Radio Berkman 162: Lessig & Zittrain Take On… Competition

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Listen: or download | …also in Ogg
The year was 1998. Cher’s autotune anthem Believe was one of the year’s biggest hits, Titanic had swept the Oscars, and in some sterile software campus in the Northwest, Bill Gates was rehearsing a deposition.

It’s been over 12 years since Gates’ and Microsoft’s anti-trust battle with the Department of Justice and the Federal Trade Commission first hit the courts. It is still seen as a watershed for the management of technology companies in the dot com age.

But in the dozen years that have passed, people are still speculating whether the anti-trust case against Microsoft made any difference, and whether the software and technology companies of today are engaging in anti-competitive practices similar to or more risky than the ones that got Microsoft in trouble.

Who are the Microsofts of today? Facebook? Apple? Google? And how do we manage competition in the digital age?

Today, two of the leading minds on the internet and law, Jonathan Zittrain and Larry Lessig, take on competition.

This is just the pilot of a new monthly feature we hope to have with Jonathan and Larry. Any thoughts on the show? Compliments or criticisms? Share them with us in the comments. We’re also looking for a name for this series. If you have any brilliant ideas drop us a comment!

BONUS CONTENT: There was too much audio to fit into this one episode. If you’re eager for some more perspectives on competition in the digital age, give these pieces a shot.

• I Am Not A Lawyer: Producers Daniel Jones and Molly Sauter are joined by a number of experts from the field for some background on the competition issue, including Ken Auletta, Siva Vaidhyanathan, Gary Reback, Phil Malone, and Brian Chen. Listen.
• Uncut audio of our interviews:

- Ken Auletta
- Siva Vaidhyanathan
- Gary Reback
- Phil Malone
- Brian Chen
- Greg Hughes


More Links!
Ken Auletta:  http://kenauletta.com/)

“Publish or Perish,” The New Yorker (26 April 2010) http://www.newyorker.com/reporting/2010/… Ken looks at the coming e-book battle between the Apple iPad and Amazon Kindle, and what it means for the future of publishing.

-”Searching for Trouble,” The New Yorker (12 October 2009) http://kenauletta.com/2009_10_12_searchi… Last year, Ken looked at how Google’s growth into the search and advertising markets and unique business philosophy is changing the landscape of American business. In 2008, Ken published another New Yorker article, (“The Search Party,” The New Yorker, (14 January 2008) http://www.newyorker.com/reporting/2008/…), examining Google’s dealings with Capitol Hill.

-Googled: The End of the World as We Know It  http://www.amazon.com/gp/product/1594202…) and World War 3.0: Microsoft and its Enemies  http://www.amazon.com/World-War-3-0-Micr…)

Siva Vaidhyanathan: http://www.googlizationofeverything.com/

Siva’s personal website, The Googlization of Everything, contains links to his major media appearances and publications, including his books, The Anarchist in the Library  http://www.amazon.com/Anarchist-Library-…)and Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity  http://www.amazon.com/Copyrights-Copywro…)

Gary Reback: http://www.garyreback.com/

Author of Free the Market! Why Only Government Can Keep the Marketplace Competitive. Mr. Reback founded the Open Book Alliance  http://www.openbookalliance.org) in opposition to the Google Books Settlement.

We interviewed Randy Picker but were unfortunately not able to include him in this week’s podcast. We encourage you to check out his site and publications  http://picker.uchicago.edu/) if you’re interested in antitrust and game theory!

Wired’s timeline of US v Microsoft: http://www.wired.com/techbiz/it/news/200…

Wikipedia’s article on US v Microsoft: http://en.wikipedia.org/wiki/United_Stat…

Bracha and Pasquale’s paper on the “search comission” proposal: http://papers.ssrn.com/sol3/papers.cfm?a…

CC-licensed and Public Domain Music this week from Django Reinhardt, Learning Music Monthly, Jaspertine, and Coconut Monkeyrocket.

Photo courtesy of Joey Mornin

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11 Comments »

  1. sy

    September 9, 2010 @ 11:40 am

    1

    bravo, dan and molly for putting this together!

  2. Lessig und Zittrain diskutieren über Wettbewerb : netzpolitik.org

    September 9, 2010 @ 12:04 pm

    2

    [...] Berkman gibt es eine interessante Debatte zwischen Lawrence Lessig und Jonathan Zittrain über “Take On… Competition” zu hören. The year was 1998. Cher’s autotune anthem Believe was one of the year’s biggest [...]

  3. Podcast! | odd letters

    September 9, 2010 @ 12:04 pm

    3

    [...] quality entertainment this Thursday, you should wander over to Radio Berkman, and check out the podcast I co-produce (with Dan, who is awesome) on anti-trust and technology markets! It features [...]

  4. Alex Lougheed

    September 10, 2010 @ 12:48 pm

    4

    Looking forward to the next episode of Internet Car Talk.

    For the censors: On the Google-Verizon deal. Is this a tactical move to sidetrack the FCC’s discussion, or is it of another beast altogether? Do we have any inkling of where the FCC was moving that would prompt Google to parallel-track this? If not, what was Google’s raison d’etre behind setting up such an agreement? What are they getting out of this?

