The Hype Backlash -- Web Services' Turn...

The articles are beginning to appear, like this one at Business 2.0. Entitled "Still Waiting for the Web Services Miracle" the article is a fair complaint that the hype got out of control. And the author even writes that

If you forget the grandiose promises, there are some things Web services are good for right now...

But this is just the beginning of the backlash for Web Services. I expect a lot more articles in the next few months complaining that web services is not all that it has been promised to be...

Time to move on... (Re: Microsoft)

Well, it isn't actually possible to download the court's opinion from their website -- I am guessing due to the large number of download requests... It was heartening however to see (using this nifty tool at Netcraft) that the court is running Linux... But in any case the news is out and the court is allowing the Justice department's settlement with Microsoft to stand. So I guess its time to move on to the next issue...

.NET vs J2EE -- The PetStore Debate

Wouldn't it be wonderful to have an independent party create a comparison of J2EE and .NET in order to demonstrate the benefits and issues with each of these two frameworks? The Middleware Company had said that they had created just such a comparison using the PetStore demonstration application. But now Rickard Öberg provides a devastating critique of this effort and others have stepped forward to claim that Microsoft paid TMC for the report...

Microsoft News Flash!

Just received a PDF from the United States District Court announcing that Judge Colleen Kollar-Kotelly will issue "Opinions in the Microsoft cases" at approximately 4:30 p.m. on Friday, November 1, 2002. Should be downloadable tomorrow from the court's website.

The real debate

I am beginning to feel a little guilty about the time that Lawrence Lessig is spending with me in conversation about his concept of "opaque creativity." But I continue to believe that this is an important issue, and that Lessig is a person in a position to have a significant influence over the way in which the marketplace thinks about this idea. So I was gratified by the continued seriousness with which Lessig has addressed my concerns in his latest reply.

Lessig returns to the fundamental issue, why should software (or really any kind of opaque creativity) be treated differently from other types of creativity? Why shouldn't all types of creativity receive the same copyright protection under the law? The argument has two parts:

95 Years
Lessig writes that at 95 years, copyrights for software do not provide a balance for the public good -- in 95 years software will have no value, in fact the software product will probably not be able to run on any available hardware. If I can summarize the argument, 95 years might as well be forever. This is the same argument which I agree with that Lessig has been making about copyright generally. Copyright should be for a "limited term." This is true whether the copyright is for a book or a film or a software program. I think there is an interesting argument in saying that different types of creative output should have different lengths of time of protection, because of the inherent "shelf life" of the material. But this is a very different argument than that of saying that software should be escrowed and source code should be released. One is an economic argument about the value that the public enjoys in exchange for copyright protection. The other is an argument about what the public should be allowed to do with the property once it is in the public domain.

Opacity vs. Transparency
This then is Lessig's primary argument. Works of opaque creativity are fundamentally different from works of transparent creativity. With a book, I have all of the "code" before me, transparently. I can reproduce all or part of a manuscript and I can embed any part in a new work. With software, or other works of "opaque" creativity, it is very difficult for me to do anything other than reproduce the product in its entirety. And if the manufacturer has included security elements which require a licensing key to activate the software, reproduction of the product may not provide me with the use of the product. This is a reasonable objection, but the solution need not be Lessig's proposed source code escrow scheme. Consider the three most common uses of copyrighted material that has passed into the public domain -- duplication, derivation, and partial use.

Duplication
In the case of duplication, software can clearly be duplicated in its entirety whether or not the duplicator has access to the source code. An issue remains in that mere duplication of a software program may not be sufficient to allow for use of the software. Thus some system should be in place to provide the public with access to a version of the software that does not require a security key to unlock functionality, or some ability to generate such keys once the software has passed into the public domain. This is not unlike the problem that Lessig mentions regarding the film industry -- how does one make sure that some copy of a film is available to be duplicated at the point when that film passes into the public domain. I would suggest that this problem should be solved for all categories of copyrighted material, not just such works of "opaque creativity."

Derivation
In the case of derivation, the concern is more complex. I submit that the process of creating a derivative work from what Lessig calls "opaque creativity" is no different from that in creating a derivative work from a book or other example of "transparent creativity." Furthermore, these derivative works are being created all the time, and software companies have been unable to protect themselves from this type of derivation (see the supreme court case Lotus v. Borland).

