Adam Thierer's Blog, page 165

Don Tapscott on mass collaboration

On the podcast this week, Don Tapscott, writer, consultant, and speaker on business strategy and organizational transformation, and co-author of the bestseller Wikinomics, discusses his new book, Macrowikinomics: Rebooting Business and the World. In the book, Tapscott and his co-author, Anthony Williams, document how businesses, governments, nonprofits, and individuals are using mass collaboration to change how we work, live, learn, create, and govern. On the podcast, he discusses an Iraq veteran whose start-up car company is "staffed" by over 45,000 competing designers and supplied by microfactories around the country. He also talks about how companies are using competitions for R&D, and how mass collaboration can improve government regulation and universities.

Related Links

Macrowikinomics: The Choice Between Atrophy or Renaissance, Don Tapscott and Anthony Williams
The wiki way: Two cyber-gurus take a second look at how the internet is changing the world, The Economist

To keep the conversation around this episode in one place, we'd like to ask you to comment at the web page for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

One Cheer for Patent Trolls

"On the whole, the results certainly seem to suggest that patent trolls with software patents do very much view the system as a lottery ticket, and they're willing to use really weak patents to try to win that prize. That is not at all what the patent system is designed to do, but it's how the incentives have been structured — and that seems like a pretty big problem that isn't solved just by showing how many of these lawsuits fail. The amount of time and resources wasted on those lawsuits, as well as the number of companies who pay up without completing a lawsuit, suggest that there is still a major problem to be dealt with."

So writes the always-thoughtful Mike Masnick at Techdirt.  He is referring here to a newly-published article by John R. Allison, Joshua Walker and Mark Lemley, released as a Stanford Law and Economics Olin Working Paper.  Mike has written frequently about patent trolls—companies that buy up patents from inventors and then make money by litigating or threatening to litigate against potential infringers—and never with much sympathy.

The Stanford Study

I have a less extreme view of patent trolls, about which more in a moment.  First, a few words about the study.

The Allison/Walker/Lemley paper, working with a couple of different databases of patents and litigation involving them, did a number of interesting regressions that revealed some counter-intuitive findings about the current state of patent lawsuits.

The study found that patents litigated most frequently—that is, whose holders bring lawsuits against multiple alleged infringers—are often the least likely to stand up in court.  "Once-litigated patents win in court almost 50% of the time," the authors found, "while the most-litigated – and putatively most valuable – patents win in court only 10.7% of the time."

Which is to say that when a patent lawsuit actually goes to trial (few do), the most frequently-asserted patents were nearly always found to be invalid in the first place.  Such patents should never have been granted by the Patent Office, either because they are obvious, non-novel, or otherwise fail to meet the criteria for a patent.  (Invalidity of the patent is a complete defense to a claim of infringement.)

The worst offenders in the study are software patents (see "Bilski:  Justice Stevens' Last Tilt at the IP Windmills"), which accounted for almost 94% of the most often asserted patents in the study and yet were upheld as valid less than 10% of the time they actually went to trial.

Yet in most cases these patents are asserted against multiple defendants, most of whom pay settlements to avoid the time, expense, and uncertainty of a trial.  That decision, the study suggests, is a mistake.  Defendants who take these cases all the way through trial usually win; that is, they pay nothing.

Well not exactly nothing.  Even a successful litigant must pay the costs of defending her case, and that cost can run into the millions.   (In some situations, the loser must pay the winner's costs, but under the Patent Act, fee shifting only occurs in "exceptional" cases.)

As the authors note, "It appears that as a society, we are spending a disproportionate amount of time and money litigating a class of weak patents. Our results may also have implications for our models of patent value and of rational behavior in litigation, since it appears we know quite a bit less than we thought about what makes patents valuable."

Toward a Modest Defense of Trolling

Masnick and others take this study as further evidence—if any was needed—that patent trolls are a drain on society offering absolutely nothing but headaches, interference with innovation, and enormous wastes of money, both from litigants and the taxpayers, who underwrite the court system.  Patent trolls or "Non-Practicing Entities" (NPEs) as the authors call them, win only 9.2% of their lawsuits that go to trial.  (Only about 10%, however, go to trial, and the terms of settlements are kept confidential by both sides.)  Clearly their patents, especially the ones they assert the most frequently, are junk.

