October 3, 2011

Keeping Android Open

Filed under: code, open, phone — wseltzer @ 10:58 am

I’m speaking at the beginning of next week at O’Reilly’s Android Open conference.
O'Reilly Android Open Conference 2011
I’ll be talking on “Leveraging Openness,” strategic considerations for developers and users of the platform to use openness in their favor, supporting user autonomy rather than lock-in. More on that later.

I also appreciate Android’s openness at the practical level of the individual user. This weekend I put the CyanogenMod firmware on my Android phone, in response to security warnings about recently introduced logging functions, and so as not to lose root access with a stock upgrade. The process was simple, well-documented, and gives me the level of control I expect over a device that can track all my movements and communications.

Then there are the little things: I like to change the default screen density to take better advantage of the high-resolution screen, no problem. (Note, however, that in the latest version of the Android market, some apps check these settings and won’t install, claiming device incompatibility. The fix? Change the lcd_density back, install apps, and revert the change; those I’ve tried work just fine.)

August 15, 2011

Google+Motorola = Software Patent Indictment

Filed under: code, open, patent, phone — wseltzer @ 6:47 pm

Google’s announcement this morning that it had agreed to purchase Motorola Mobility for $12.5Billion sent MMI’s stock price soaring and set off another conversation about software patents and the smart-phone ecosystem.

Larry Page himself emphasized the patent angle of the merger in the corporate blog post:

We recently explained how companies including Microsoft and Apple are banding together in anti-competitive patent attacks on Android. The U.S. Department of Justice had to intervene in the results of one recent patent auction to “protect competition and innovation in the open source software community” and it is currently looking into the results of the Nortel auction. Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies.

Android-users already faced several patent lawsuits, and after a coalition of Google’s opponents, including Microsoft, Apple, and Oracle, purchased Nortel’s patent portfolio for $4.5 Billion, Google and its Android partners (including HTC and Motorola) had reason to fear a deepening thicket. Without many patents of its own, Google couldn’t make the traditional counter-strike of suing its attackers for infringement. Motorola’s mobile portfolio (17,000 issued patents and 7,500 pending applications) adds to Android’s arsenal.

Of course Motorola also makes hardware — smartphones that run Android — but few analysts are emphasizing that point. There, the acquisition raises strategic questions for Google: Can it convincingly offer the Android platform to others with whom it now competes? Even if Google maintains Motorola as a separate business, as Page says it intends, will now-competing vendors such as HTC, Samsung, and Acer be reassured of Google+Motorola’s neutrality among them?

Owning a handset maker could improve Android, if it shortens the feedback loop for problem-reporting and new ideas, but it could hurt the platform — and its end-users — more if it scared off competing hardware vendors, shrinking the base to which new applications are written and reducing the diversity of options available to end-users. As proprietor of an open, multi-sided market, Google needs to serve Android’s hardware vendors, app developers, and end-users well enough that a good-sized group of each continue to bring it value — and so the end-users watch the ads whose sale puts money into Google’s pocket from it all. (Oh, and maybe the acquisition will revitalize GoogleTV, as Lauren Weinstein points out.)

The patent motivations are more straightforward. As we know, it doesn’t take deliberate copying to infringe a patent, and patents are granted on small enough increments of software advance that an independently developed application may incorporate dozens to hundreds of elements on which others claim patents, and at millions of dollars a lawsuit, it’s expensive to disprove them. At least if those others are also making phones or software, Google is now more likely to have patents on what they are doing too, paving the way for a cross-license rather than a lawsuit.

Wouldn’t we all be better off skipping those patent threats and cross-licensing transaction costs? As Google’s pre-Motorola travails showed, it’s almost* impossible to opt-out of the patent system by choosing to publish and not patent your own inventions. Unlike in copyright, where you can share under Creative Commons, for example, and just have to prove you never accessed another’s work if accused of infringement, you can only save yourself from patent claims by assuring that every bit of technology you use was published more than 17-20 years ago! (*Rare but not impossible: Richard Hipp of SQLite says he only uses 17-year old, published algorithms to keep his code free of patent clouds.)