Take for example the works of Mario Puzo, since I recently read that Random House is seeking an author to write a sequel to The Godfather. What would this new author have to go on to create this derivative work? The author could read the previous novels, learn about the characters and their motivations, get a feel for the dialog, understand the plot... but the author wouldn't have Puzo. Thus the author would have to "reverse-engineer" the thinking process needed to construct a believable set of characters, plot, dialog, etc.

The authors of Lindows did the same thing -- they looked at how other operating systems displayed icons, user menus, startup and shutdown scripts... and they created a new user environment for the Linux operating system. Would having access to the Windows or Macintosh source code have made their job easier? Yes, just as having access to Puzo as a collaborator on a new novel would make it easier for the new author to create a sequel.

There is a "means of production" for every creative work. In the case of The Godfather it was the mind of Mario Puzo. In the case of many modern "romance" novels, it is an automated book generating computer program. In the case of Toy Story it is a set of algorithms for rendering 3D graphics. In the case of a software program it is the source code. Software should be treated the same as any other creative work -- the resulting work should be made public when the copyright term expires. But the government should not create a system which compels artists, writers, movie producers, and software programmers to make public their means of production.

Partial Use
It is this last category of use that is certainly the most difficult to answer. For a book this might mean reproducing a single chapter. For a film it might mean showing a scene. For a software program it might mean using one function. In the case of the book or the film, I might have trouble getting a hold of the source material, and there may be some technical skill required in copying a film scene, for example. But once I have the source material it is possible to make this partial use of a creative work. With software, this is not a straightforward proposition. I take this then to be the real center of Lessig's case that software escrow is necessary to protect the public good.

The interesting problem with software is that this is exactly where the rules of copyright and the rules of patents/trade secrets intersect. No one will be interested in duplicating trivial functions, such as the way a window is displayed. The interesting functions to reuse from one software application to another will be those that do real work. For example, if I wanted to produce a photo editing application, I would be very interested in taking filters from Adobe's Photoshop and including them in my application. But this represents the core know-how of the Photoshop team, the proprietary algorithms that are the magic that makes Adobe a leader in digital photo manipulation. Furthermore, these algorithms may be the basis of not just one program, but many different programs and indeed, for some companies, an entire business.

To my mind, this is where software patents come into play. If Adobe wants to protect this core knowledge, they have two choices. One is to file a patent, describing the key algorithm. While this would give them protection from competitors for some period of time, it would also put the algorithm into the public domain once that time has expired. At that point, I can write my own software that implements Adobe's algorithm. Alternatively, Adobe can keep their algorithm secret -- BUT then they have no avenue for complaint if I am able to figure out how they achieve a given effect and duplicate this filter in my competing software.

So to summarize this argument -- there are two kinds of features that one could extract from a software program. The first is so trivial that there is no economic value in creating a system which provides for its use. The second is so crucial to a software company's business -- in a sense it IS their business -- that it should remain in the realm of patents and trade secrets and not be subjected to disclosure simply to receive copyright protection for a given specific product.

A few nits...
To respond to Lessig's two final points in his reply:

(1) I don't agree that "we've converged" -- only that I understand a little more clearly what is proposed. I agree that the state should provide protection commensurate with the economic value that is derived by the public after the limited time of such protection. I believe that I addressed this issue above under the heading "95 years" and I believe that we are both in agreement that copyright terms for all works should be shorter. I continue to believe that software should not be treated differently from other creative works.

(2) I am happy to agree to disagree on the (not mystical) difference between atoms and bits as I don't believe it is fundamental to the issue of real importance. The cost of digital duplication rapidly approaches zero, and I would argue is zero from an economic perspective. How much did it "cost" to copy this document to your computer? However the cost of physical duplication of any object will never approach zero. This creates a key economic difference.

Non Nits
I entirely agree that the US Congress has enacted copyright laws which are not in the best interests of our Republic but are instead designed to serve the financial objectives of a small number of powerful companies.

I entirely agree that the protections that our government provides to creators of intellectual property should be commensurate with the benefits that the public ultimately enjoys once those works enter the public domain.

I firmly reject the notion that software developers should be singled out amongst all creators of intellectual property and forced to divulge the means of production and the algorithms which enable them to practice their craft.

I also reject the application of this principal to all creative works -- I do not want to live in a society which compels me to register the contents of my brain with the federal government, in a "secure" escrow agreement which enables future members of the public to create, for example, articles like this one -- the rough equivalent for a writer to the demand on software programmers that their means of production and algorithms be placed in escrow.