  5. Josh S.

    September 11, 2010 @ 4:04 pm

    5

    Definitely an excellent first time out. I particularly liked points when either JZ or Larry’s insight into the other host’s thought process/scholarship allowed the conversation to move a little deeper, particularly given that your audience is probably already fairly well briefed on some of these issues.

    P.S. The Car Talk reference was perfect. Will there also be a spectrum-based puzzler?

  6. Jason Treit

    September 12, 2010 @ 5:20 pm

    6

    Another vote for Internet Car Talk as the show name.

    Possible next topics:
    1. Apple’s ever-rising fortunes.
    2. Software patents.
    3. The four quadrants of online governance. Do hierarchies scale? Will new web standards come to displace the platform hegemony Lessig and Tim Wu worry about? Others look for stability in the bottom-right quadrant; see Anil Dash on ubiquitous forking.
    4. Roundtable re: Adam Thierer’s appeal to unstoppable change in “On Defining Generativity, Openness, and Code Failure”.
    5. Cyberlaw trivia shootout!

  7. Offene Ablage: nothing to hide

    September 15, 2010 @ 10:34 am

    7

    “Berkman Center for Internet & Society Podcast Radio Berkman 162…”…

    Berkman Center for Internet & Society Podcast Radio Berkman 162: Lessig & Zittrain Take On… Competitiondjones – September 9, 2010 @ 9:00 am · audio, radioberkman Listen: or download | …also in Ogg The year was 1998. Cher’s autotune anthem Belie…

  8. Vaneeesa Blaylock

    September 20, 2010 @ 1:03 pm

    8

    TO:
    Lawrence Lessig
    Director, Safra Foundation Center for Ethics
    Harvard Law School
    124 Mount Auburn Street, Suite 520N
    Cambridge, MA 02138
    USA

    FROM:
    Vaneeesa Blaylock
    Virtual World Performance Artist
    Biscuit Bay, An Li
    Second Life

    CC:
    http://vanEEEsa.com

    Monday, 20 September 2010

    Dear Professor Lessig,

    I’ve just listened to your conversation with Jonathan Zittrain on The Microsoft Anti-trust Case, Twelve Years After.
    http://blogs.law.harvard.edu/mediaberkman/2010/09/09/radio-berkman-162-lessig-zittrain-take-on%E2%80%A6-competition/

    (the conversation is as insightful as its URL is unfortunate!)

    It’s an inspiring conversation, filled with dangerous precipices, frighteningly crumbling cliffs, and yet somehow a lot of inspiration and optimism for this exciting century of ours.

    As you and professor Zittrain express, monopolistic, Balkanizing, anti-speech tendencies seem to exist everywhere, and yet somehow it legitimately seems that more human beings have a voice today, the 20th of September 2010, than on any previous day in all of human history.

    I am troubled by the paradox that the 25% of humanity that is currently wired lives, largely, in Western liberal democracies, or “physically” lives there, but we virtually live in a series of unaccountable authoritarian states.

    Doubtless you are aware of far more anecdotal cases than I, but the case of Violet Blue vs Flickr seems to powerfully illustrate this paradoxical state of our time:
    http://vaneeesa.com/2010/02/22/artist-violet-blue/

    Flickr decided, apparently without cause, not exactly to “take down,” but to “restrict” the content, the online identity, the resume, the persona, the web2.0 presence, that she had built through years of posting to Flickr.

    Restricted means her work can’t be seen at all in Germany, India, China. In places like the United States, it can be viewed, but not searched for. After numerous attempts to discuss the matter with Flickr, she was not only unable to restore her content, but she was unable even to speak to anyone about the matter.

    It seems to me that our virtual lives have been surrendered to non-democratic authoritarian dictatorships that “feature” no rule of law, no judicial system, no due process, and no habeas corpus.

    In my own world, Second Life, I have been deeply troubled by recent events. Linden Lab has Open Sourced the Second Life viewer and many Third Party Viewers have appeared on the scene. This is wonderful. Linden Lab’s own “SL Viewer 2″ has a User Interface that many believe is exceptionally unfriendly. It was designed by a now fired employee who had a Flash background, was apparently not a “real Second Life resident” and sought, I think, to impose his vision of how we should live and work on a community he was not a part of and perhaps did not respect. Whatever political spin one puts on SL V2, it’s fair to say that many users were uncomfortable with it and the statistics I’ve heard were that the third-party viewer “Emerald” was used by 30% of users and accounted for 50% of connect hours.

    Emerald was developed by Modular Systems which was helmed by Fractured Crystal who, apparently, recently turned 18. Probably 95% of Emerald was the Linden Lab code base, but by not incorporating the SL V2 UI and by adding various functionalities it was, in my experience, a very ingratiating viewer. In my personal experience SL V2 felt “wrong” or fought you with every mouse click, Emerald seemed to say with every mouse click, “I understand what you’re trying to do.”

    I don’t know how much money Linden Lab spent developing SL V2, but it’s amazing to realize how much more efficient and intuitive a UI the “teenager” seemed to have produced with a team of volunteers.