In work-in-progress, I argue that patent’s incentives aren’t working right for software, because they come at too early a stage in development. Patents for software motivate lawsuits more than they induce or reward product development. Google+Motorola may prove to have non-patent benefits too, but its early indications shine a spotlight on the thorny thickets of the patent landscape.

June 9, 2011

UN Rapporteur on Free Expression on the Internet

Filed under: Chilling Effects, Internet, censorship, open, privacy — wseltzer @ 5:54 pm

“[D]ue to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet.”

This statement of Internet exceptionalism comes not from the fringes of online debate, but from the UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The Rapporteur, Frank La Rue, recently presented a report emphasizing the importance of rule of law and respect for free expression.

  • State-sponsored content blocking or filtering is “frequently in violation of their obligation to guarantee the right to freedom of expression.” Blocking is often overbroad and vague, secret (non-transparent), and often lacks independent review.
  • Intermediary liability, even with notice-and-takedown safe-harbor, “is subject to abuse by both State and private actors.” Private intermediaries, like states, will tend to over-censor and lack transparency. They’re not best placed to make legality determinations. “The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author.”
  • Disconnecting users cuts off their Internet-based freedom of expression. The report calls out HADOPI, the UK Digital Economy Bill, and ACTA for concern, urging states “to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.”
  • Anonymity. “The right to privacy is essential for individuals to express themselves freely. Indeed, throughout history, people’s willingness to engage in debate on controversial subjects in the public sphere has always been linked to possibilities for doing so anonymously.” Monitoring, Real-ID requirements, and personal data collection all threaten free expression, “undermin[ing] people’s confidence and security on the Internet, thus impeding the free flow of information and ideas online.”

    “The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest.” I couldn’t say it better myself.

  • July 28, 2010

    Jailbreaking Copyright’s Scope

    Filed under: DMCA, code, markets, open, phone — wseltzer @ 8:29 am

    A bit late for the rule’s “triennial” cycle, the Librarian of Congress has released the sec 1201(a)(1)(C) exceptions from the prohibitions on circumventing copyright access controls. For the next three years, people will not be ” circumventing” if they “jailbreak” or unlock their smartphones, remix short portions of motion pictures on DVD (if they are college and university professors or media students, documentary filmmakers, or non-commercial video-makers), research the security of videogames, get balky obsolete dongled programs to work, or make an ebook read-aloud. (I wrote about the hearings more than a year ago, when the movie studios demoed camcording a movie — that didn’t work to stop the exemption.)

    Since I’ve criticized the DMCA’s copyright expansion, I was particularly interested in the inter-agency debate over EFF’s proposed jailbreak exemption. Even given the expanded “para-copyright” of anticircumvention, the Register of Copyrights and NTIA disagreed over how far the copyright holder’s monopoly should reach. The Register recommended that jailbreaking be exempted from circumvention liability, while NTIA supported Apple’s opposition to the jailbreak exemption.

    According to the Register (PDF), Apple’s “access control [preventing the running of unapproved applications] does not really appear to be protecting any copyright interest.” Apple might have had business reasons for wanting to close its platform, including taking a 30% cut of application sales and curating the iPhone “ecosystem,” those weren’t copyright reasons to bar the modification of 50 bytes of code.

    NTIA saw it differently. In November 2009, after receiving preliminary recommendations from Register Peters, Asst. Secretary Larry Strickling wrote (PDF):

    NTIA does not support this proposed exemption [for cell phone jailbreaking]…. Proponents argue that jailbreaking will support open communications platforms and the rights of consumers to take maximum advantage of wireless networks and associated hardware and software. Even if permitting cell phone “jailbreaking” could facilitate innovation, better serve consumers, and encourage the market to utilize open platforms, it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation. NTIA shares proponents’ enthusiasm for open platforms, but is concerned that the proper forum for consideration of these public policy questions lies before the expert regulatory agencies, the U.S. Department of Justice and the U.S. Congress.

