Openness Uber Alles?

When the topic is whether you are for or against "openness," those who are against it have their rhetorical work cut out for them.  (Kind of like those in favor of "the nuclear option.")  In the case of Internet markets, however, regulation of any "information platform" (be it one involving a physical broadband connection or an applications software product (think media player or instant messaging system)) should take account of the complex economics involved in whether openness should be mandated or facilitated by regulation. 

One fundamental link between Grokster and Brand X is that both cases involve a concern with outside innovation and a high stakes question as to whether the law will facilitate or mandate "open access"--the former through providing less protection to copyright holders and the latter through an outright regulatory directive to provide access (at least as a matter of setting the default rule).  Even though telecommunications regulators may only imperfectly appreciate the relevant stakes, intellectual property law is arguably less self-conscious of the relevant tradeoffs.  Consider, for example, the issue of whether to permit reverse engineering of software to facilitate interoperability (such as Real Network's effort to make its media player compatible with iTunes), is--to put matters mildly--undertheorized and often addressed in an incoherent fashion (see my stab at resolving the issue here) .  Thus, my hope from both these cases will be that they promote more careful attention to the tradeoffs involved in facilitating outside entry (which will often deploy innovative technologies) and allowing incumbent firms to maintain proprietary control when they can be trusted to be a good steward of their information platform (vis a vis promoting innovation and consumer welfare).