A Close Look at SOPA

Jonathan Zittrain, Kendra Albert and Alicia Solow-Niederman

This document is a guide to the Stop Online Piracy Act as proposed in the United States House of Representatives. Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong. (2011). It represents our notes as we sought to understand exactly what it does and how it does it — along with our corresponding sense for why its principal mechanisms make for poor law.  Our aim is for this analysis to be useful to anyone wanting to understand the Act — whatever his or her point of view may be on technology or intellectual property policy.

According to its advocates, SOPA will strengthen copyright in the United States by establishing a number of public and private tools to hinder infringement by international “rogue” sites previously unreachable by U.S. law. The Act also includes a number of independent provisions targeting the sale and dissemination of prescription drugs and military materials and equipment.

1. Copyright enforcement against websites, foreign & domestic.

The bulk of SOPA is a set of public and private mechanisms intended to give American copyright holders tools to combat offshore infringers. The Attorney General’s office, when armed with a court order (the granting of which doesn’t appear to have a standard beyond the Act’s definitions – the court “may” grant an order when requested Id., at § 102(c)), will be able to demand the elimination of access and funding to infringing sites on behalf of copyright holders. When acting alone, copyright holders can use these mechanisms to cut off funding.

Public Remedies (H.R. 3261, 112th Cong. § 102 (2011).)

SOPA gives tools to the U.S. Attorney General to combat “foreign infringing sites.” Id., at § 102. The definition of this term is unusual; a site with a domain name registered outside the U.S. (e.g. through a non-U.S. domain name registrar) seems to count as “foreign,” even if it’s run by an American company and hosted on U.S. soil. Id., at § 101(5)-101(8).  As an initial matter, the site must be “U.S. directed,” although virtually all sites not actively blocking U.S. IPs would fall under this category. See id. at § 102(a)(1). Infringement does not need to be direct, and instead may be imputed on sites that merely “facilitat[e] the commission” of copyright infringement . Id. at § 102(a).  The order can ask the operator of the targeted site to “cease and desist from undertaking any further activity as a foreign infringing site.” Id. at § 102(b)(5), and then the Attorney General can send additional copies of the order to “similarly situated entities” with permission of the Court – that is, others can fall under the Court’s power without previously having been given notice of a proceeding against them.  Id. at § 102(c)(1).

But these provisions are likely not the real force of the law, as fully overseas infringing sites may try to ignore a U.S. court order.  The law’s real force is focused domestically. Once a foreign infringing site has been made the subject of a court order, the Attorney General may apply the court order not only at the site but at American companies that occupy the space between the infringing site and an American end user’s browser- specifically, service providers, search engines, payment network providers, and advertising networks. Id. at § 102(c)(2). The court order may require these entities to take all “technically feasible and reasonable measures” to prevent access or payments to foreign infringing sites. Id. Those intermediaries would, it appears, not have been given notice or otherwise involved in the proceeding by which the Attorney General obtained the original order that would then bind them.

There are a number of specifics mentioned in the bill as “technically feasible and reasonable measures.” H.R. 3261 at § 102(c). For service providers ¹, this includes “measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s IP address” Id. at § 102(c)(2)(A)(i). DNS blocking is one of the techniques that China uses to prevent access to dissident websites, and has serious technical ramifications. Sandia National Laboratories publisheda letter, after being asked for comment, characterizing the proposed DNS filtering as “whack-a-mole.” ISOC also released a paper detailing how DNS blocking would undermine the Internet architecture. Under a SOPA-based order, Internet search engines are to prevent an allegedly infringing site from being served to users as a direct hypertext link. Id. at § 102(c)(2)(B). Payment providers (like MasterCard or PayPal) must stop completing payment to the payment account used by the site. Id. at § 102(c)(2)(C). Finally, advertisers must complete three separate actions: cut off any ads that they were serving to the site, cut off any advertisements for the site served on other websites, and finally, cut off payments stemming from advertisements. Id. at § 102(c)(2)(D).

SOPA critics point to the vagueness of the phrase “technically feasible and reasonable measures” when questioning the burden the Act will place on intermediaries. An elephant in the room is whether this requirement would necessitate active monitoring of all content to prevent access to previously-noticed infringing sites and/or content. It is notable that payment providers and advertising companies alone are explicitly exempt from having a “duty to monitor” future infringing activity. H.R. 3261 at 102(c)(2)(D)(ii). The Act is silent on whether service providers and search engines have a duty to monitor, which, by implication, may be said (and surely would be argued) to render such a duty.