    Unfortunately, the teenager didn’t just produce an elegant UI, he also was, well, a teenager! In the 21st century teenage “acting out” is no longer confined to their parents home, it can be written on a global stage. Apparently Modular Systems Emerald viewer offered both a superior UI, and invasive data mining of its users. Near the end of Modular Systems life the Emerald code was allegedly altered so that every single user, on launching the viewer, was an unwitting participant in a DDoS attack on one of Modular Systems critics. The act was unethical and I’m told, illegal in several countries.

    As news of Modular Systems nefarious activities spread, many users moved to other viewers, many said “It’s the best viewer I don’t care what you do,” and a third group was in the middle, chastising Modular, but continuing to use the viewer for the moment.

    Fractured Crystal eventually stepped down, the Emerald team reformed itself, and then Linden Lab stepped in and gave the Emerald team a series of conditions, including the termination of three staff members, else Emerald would be banned from the Second Life Grid.

    Linden Lab then did ban Emerald from the Second Life Grid and sent an email to the entire user base instructing them to download the “Official Linden Lab viewer,” “or learn about alternative viewers,” and threatening users that attempting to access the grid with a banned viewer could result in “the loss of one’s account.” I don’t suppose Linden Lab would then refund your Linden Dollar balance, export all your creations, export or refund all your material or “virtual-material” purchases, etc, so “the loss of one’s account,” I think, means the seizure without compensation of all your assets by the virtual state.
    http://blogs.secondlife.com/community/features/blog/2010/09/07/emerald-viewer-to-be-blocked-from-second-life

    I do believe that Modular Systems, beyond Fractured Crystal, had an anti-social culture and I’m not entirely sad that they are today broken up. Still, I am deeply troubled by Linden Lab’s actions. It is inconceivable that Disney would order Mozilla Corporation to terminate three Firefox developers else Firefox would be banned from Disney.com, or that Microsoft would send an email to all of it’s users informing them that Firefox had been banned from Microsoft.com and instructing users to download Internet Explorer 9.

    I by no means believe that Mozilla has engaged in the sort of nefarious activities that Modular Systems did, but doesn’t it take a “bad actor” like Modular Systems to define the scope of our civil liberties?

    I’m very much an artist not a lawyer, but Linden Lab’s actions to exclude Emerald feel a little like your description of Microsoft’s actions to exclude Java. In my case we do have misconduct from Emerald that I would like some consumer protection on, but I’m very uncomfortable with the idea that Linden Lab, or Microsoft, or Apple, or Facebook are capable of being impartial protectors of consumer interests.

    Within a couple of days of Emerald’s ban, a new viewer, Phoenix, was born from the Emerald ashes. I was at an art opening on Saturday and looking at the tags over the crowd’s heads, I saw the familiar “Emerald Percentage” of users with the word “Phoenix” over their heads.

    This is good news in that the culture can “flow around bad law” but it is also a disquieting victory to realize that the world you thought was yours is in fact a corporate product and that the corporation can and will do whatever it pleases. Presumably the corporate behavior is mediated by their desire not to alienate their entire user base, but as Flickr did with Violet Blue, as Facebook does with many users every day, Linden Lab can ban users and viewers and create a less free, less open world. As an artist I am well aware that it is not the occasional act of actual censorship, but the pervasive climate of self-censorship, that is the death of ideas, creativity, and freedom.

    Is this to be our life in the 21st century? Living in physical democracies but increasingly spending our time and building careers, reputations, and leisure experiences all in the proprietary spaces of unaccountable corporations?

    In your “Radio Berkman 162″ conversation, you and professor Zittrain describe the true optimism of our times with a lot of pessimism. Or the perils of our time with a ray of hope. Is this knife-edge where our freedom will be for the entire 21st century? Will we never have confidence in the freedom of our speech, but simply hop from Web2.0 environment to Web2.0 environment faster than Flickr or Facebook or YouTube can take down our content?

    The hundred year-old paper photograph of my great-grandmother, the photo my daughter uploaded to Flickr today: which will be alive in another hundred years?

    Thank you for all your books and all your words. Thank you for your remarkable career and your vision of free culture.

    Regards,

    Vaneeesa Blaylock

  9. dale

    September 23, 2010 @ 3:20 pm

    9

    thanks for getting my two favorite thinkers together. excited to download & listen.

  10. Dale

    September 24, 2010 @ 9:46 am

    10

    listened on my commute home. Great show gentleman. I would be interested to hear you guys discuss the recent spate of of Flash cookie lawsuits and how you see those cases going forward, and how possibly victories for those bringing the suits might affect the future of online privacy.

    thanks.

  11. Kat

    October 24, 2010 @ 4:53 pm

    11

    Thanks for a great debate. I remember clearly the prevailing thought 12-15 years ago when everybody thought at the time that Microsoft was the “Evil Empire” that couldn’t be defeated. At the time Apple was a struggling niche computer maker, Google was barely a glimmer and Facebook and social media weren’t even around yet.

    If there’s one thing history should have taught us, in another 15 years, the landscape will be completely different again.

    Keep up the good work!

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