    The debate affects what an end-user buys when purchasing a product with embedded software, and how far copyright law can be leveraged to control that experience and the market. Is it, as Apple would have it, only the right to use the phone in the closed “ecosystem” as dictated by Apple, with only exit (minus termination fees) if you don’t like it there? or is it a building block, around which the user can choose a range of complements from Apple and elsewhere? In the first case, we see the happenstance of software copyright locking together a vertically integrated or curated platform, forcing new entrants to build the whole stack in order to compete. In the second, we see opportunities for distributed innovation that starts at a smaller scale: someone can build an application without Apple’s approval, improving the user’s iPhone without starting from scratch.

    NTIA would send these “public policy” questions to Congress or the Department of Justice (antitrust), but the Copyright Office and Librarian of Congress properly handled them here. “[T]he task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the public to engage in noninfringing uses of copyrighted works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA,” the Register says. Pre-DMCA, copyright left room for reverse engineering for interoperability, for end-users and complementors to bust stacks and add value. Post-DMCA, this exemption helps to restore the balance toward noninfringing uses.

    In a related vein, economists have been framing research into proprietary strategies for two-sided markets, in which a platform provider is mediating between two sets of users — such as iPhone’s end-users and its app developers. In their profit-maximizing interests, proprietors may want to adjust both price and other aspects of their platforms, for example selecting fewer app developers than a competitive market would support so each earns a scarcity surplus it can pay to Apple. But just because proprietors want a constrained environment does not mean that the law should support them, nor that end-users are better off when the platform-provider maximizes profits. Copyright protects individual works against unauthorized copying; it should not be an instrument of platform maintenance — not even when the platform is or includes a copyrighted work.

    September 21, 2009

    The Freedom to Innovate Without Permission

    Filed under: FCC, innovation, networks, open — wseltzer @ 6:54 pm

    In a speech this morning, widely heralded (and criticized) as a call for “network neutrality,” FCC Chairman Julius Genachowski: “Why has the Internet proved to be such a powerful engine for creativity, innovation, and economic growth? A big part of the answer traces back to one key decision by the Internet’s original architects: to make the Internet an open system.”

    Now “open system” doesn’t mean anarchy. The Internet has rules, technical standards codified in the unassuming sounding “Requests for Comment.” As described by the author of RFC 1, Steve Crocker (How the Internet Got Its Rules), the RFCs were designed to help people coordinate activity, to build an interoperable network: “After all, everyone understood there was a practical value in choosing to do the same task in the same way. For example, if we wanted to move a file from one machine to another, and if you were to design the process one way, and I was to design it another, then anyone who wanted to talk to both of us would have to employ two distinct ways of doing the same thing.” By coordinating an open infrastructure, the Net’s architects left room for expansion at the edges.

    While critics have been quick to call the statement and the rules it prefigures “government regulation,” Chairman Genachowski says “this is not about government regulation of the Internet. It’s about fair rules of the road,” (a phrase picked up by Commissioners Copps and Clyburn in their supporting statements). Like rules of the road, basic non-discrimination and transparency principles promote interoperability: As every driver and car manufacturer knows what to expect of the highways, every Internet user and application-developer should know what he or she can assume as substrate.

    Yes, road rules constrain some innovation at the core — you can’t build a public road with braid-like traffic patterns where cars freely weave in and out in both directions, or with yellow stop signs and green “yield,” but you can still improve the pavement or road reflectors. The added predictability of a standard interface enables other more significant innovation at the edges — the Porsche, Prius, Smart, and Tesla can all drive on the same standard highway.

    Most importantly, Chairman Genachowski shows he understands the option value of network openness — leaving room for the unexpected:

    The Internet’s creators didn’t want the network architecture — or any single entity — to pick winners and losers. Because it might pick the wrong ones. Instead, the Internet’s open architecture pushes decision-making and intelligence to the edge of the network — to end users, to the cloud, to businesses of every size and in every sector of the economy, to creators and speakers across the country and around the globe. In the words of Tim Berners-Lee, the Internet is a “blank canvas” — allowing anyone to contribute and to innovate without permission.

    As the Net’s core became more fixed since the days of RFC 1, it has enabled attachment of various devices and formats, some of which would become standards in their own right (HTTP, HTML) others of which would never really take off (VRML 3D modeling). We can’t pick winners, but we can build a field for contests worth winning.

    Working through the details of the proposed FCC rules will be critical, and difficult, but the principles Genachowski offers for implementation provide a solid foundation.