SOPA encourages such a broad reading by granting immunity to parties who act to limit access to copyrighted materials and by reserving the possibility of litigation for parties that fail to act. See id. at § 102(c)(5)(A). The Attorney General may bring an action for injunctive relief – essentially a further court order – against third parties for not complying with the first court order. Id. at § 102(c)(4)(A)(i). Injunctive relief may also be sought against any entity that provides a product or service designed (or marketed) to circumvent the procedures proposed under SOPA. Relief is to be limited to injunctive mechanisms, and SOPA by itself does not appear to impute infringement on a non-complying service provider, search engine, or payment network. Still, when faced with immunity for action or litigation against the Justice Department for inaction, it is plausible  that technology companies would be highly motivated to overcensor. Worse, the kinds of circumvention tools supported within human rights communities and by the U.S. government as part of its Internet freedom initiatives against authoritarian censorship are precisely the tools targeted for elimination under SOPA.

The overwhelming controversy regarding SOPA’s public remedies (that is, those initiated by the Attorney General rather than a private party) regards the provision allowing a court to order a service provider–essentially an unwitting middleman–to take all “technically feasible and reasonable measures” to block an infringing site. Id. at § 103. The Act’s most fervent critics often point to this element when stating that SOPA has the potential to kill the Internet as we know it, placing the fate of interoperability in the hands of technically unsophisticated judges. Only slightly less fervent critics note that this provision would align federal Internet policy with China and like-minded regimes. While the current statute is limited to copyright infringement, the concern is that it establishes an architecture for widespread – indeed, nationwide – technical implementations of censorship.^[2]

Private Remedies (H.R. 3261, 112th Cong. § 103 (2011))

SOPA further provides what it calls a “Market-Based System to…Protect U.S. Property.”  H.R. 3261 at § 103.  This “market-based system” is a private mechanism by which an IP holder can pressure payment network providers and Internet advertising services to cease all transactions with “sites dedicated to theft of U.S. property.” See id.

This private remedy does not use the “foreign infringing sites” terminology from the public mechanism. Id. at § 102(a). Here the ultimate infringers are described as sites “dedicated to theft of U.S. property.” Id. at § 103.  The statutory definition goes beyond what the label colloquially suggests. For example, a site may be branded as “dedicated to theft of U.S. property” if it simply “is taking, or has taken, deliberate actions to avoid confirming a high probability” of the use of the site for copyright infringement. Id. at § 103(a)(ii).
An American copyright holder can therefore approach a payment processor or advertising network and demand that it do whatever is technically feasible and reasonable to prevent sites it deems “dedicated to theft of U.S. property.”  Id. at § 103.  Unlike in the public remedy, the copyright holder can only seek to cut off payments from payment providers and advertisers. Id.

The threshold for a private corporation giving such a notice is presumably lower than the court order standard in the public remedy.  As such, this is arguably SOPA’s most powerful element and one positioned to be applied in a particularly overbroad way.  Under the Digital Millennium Copyright Act of 1998, which has an analogous private system of notice-and-takedown, there are countless well-intentioned actors, yet some rightsholders have nonetheless overreached (both intentionally and unintentionally). Under SOPA, payment and advertising companies will have a tremendous incentive to cooperate with a stream of private requests for reasons such as the inconvenience of or inability to evaluate the rightsholder’s claims.  Unlike the public remedy, the private remedy allows the alleged infringer to provide counter notification to the third party,³ after which the third party can presumably decide whether or not to comply.  H.R. 3261 at § 103(b)(5).

It is important to note that SOPA provides a cause of action, including attorney’s fees, for parties damaged by a knowing, material misrepresentation made in conjunction with the private enforcement mechanisms’ notice and counter-notice provision.  Still, the third party must comply within five calendar days from the initial notice.  Id. at § 103(b).  The turnaround time, taking into account legal advice and the alleged infringer’s counter-notice, is extremely tight. Any intellectual property counsel can attest that those limits will be difficult to navigate, especially without exempting holidays and weekends, which turn out to be when such notices are often sent.

As with the public remedy, the payment and advertising companies are immune from liability if they cut off funding to a site or entity in accordance with SOPA.  Should a payment or advertising company not comply, the rightsholder may then seek injunctive relief against the non-complying third party.  H.R. 3261, 112th Cong. § 103(c) (2011).

