Tuesday, August 28, 2012

The Apple vs. Samsung Verdict: When Does Product Imitation Cross the Line?

On Friday, a verdict finally came down in the Apple vs. Samsung case that the technology world has been watching unfold for months.  The verdict was that, yes, Samsung did indeed violate several of Apple's patents related to software design.  Samsung will pay over $1 billion in damages.

Why should you care?  For starters, anyone who uses a smartphone is going to be affected, and much of the punditocracy is arguing that consumers are the real losers hereSamsung is the world's leading smartphone device maker, selling more units than even Apple.  Now, as a result of the favorable court decision, Apple has filed suit to ban eight different Samsung phones.  For the regular user, this will mean, in the short-term, less smartphone options and higher prices for monthly plans from service providers, as telecommunications companies like AT&T and Verizon will lose leverage over subsidies in negotiating with Apple.

But what really has the tech world abuzz is the idea that many ubiquitous features on the user interface of virtually every smartphone in existence - features like how app icons are arranged in a grid on the main screen, the "pinch-to-zoom" feature, "rounded corners", "black rectangles", etc. - are now the patent-protected sole property of Apple.  Slate.com's Matthew Yglesias has drawn an analogy to the car industry and how absurd it would be for one car manufacturer to own a patent on the idea of a steering wheel and, as a result, that every other car manufacturer would have to design some completely different type of device for navigation.

So much of private industry is based on a copycat culture.  Think of the value that the concept of "reverse engineering" has contributed to the American economy over decades, if not centuries.  The question is whether companies like Samsung have pushed that copycat culture too far, or whether their actions are simply par for the course.

To what extent does product imitation foster competition?  To what extent does it hurt innovation?

These questions are far more complex than many of the pundits are giving them credit for, and off-the-cuff calls for "patent reform" belittle what a massive topic that is.  That said, the real point may be that this ruling is sure to create a chilling effect on software developers who now find themselves in the dark as to what type of code they can write.


Thursday, August 23, 2012

When Code Is Law vs. When Code Isn't Law...

Over a decade ago, Lawrence Lessig wrote one of the most evocative books of our generation where he famously argued that, on the Internet, "code is law". A few years later, his colleague, Tim Wu, published a direct counterargument in the Virginia Law Review explaining "when code isn't law". Here's a summary breakdown of the dialogue.

The Internet is not, and has never been, an anarchist free-for-all.  In this vein, Lessig argues that cyberspace is not immune from control or regulation.  Cyberspace is made of of code, created by people.  How people write that code - the type of architecture they set up to protect certain values - will determine if cyberspace will become "free" in the libertarian sense, or "regulable".

Code should be viewed as a potential threat to liberty, just as much as a potential democratizing force.  Indeed, he claims, the invisible hand of cyberspace, guided by commerce, has already constructed an architecture based on control and highly efficient regulation.

The key to limiting or checking certain forms of governmental control are to maintain a "presence of a commons".  Just as the Founders of the American Constitution believed "structure builds substance", if we guarantee the structural - a space in cyberspace for open code - much of the substance will take care of itself.

As to some examples of when code is law, Lessig cites 1) how in some places you must enter a password before you gain access, while in others you can gain access whether identified or not; 2) how in some places the transactions you engage in produce traces that link those transactions back to you, while in others this link is achieved only if you want it to be; or 3) how in some places you can encrypt your communications, while in others encryption is not an option.

Importantly, he explains how code is not the only factor that regulates, or constrains, people's behavior in cyberspace.  He adds that the law, social norms, and the markets also regulate behavior.

This may seem like a prelude, then, to Wu's argument of when code isn't law.  But rather than exploring in greater depth how the law, social norms, and the market all undermine the "code is law" thesis, Wu approaches the question from a different angle.

He asks, if the goal is to understand the net effect of code's regulatory forces, how can we not examine the reaction to those forces?  In other words, code only has the effect of law if it is largely being complied with, and in cyberspace that's certainly not always the case.

Looking at the example of P2P file-sharing applications, he concludes that code is more a mechanism for avoidance of the law than it is for change, or even a form of law itself.  As he states, "Nothing the code designer does rewrites laws.  Instead, code design defines behavior to avoid legal sanctions".

The examples he cites to illustrate how code is actually used for avoidance of the law include 1) virtual child pornography, 2) overseas gambling, 3) junk email, and, again, 4) P2P filesharing.

Thus, code isn't law because, although it can influence the success or failure of a law's effects, it is more accurately viewed as a tool that interest groups use to avoid legal sanctions or use for legal advantage.  The distinction that scholars ought to make is between code as law vs. code achieving regulatory effects.

After a decade, this debate still rages on within the ivory towers.  In my own view, since both Lessig and Wu take legal approaches, and, as a consequence, much of the debate is framed in terms of either programmers or governments having ultimate power, there is a striking need for an injection of political science into the mix.  Rather than an an all-or-nothing, code-vs-government lens, the debate would be enriched with the literature on governance and public-private regimes for rule-making. 

Asking "to what extent code governs" rather than "to what extent code is law" might reveal significantly different results.


Will We Have to Start Paying to Send Email?

Waxing Internet nostalgia this morning - meaning, harkening all the way back to 2006 - as I just dug up a copy of this story about how companies would soon have to start buying "the equivalent of a postage stamp" if they want to send email.

How quaint is this...

America Online and Yahoo, two of the world's largest providers of e-mail accounts, are about to start using a system that gives preferential treatment to messages from companies that pay from 1/4 of a cent to a penny each to have them delivered. The senders must promise to contact only people who have agreed to receive their messages, or risk being blocked entirely.

The Internet companies say that this will help them identify legitimate mail and cut down on junk e-mail, identity-theft scams and other scourges that plague users of their services. They also stand to earn millions of dollars a year from the system if it is widely adopted...

But critics of the plan say that the two companies risk alienating both their users and the companies that send e-mail. The system will apply not only to mass mailings but also to individual commercial messages like order confirmations from online stores and customized low-fare notices from airlines.

"AOL users will become dissatisfied when they don't receive the e-mail that they want, and when they complain to the senders, they'll be told, 'it's AOL's fault,' " said Richi Jennings, an analyst at Ferris Research, which specializes in e-mail.

As for companies that send e-mail, "some will pay, but others will object to being held to ransom," he said. "A big danger is that one of them will be big enough to encourage AOL users to use a different e-mail service."

Ha! How cute is that, really? Paying a penny for each email you want to send? A danger that users might switch to a free service? It's amazing to think that this was a serious enough issue that it was covered in the New York Times.

But just to add a little something more substantial, buried deep in the article is a small mention of this new thing "called Net Neutrality" which raises "the prospect of a multi-tiered Internet" where large corporations could pay significant sums of money in order to receive preferential treatment on their Internet communications. Net Neutrality is a serious and very much ongoing debate which persists today, and articles like this one illustrate its media coverage origins.

My question: Which is more outdated - the idea of paying an "electronic postage stamp" to send an email, or the idea of AOL being relevant?