    August 15, 2008

    Federal Circuit Confirms Key Free Software Licensing Practice

    Filed under: code, copyright, events, law, open — wseltzer @ 2:08 pm

    The Federal Circuit held this week in Jacobsen v. Katzer, that Java Model Railroad Interface author Robert Jacobsen’s release of software under the Artistic License gave him the right to sue for copyright infringement those who distributed modified JMRI software without obeying the conditions of its license. The decision confirms an important cornerstone to many of the open source and free software licenses: Taking the work without accepting its license’s conditions is an infringement of copyright, subject to all of copyright’s enforcement options.

    Users of free and open source licenses, or Creative Commons licenses for non-software works, offer their works to the world on a non-exclusive basis on a set of conditions. In the Artistic License, those conditions are:

    provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

    a) place [the user's] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include [the user's] modifications in the Standard Version of the Package.

    b) use the modified Package only within [the user's] corporation or organization.

    c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

    d) make other distribution arrangements with the Copyright Holder.

    If you accept the conditions of the public license and follow them, as by making source code available and giving clear notification of changes from the original, your reuse of the original copyrighted work is licensed, no further action required. If you can’t work with the conditions of the public license, you’re always free to contact the copyright holder to negotiate alternate terms. What Jacobsen v. Katzer confirms, however, is that you’re not free to disregard the license conditions and yet claim your redistribution of the copyrighted work is non-infringing.

    License v. Contract: Katzer, the taker who didn’t follow license terms, had argued that JMRI could sue only for breach of contract. The court explicitly disagreed. This is significant for licensors because copyright infringement is both simpler to prove: show unlicensed copying and substantial similarity to the original, rather than acceptance of a contract and damages from breach of its terms; and offers benefits such as statutory damages (no proof of loss required) and presumptions of “irreparable harm” that let the licensor get a preliminary injunction against continued infringing distribution.

    Economics: The decision recognizes the economic advantages to choosing non-monetary forms of “compensation” for use of a publicly licensed work: “Copyright licenses are designed to support the right to exclude… The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.” “The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.” The law does not mandate these terms by default, but if a copyright holder chooses to apply them to make his works more readily available on non-dollar terms, the law will enforce them.

    Anti-FUD: Finally, the decision should help clear some of the “fear, uncertainty, and doubt” that opponents of free software try to sow around free and open source licenses. They may rarely have been tested in court because parties prefer to negotiate better solutions between themselves, but when tested, the licenses do hold up, to enforce the terms their users intend.

    See also NYT, Lessig, WSJ.

    July 25, 2008

    Filterband is not Broadband

    Filed under: FCC, Internet, law, markets, networks, open — wseltzer @ 5:47 am

    A group of us filed formal comments with the FCC arguing that “free, filtered broadband,” as the FCC proposed to mandate in the AWS-3 spectrum auction, is not “Internet.” Comments here, in WT Docket 07-195.

    Commenters strongly support the deployment and ubiquitous availability of broadband services across the country. We are concerned, however, that the Commisson’s proposed rule requiring content-filtering on broadband offered over the AWS-3 band destroys the “Internet” character of the service. The Internet is distinguished by its flexibility as a platform on which new services can be built with no pre-arrangement. While requiring filtering of known protocols in itself raises serious First Amendment conflicts, forcing the blocking of unknown or unrecognized traffic hampers both speech and innovation. We therefore urge the Commission to drop the filtering conditions from its Final Rule.

    Thanks to all who helped with the Comments!

    September 30, 2007

    Upgrades Hollow the iPhone’s Core

    Filed under: innovation, open, phone — wseltzer @ 8:50 am

    Apple’s recent update, which “bricked” unlocked iPhones and reverted the rest to block third party applications, caused Gizmodo’s reviewer to revise early enthusiasm for the gadget:

    It’s about 3 months after the iPhone launch, and happy with the improvements, I was planning to change our “Wait” verdict to a full-on and rabid “Buy”. That wasn’t because of Apple, but because of the cool apps being offered by independent developers. All that came to an end yesterday after the new Apple firmware 1.1.1 neutered the handset. Sure, unlocked iPhones were broken. But more importantly, Apple wiped away the powerful programs that helped push the iPhone to greatness. With this, I’m going to have to move our recommendation from “Wait” to “Don’t hold your breath.” I’m done with this handset until third-party apps come back.