(Why would the most frequently-asserted patents be the most likely to fail a validity challenge at trial?  The broader the patent, the easier to assert it against a wide range of potential infringers, and the more likely they will be, given the breadth, to settle.  But at trial the value of a broad claim shifts—what looks scary to a defendant for the same reasons looks most dubious to the trier-of-fact.  Claims that are too broad are rejected, precisely because they represent the grant of a monopoly over too much otherwise productive economic activity.)

As I wrote in "The Laws of Disruption," I don't have much sympathy for patent trolls, but I don't go quite as far as their harshest critics.  Put another way, I'm not sure I share Masnick's conclusion that the findings of the study lead to the conclusion that "there is a still a major problem to be dealt with," or in any case that it ought to be dealt with by reforming trolls out of the system altogether.

(For a spirited defense of trolls, see this multi-part posting.  Unfortunately the author never gives his name!)

Why the hesitation?  Even if every patent troll is a low-life individual or entity, and even if nearly all of the patents they assert are ones the patent office should never have granted in the first place, there's still a positive benefit to society from the existence of patent trolls.

To understand why, consider how a troll becomes a troll.

Patents are granted to inventors, and the intent in giving them a 20-year monopoly on the use of their invention is to provide a market biased in their favor.  They can either commercialize the invention themselves without fear of competition, or sell or license the invention to others to do the same.

Keeping competitors away, albeit for a limited time, gives the inventor the chance to recover their up-front investment in making the invention.  In some cases, inventors toil at their own expense for years before coming up with anything new (if ever), and even then the potential market for their invention may be small or non-existent.

Granting a patent goes against the otherwise free market orientation of capitalist economies, but is thought to be a necessary evil.  If inventors don't believe they'll have protected markets, they may not undertake the risk and cost of inventing.  And if they don't, important inventions may be delayed or lost.  If that happens, everyone loses.  That, in any case, is the theory behind patents.

But a patent troll, by definition, has done no inventing and has no intention of commercializing the inventions they buy.  They simply sue or threaten to sue companies they believe are using the invention (intentionally or, more likely, unintentionally), extracting tribute in the form of forced licenses or other damages.

So what positive role do they play in the system?

Consider how a troll gets a patent in the first place.  In the simplest case, an inventor finds they cannot afford to commercialize their invention, or doesn't have the risk or managerial profile necessary to try.  Perhaps they try to sell the invention to a company in the industry who can make use of it, or offer to license the invention to several such companies.  The inventor may be rebuffed or ignored or offered a price too low to keep her in the business of inventing.  Maybe the invention isn't worth the investment already made, or maybe the company fails to evaluate its potential accurately or even at all.

Or maybe the company, knowing that the inventor lacks the resources not only to commercialize but also to protect her invention, takes the chance of ignoring the patent and continues to operate as before, even if that means infringing the patent.

Well, why not?  The inventor's claim may be no good, or may not cover the company's behavior.  But even if there is infringement, the road to proving it is long, expensive, and requires a skill set in litigation, negotiation and the substantive law of patents the inventor almost surely doesn't have and, perhaps, can't afford to engage.

So as a last resort, the inventor sells the patent to an NPE.  The NPE may buy up many patents, perhaps for related inventions, in the hopes that the combined pool includes at least some that are both valid and cover some unlicensed behavior in industry—or at least that a threat that they do will be credible.  They assert these patents against whatever defendants will most likely be induced to settle, balancing the potential settlements against the probability of incurring the costs of litigation, perhaps all the way to a trial.

As the Stanford paper suggests, in the vast majority of cases the authors studied the asserted patents were in fact junk, at least as determined at trial (judge and jury may have their own biases, of course).  The inventors shouldn't have gotten anything for them, either from the defendants or from the patent troll, because the patent never should have been granted in the first place.  Again, the trolls may know better than the study suggests the real value of their holdings, and may be betting that the transaction costs of litigation will encourage defendants to settle anyway.

That bet is a game of chicken, for if the defendant chooses to litigate then both sides must absorb heavy litigation costs no matter who wins—the troll bets that the defendant will simply pay them to go away.

Patent trolls may make most of their money, in other words, from arbitraging the inefficiencies and failings of the current patent system.

But even if this is so, there is still value to the system and to society from the existence (if not the individual behaviors) of patent trolls.  For without them, potential defendants have no incentive to deal with inventors who want to sell or license their inventions, even valid ones.  Absent patent trolls, the companies would conclude the inventor can't litigate regardless of the validity of the claim, a reality the inventor always would know.