I hope that together we will come to a clearer agreement on "opaque creativity" and why it is or is not different from other types of creativity. And more importantly, what should be advocated for the protection of each category of creativity.

Thinking in exponentials

Ed Felten did the hard math and came up with a figure of a 7% annual growth rate as the answer to the math problem posed by Ray Kurzweil, namely:

The rate of change ... is accelerating exponentially. We are "doubling the paradigm shift rate" on a constant basis. This century will be the equivalent to 20,000 years of progress at today's rate...>

OK - have to think about this some more. Maybe Kurzweil can weigh in and offer some explanation of his numbers?? You out there Ray?

Open Letter to Jeremy Wagstaff

Jeremy:

After what I thought was a promising start, our conversation on SMS vs. MMS has gone nowhere. To my mind, there is an interesting difference between being a columnist for the WSJ and being a blogger, participant in the world wide conversation. As columnist you can be abstract and anonymous -- the idea of a person, but with the mighty reputation of the WSJ to stand behind you and give your words meaning and importance. As a blogger you are only as good as you give -- what you post, how you respond to readers, how you participate in the conversation of the marketplace.

To me, this is the fundamental difference between old media and new media -- the relationship between author and reader. In the old "mass" media, journalists have to be anonymous. If you are Walter Cronkite, you simply can't be expected to respond to the millions of viewers who tune into your program. And you rely upon CBS to provide you with the gravitas that will cause those millions to trust your reporting of the news.

But as a blogger, as with your loose wire blog your relationship as author to your readers changes. Readers expect to interact with authors out here in this new place called the web. We expect that authors are real people, not representatives of huge media conglomerates. We expect a conversation to take place.

I am not suggesting that every author has to respond to every reader. But when, as you did in responding to my September comments on your article on MMS, you write:

Interesting letter on this from Ted Shelton, with some fair points. I'll respond when I have a moment. Keep 'em coming. JW

there is a reasonable expectation on the part of the reader that a conversation will occur.

Ultimately, although I am passionate about the issues surrounding mobile devices, I don't care if you decide to respond to that particular thread. My point in writing this email is to observe that there is a fundamental difference between the way you think about yourself, and your relationship to your readers when you enter the web. Re-posting columns from the WSJ to a blog does not take advantage of this new rich medium that is developing and you are short-changing yourself by not participating in this new kind of conversation with the marketplace.

yours,

Ted Shelton

Blogger Code of Ethics?

Thanks to Doc Searls for pointing me at the latest take (and a thoughtful one) on the invitation by Microsoft of bloggers to the Mobius 2002 conference. This entry in the debate is from Sheila Lennon. So much has been written on the topic that I really think there is little more to say... on the topic itself. But it is interesting that there is so much debate about whether or not bloggers should follow a "journalistic code of ethics" -- in other words, what I think is interesting is the meta-issue...

The medium of the web has become an important source of information. I was reading J.D. Lasica's article on where "Net Luminaries Turn for News" and realizing how fundamental the Net has become as a news source. Jaron Lanier answers,

Apart from my time driving in my car, the Internet is my only source of news...

I wonder how many people can say the same? I still like the feel of paper and magazines -- and I spend a lot of time on airplanes -- so I haven't become as extreme as Jaron. But the Net is one of my primary sources. And I have to admit that blogs have become an increasingly important way for me to filter that news. If bloggers are going to serve as the front line for filtering news, we have to have some sense of where their allegiences are. In the Microsoft case, people complained that by accepting Microsoft's gifts, and the all-expense-paid trip to Mobius 2002, that the bloggers would be biased. Or at least would have the appearance of being biased. I submit that this is an OLD MEDIA issue.

Reader and Author
I am not, by the way, saying that the bloggers were not influenced by Microsoft. In fact, reading accounts from the events that occured, I can only conclude that many were influenced. However, I say this is an old media issue because of the difference in the relationship between reader and author in the old media vs. the new media.

In the old media world the the relationship between reader and author is anonymous and abstract. I am aware that there is an individual named Walt Mossberg at the Wall Street Journal, but I will never interact with Walt. I won't meet him, I won't speak with him, I won't exchange email, and he won't respond to anything in my blog, even if my blog is about something in his. Now this says something about mass markets, but it also says something about the assumption that mass media makes about its relationship to its readers. In this abstract and anonymous world of mass media, the only thing that I have to go on in trusting that Walt Mossberg is not a shill for Microsoft is the reputation of the publication and the journalistic code of ethics that I expect them to follow.

