Cloud Wars Baffle Simmering Cyber Lawyers

Cloud Wars Baffle Simmering Cyber Lawyers

Like their celestial counterparts, cyber clouds are unpredictable and ever-changing.

The Motorola Xoom tablet arrived on March 1. The Apple iPad II arrived the next week.

Just as Verizon finally boasts its own iPhone, AT&T turns the tables with the Motorola Atrix running on the even faster growing Google Android platform.

Meanwhile, Nokia declares its once-mighty Symbian platform ablaze and abandons ship for a new mobile partnership with Microsoft.

Apple pushes for more money from publishers who use iPhone and iPad apps to deliver content. Its new subscription service seeks 30 percent of the price of magazines, newspapers, and, it hopes, games and videos delivered through its App Store and iTunes.

Google quickly counters with OnePass, a program that charges content providers 10 percent for access to its Android mobile platform. And unlike Apple, said Google CEO Eric Schmidt, “We don’t prevent you from knowing, if you’re a publisher, who your customers are.” Game on.

Netflix, by the way, saw its Web traffic spike 38 percent in just one month between December 2010 and January 2011 and is, ho-hum, upending the movie business, cable, and TV.

‘Heroes and Monsters’

As the cloud wars roar, the cyber lawyers simmer.

This wasn’t how it was supposed to be. The technology law triad of Harvard’s Lawrence Lessig and Jonathan Zittrain and Columbia’s Tim Wu had a vision. They saw an arts and crafts commune of cyber-togetherness. Homemade Web pages with flashing sirens and tacky text were more authentic than more frankly commercial content.

“Generativity” was Zittrain’s watchword, a vague aesthetic whose only definition came from its opposition to the ominous “perfect control” imposed by corporations dictating “code” and throwing the “master switch.”

In their straw world of “open” heroes and “closed” monsters, AOL’s “walled garden” of the 1990s was the first sign of trouble. Microsoft was an obvious villain. The broadband service providers were of course dangerous gatekeepers, the iPhone was too sleek and integrated, and now even Facebook threatens their ideal of uncurated chaos.

These were just a few of the many companies that were supposed to kill the Internet. The triad’s perfect world would be mostly broke organic farmers and struggling artists. Instead, we got Apple’s beautifully beveled apps and Google’s intergalactic ubiquity. Worst of all, the Web started making money.

Wu Pushing for Heavy Regulation

The real world could not be more dismissive of the anti-commercial ideology. Not so of academia and government. Tim Wu, who coined the term “net neutrality,” is on his way to DC to serve a special five-month stint at the Federal Trade Commission.

Some speculate he’s developing a case against Google’s advertising “monopoly.” Or perhaps he can assist with the newly opened antitrust investigation into Apple’s infant subscription model. Or maybe boost Level 3’s attempt to wring free bandwidth out of Comcast.

To prevent commercial interests from gatekeeping, leveraging, monopolizing, or profiting (read, succeeding), Wu wants government to segregate all markets. App makers may create software; networks may transfer bits; publishers may offer content; device makers may build tablets and handsets; but no more. You may not draw outside the lines.

Each company, industry, and entrepreneur is quarantined. Ten years ago, Wu’s segregation was the central facet of his net neutrality proposal, the policy just implemented (although in slightly diluted fashion) by the FCC.

‘Information Apartheid’

More than anyone, Adam Thierer, a fellow at George Mason University’s Mercatus Center, has catalogued and critiqued the triad’s cyber-collectivist program. Wu’s “flippant attitude” toward the real world, writes Thierer, “ignores not only the potential benefits of certain forms of integration but also the fact that his proposed information apartheid would upend the American economy as we know it (for instance, by forcing the breakup of dozens of leading technology companies as well as countless media and entertainment providers).”

The tides of commerce move fastest in the digital world. The microchip is a constant integrator. An iPod becomes an iPhone becomes a converged mobile computer/camera. But the capability and wealth generated by integration and convergence spur new forms of modularity and divergence. Witness the 300,000 modular apps developed for this new general purpose platform.

Google now indexes up to 25 billion Web pages and trillions of individual links. True, Twitter is the current rage for quick linking and commentary, but does anyone think we have a blog shortage? When critics charge that Facebook—the largest virtual community on earth, connecting more people than ever before—is a closed system, the terms seem to lose meaning.

Web Pessimists

In recent days, Wu’s “master switch” has been turned on its head in the Arab world by the “citizen switch.” Don’t the collectivist critics see that in places like Egypt and Libya commercial devices and platforms are being used for civic activism?

Web pessimists, meet Sal Khan. In just a few short years, Khan has put much of history’s basic math and science onto the Web, accessible to the world. No books, no buildings, no buses, no union bosses marching on state capitols. The nonprofit Khan Academy is a one-man global school.

How’s that for “generative”?

Evidence that corporate behemoths are stifling creativity in the cyber world is difficult to find.

Bret Swanson (info@entropyeconomics.com) is president of Entropy Economics, a research firm focused on technology and the global economy, and a visiting fellow at Digital Society. A previous version of this column appeared February 25, 2011, at Forbes.com. Excerpted and reprinted by permission.