Making Sense of Openness

Randy's post about openness underscores the definitional problems involved in technology law.  "Open access," "interoperability," "compatibility," "interconnection," "open standards," and, even, "open source" are often thrown around as equivalent concepts--despite notable differences.  To make matters more complicated, consider the point that openness often involves a concern with "modularity"--i.e., ensuring that products are not "bundled" so as to make entry more difficult--and the "end-to-end" principle, which means (crudely speaking) that intermediaries don't prevent Internet applications or content from being accessible to end users.

To start the process of even framing the question of when government should put a thumb on the scale (by calibrating the level of IP protection, providing antitrust remedies, or direct regulation), consider the important point that not all information platforms are created equal.  Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.  Unfortunately, even some very thoughtful commentators preach openness across the board, downplaying the likelihood that, in markets like cell phones, experimentation with different strategies (i.e., tight integration versus aggressively promoting outside development) may well yield the best of all possible results.

Getting back to Randy's question, there is indeed a need for balance, recognizing that proprietary control is benign or helpful in many contexts, but can lead to thwarted innovation in others.  To use Randy's terminology, policy should sometimes mandate or facilitate access of different kinds (authorizing reverse engineering, the use of copyrighted material, or interconnection) regardless of whether the platform provider would voluntarily give its consent on the matter.  Again, as Randy notes, there is a risk in mandating access where the party would not otherwise consent because policy must be able to enforce such mandates effectively, otherwise leaving the purported access to a false promise (see my discussion of that challenge re: the 1996 Telecom Act here).

In the case of Brand X, how does the above discussion apply to the question presented?  To put matters simply, we need to worry a lot about access rights if there are few broadband alternatives (i.e., only DSL and cable modems).  If other technologies succeed in the search for the third broadband pipe (say, anything wireless), we are in much better shape.  Unfortunately, we won't know that answer for some time, making for a policy challenge in the interim.  As for Grokster, and the openess issues associated with it, I will have to leave that topic for others (or another time).

Comments

[Ernest Miller]

You don't have to believe in openness across the board (I don't - Closed Satellite Networks):
http://www.corante.com/importance/archives/2005/06/23/closed_satellite_networks.php

to think that cellphone networks need some darn openness
Die Cellphone. Die! Die! Die!:
http://www.corante.com/importance/archives/2005/06/21/die_cellphone_die_die_die.php

There is also a question of where the burden lies. When the government is licensing the creation of networks open to the public, shouldn't the assumption be that it will be open; the burden of proof lies with those who would close the network?