All-Star Witness List In Lawsuit Over Constitutionality Of RIAA Lawsuits

from the that's-quite-a-witness-list dept

Last month we had mentioned how Harvard Law professor Charles Nesson was taking on the RIAA's strategy of suing music uploaders by claiming that the laws the RIAA was relying on were unconstitutional. That case ("the Tenenbaum case") started moving forward this week, and the Associated Press had a story at the beginning of the week, which about fifty people submitted (with some angrily wondering why we hadn't written about it). We didn't write about it because it was basically the same story we had covered in October.

However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:

• John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
• Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
• Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
• Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
• Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
• Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
• Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
• Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
• Andrew Grant (former antipiracy specialist at DRM company Macrovision)

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Why Zittrain's Techno-Pessimism Is Unwarranted

from the no-worries dept

Ars Technica reviews Jonathan Zittrain's new book, The Future of the Internet and How to Stop It. Zittrain is by all accounts a smart guy and an engaging speaker, and it sounds like his book makes a lot of worthwhile points about the importance of open, "generative" technologies. But I just can't get worked up about Zittrain's warnings that the dominance of open systems is a fragile, temporary thing. It seems to me that there's a basic tension at the heart of Zittrain's argument. On the one hand, he argues (correctly in my view) that open platforms are better for innovation because of their lower barriers to entry. On the other hand, he wants us to believe that despite that inherent advantage, open technologies are on the brink of being eclipsed by closed platforms like the iPhone.

I think this misses a couple of important points. In the first place, I think Zittrain draws the wrong lessons from history. Zittrain himself notes that until the 1990s, the world was full of proprietary networking technologies and computing platforms that had big advantages over open technologies like TCP/IP, Unix, and the mostly-open PC platform. Open technologies had a few advantages of their own -- most notably government support of TCP/IP -- but open platforms were definitely the underdogs in many respects. And then, of course, the open platforms utterly destroyed the closed ones. Almost everyone now uses TCP/IP, while AOL is now little more than a mediocre website. Virtually all desktops and laptops -- including Macs and a lot of Unix workstations -- now largely share a common architecture. And almost every operating system not made by Microsoft is built on some versian of Unix.

Zittrain would have us regard all of this as some kind of fluke or lucky break, that the whole thing could come crashing down at any minute. But I think it's evidence that better technologies tend to win out in the marketplace. TCP/IP beat out AOL and other proprietary services precisely because open architectures enable more innovation. And once an open architecture comes to dominate a given market, it becomes harder, not easier for a proprietary product to displace it, because network effects create tremendous intertia on behalf of established open standards. I'm hard pressed to come up with any examples of a well-established open standard getting displaced by a closed one. Rather, what tends to happen is that new, proprietary technologies tend to get built on top of open ones. The top layers of the iPhone software stack may be closed, but it's built on TCP/IP, HTTP, and a host of other open standards.

It doesn't, therefore, make sense to view the iPhone as a threat to "generativity." The iPhone itself may not be "generative," but it's built on the same open standards as more open devices. That means that growing the iPhone market is a net positive for openness overall. True, people who buy an actual iPhone aren't getting the full advantage of generativity, but they are helping to further entrench TCP/IP and the web, platforms on which other more generative technologies can thrive alongside the iPhone. Moreover, if Zittrain is right that open platforms promote more innovation, which I think he is, then we should expect the same thing to happen at the top of the stack as happened at lower layers of the stack: over time, open mobile platforms like Android should enjoy more innovation than closed platforms like the iPhone, and the former should gradually displace the latter. Consumers tend to choose more open platforms over time not because consumers care about "generativity," per se, but because they want the phone with the best software, and open platforms tend to get the best software over time. And smart companies will tend to open up their platforms over time, lest competitors leapfrog them with a more open product. Indeed, as Mike pointed out a few days ago, that's already happening with Nokia's decision to open source its Symbian operating system.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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