However in the new media I can have a very different kind of relationship with authors. I can expect to meet them in real life. I can expect them to respond to my email. I can even expect that they will respond to something I have written in my blog. Even if none of these things happen, my expectation about the relationship is different -- there is a conversation and we are both part of it and I have as much right to be heard as they do. Because my information is not filtered by a small number of mass media outlets, I also have the right to decide whether or not I will hear them. This means that I can make a decision about whether or not I believe that a given blogger is a shill for Microsoft based on my personal relationship with that individual blogger -- not an evaluation of the reputation of that blogger's parent organization and its journalistic code of ethics.

Scalability
Some may answer that this model is not scalable -- that it is simply not possible for bloggers to know everyone that reads their blogs. Or even for every reader to know every person whose blog they read. I agree with this but at the same time I believe that trust networks naturally evolve, and that these networks will allow certain bloggers to reach much broader audiences -- but still because of a personal relationship. Doc Searls is a good example of this. I have had the pleasure of getting to know Doc, and I believe I have a good understanding of his strong personal sense of justice and honor. There are people reading my blog who know me, but may never know Doc. The fact that I vouch for Doc will, over time, cause those people to accept my trust in Doc as their own.

Trust each other, not institutions...
People are already building web based systems to support the development of these trust networks, and some of these will prove to be useful formulations in the digital world of the basic mechanism that has worked for human beings since we began our long path toward "civilization." Ultimately trust in each other as people is so much more powerful than our trust in institutions and rules that the call for bloggers to follow some journalistic code of ethics will appear humorous to future generations of netizens.

Ray Kurzweil

Dan Gillmor, writing in his weblog "eJournal" about attending PopTech has a number of interesting observations about the speakers. I was particularly interested in his comments about Ray Kurzweil as his most recent book, The Age of Spiritual Machines has given me a lot to think about. I take Dan to be skeptical about Kurzweil's vision of the future, but you can draw your own conclusions by reading his comments. I was particular interested in this reminder from Kurzweil's book:

(Kurzweil's) ...into implications of things, besides his inventions. The rate of change, he notes, is accelerating exponentially. We are "doubling the paradigm shift rate" on a constant basis. This century will be the equivalent to 20,000 years of progress at today's rate, and people don't appreciate the implications of this.

Testing the Hypothesis
It seems to me that a reasonable test for this hypothesis would be, what happened during the last century? If the rate of change has been accelerating smoothly, were there 20,000 years of progress, at the 1900 rate? Kurzweil answers this question by drawing graphs of the number of inventions, changes in certain key technologies, etc.

However I, like Gillmor, am not satisfied with the graphs -- I want to answer this at a more basic gut level. How fast did things seem to be changing in 1900? At that rate did 20,000 years of "progress" occur over the past 100? Since I am only 36 years old, it occurs to me that I cannot have a very good gut instinct about the rate of change in 1900. So I re-ask the question in a way I can comprehend -- How much has changed in the past 10 years vs. the previous 10 years?

The past 20 years
The past two decades can be, from my experience of the world, defined by two distinct seminal events. In the past decade, the emergence of the world wide web. In the previous decade, the personal computer. Each of these technologies changed MY world, and I would argue the whole world, an enormous amount. My gut feeling is that the Internet has changed the world a lot more. And even within each of these two trends, I can see that the early stages started out slowly, and then accelerated.

Thus my gut evaluation of Kurzweil's hypothesis is that it is roughly accurate. At the rate of change of the year 2000, over the course of the first century of this new millenium, 20,000 years of progress will take place. No wonder we increasingly feel out of touch as we age.

The next 20 years...
So how much progress will there be in the next 20 years at the rate I am comfortable with in 2000? At some point I stop being able to adjust my "comfort" with the rate of change. Then the world pulls away from me... How do you stay comfortable with the world's rate of change for a longer period of time?

News Is Free

Here it is, the next stage in the reinvention of how you consume information, and what better name than News Is Free. Blogging is becoming a way of life for some -- to my mind though it represents just the tip of a major socio-cultural-media-iceberg which is going to create an entirely new category of occupation and will transform how we consume news and information.

Individuals will develop net-reputations as experts in specific fields. Products like "New Is Free" will then aggregate the work of these individuals in a form which consumers can customize. The result will force traditional information outlets to transform how they think about the news, and how the filter and present information. This is the next revolution of the Internet -- using the power of all these connected people to make sense of all this connected information.