Without the existence of patent trolls as a buyer of last resort, there's no credible threat the inventor can make, and a rational defendant will simply carry on knowing the patent can't be successfully enforced.  Knowing this set of facts, inventors at the margins may not undertake their research in the first place.

So even if every non-practicing entity is a troll, and even if every troll-asserted patent is garbage, the role in the system played by the existence of trolls is an important one.

Whether it justifies its cost today is another matter, one tied hopelessly to the other weaknesses and dysfunctions of the overall patent system.  Speaking generally, the authors conclude that "it is important to recognize that software patents and patents asserted by NPEs are both taking disproportionate resources in patent litigation, and that the social benefit from those cases appears to be slight."  But they stop well short of calling for reforms that would eliminate the incentives that keep NPEs in the game.

That caution, for now, seems sensible.

Fixated on Data Breach Notification?

Well, then, this post (via Adam Shostack) is for you!

"Dissent" goes through the numbers revealed in the first year of data breach reporting under the Health Insurance Portability and Accountability Act regulations. The post gives extremely light treatment to the possibility—indeed, the likelihood—of noncompliance with the regulations due to unawareness of breaches or judgments that reporting is more dangerous than not reporting.

But one also must wonder . . . Why does this matter?

Data breach notification is the grown-up version of the schoolyard taunt: "Your epidermis is showing!" The questions are: What part of the epidermis? And what social or economic consequences does it have?

Of course, these statistics may be interesting and relevant to security professionals, but harm is where the rubber hits the road for consumer protection. (See this interesting colloquy recently on Concurring Opinions.) Some data breaches have some relationship to consumer harm, but gross breach statistics don't seem to be a window onto harm prevention.

The Geocentric Theory of Political Media

"There's no question [cable news is] contributing to the splintering of the political system and the means by which people get information about that system," said Robert Thompson, who runs the Bleier Center for Television and Popular Culture at Syracuse University. "If there's no standard base line of fact and reporting, where can the conversation go?"

This, from "Cable News Chatter is Changing the Electoral Landscape," by Howard Kurtz and Karen Tumulty in today's Washington Post.

Cable news and, of course, the Internet are definitely splintering the media environment. But there's a big difference between the political system and the means by which people get information about it. Why on earth should there be a standard base line on which all political conversation must rest?

Speaking of earth, people used to think that the earth was at the center of the universe. Other planets moved erratically with relation to ours, and that was difficult to explain. Now we know that it is the sun at the center of our solar system, and the movements of planets, stars, and galaxies have been rationalized.

Many of us occupy different political and ideological planets, some of which have similar orbits, some very different. Slowly, sometimes, we can align our orbits by inquiring and debating about the nature of humankind, what is good, and the social systems that produce the greatest good for the greatest number.

Finding out that we should have these debates is not a threat to the political system. It's a threat to the geocentric model of the political system, in which the three major networks provided the "standard base line of fact and reporting."

The media universe is still not splintered enough, in my opinion. But, increasingly, the conversation will more easily go wherever it is supposed to go, unhindered by the false authority of a small number of news executives.

Is It Really Practical to Ban All Talking While Driving?

Distracted driving is a serious problem. When you're flying down the road at speed maneuvering a 2-ton piece of machinery, you need to be paying attention to the road to keep yourself, and others around you, safe.  Distractions of any sort can be dangerous and undercut the driver's ability to stay focused.  And it's certainly true that digital devices can be among the biggest distractions. But I think we have to ask some practical questions about just how far law can and should go to minimize that distraction.

I raise this issue because, according to this Bloomberg article yesterday, "U.S. Transportation Secretary Ray LaHood says he believes motorists are distracted by any use of mobile phones while driving, including hands-free calls, as his department begins research that may lead him to push for a ban."  Sec. LaHood believes that even hands-free phone conversations are a "cognitive distraction" and should be prohibited.  Also, "his concerns extend to vehicle information and entertainment systems such as Ford Motor Co.'s Sync and General Motors Co.'s OnStar," which means that almost every conceivable in-vehicle technology could be regulated under LaHood's scheme.