Issues Common to Both Public and Private Remedies

Industry lobbyists and other supporters argue that SOPA is designed specifically to combat “foreign rogue sites.”  The image they draw is of brazenly obviously illegal sharing and downloading, such as the Pirate Bay and its brethren.  Yet “foreign infringing sites” and sites “dedicated to the theft of U.S. property” could include almost any website registered outside of the United States that allows user-generated content.  Requiring American third parties to take all “technically feasible and reasonable” efforts to block such sites, prospectively in some cases, is equally vague.  If this legislation were only aimed at the Pirate Bays of the world, the language could and would be much tighter. In many instances, statutory language is vague for a reason: to afford maximum leverage by one party intent on invoking a law over whoever is subject to the law.

Immunity for Voluntary Action

Even without instigation by the Attorney General or rightsholders, alleged infringers may find their sites blocked and their funding cut off without any sort of due process.  SOPA grants payment providers, Internet search engines, advertising services, service providers, and domain name registries immunity from suit for voluntarily acting in a manner consistent with the public and private mechanisms against a site that they “reasonably believe” is a foreign infringing site or dedicated to the theft of US property.  H.R. 3261 at § 104.  Even with no copyright holder notifying them that their rights are being violated, all of these actors can take down or stop serving revenue to sites, as long as they are consistent with terms of use.  Id.

Likewise, payment providers, Internet search engines, advertising services, service providers, and domain name registries are also not liable for taking action against sites they believe are “endangering public health.”  Id. at § 105.

2. “Notorious foreign infringers” and U.S. investors ((H.R. 3261, 112th Cong. § 107 (2011).)

The U.S. IP Enforcement Coordinator, along with various agency heads, will identify “notorious foreign infringers” who are causing “significant harm to holders of IP rights in the US”, soliciting suggestions from the public and rights holders.  Id. at § 107(a)(1).  This information will be made into a report to Congress, which will examine and analyze various methods of combating IP rights violations, including and up to prohibiting such sites from raising capital in the United States.  Id. at § 107(b)(5).  While SOPA does not directly prohibit such investment, the spectre of such a ban may lead to a chill in investor confidence in countless internet startups, even those that may only distantly be thought of as enabling copyright infringement, such as social networks or content creation platforms.

3. Amendments to existing criminal copyright laws

Criminal penalties for streaming. (H.R. 3261, 112th Cong. § 201 (2011).).

While most of SOPA’s IP treatment revolves around the third-party-based enforcement mechanisms outlined above, the Act also does refine a number of existing IP laws.  Most notable among the many changes, SOPA calls for the criminalization of public performance copyright infringement.  H.R. 3261 at § 201.  This provision is specifically targeted at digital streaming and provides criminal penalties for streaming copyrighted material with ten or more views and a retail value of $2,500.  Id. at § 201(b).  This sweeping and vague change could categorize millions of Americans as criminals.  Prosecutorial discretion thus determines whether these long prison terms are applied fairly.  The colorful advocacy at http://freebieber.org/ is, at its core, pointing out the implications of this inexplicably broad provision: the videos that teenage Justin Bieber posted of himself singing songs by his favorite artists do indeed appear to qualify as felonies under the Act.  This is a particular irony, since those videos launched Bieber’s career as a musician – exactly the people the Act is intended to protect.

Additional criminal penalties (H.R. 3261, 112th Cong. § 202-203 (2011).).

SOPA amends 18 U.S.C. §  2320 to add the importation, export, or participation in the manufacture of counterfeit drugs to the list of criminal activities.  Id. at § 202(1)(a)(iii).  It also increases the penalties for the production or distribution of counterfeit products that result in serious bodily harms from twenty years to life in prison.  Id. at § 202(2)(a).  SOPA further increases the penalties for manufacturing or distributing counterfeit goods to the military (or in a way that may harm national security).  Id. at § 202(3).

SOPA also amends 18 U.S.C. § 1831(a) to increase penalties for individuals or organizations committing economic espionage.  Id. at § 203.

4. Protecting IP rights abroad

In what would potentially be a significant increase in the United States diplomatic corps and its activities, SOPA requires the Secretary of State and of Commerce to ensure diplomatic missions or embassies have “adequate resources” to pursue “aggressive support of enforcement action against violations of intellectual property.”  H.R. 3261 at § 205.  It would further require the diplomatic corps to make best efforts to see that foreign countries honor existing intellectual property treaties.  Id. at § 205(a)(2).
Under SOPA, special intellectual property attachés hired by the Director of the Patent and Trademark Office will work from within embassies or diplomatic missions to advance United States intellectual property policy goals in general and specifically to reduce intellectual property infringement.  Id. at § 205(b).

