Legal, Business, Security Trends Converging to Lock Down Tech, Says Harvard Maven

Private and public policy restrictions “pay little mind” to the huge benefits that would be lost in a “more buttoned down, more battened down way of using the Internet and connecting things to it,” Zittrain said. But he outlined measures he said would could steer a course between anarchy and locking down the Internet.

The Internet’s promise and problems both flow from “two historical oddities,” Zittrain said: (1) Mass production of a device, the PC, on which “pretty much anyone could run anything,” with no stronger business purpose at first than letting people store recipes electronically. (2) The Internet’s “hourglass architecture,” based on layers that allow any application to run on any medium and glued together with Internet Protocol. The accessibility of PCs and the Internet “to large numbers of people that have only a modicum of skill in the technical realm” opened the door to “the explosion of creativity and invention we've seen” -- hand in hand with powerful disruptions, he said. Ana Cox can add an entry to her Web log Wonkette and rattle D.C. merely by clicking a button, Zittrain said.

The Internet has fostered voluntary collaborative creation -- likened by Yale law Prof. Yochai Benkler to an Amish barn raising -- with “kind of a kumbaya feeling” but amazing results, Zittrain said. This system has “collided recently” with conventional proprietary business offerings.

Exhibit A is demands of the SCO Group -- successor to developer AT&T’s intellectual property rights in the Unix operating system that inspired the collaboratively based GNU/Linux system -- that “if you are using GNU/Linux, pay us $700” royalties, that SCO get $32 for every embedded Linux device such as a TiVo -- and that no one change the source code, turning upside down the open-source essence of Linux, Zittrain said. SCO claims Linux, meant to be created from scratch to emulate Unix at first, was polluted years ago by an IBM contribution stolen from AT&T. SCO demand letters cited as precedent RIAA lawsuits against music file-sharers, a “dodgy theory” at best,” he said.

SCO’s enforcement effort is “one vehicle” for “a strategy from Redmond, I believe, [and] God bless them, I believe it’s a rational strategy.” Microsoft defended its long-dominant Windows operating system by effectively subsidizing SCO’s legal attack against rival Linux, paying millions for a license that made no business sense otherwise, Zittrain said. The “computer club” collaborative mentality that underlay PC software development is destroyed when everyone fears assertions of intellectual property rights, he said.

Technology manufacture generally shares the SCO- Microsoft mentality of seeking maximum compatibility for growth but also exclusivity to capture a market. This accounts for the proliferation of “single function boxes” such as the BlackBerry -- appliances with “PCs underneath trying to get out,” Zittrain said. Similarly, free PC-to- PC phoning software such as Skype “gets bottled into… specific-purpose hardware” in the form of an adapter from Vonage or a competitor.

The set-top box is especially important because it’s “thought to be the perfect gateway into the net” -- cable or Internet -- “because it is so controllable” by the provider, he said. Even “the beloved TiVo” with a “simple software update” will force ads on users as they skip the original commercials. “There’s an enormous amount of power in these boxes,” and they exemplify the trend, Zittrain said: “It’s not part of a clubby atmosphere -- ‘What will someone write for it to take off?’ It’s a whole new direction.”

Meanwhile, “the looting continues” with unauthorized copying and distribution of entertainment, Zittrain said. The entertainment “industries are not happy; Congress likes them; and something’s got to happen,” Zittrain said. “Doing something dovetails” with other trends toward a “much more controlled network and much more controlled PCs.”

We're “moving toward sealed systems for which we cannot look under the hood, we are just supposed to trust that they will work,” Zittrain said. This notably includes e-voting machines, he said. The broad thrust is led by the Trusted Computing Group, to which Hewlett- Packard, IBM and Intel have signed on with Microsoft to develop protocols from the microchip up to lock material down more successfully, Zittrain said.

Resistance to lockdown persists, but industry can live with leakage involving a few techies as long as mass market behavior respects imperfect controls, he said. Zittrain quoted Stanford law Prof. Larry Lessig as observing that “small fences can hold in large animals.”

Zittrain suggested these measures to try to address the trends he had outlined without wrecking the Internet’s openness: (1) Legal immunities, similar to those in the Communications Decency Act and the Digital Millennium Copyright Act, for companies with nondiscrimination policies and practices similar to common carriers. (2) Effective time limits, through statutes of limitations and the common law laches doctrine, on claims of “poisoning” like SCO’s. (3) Mandatory assignment of computer security responsibilities. (4) Parallel development of 2 kinds of PC, operating system and Internet -- open and controlled. (5) Generalizing the principle of the Supreme Court’s Betamax decision that greater social benefits can justify technology that allows harms such as copyright infringement.