How to lock up a market: legally

It’s January, and with luck you have lots of new toys to play with. Maybe you’ll have a new games console, a phone or iPad. Perhaps you’ll have bought some software with them, downloaded directly through a curated store.

The computing landscape is changing. The number of gadgets which double up as having the same kinds of functionality as a desktop or laptop computer is growing. In some cases the sales are moving away from traditional work stations.

Customers want predictability and ease of use. They want a phone or MP3 player to just work, and won’t put up with the kinds of software woes we’ve been used to with desktops. Mobile phone operators, too, are wary of problems like viruses and malware, on their closed networks.

But that isn’t the whole story.

The changes we are experiencing are not simply about the market responding to consumer demand. There other forces at work, that are less about the needs of busy people, and more about the advantages of hardware manufacturers.

It’s easy to spot what I mean. Apple take a 30% cut from software sales in their App Store, Google and partners take the same on Google Play. That’s a very attractive business model.

Hardware markets, too, look like they are suffering from some dangerous interplays between companies seeking to control the marketplace. Most famously, Apple are engaged in a war with Samsung over designs and software patents behind rival smartphones and tablets. Lawsuits have gone in varying ways in different jurisdictions, but what is less certain is that consumers might benefit from these battles. They look like creating higher prices and removing competition.

The good news is that the Apple vs Samsung battle in particular has exposed everyone to the reality of software patents, which have long been held to be of questionable value. Software after all does not require long periods of research and development to come up with the ideas; and software itself is already protected by copyright.

Software patents have led to many problems, not least of which is that the greatest risks are borne by smaller vendors, while large vendors stockpile patents like nuclear arsenals pointing at each other. The threat of mutual destruction stops attacks – most of the time – between Apple, Microsoft and IBM and the like; but that’s of little comfort if you don’t have a stock of patent warheads.

Patents however are just one of a bundle of strategies being used to lock down software and hardware markets. Equally important are copyright and Digital Rights Management. DRM you may know from the bad old days of music sales, or from finding you can’t fast forward your DVD through the copyright warnings. You may be less familiar with the ways it is used to control your mobile phone, or administer App Stores.

Vendors have long desired to be able to control platforms in some way. Not long ago, Microsoft were engaged in a long battle with users over “Trusted Computing”, which essentially was a means for vendors to control aspects of your computer, particularly what software they allowed to run on it. They sold this as a strategy for security, but it would also have been an opportunity to control the market in new applications, as well as potentially stopping Open Source systems like Linux from running on hardware at all.

Reading that paragraph back, it’s striking how much of this strategy has been achieved in the newer smartphone and tablet markets with no effort at all.

The striking fact is that DRM is being used to reduce or remove software interoperability, and to stop us, the users, from making choices about the behaviour of our devices. Now, if any of this was actually something we chose, that might seem a bit more reasonable, but nobody really chooses these restrictions: they are just there.

A couple of years ago, the Electronic Frontier Foundation helped establish the legal right to jailbreak your own iPhone. That is, in the USA, an individual can reverse engineer the DRM and break it. However, telling anyone else how to do the same is far less likely to be lawful, so in many ways this seems a rather partial victory.

Reverse engineering other people’s software interfaces, to get programs to do what you want, has long been established as a basic need for software engineers. There has never been any objection to people working out the format of Microsoft Words, or working out how Exchange servers work. The right to reverse engineer is written into copyright law in many countries, because if it were to be an offence, then it would often be impossible for vendors to sell in the same market. The dominant player would be able to cut out competitors, who wouldn’t be able to write compatible programs.

DRM circumvents these rules. In many countries, including the USA and EU member states, it is illegal to find a way to break DRM, and even more illegal to tell people how to do the same. Thus DRM can be used to stop people from making interoperable software, or even from letting people liberate their own hardware.

Games console manufacturers have keenly resisted attempts by people to modify hardware to play unauthorised software. This is done in the name of avoiding piracy, but the upshot is that users can’t back up the games they buy – or if the manage this, the back up copies won’t work on unmodified consoles. Modifying consoles can be a serious criminal offence, but anyone who wants to be dishonest finds the DRM is possible enough to break. The real loser, every time, is the honest user.

I am sure that legislators weren’t thinking about these kinds of problem when the music and film industries came up to them and demanded that they needed copy protection technologies. I am sure that a convincing argument was made that it must be illegal to break DRM, or otherwise, technologies that stopped digital media from being copied would become obsolete very quickly.

Unfortunately, none of that makes much sense when it comes to running a phone, or choosing software to install via an App store. Here, DRM is simply being used to get in the way of users making alternative choices, such as using apps that don’t arrive through stores. The justifications companies make are about security and convenience, but those should be matters of personal choice.

Worryingly, the ‘App Store’ model is creeping into Apple’s traditional laptops and desktops. Here, Apple by default expect you to install everything through their curated platform, rather begging the question how long they expect to “allow” users to download software from other sources. Windows 8 also features a clumsily named “Windows Store”, that so far seems more limited in its approach.

These stores quickly throw up problems. They are difficult for open source vendors to use – they don’t really suit that kind of model. Their curation leads to perfectly legitimate apps being banned, because they might offend. For companies that make a lot of money via software sales, the idea of handing a percentage over to Apple or Microsoft must be pretty galling.

But longer term, for us as users, we ought to worry about the power that platform vendors seek. The more power and leverage they get, the more they will seek to make choices for us. Those choices won’t always lead to convenience or security. Sometimes, they will directly threaten our security, for instance by sending personal information back to their corporate headquarters or threatening our convenience by refusing to let us install applications we think are important.

These trends have been expected for some time. Academics like Jonathan Zittrain warned of them before the advent of iPhones and iPads, warning that computers could become more like ‘appliances’ – safe and predictable.

The big question is whether these changes lead to less innovation, user control and social power; and to more boring PCs. Already, in a world of consumer electronics, leading universities say that students come to computer science courses with less experience of the machines, their hardware and programming languages. That makes them less empowered as citizens and creators. Such observations led directly to the creation of the Raspberry Pi, a tiny computer designed to give young people experience of a fully configurable software environment, comparable to the experience of students in the late 1980s. We have to wonder what the expectations of computer users will be like in another thirty years time.


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