Conclusion

Others have weighed in on why SOPA makes for poor public policy and is an ill-considered technical intervention.  In this paper we’ve hewed closely to simply reviewing it as legal doctrine.  On those terms, its vague language and undue granting of law-like powers to private parties without sufficient public protections make it worthy of a firm “no” vote. SOPA is both overly strong and overly broad; overly strong in the collection of remedies provided, and overly broad for the problems it is attempting to take on.

Jonathan Zittrain is a member of the boards of the Electronic Frontier Foundation and the Internet Society.  Both organizations have weighed in on this bill. However, the opinions expressed above are his (and our) own.

Notes:
1 “As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k).

2 The United States may have already crossed that threshold with our government’s actions regarding Wikileaks.

3 As with the DMCA, counter-notice requires the alleged infringer to consent to U.S. jurisdiction in the matter.

The PC is dead. Rising numbers of mobile, lightweight, cloud-centric devices don’t merely represent a change in form factor. Rather, we’re seeing an unprecedented shift of power from end users and software developers on the one hand, to operating system vendors on the other—and even those who keep their PCs are being swept along. This is a little for the better, and much for the worse.

The transformation is one from product to service. The platforms we used to purchase every few years—like operating systems—have become ongoing relationships with vendors, both for end users and software developers. I wrote about this impending shift, driven by a desire for better security and more convenience, in my 2008 book The Future of the Internet—and How to Stop It.

For decades we’ve enjoyed a simple way for people to create software and share or sell it to others. People bought general-purpose computers—PCs, including those that say Mac. Those computers came with operating systems that took care of the basics. Anyone could write and run software for an operating system, and up popped an endless assortment of spreadsheets, word processors, instant messengers, Web browsers, e-mail, and games. That software ranged from the sublime to the ridiculous to the dangerous—and there was no referee except the user’s good taste and sense, with a little help from nearby nerds or antivirus software. (This worked so long as the antivirus software was not itself malware, a phenomenon that turned out to be distressingly common.)

Choosing an OS used to mean taking a bit of a plunge: since software was anchored to it, a choice of, say, Windows over Mac meant a long-term choice between different available software collections. Even if a software developer offered versions of its wares for each OS, switching from one OS to another typically meant having to buy that software all over again.

That was one reason we ended up with a single dominant OS for over two decades. People had Windows, which made software developers want to write for Windows, which made more people want to buy Windows, which made it even more appealing to software developers, and so on. In the 1990s, both the U.S. and European governments went after Microsoft in a legendary and yet, today, easily forgettable antitrust battle. Their main complaint? That Microsoft had put a thumb on the scale in competition between its own Internet Explorer browser and its primary competitor, Netscape Navigator. Microsoft did this by telling PC makers that they had to ensure that Internet Explorer was ready and waiting on the user’s Windows desktop when the user unpacked the computer and set it up, whether the PC makers wanted to or not. Netscape could still be prebundled with Windows, as far as Microsoft was concerned. Years of litigation and oceans of legal documents can thus be boiled down into an essential original sin: an OS maker had unduly favored its own applications.

When the iPhone came out in 2007, its design was far more restrictive. No outside code at all was allowed on the phone; all the software on it was Apple’s. What made this unremarkable—and unobjectionable—was that it was a phone, not a computer, and most competing phones were equally locked down. We counted on computers to be open platforms—hard to think of them any other way—and understood phones as appliances, more akin to radios, TVs, and coffee machines.

Then, in 2008, Apple announced a software development kit for the iPhone. Third-party developers would be welcome to write software for the phone, in just the way they’d done for years with Windows and Mac OS. With one epic exception: users could install software on a phone only if it was offered through Apple’s iPhone App Store. Developers were to be accredited by Apple, and then each individual app was to be vetted, at first under standards that could be inferred only through what made it through and what didn’t. For example, apps that emulated or even improved on Apple’s own apps weren’t allowed.