To be clear, I'm not necessarily opposed to laws addressing talking on phones or texting while driving since those actions can have dangerous consequences. But I've always preferred a more generic enforcement strategy when it comes to distracted driving laws.  As I noted in my old 2007 essay, "Banning In-Car Technologies Won't Work," to the extent law enforcement needs to be brought into the picture it should be done in a technology-agnostic or activity-agnostic fashion. I went on to argue:

Instead of trying to ban technologies (cell phones, radios, MP3 players, navigation devices, etc.) or specific activities (conversations, singing, smoking, etc.) inside the cabin of an automobile, police officers should simply enforce those laws already on the books dealing with reckless or negligent driving.  If a driver is weaving in and out of traffic lanes, or posing a serious threat to others on the road for any reason, they should be pulled over and probably ticketed if the infraction is serious enough.  For starters, I'd like to see some of those stupid idiots I see eating while driving, or worse yet, putting on make-up behind the wheel, pulled over and ticketed when they are driving erratically. But the same goes for anyone who is operating a vehicle in a dangerous fashion. Again, enforce basic traffic safety rules and focus on educating drivers about vehicle safety. Don't ban new technologies.

That's still where I stand on this issue.  Moreover, I keep coming back to the practicality of the sort of sweeping technology bans that Sec. LaHood and others advocate.  I just don't think it's possible to eliminate all these devices and activities from cars, at least not with creating an Auto Police State, and a huge headache for law enforcement officers to boot.  Even if you banned integration at the factory of in-vehicle technologies, plenty of people would find after-market alternatives.  And you just can't stop people from lugging their digital devices around with them wherever they go.

Thus, to reiterate, the better solution here is to:

Continue to make those technologies more road-friendly by integrating in more safety features. As I noted in this CNBC interview earlier this year, Ford's new systems, for example, have some very impressive voice-activated features. And others are following suit.
Educate drivers about safer vehicle operation & proper technology use.  For more on that, see Berin Szoka's excellent post, "Texting While Driving: Regulate or Empower & Educate?"
Apply stiffer fines to erratic driving infractions. Again, if a driver is posing a threat others on the road for any reason, they should be penalized for that behavior.

I want to raise a final proposal. If Sec. LaHood and others are serious about minimizing distracting in-vehicle conversations, then I would ask them to find to a solution to the greatest threat to driver safety: nagging spouses and poorly-behaved children!  Seriously, there is no greater "cognitive distraction" to a driver than family fights and bad kids.

"Modernizers" vs. "Preservationists": Another Cut at the Optimist vs. Pessimist Divide

As I continue to do research for what will become a chapter-length version of my old essay, "Are You An Internet Optimist or Pessimist? The Great Debate over Technology's Impact on Society," I am reading or re-reading some old books that have touched upon these debates through the years.  Earlier this week, after an event over at ITIF, my friend Rob Atkinson reminded me that he had discussed some of these issues in his 2004 book, The Past and Future of America's Economy.  Specifically, in Chapter 6, "The New Economy and Its Discontents," Rob showed how "American history is rife with resistance to change," as he recounts some of the heated battles over previous industrial / technological revolutions. I really loved this bit on page 201:

This conflict between stability and progress, security and prosperity, dynamism and stasis, has led to the creation of a major political fault line in American politics. On one side are those who welcome the future and look at the New Economy as largely positive. On the other are those who resist change and see only the risks of new technologies and the New Economy.  As a result, a political divide is emerging between preservationists who want to hold onto the past and modernizers who recognize that new times require new means.

I like those "Preservationists" vs. "Modernizers" descriptors, and I like the fact that Rob also uses the "dynamism and stasis" paradigm, which he borrowed from Virginia Postrel, who contrasted those conflicting worldviews in her 1998 book, The Future and Its Enemies.  As I noted in my essay about "Two Schools of Internet Pessimism," I think that "dynamist vs. stasis" model — more than anything else I've read before or since — best explains the chasm that separates competing schools of thinking about the Internet's impact on culture, economy, and society.

But Rob's "preservationists" label is also apt. It correctly identifies the fundamental conservatism that lies at the heart of the pessimistic attitude and the "stasis" mentality.  Many Net skeptics just can't seem to let go of the past. They are too invested in it or wedded to something about it.  They want to imagine that some earlier time was more unique and valuable than the unfolding present or unpredictable future.  From their perspective, evolutionary dynamism is undesirable precisely because we can't preserve some of the things which they feel made that previous era great. That something could be a specific form of culture, a particular set of institutions, or any number of other things.  The key point is: The don't like the fact the technology is fundamentally disruptive and that is dislodges old norms and institutions. What is familiar is more comforting than that which is unknown or uncertain.  That's the security blanket that the stasis / preservationist mentality provides.