    For a brief while, it seemed Apple got it. Lowering the iPhone’s price enlarged the virtual network of users and potential hackers who might get one, and acquiescence toward third-party applications let those flourish, both expanding the device’s utility beyond what was built in by Apple. Then, just as the gadget’s ecosystem was getting interesting, Apple razed the ground for some new silos.

    Some Gizmodo commenters ridicule the protest, arguing that few iPhone owners are hackers, but they overlook the range of hack or customization desires. After all, people regularly install new programs on their Mac computers; they buy an estimated $1 billion in iPod accessories annually. When people spend up to a third of the price of their iPods to customize the devices’ appearance or connectivity options, it’s because those increase the value of the devices. It’s not a leap to expect they also want to add some internal customization to their phones.

    But Apple’s Mr. Hyde side took precedence once again, as it bowed to the whims of its carrier partners: As the NYT reports, “Steven P. Jobs, Apple’s chief executive, has said the company wanted to maintain control over the iPhone’s functions to protect carrier networks and to make sure the phone was not damaged.”

    All of which suggests that no matter how large a gadget’s virtual network is, it’s vulnerable if a closure-prone sponsor with closed-source core is its chief node.

    September 26, 2007

    Which is more open: the Nokia N95 or the iPhone?

    Filed under: musings, open, phone — wseltzer @ 6:16 pm

    Right in the middle of my New York Times today (yes, I still read it, and on paper) are two full-page color ads for Nokia’s N95, with the taglines “Comes with unlimited potential. We believe the smartest devices should keep getting smarter. That’s why we’ve left the Nokia Nseries open to enhancement, experimentation, and evolution. Open to anything.” url nseries.com/open (warning, flash-heavy)

    I love it. Just the stance toward user innovation I’d like to see more companies adopt. They’ve borrowed a few pages right out of von Hippel’s Democratizing Innovation, mashed up with Benkler’s Wealth of Networks and Zittrain’s Generativity.

    This contrasts, of course, with the advertised nature of the iPhone, locked to Apple’s apps and carrier. But we’ve also seen that within weeks of the iPhone’s launch, hackers have opened it, unlocked it, and built scores of apps.

    So I wonder, how does the level of independent development on the N95, and Symbian, which powers it, compare with that on the iPhone? The N95 retails for $749 in the U.S., limiting the community likely to embrace it. Apple’s price drop brought the iPhone to $400; would it have engendered the same creativity if left at $600? Does Apple’s “cool” factor do more to bring in the hackers than Nokia’s; are touch gestures more of a draw than built-in GPS?

    Or am I just seeing one side of the U.S.- Europe cellphone divide, and do Symbian developers prevail abroad where they’ve had more access to unlocked phones and fewer lock-subsidies to compete with?

    Has Common Sense Flown the Coop: No copyright claims to book prices

    Filed under: ICANN, law, open, privacy — wseltzer @ 4:19 am

    The Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

    A terrific clinical student at the Berkman Center helped us to write an op-ed on the limits of copyright, which the Crimson ran today:

    We’re not sure what “intellectual property” right the Coop has in mind, but it’s none that we recognize. Nor is it one that promotes the progress of science and useful arts, as copyright is intended to do. While intellectual property may have become the fashionable threat of late, even in the wake of the Recording Industry Association of America’s mass litigation campaign the catch-phrase—and the law—has its limits.

    Since the Coop’s managers don’t seem to have read the law books on their shelves, we’d like to offer them a little Copyright 101.

    Copyright law protects original works of authorship—the texts and images in those books on the shelves—but not facts or ideas. So while copyright law might prohibit students from dropping by with scanners, it doesn’t stop them from noting what books are on the shelf and how much they cost.

    CrimsonReading.org does students a real service by helping them to compare prices efficiently. Harvard should support them in their information-sharing efforts, rather than endorsing the Coop’s attempts to cut off access to uncopyrightable facts.

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