by Tim Wu
Whitacre immediately homed in on their weakness. “How do you think they’re going to get to customers? Through a broadband pipe.
“Cable companies have them. We have them,” he continued. “Now what they would like to do is use my pipes free, but I ain’t going to let them do that.”
From this it was clear that AT&T had identified precisely the soft underbelly of Google and the rest of the Internet industry: “How do you think they’re going to get to customers?” Whitacre understood that he, allied with the cable industry and the other parts of Bell, was strategically positioned to choke the Internet industry into submission.
Such comments make vivid just why the ideal of net neutrality and the government’s enforcement of it by statute or regulatory rules have become such urgent concerns for Google and the rest of the Internet industry, as well as increasingly for a great many individual users. If one allows that the Internet is our key means of conveyance, the “common medium” of our national life and economy, net neutrality is the twenty-first century’s version of common carriage. Just as with the operator of the sole ferry between an island and the mainland, proprietorship of any part of the Internet’s vital infrastructure rightly obliges one to carry the whole Internet, without discrimination or favoritism, in accordance with one of the oldest assumptions of our legal tradition. To be entrusted with a utility of such unique public importance comes with responsibilities such as AT&T assumed in 1910. In the case of the Internet, common carriage under the name of net neutrality amounts to an FCC rule that bans any degree of blocking individual sites, transmission of data (whether according to size, sender, time of day, or any other factor). Put most simply, net neutrality is what prevents the telephone and cable industry from killing Google, Amazon, Wikipedia, blogs, or anything else that might incur their displeasure.
In 2006, when Whitacre made his remarks, it seemed a plausible inference that AT&T and its allies might undertake—if not imminently, at least gradually—to subjugate the Internet and thereby the firms that depend on it, aiming to accomplish with long-honed lethal efficacy what AOL Time Warner had bungled. The initial step would be subtle: AT&T would begin offering, for a fee, a “fast lane” by which to reach consumers, inspiring the cable firms and Verizon to do the same. The precedent was Vail’s policies of the 1910s, a system of preferential treatment with an eye toward creating vassals of the dependent industries. Of course AT&T would offer its ever-ready excuse: management of the network in the name of better service. The effects at first would be small. But it doesn’t take a genius to realize that if AT&T and the cable companies exercised broad discretion to speed up the business of some firms and slow down that of others, they would gain the power of life and death over the Internet.
Google’s advantage in being obliged to promote no one’s product is double-edged: the ingenious idea of depending entirely on others for content leaves one entirely at the mercy of others for access to it. Google itself owns almost nothing: no movies, no websites, videos, or texts of any significant interest. In most instances, content owners have been only too happy to allow Google to lead its customers to them. On the other hand, the company’s commitment to liberating content, making it accessible to as many as possible, has also left it the object of copyright-holder grievance and exposed it to potential lawsuits as well as threats of organized boycott.
Sometime in 1996, when Google began operations,* it made a copy of the entire World Wide Web in order to prepare a search index. In retrospect, no one really knows whether that copying was legal—whether a massive copyright violation occurred at the birth of the firm, confirming Balzac’s observation that behind every great fortune is a great crime. As a matter of law, copying generally requires permission, something that Google never asked for, and indeed never has requested, for to do so comprehensively would be impracticable. Today, most copyright scholars would agree that Google has implied permission to copy the Web—no one brought suit against them for having done so, and so a new norm has been suggested. It is also likely an instance of “fair use,” though, given the uniqueness of the act, there is little case law quite supporting such an assertion. Certainly at the time, the legality of what was done wasn’t entirely clear; and truth to tell, if a copyright lawyer had been among Google’s founders, it’s doubtful the thing would have gotten off the ground.
Since its audacious birth, Google has never been completely at peace with the owners of content upon which it depends. The dispostion of those owners has varied according to what was in it for them in each instance. Some, of course, love, or at least respect, Google as the primary means by which their content gets found. For the small-scale business and those struggling to be heard without a major platform, Google’s engine is a godsend, for it tends to equalize giant and one-man retailers, new bloggers and those who write for highly capitalized publications. Thanks to Google’s proprietary algorithm, an entry on the nonprofit Wikipedia consistently outranks any official site related to a search term. A search for McDonald’s also turns up McSpotlight, a page dedicated to exposing the misdeeds of the restaurant chain.
In contrast, owners of “valuable” content have a far more ambivalent relationship with the great Internet switch. In the United States, Google receives a daily stream of notices demanding that it remove links to copyright-infringing materials (YouTube accounts for the lion’s share). Many, especially in New York’s old-media conglomerates and publishing industries, hold Google in deep suspicion, a feeling that persists no matter how many earnest professions of benign intent are offered by Google’s employees. Those professions, in fact, tend to make matters worse, as they leave the old content generators feeling Google doesn’t appreciate how a dollar should be made in the information game.
When such anxiety boils over, it is expressed through lawsuits. When in 2004 Google proposed a system for searching books modeled on its search engine for the Web, it was promptly sued by a consortium of publishers and authors. YouTube, similarly, was subject to a deck-clearing lawsuit in 2006, funded by Viacom, the entertainment conglomerate. By the first decade of its existence, Google’s legal department had accumulated a large collection of copyright experts, and they needed every one of them.