Dynamism, by contrast, requires ongoing leaps of faith since we must continuously embrace, or at least accept, the fundamental uncertainty of social / technological change.  I love the scene at the end of "Indiana Jones and the Last Crusade" [clip below] where Indy has to make the "leap of faith" and step out onto a walkway that doesn't appear to be there at first. It's a useful way of thinking about how we must sometimes approach life in the Digital Age.  Who knows what lies around the cyber-corner?  Answer: nobody.  As I've pointed out before, what pessimists of all varieties seem to fail to appreciate is that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. We humans have never seen an industrial or technological revolution that has unfolded at the breakneck pace of the Digital Revolution.  And as I noted in this debate with Zittrain, nothing—absolutely nothing—that was sitting on our desks in 1995 is still there today (in terms of digital hardware / software, I mean) and I doubt that much of what was on our desk in 2005 is still there either.  And our online communities have seen similar revolutions during that time. It's easy to forget that most of us had never read or used a blog 10 years ago. Or that even just five years ago, few of us had ever heard of Facebook or other social networking sites. And Twitter, Android, and the iPhone were still a ways off.

It's just amazing how fast disruptive innovation unfolds on the digital frontier.  Again, no one knows what lies around the corner next.  But if we were to adopt the "preservationist" mentality, we might never find out. We have to continue to be willing to take little leaps of faith each day.  It's vital that we embrace evolutionary dynamism and leave a broad sphere for continued experimentation by individuals and organizations alike because freedom broadly construed is valuable in its own right—even if not all of the outcomes are optimal.  As Clay Shirky rightly noted in his 2008 book, Here Comes Everybody:

This does not mean there will be no difficulties associated with our new capabilities—the defenders of freedom have long noted that free societies have problems peculiar to them. Instead, it assumes that the value of freedom outweighs the problems, not based on calculation of net value but because freedom is the right thing to want for society.

Silicon Valley, If You Dance with the Devil, Don't be Surprised When You Get Burnt

I'm always amused when I read stories quoting high-tech company leaders bemoaning the fact that they supposedly don't get enough respect from Washington legislators or regulators.  The latest example comes from a story in today's Politico ("D.C. Crowd's Path to Silicon Valley" by Tony Romm) which begins by noting that, "A trek to Silicon Valley has become a must-do for D.C. lawmakers seeking to stress their business and tech bona fides while developing relationships that could lead to big campaign donations down the road."  And yet it ends with this ironic bit:

Silicon Valley types typically don't mind hosting lawmakers, as the trips give businesses out West the chance to put issues and needs on the minds of their regulators. But tech bellwethers sometimes don't take kindly to lawmakers who treat the valley as an endless ATM. "All too often, people see Silicon Valley as the wallet and set aside the words or wisdom that [it] can provide," said Carl Guardino, president and CEO of the Silicon Valley Leadership Group.

Well, boo-hoo.  If Mr. Guardino and his fellow Silicon Valley travelers don't like being treated like an ATM, then they should stop behaving like one!  No one makes them give a dime to any politician.  And once you start playing this game, you shouldn't be surprised by how quickly you'll become entrenched in the cesspool that is Beltway politics and become less and less focused on actually innovating and serving consumers.

I wish people like this would go back and read "Why Silicon Valley Should Not Normalize Relations with Washington, D.C." by Cypress Semiconductor President and CEO T.J. Rodgers.  Everything he said 10 years ago has come true.  "Government can do only two things here: take our money, limiting our economic resources; or pass laws, limiting our other freedoms," he warned in 2000. "The political scene in Washington is antithetical to the core values that drive our success in the international marketplace and risks converting entrepreneurs into statist businessmen."  "The collectivist notion that drives policymaking in Washington is the irrevocable enemy of high-technology capitalism and the wealth creation process."

Instead, the high-tech industry snuggles ever-tighter under the covers with Big Government and then dispenses the Benjamins from their "ATMs" even when the love affair goes sour and they get no respect in the morning.  They should get back to serving customers instead of courting politicians.

Jamie Boyle & Paul Jones on the Open Internet, Generativity, and Competition

Last week, I had the pleasure of discussing net neutrality with James Boyle, a Duke Law Professor and the co-founder of the Center for the Study of the Public Domain, and Paul Jones, the director of ibiblio, on WUNC's The State of Things radio program. Our hour-long discussion touched on a number of important tech policy topics, and I highly recommend giving the show a listen (download the MP3 here) if you're interested in hearing the insights of two very thoughtful scholars and critics of cyber-libertarianism.