The original sin behind the Microsoft case was made much worse. The issue wasn’t whether it would be possible to buy an iPhone without Apple’s Safari browser. It was that no other browserwould be permitted—or, if permitted, it would be only through Apple’s ongoing sufferance. And every app sold for the iPhone would have 30 percent of its price (and later, that of its “in-app purchases”) go to Apple. Famously proprietary Microsoft never dared to extract a tax on every piece of software written by others for Windows—perhaps because, in the absence of consistent Internet access in the 1990s through which to manage purchases and licenses, there’d be no realistic way to make it happen.

Fast forward 15 years, and that’s just what Apple did with its iOS App Store.

In 2008, there were reasons to think that this situation wasn’t as worrisome as Microsoft’s behavior in the browser wars. First, Apple’s market share for mobile phones was nowhere near Microsoft’s dominance in PC operating systems. Second, if the completely locked-down iPhone of 2007 (and its many counterparts) was okay, how could it be wrong to have one that was partially open to outside developers? Third, while Apple rejected plenty of apps for any reason—some developers were fearful enough of the ax that they confessed to being afraid to speak ill of Apple on the record—in practice, there were tons of apps let through; hundreds of thousands, in fact. Finally, Apple’s restrictiveness had at least some good reason behind it independent of Apple’s desire for control: rising amounts of malware meant that the PC landscape was shifting from anarchy to chaos. The wrong keystroke or mouse click on a PC could compromise all its contents to a faraway virus writer. Apple was determined not to have that happen with the iPhone.

By late 2008, there was even more reason to relax: the ribbon was cut on Google’s Android Marketplace, creating competition for the iPhone with a model of third-party app development that was a little less paranoid. Developers still registered in order to offer software through the Marketplace, but once they registered, they could put software up immediately, without review by Google. There was still a 30 percent tax on sales, and line-crossing apps could be retroactively pulled from the Marketplace. But there was and is a big safety valve: developers can simply give or sell their wares directly to Android handset owners without using the Marketplace at all. If they didn’t like the Marketplace’s policies, it didn’t mean they had to forgo ever reaching Android users. Today, Android’s market share is substantially higher than the iPhone’s. (To be sure, that market share is inverted in the tablet space; currently 97 percent of tablet Web traffic is accounted for by iPads. But as new tablets are introduced all the time—the flavor of the month just switched to Kindle Fire, an Android-based device—one might look at the space and see what antitrust experts call a “contestable” market, which is the kind you want to have if you’re going to suffer market dominance by one product in the first place. The king can be pushed down the hill.)

With all of these beneficial developments and responses between 2007 and 2011, then, why should we be worried at all?

The most important reasons have to do with the snowballing replicability of the iPhone framework. The App Store model has boomeranged back to the PC. There’s now an App Store for the Mac to match that of the iPhone and iPad, and it carries the same battery of restrictions. Some restrictions, accepted as normal in the context of a mobile phone, seem more unfamiliar in the PC landscape.

For example, software for the Mac App Store is not permitted to make the Mac environment look different than it does out of the box. (Ironic for a company with a former motto importuning people to think different.)  Developers can’t add an icon for their app to the desktop or the dock without user permission, an amazing echo of what landed Microsoft in such hot water. (Though with Microsoft, the problem was prohibiting the removal of the IE icon—Microsoft didn’t try to prevent the addition of other software icons, whether installed by the PC maker or the user.)  Developers can’t duplicate functionality already on offer in the Store. They can’t license their work as Free Software, because those license terms conflict with Apple’s.

The content restrictions are unexplored territory. At the height of Windows’s market dominance, Microsoft had no role in determining what software would and wouldn’t run on its machines, much less whether the content inside that software was to be allowed to see the light of screen. Pulitzer Prize-winning editorial cartoonist Mark Fiore found his iPhone app rejected because it contained “content that ridicules public figures.” Fiore was well-known enough that the rejection raised eyebrows, and Apple later reversed its decision. But the fact that apps must routinely face approval masks how extraordinary the situation is: tech companies are in the business of approving, one by one, the text, images, and sounds that we are permitted to find and experience on our most common portals to the networked world. Why would we possibly want this to be how the world of ideas works, and why would we think that merely having competing tech companies—each of which is empowered to censor—solves the problem?

This is especially troubling as governments have come to realize that this framework makes their own censorship vastly easier: what used to be a Sisyphean struggle to stanch the distribution of books, tracts, and then websites is becoming a few takedown notices to a handful of digital gatekeepers. Suddenly, objectionable content can be made to disappear by pressuring a technology company in the middle. When Exodus International—”[m]obilizing the body of Christ to minister grace and truth to a world impacted by homosexuality”—released an app that, among other things, inveighed against homosexuality, opponents not only rated it poorly (one-star reviews were running two-to-one against five-star reviews) but also petitionedApple to remove the app. Apple did.

