to admit that Jobs is on to something:

No other company has proven as adept at giving customers what they want before they know they want it. Undoubtedly, this is due to Jobs’ unique creative vision. But it’s also a function of his management practices. By exerting unrelenting control over his employees, his image, and even his customers, Jobs exerts unrelenting control over his products and how they’re used. And in a consumer-focused tech industry, the products are what matter.

Indeed they are. And even though Zittrain labels Apple’s products “sterile and tethered,” there is no doubt that the company’s approach has produced some wonderful results. Personally, they are not for me since I prefer all those “general purpose” devices that Zittrain lionizes. But, again, we can have both. Let Steve Jobs be a control freak and keep those walls around Apple’s digital garden high and tight if he wants. There are plenty of other wide open gardens for the rest of us to play in.

Jonathan Zittrain, who is affiliated with Oxford University and Harvard’s Berkman Center, recently released a provocatively titled book: The Future of the Internet–And How to Stop It. It’s an interesting read and I recommend you pick it up despite what I’ll say about it in a moment. (Incidentally, if you ever have a chance to hear Jonathan speak, I highly recommend you do so. He is, bar none, the most entertaining tech policy geek in the world. Imagine Dennis Miller with a cyberlaw degree.)

Jonathan’s book contrasts two different paradigms that he argues could define the Net’s future: The “generative” Net versus what he refers to as a world of “tethered, sterile appliances.” By “generative” he means technologies or networks that invite or allow tinkering and all sorts of creative uses. Think general-purpose personal computers and the traditional “best efforts” Internet. “Tethered, sterile appliances” by contrast, are technologies or networks that discourage or disallow tinkering. Basically, “take it or leave it” proprietary devices like Apple’s iPhone or the TiVo, or online walled gardens like the old AOL and current cell phone networks.

Jonathan’s thesis is that, for a variety of reasons [viruses, Spam, identify theft, etc], we run the risk of seeing the glorious days of the generative, open Net give way to more tethered devices and closed networks. He states:

“Today, the same qualities that led to [the success of the Internet and general-purpose PCs] are causing [them] to falter. As ubiquitous as Internet technologies are today, the pieces are in place for a wholesale shift away from the original chaotic design that has given rise to the modern information revolution. This counterrevolution would push mainstream users away from the generative Internet that fosters innovation and disruption, to an appliancized network that incorporates some of the most powerful features of today’s Internet while greatly limiting its innovative capacity—and, for better or worse, heightening its regulability. A seductive and more powerful generation of proprietary networks and information appliances is waiting for round two. If the problems associated with the Internet and PC are not addressed, a set of blunt solutions will likely be applied to solves problems at the expense of much of what we love about today’s information ecosystem.” [p. 8].

In other words, Jonathan fears that many people will flock to tethered appliances in a search for stability or security. That’s bad, in his opinion, because those tethered appliances are less “open” and more likely to be “regulable,” either by large corporate intermediaries or government officials. Thus, the “future of the Internet” he is hoping to “stop” is a world dominated by tethered digital appliances because it is too limiting and too easy for others to control.

My primary objection to Jonathan’s thesis is that (1) he seems to be over-stating things quite a bit; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–a world full of plenty of tethered appliances, but also plenty of generativity and openness.

Importantly–and Jonathan acknowledges this point to some extent–the boundaries between “generative” and “tethered appliances” are growing increasingly murky. Social networking sites, for example, allow a great deal of generative activity, but they also impose some limitations on what can be posted, or limit the porting of profiles / information over to other sites. Similarly, the iPhone—which Jonathan calls a “sterile” technology—was completely closed at first, but is now growing more open to tinkering with the SDK rollout. But it’s unlikely it will ever be perfectly open. Finally, the TiVo, which Jonathan also throws into the “sterile” bucket, is a tightly controlled technology in some ways, but allows consumers to do some truly wonderful things with it within certain confines.

And there’s a good reason for all of this: Hybrid solutions often make a great deal of sense. They offer creative opportunities within certain confines in an attempt to balance openness and stability. And this brings us back to how Jonathan is over-stating his thesis, in my opinion; he just doesn’t convince me that the old order—of open networks & general-purpose PCs—is dying. It’s still around and always will be. It’s just that a new crop of characters—let’s call them “mere mortals”—have joined us in cyberspace and are increasingly part of the ongoing digital experience. But those of us who are true-blue tech geeks and tinker-happy gadgeteers still have plenty of generative toys at our disposal even though the mere mortals now walk among us.