I'm a big admirer of Boyle and Jones, who've both done a lot of excellent work studying copyright and public domain in the information age. While I don't share their views on the merits of net neutrality regulation — or, perhaps, of government regulation in general — there's much common ground between us on many issues, including intellectual property, free speech, and government surveillance.

For folks who don't want to spend an hour listening to our discussion, I've typed up a brief summary of the questions we attempted to tackle in our discussion and the various arguments we raised. My apologies if I've mischaracterized any arguments or statements  — if you want to know what was actually said, go listen to the whole interview!

What role should government play in regulating the Internet? I argue its proper role is to enforce voluntary arrangements (Terms of Service) and, when appropriate, enforce civil judgments against firms that have broken their promises. Boyle, on the other hand, argues that government should enforce not only contracts but also net neutrality rules because last-mile Internet service is a natural monopoly and consumers often don't understand what they're getting, which means that socially desirable contracts aren't likely to emerge. I respond by citing Thomas DiLorenzo's critique of the natural monopoly hypothesis and pointing out that government has obstructed ISP competition by allocating spectrum inefficiently and imposing excessive costs on wireline ISPs through burdensome rights-of-way and franchising rules.


Why did Google retreat on its commitment to net neutrality in joining with Verizon to exempt wireless services from neutrality? Boyle argues it's because Google realized the future of communications is mobile and believed it needed to compromise with Verizon (America's biggest wireless carrier). Jones points out that the Google-Verizon proposal isn't a business agreement, but a compromise designed to address the conflicting interests of various stakeholders. I argue that Google recognized that government discrimination among competing business models and platforms is a greater danger to consumers than provider discrimination, and that innovation truly occurs when 'walled gardens' such as the iPhone co-evolve with open platforms like Android — the "Yin and Yang" of innovation, as Bret Swanson puts it). Boyle argues that proprietary platforms and exclusionary deals between content and service providers preclude disruptive innovation and digital generativity. He cites the financial crisis as an example of inadequate regulation resulting in poor outcomes that might have not have occurred had there been greater oversight.


Does collusion among large, powerful Internet corporations help or harm consumers and innovation? Jones cites Adam Smith's The Wealth of Nations in arguing that, without government regulation, mega-corporations will collude and carve up the marketplace, hindering innovation and progress. I argue that leaving companies free to try to "carve up markets" actually spurs beneficial competitive responses and promotes destructive market entry, even if the process isn't always pretty. I argue that the forces arrayed against today's major companies–competitors, consumers, suppliers, downstream partners–make it impossible for any entity or group of entities to engage in any truly abusive practices without suffering harsh punishment.


Will entrepreneurs and innovators even be able to get off the ground if corporations have unlimited control over Internet applications and content? I argue that government policies, such as the DMCA's anti-circumvention provisions, are a major part of the problem because they distort natural market outcomes and prop up bad business models. Boyle agrees that these provisions are seriously problematic, calling DMCA a "lawyers' full employment act." He points out that many of the most important innovations of the last couple of decades — Google, Facebook, Twitter, and so forth — came about precisely because of the Internet's openness and dynamism. I argue that the openness that characterizes the Internet is indeed desirable in many ways, but that voluntary institutions can offer open platforms without being forced to do so by government. I point out that network operators who hinder the value of the content that traverses their pipes do so at their own peril, and that infrastructure and content companies actually have a symbiotic relationship, rather than an adversarial one. Jones argues that because many ISPs are also content companies, they have an incentive to privilege their own content at the expense of competing offerings. I point out that consumer demand for Internet video outlets (i.e. YouTube and Hulu) deters providers from slowing down Internet-delivered content. Boyle argues that the continued existence of the open Internet is crucial in ensuring that the 'walls' that enclose walled gardens don't grow too tall.


Shouldn't we treat the Internet like a public utility — a road on which all can travel? I argue that treating the Internet like a public utility, like we already treat roads, raises the dilemma of the tragedy of the commons. I point out that many private roads already exist today without the 'tollbooths' that neutrality advocates fear. Jones points out that the real tragedy is one of unregulated commons which lack adequate rules. Boyle argues that the economics of physical property (scarce goods) cannot readily be mapped to networks and calls the Internet a "comedy of the commons" (borrowing from Carol Rose). I argue that government-run commons have a poor track record, from highways to the wi-fi band, and that the success of network industries requires smart investment and innovation that government isn't well-equipped to deliver. Boyle argues that not all resources must be owned if they're to be efficiently utilized, citing the emergence of free trade with India and China in the 1700s and the subsequent collapse of state-chartered trading monopolies. Boyle argues that tomorrow's "next great thing" may never emerge if the openness of today's Internet isn't enshrined in regulation.