To be sure, the Mac App Store, unlike its iPhone and iPad counterpart, is not the only way to get software (and content) onto a Mac. You can, for now, still install software on a Mac without using the App Store. And even on the more locked-down iPhone and iPad, there’s always the browser: Apple may monitor apps’ content—and therefore be seen as taking responsibility for it—but no one seems to think that Apple should be in the business of restricting what websites Safari users can visit. Question to those who stand behind the anti-Exodus petition: would you also favor a petition demanding that Apple prevent iPhone and iPad users from getting to Exodus’s website on Safari?  If not, what’s different, since Apple could trivially program Safari to implement such restrictions? Does it make sense that South Park episodes are downloadable through iTunes, but the South Park app containing the same content was banned from the App Store?

Given that outside apps can still run on a Mac and on Android, it’s worth asking what makes the Stores and Marketplaces so dominant—compelling enough that developers are willing to run the gauntlet of approval and take a 30 percent hit on revenue instead of simply selling their apps directly. The iPhone restricts outside code, but developers could still, in many cases, manage to offer functionality through a website accessible through the Safari browser. Few developers do, and there’s work to be done to ferret out what separates the rule from the exception. The Financial Times is one content provider that pulled its app from the [iOS] App Store to avoid sharing customer data and profits with Apple, but it doesn’t have much company.

The answer may lie in seemingly trivial places. Even one or two extra clicks can dissuade a user from consummating what he or she meant to do—a lesson emphasized in the Microsoft case, where the ready availability of IE on the desktop was seen as a signal advantage over users’ having to download and install Netscape. The default is all-powerful, a notion confirmed by the value of deals to designate what search engine a browser will use when first installed. Such deals provided 97 percent of Firefox-maker Mozilla’s revenue in 2010—$121 million. The safety valve of “off-road” apps seems less helpful when people are steered so effortlessly to Stores and Marketplaces for their apps.

Security is also a factor—consumers are willing to consign control over their code to OS vendors when they see so much malware out in the wild. There are a variety of approaches to dealing with the security problem, some of which include a phenomenon called sandboxing—running software in a protected environment. Sandboxing is soon to be required of Mac App Store apps. More information on sandboxing, and a discussion of its pros and cons, can be found here.

The fact is that today’s developers are writing code with the notion not just of consumer acceptance, but also vendor acceptance. If a coder has something cool to show off, she’ll want it in the Android Marketplace and the iOS App Store; neither is a substitute for the other. Both put the coder into a long-term relationship with the OS vendor. The user gets put in the same situation: if I switch from iPhone to Android, I can’t take my apps with me, and vice versa. And as content gets funneled through apps, it may mean I can’t take my content, either—or, if I can, it’s only because there’s yet another gatekeeper like Amazon running an app on more than one platform, aggregating content. The potentially suffocating relationship with Apple or Google or Microsoft is freed only by a new suitor like Amazon, which is structurally positioned to do the same thing.

A flowering of innovation and communication was ignited by the rise of the PC and the Web and their generative characteristics. Software was installed one machine at a time, a relationship among myriad software makers and users. Sites could appear anywhere on the Web, a relationship among myriad webmasters and surfers. Now activity is clumping around a handful of portals: two or three OS makers that are in a position to manage all apps (and content within them) in an ongoing way, and a diminishing set of cloud hosting providers like Amazon that can provide the denial-of-service resistant places to put up a website or blog.

Both software developers and users should demand more. Developers should look for ways to reach their users unimpeded, through still-open platforms, or through pressure on the terms imposed by the closed ones. And users should be ready to try “off-roading” with the platforms that still allow it—hewing to the original spirit of the PC, perhaps amplified by systems that let apps have a trial run on a device without being given the keys to the kingdom. If we allow ourselves to be lulled into satisfaction with walled gardens, we’ll miss out on innovations to which the gardeners object, and we’ll set ourselves up for censorship of code and content that was previously impossible. We need some angry nerds.

Read more: http://battellemedia.com/archives/2011/08/the_future_of_the_internet_and_how_to_stop_it_-_a_dialog_with_jonathan_zittrain_updating_his_2008_book#ixzz1UqekZMs1