Whether we are debating where various devices sit on a generativity continuum (of “open” versus “closed” systems), or what fits where on a “code failure”
continuum (of “perfect code” versus “market failure”), the key point is that the continuum itself is constantly evolving and that this evolution is taking place at a much faster clip in this arena than it does in other markets. Coders don’t sit still.
People innovate around “failure.” Indeed, “market failure” is really just the glass-is-half-empty view of a golden opportunity for innovation. Markets evolve. New ideas, innovations, and companies are born. Things generally change for the better—and do so rapidly.
69 “[G]enerativity is essential but can never be absolute. No technological system is perfectly generative at all levels, for all users, forever. Tradeoffs are inevitable.” Grimmelmann and Ohm, supra note 18 at 923.
In light of the radical revolutions constantly unfolding in this space and upending existing models, it’s vitally important we avoid “defining down”
market failure. This is not based on a blind faith in free markets, but rather a profound appreciation for the fact that in markets built upon code, the pace and nature of change is unrelenting and utterly unpredictable. Contra Lessig’s lament in Code that
“Left to itself, cyberspace will become a perfect tool of control”—cyberspace has proven far more difficult to “control” or regulate than any of us ever imagined. Again, the volume and pace of technological innovation we have witnessed over the past decade has been nothing short of stunning.
We need to give evolutionary dynamism a chance. Sometimes it’s during what appears to be a given sector’s darkest hour that the most exciting things are happening within it—as the AOL case study illustrates. It’s easy to forget all the anxiety surrounding AOL and its “market power” circa 1999-2002, when scholars like Lessig predicted that the company’s walled garden approach would eventually spread and become the norm for cyberspace. As made clear in the breakout above, however, the exact opposite proved to be the case. The critics said the sky would fall, but it most certainly did not.
Similarly, in the late 1990s, many critics—including governments both here and in the EU—claimed that Microsoft dominated the browser market. Dour predictions of perpetual Internet Explorer lock-in followed. For a short time, there was some truth to this. But innovators weren’t just sitting still; exciting things were happening. In particular, the seeds were being planted for the rise of Firefox and Chrome as robust challengers to IE’s dominance—not to mention mobile browsers. Of course, it’s true that roughly half of all websurfers
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still use a version of IE today. But IE’s share of the market is falling rapidly70 as viable, impressive alternatives now exist and innovation among these competitors is more vibrant than ever.71 That’s all that counts. The world changed, and for the better, despite all the doomsday predictions we heard less than a decade ago about Microsoft’s potential dominance of cyberspace.
Moreover, all the innovation taking place at the browser layer today certainly undercuts the gloomy “death of the Net” thesis set forth by Zittrain and others.
Thus, as O’Reilly argues, this case study again shows us the power of open systems and evolutionary dynamism:
Just as Microsoft appeared to have everything locked down in the PC industry, the open Internet restarted the game, away from what everyone thought was the main action. I guarantee that if anyone gets a lock on the mobile Internet, the same thing will happen. We’ll be surprised by the innovation that starts happening somewhere else, out on the free edges. And that free edge will eventually become the new center, because open is where innovation happens. […] it’s far too early to call the open web dead, just because some big media companies are excited about the app ecosystem. I predict that those same big media companies are going to get their clocks cleaned by small innovators, just as they did on the web.72
In sum, history counsels patience and humility in the face of radical uncertainty and unprecedented change. More generally, it counsels what we might call
“technological agnosticism.” We should avoid declaring “openness” a sacrosanct principle and making everything else subservient to it without regard to cost or consumer desires. As Anderson notes, “there are many Web triumphalists who still believe that there is only One True Way, and will fight to the death to preserve the open, searchable common platform that the Web represented for most of its first two decades (before Apple and Facebook, to name two, decided that there were Other Ways).”73 The better position is one based on a general agnosticism regarding the nature of technological platforms and change. In this view, the spontaneous evolution of markets has value in its
70 Tim Stevens, Internet Explorer Falls Below 50 Percent Global Marketshare, Chrome Usage Triples, ENGADGET, Oct. 5, 2010, www.engadget.com/2010/10/05/internet-explorer-falls-below-50-percent-global-marketshare-chr
71 Nick Wingfield & Don Clark, Browsers Get a Face-Lift, WALL STREET JOURNAL, Sept. 15, 2010, http://online.wsj.com/article/SB10001424052748704285104575492102514582856.html
72 The Web is Dead? A Debate, WIRED, Aug. 17, 2010,
www.wired.com/magazine/2010/08/ff_webrip_debate/all/1
73 Id.
own right, and continued experimentation with new models—be they “open”
or “closed,” “generative” or “tethered”—should be permitted.
Importantly, one need not believe that the markets in code are “perfectly competitive” to accept that they are “competitive enough” compared to the alternatives—especially those re-shaped by regulation. “Code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven, evolutionary approach to correcting code failure comes down to the rapidity and nimbleness of those responses.
Let’s give those other forces—alternative platforms, new innovators, social norms, public pressure, etc.—a chance to work some magic. Evolution happens, if you let it.
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