For example, like many other tech geeks, I have an outrageously expensive mobile phone that allows me to add just about any application I want to it. Problem is, the more I muck with it, the slower and less reliable it gets in some ways, which is precisely why some mere mortals just want a good old-fashion “sterile” phone that won’t give them any hassles. Regardless, on the “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide what type of device you want. I want something more generative—warts and all. My wife—a true mere mortal if there ever was one—just wants something that works, even if has far fewer options in terms of generative capabilities. (Of course, she’s not trying to compose blog posts like this on her phone like I am! She just wants to check e-mail on occasion and make phone calls. Imagine that: using a phone just to make calls. Crazy!)

So, my question to Jonathan is—to quote the great philosopher Rodney King—Why can’t we all just get along? Isn’t it a sign of progress that we now have different models that appeal to different types of users? After all, those supposedly “sterile” applications like the iPhone and Tivo are loved by millions. Even calling them “sterile” seems a bit silly to me. After all, those devices have “fostered innovation and disruption” just like PCs and the Net have, just in a different way. Regardless, does Jonathan think all those people would really be better off if they were forced to fend for themselves with completely open iPhones and TiVos? Should the iPhone be shipped to market with no apps loaded on the main screen, forcing everyone to get them for on their own? Should TiVos have no interactive menus out-of-the-box, forcing you to go online and find some homebrew that someone whipped up to give you an open source guide in all its blocky ugliness?

Again, before you answer that question for yourself, put yourself in the shoes of a mere mortal. It’s easy for many us who are tech geeks to look down our noses at those who seem to want to have the hand held through cyberspace or digital experiences. But there’s nothing wrong with those people who seek stability and security in digital devices and their networking experiences—even if they find those solutions in the form of “tethered appliances.” Not everyone wants to have the same cyber-experiences we do. Not everyone wants to reprogram their mobile phones, hack their consoles, write their own code, or even just write a blog or join a social networking site. Millions upon millions of people live perfectly normal lives without ever doing any of these things! (It’s true, I’ve even met a couple of these people… They are called my parents!) Still, many of those mere mortals WILL want to use many of the same toys we tech geeks use, or take cautious steps into the occasional cold pool called cyberspace—one tippy toe at a time. Why shouldn’t those folks be accommodated with “lesser” devices?

I fear that Jonathan has spent a little too much time in the ivory tower surrounded by countless people like me who are almost part cyborg in that they use so much technology that they are practically at one with their devices. (If I don’t have a laptop in my backpack and a mobile phone in my pocket I start to experience phantom pains, like I am missing appendages). If one finds themselves stuck in an echo chamber with enough of these other cyborg-humans, they can start to fear the consequences of what might happen when the mere mortals start walking in the front door and asking asinine questions about how to boot up their devices or log on to certain websites. But we have nothing to fear from these aliens. They can have their closed systems and we can have our open systems. We can tinker; they can just play with what they are given. We can be highly interactive cyber-goobers; they can be utterly passive couch potatoes. And so on.

Moreover, a big part of the gap here is simply generational and will pass with time. Once today’s tech geeks are grandparents, most of our kids and grandkids will largely demand the same sort of systems we do because they will be more accustomed to the occasional downsides that accompany the Wild West that cyberspace can sometimes be. But there will always be a crowd who demands some hand-holding and added security.

Jonathan’s short-term concern about how the desire for more stable and secure systems will lead to a more “regulable” world, is understandable. Concerns about privacy, child safety, defamation, identity theft and so on, will continue to lead to calls for more intervention. At the corporate level, however, some of that potential intervention makes a great deal of sense. For example, if ISPs are in a position to help do something to help alleviate some of these problems—especially Spam and viruses—what’s wrong with that? Of course, it gets a lot trickier with things like child safety and copyright issues. That’s where excessive intervention by ISPs could create serious speech and privacy problems—namely in the form of a forced surrender of anonymity.