Problems in Public Utility Paradise, Part 14: Muni Wi-fi Postmortem

Many of the installments of our ongoing "Problems in Public Utility Paradise" series here at the TLF have discussed the multiple municipal wi-fi failures of the past few years. Six or so years ago, there was quixotic euphoria out there regarding the prospects for muni wi-fi in numerous cities across America — which was egged on by a cabal of utopian public policy advocates and wireless networking firms eager for a bite of a government service contract.  A veritable 'if-you-build-it-they-will-come' mentality motivated the movement as any suggestion that the model didn't have legs was treated as heresy.  Indeed, as I noted here before, when I wrote a white paper back in 2005 entitled "Risky Business: Philadelphia's Plan for Providing Wi-Fi Service," and kicked it off with the following question: "Should taxpayers finance government entry into an increasingly competitive, but technologically volatile, business market?," I received a shocking amount of vitriolic hate mail for such a nerdy subject.  But facts are pesky things and the experiment with muni wi-fi has proven to be even worse than many of us predicted back then.

A new piece by Christopher Mims over at MIT's Technology Review ("Where's All the Free Wi-Fi We Were Promised?") notes that "no technology happens in a vacuum, and where the laws of the land abut the laws of nature, physics will carve your best-laid plans into a heap of sundered limbs every time." He continues, "the failure of municipal WiFi is an object lesson in the dangers of techno-utopianism. It's a failure of intuition — the sort of mistake we make when we want something to be right."  Too true.  Mims was inspired to pen his essay after reading a new paper, "A Postmortem Look at Citywide WiFi", by Eric M. Fraser, the Executive Director for Research at the Committee on Capital Markets Regulation.  "Almost everyone was fooled by the promise of citywide WiFi," Fraser notes, because of the promise of a "wireless fantasy land" that would almost magically spread cheap broadband to the masses.  But, for a variety of reasons — most of which are technical in nature — muni wifi failed.  Fraser summarizes as follows:

WiFi cannot deliver a citywide network because technical and regulatory limitations combine to require access points at least every few hundred feet outside and even closer together indoors. Mounting that many access points is generally too expensive and is nearly impossible inside private buildings. WiFi deployments require high-touch, high-density installations. Meanwhile, users often have WiFi access in homes, at work, at coffee shops, in hotels and airports, and in select government buildings. For users who require wireless access outside those areas, private cellular companies offer high-speed 3G wireless data networks using technologies better suited for widespread coverage (because of not only technical differences but also regulatory differences). As a result, the major public WiFi projects were destined for failure and municipalities instead should devote resources to small, focused networks.

Policy makers would be wise to remember the lessons of this experiment next time regulatory activists groups come knocking on their doors with more grandiose "public utility" or even "public media" schemes.  The recent experiment with muni wi-fi again points to the failure of the top-down driven model of planning complex networks and the risks inherent in letting government gamble taxpayer dollars on these risky bets.

Some Thoughts on Rob Atkinson's Who's Who in Internet Politics

Today it was my pleasure to take part in an Information Technology and Innovation Foundation discussion about Rob Atkinson's interesting new white paper, "Who's Who in Internet Politics: A Taxonomy of Information Technology Policy Perspectives ."  [You can find the video of the event here or embeded down below.]  Rob divides the information technology landscape into 8 tribes: cyber-libertarians, social engineers, free marketers, moderates, moral conservatives, old economy regulators, tech companies and trade associations, and bricks-and-mortars. Most of those are fairly self-explanatory, but during my response time, I pushed back on a few of these groupings.

First, I pointed out that there really didn't seem to much of a difference between "cyber-libertarians" and "free marketers."  Of course, part of the reason I feel this way is because I believe Rob is improperly equating cyber-libertarianism with Internet exceptionalism.  I've pointed out the distinction between the two in this essay with Berin Szoka.  We note that Internet exceptionalists are essentially first cousins to cyber-libertarians in that both groups believe that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But cyber-libertarianism, properly understood, is something more than just special treatment for the Net.  It refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online. Again, please see "Cyber-Libertarianism: The Case for Real Internet Freedom" by Berin and me for more details.

