Law and Information

John Palfrey and I released today in Washington D.C. a White Paper and three case studies on ICT Interoperability and eInnovation (project homepage here.) The papers are the result of a joint project between Harvard’s Berkman Center and the Research Center for Information Law at St. Gallen, sponsored by Microsoft. Our research focused on three case studies in which the issues of interoperability and innovation are uppermost: digital rights management in online and offline music distribution models; various models of digital identity systems (how computing systems identify users to provide the correct level of access and security); and web services (in which computer applications or programs connect with each other over the Internet to provide specific services to customers).

The core finding is that increased levels of ICT interoperability generally foster innovation. But interoperability also contributes to other socially desirable outcomes. In our three case studies, we have studied its positive impact on consumer choice, ease of use, access to content, and diversity, among other things.

The investigation reached other, more nuanced conclusions:

• Interoperability does not mean the same thing in every context and as such, is not always good for everyone all the time. For example, if one wants completely secure software, then that software should probably have limited interoperability. In other words, there is no one-size-fits-all way to achieve interoperability in the ICT context.
• Interoperability can be achieved by multiple means including the licensing of intellectual property, product design, collaboration with partners, development of standards and governmental intervention. The easiest way to make a product from one company work well with a product from another company, for instance, may be for the companies to cross license their technologies. But in a different situation, another approach (collaboration or open standards) may be more effective and efficient.
• The best path to interoperability depends greatly upon context and which subsidiary goals matter most, such as prompting further innovation, providing consumer choice or ease of use, and the spurring of competition in the field.
• The private sector generally should lead interoperability efforts. The public sector should stand by either to lend a supportive hand or to determine if its involvement is warranted.

In the White Paper, we propose a process constructed around a set of guidelines to help businesses and governments determine the best way to achieve interoperability in a given situation. This approach may have policy implications for governments.

• Identify what the actual end goal or goals are. The goal is not interoperability per se, but rather something to which interoperability can lead, such as innovation or consumer choice.
• Consider the facts of the situation. The key variables that should be considered include time, maturity of the relevant technologies and markets and user practices and norms.
• In light of these goals and facts of the situation, consider possible options against the benchmarks proposed by the study: effectiveness, efficiency and flexibility.
• Remain open to the possibility of one or more approaches to interoperability, which may also be combined with one another to accomplish interoperability that drives innovation.
• In some instances, it may be possible to convene all relevant stakeholders to participate in a collaborative, open standards process. In other instances, the relevant facts may suggest that a single firm can drive innovation by offering to others the chance to collaborate through an open API, such as Facebook’s recent success in permitting third-party applications to run on its platform. But long-term sustainability may be an issue where a single firm makes an open API available according to a contract that it can change at any time.
• In the vast majority of cases, the private sector can and does accomplish a high level of interoperability on its own. The state may help by playing a convening role, or even in mandating a standard on which there is widespread agreement within industry after a collaborative process. The state may need to play a role after the fact to ensure that market actors do not abuse their positions.

While many questions remain open and a lot of research needs to be done (including empirical studies!), we hope to have made a contribution to the ongoing interoperability debate. Huge thanks to the wonderful research teams on both sides of the Atlantic, especially Richard Staeuber, David Russcol, Daniel Haeusermann, and Sally Walkerman. Thanks also to the many advisors, contributors, and commentators on earlier drafts of our reports.