But, again, I think there is a happy balance here. Bruce Owen, one of my intellectual heroes, really nails it in his response to Jonathan’s thesis:

“Why does Zittrain think that overreaction is likely, and that its costs will be unusually large? Neither prediction is self-evident. Faced with the risk of infection or mishap, many users already restrain their own taste for PC-mediated adventure, or install protective software with similar effect. For the most risk-averse PC users, it may be reasonable to welcome “tethered” PCs whose suppliers compete to offer the most popular combinations of freedom and safety. Such risk-averse users are reacting, in part, to negative externalities from the poor hygiene of other users, but such users in turn create positive externalities by limiting the population of PCs vulnerable to contagion or hijacking. As far as one can tell, this can as easily produce balance or under reaction as overreaction—it is an empirical question. But, as long as flexibility has value to users, suppliers of hardware and interconnection services will have incentives to offer it, in measured ways, or as options.”

That’s exactly right. We can find happy middle-ground solutions. By contrast, Jonathan’s alternative solutions to these problems are quite amorphous. He speaks of the need for a “latter-day Manhattan project, not to build a bomb but to design the tools and conventions by which to continuously defuse one.” (p. 173). That seems like a strange metaphor or paradigm for him to choose since the Manhattan project was highly secretive and centrally planned, the exact opposite of what he seems to desire. But, again, what he desires remains very murky. It seems he wants to solve the problems brought about by openness with more openness—primarily in the form of collective intelligence and action. If we all just find smart ways to work together, we can improve open systems, he argues. Well, sure we can.. sorta. But it will never work perfectly on its own. Some people are going to want more safety and security. They should get it, even if comes in the form of “sterile appliances and tethered devices.” Because, again, the rest of us always have the option to choose something else.

One proposed solution that Jonathan does spell out in a bit more detail troubles me greatly. When discussing the future of Net neutrality, he makes some interesting arguments similar to those we often make here about how unlikely it is that network intermediaries will really be able to stifle the free flow of bits. But then Jonathan goes on to say:

“If there is a present worldwide threat to neutrality in the movement of bits, it comes not from restrictions on traditional Internet access that can be evaded using generative PCs, but from enhancements to traditional and emerging appliancized services that are not open to third-party tinkering.” (p. 181)

He then blasts cable and satellite boxes as being “walled gardens” and creating “mediated experiences” and goes on to ask: “So when should we consider network neutrality-style mandates for appliancized systems?” I would have hoped the answer would be NEVER, since we don’t want pesky FCC bureaucrats making those sort of calls for us and stifling device innovation as a result. Alas, Jonathan seems to feel differently, and responds to his own question as follows:

“The answer lies in that subset of appliancized systems that seeks to gain the benefits of third-party contributions while reserving the right to exclude it later. … Those who offer open APIs on the Net in an attempt to harness the generative cycle ought to remain application-neutral after their efforts have succeeded, so all those who built on top of their interface can continue to do so on equal terms.” (p. 184)

I have many problems with that logic. First, most developers who offer open APIs aren’t likely to close them later precisely because they don’t want to incur the wrath of “those who built on top of their interface.” But, second, for the sake of argument, let’s say they did want to abandoned previously open APIs and move to some sort of walled garden. So what? Isn’t that called marketplace experimentation? Are we really going to make that illegal? Finally, if they were so foolish as to engage in such games, it might be the best thing that ever happened to the market and consumers since it could encourage more entry and innovation as people seek out more open, pro-generative alternatives.

Consider this example: Now that Apple has opened to door to third-party iPhone development a bit with the SDK, does that mean that under Jonathan’s proposed paradigm we should treat the iPhone as the equivalent of commoditized common carriage device? That seems incredibly misguided to me. If Steve Jobs opens the development door just a little bit only to slam it shut a short time later, he will pay dearly for that mistake in the marketplace. For God’s sake, just spend a few minutes over on the Howard Forums or the PPC Geeks forum if you want to get a taste for the insane amount of tinkering going on out there in the mobile world right now on other systems. If Apple tries to roll back the clock, Microsoft and others will be all too happy to take their business by offering a wealth of devices that allow you to tinker to your heart’s content. We should let such experiments continue and let the future of the Internet be determined by market choices, not regulatory choices such as forced API neutrality.

Anyway, read Jonathan’s book. I’ve probably gone a bit too hard on him here, but it’s an important and enlightening book about one possible vision of the Net’s future. In the end, I guess my outlook is just a little rosier than his.

( Update: Following this review, I discussed my reservations in a series of follow-up essays. (Part 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here]. Finally, I named Jonathan’s book the “most important tech policy book of 2008” on my end-of-year Top 10 list.)