Second, I argued that Rob had too narrowly defined the conservative category by labeling it "moral conservatives."  He should have instead just called it "conservatives" or "social order" because there is a rising group of conservative thinking out there that care about more than just the Net's impact on morality.  In particular, there's growing concern among some conservatives about safety and stability (especially cyber-warfare) and that isn't exactly a "moral" concern.  So, Rob needs to broaden that category a bit.

Third, I love Rob's moniker for the "social engineers" camp and I think that's a useful way of describing what groups like Free Press, Public Knowledge, EPIC, Center for Digital Democracy advocate, and the way that scholars like Lawrence Lessig and Tim Wu think.  Like self-styled technocratic philosopher kings, this crowd really does want to engineer the Internet to achieve their various preferred ends/outcomes.  But I suggested to Rob that not all social engineers are equal.  For example, he places both Free Press and Center for Democracy and Technology (CDT) in the "social engineers" camp.  But there is a world of difference between these two groups. While I have occasional differences with CDT on some policy issues, the organization generally focus on user empowerment and has a healthy skepticism about over-zealous government regulation of the Net.  Free Press, by contrast, might best be thought of as cyber-Stalinists.  They are about one thing and one thing only: control. They want all-encompassing government control of almost every layer of the Net, the mediasphere, journalism, … you name it.  There is social engineering and then there is social engineering, and Free Press is taking it to an almost totalitarian extreme. CDT absolutely does not belong on the same list as Free Press and, because of that, Rob needs to more carefully consider how broad the "social engineer" camp is or at least who he places in it.

Fourth, I find Rob's "moderates" category to be a bit too amorphous. It's also an ever-changing one.  It can change from day to day and from issue to issue. I'm not denying there exists a handful of people who would probably fit this billing on most issues — and Rob Atkinson himself is probably one of them — but I still think it's too nebulous of a category.

A few other general thoughts about Rob's taxonomy.  First, given the interesting intersections among some of these groups, I would have liked to have seen Rob construct some Venn diagrams illustrating where overlapping relationships exist. For example, there's much common ground between old economy regulators, bricks-and-mortars operators, and social engineers.  And, as I already explained, there's almost perfect overlap between the cyber-libertarian and free marketeer camps.   So, Venn diagrams might have helped illustrate that.  While this isn't an exact science, I think that would have been useful for didactic purposes.

Alternatively, Rob should have thought about constructing a spectrum and plotting the various camps or players along it. In fact, he does do a very nice job of suggesting to possible spectrum "dividing lines": (1) individual empowerment vs. social benefit and (2) laissez-faire vs. government regulation.  Indeed, one of those could have been and X axis and another the Y axis.  Then, for a 3-dimensional matrix, he could have added "optimist vs. pessimist" as a possible additional dividing line.  As I've noted in my essay on "Are You An Internet Optimist or Pessimist? The Great Debate over Technology's Impact on Society," this represents another major fissure in tech policy debates today.  Of course this is fairly profound dividing line with the pessimists virtually rejecting the entire cyber-enterprise and digital progress altogether. Nonetheless, some of those "old economy regulators" and "bricks and mortar" people in Rob's taxonomy would definitely fall on the Net pessimist side of such a spectrum, so it would be useful to consider it as another dividing line or axis.

Finally, I would have liked to see Rob spend some time talking about who he thought was winning this intellectual war. He doesn't really comment on that.  As I see it, the "social engineers" currently have the advantage, especially in academia. During response time, Rob generally agreed with me on that front.  I also pointed out that some of those social engineers in academia — especially the Berkman Center crew (Lessig, Zittrain) and Tim Wu — take a very gloomy view of things and that they are really articulating a different variant of Internet pessimism. Namely, while they embrace the Internet and digital technologies, they argue that they are "dying" due to a lack of sufficient care or collective oversight.  In particular, they fear that the "open" Internet and "generative" digital systems are giving way to closed, proprietary systems, typically run by villainous corporations out to erect walled gardens and quash our digital liberties.  Thus, they are pessimistic about the long-term survival of the Net and would result to various social engineering tactics to put it back on their preferred course.  I talked about this lugubrious worldview — and why it was so misguided — at greater length in my recent essay on "Two Schools of Internet Pessimism" and I've just finished a longer paper on the issue.  So, more to come on that front.

Anyway, for now, go read Rob Atkinson's "Who's Who in Net Politics" paper.  It's terrific despite the small nitpicks I've raised here.