Google has so far managed to settle many of the most serious claims, thanks in part to its lawyers, but a different sort of danger looms in the form of threatened content boycotts. Rupert Murdoch, owner of the News Corp. conglomerate and a master of exploiting the structural weaknesses of other firms, started complaining in 2009 about sites like Google that “steal” newspaper content.17 Here is a portion of a television interview he gave on the subject (reproduced as a matter of fair use):
Murdoch: [The problem is] the people who just simply pick up everything, and run with it, who steal our stories … Google, Microsoft, Ask.com.…
Interviewer: Their argument is that they are directing traffic your way.… Aren’t they helping you?
Murdoch: What’s the point of having someone come occasionally, who likes a headline they see in Google? … We’d rather have fewer people coming, and paying.
Interviewer: The other argument from Google is that you could choose not to be on their search engine, you could simply refuse … so that when someone does a search, your websites don’t come up—why haven’t you done that?
Murdoch: Well, I think we will, but that’s when we start charging.
While Murdoch doesn’t go so far as to announce or promise a boycott, his implication is perfectly clear—as is the risk to Google owing to extreme specialization. To persist in doing what it does, Google, though a powerful monopoly, needs information industries disposed to play nice, cooperate, and share—to let the world’s greatest organizer of information index their content and make it accessible over their wires. Unfortunately, playing nice has never been common practice in the information industries, as this book should already have made clear. Something about the intangible nature of information products seems to make everyone only more cutthroat than th
e average widget manufacturer.
THE BATTLE FOR TERRITORY IN THE 2010S
In Hindu mythology, deities and demons assume different incarnations to fight the same battles repeatedly. At the beginning of the 2010s, as a chasm opened between Google and its allies like Amazon, eBay, and nonprofits like Wikipedia on the one side and Apple, AT&T, and the entertainment conglomerates on the other, it was obvious that what loomed was just the latest iteration of the perennial ideological struggle into which every information industry is eventually swept. It is the old conflict between the concepts of the open system and the closed, between the forces of centralized order and those of dispersed variety. The antagonists assume new forms, the generals change, but essentially the same battles are fought over and over again. It is the very essence of the Cycle, which even a technology as radical and powerful as the Internet seems able at most to moderate but not to abolish.
For the information industries that now account for an ever increasing share of American and world GDP, the coming decade will be given over to a mighty effort to seize territory, to bolt the competition from its habitat. But this is not a case of one pack of wolves chasing another out of a prime valley. While it may sound fanciful, the contest in question is more like one of polar bears battling lions for domination of the world. Each animal, insuperably dominant in its natural element—the polar bear on ice and snow, the lion on the open plains—will undertake a land grab where it has no natural business being. The only practicable strategy will be a campaign of climate change, the polar bears seeking to cover as much of the world with snow as they can, while the lion tries to coax a savannah from the edges of a tundra. Sounds absurd, but for these mighty predators, it’s simply the law of nature.
For the past few years, Google, together with Amazon, eBay, Facebook, and nonprofits like Wikipedia, has generally been trying to convert as much of the world as they can into something that looks like the Internet: a clear, free path between any two points, with no hierarchy or preferential treatment according to market capitalization, number of paid lobbyists, or any other prerogative of size and concentration. Meanwhile, AT&T, the entertainment conglomerates, and the rest are trying to succeed where AOL Time Warner failed, and bring the Internet to heel. They envision a rational regime of access and flow of information, acknowledging that the network is not some renewable natural resource but a man-made structure, one that exists only owing to decades of infrastructure building at great cost to great companies, entities that believe they ultimately are entitled to a say. For the telephone and cable companies it is a matter of respecting the ownership of the Internet’s sine qua non: the wires, bandwidth, and cable. Naturally allied to such respect for ownership are copyright holders, whose just due they fear is being lost in the giddy idealistic effort to make everything available to everyone without limit, and as often without compensation. There is, the partisans of this side argue, a cost to building a bridge, a cost to writing a novel. An information economy, so called, cannot ultimately be sustained without acknowledging such hard facts. Information may “want” to be free, but we cannot expect it to be moved or created if we drive down to nothing the incentives for performing either function. If this side has its way, the twenty-first-century world of information will look, as much as possible, like that of the twentieth century, except that the screens that consumers are glued to will be easier to carry.
This, in essence, is our present war for information, one being waged on multiple fronts in ways subtle and not so subtle. Let us consider now the face of battle.
APPLE’S CHALLENGE TO THE COMPUTER
In 2006, Professor Jonathan Zittrain of Harvard made the startling prediction that over the next decade, the information industry would undertake a determined effort to replace the personal computer with a new generation of “information appliances.”18 He was, it turned out, exactly right. But the one thing he couldn’t forecast exactly was the general who would lead the charge. How indeed could anyone have guessed that Apple Inc., the creator of the personal computer, would be spearheading the effort to replace it? Unlikely though it was, beginning in 2010, Apple, allied with the entertainment conglomerates, became the key firm in a broad challenge to the whole concept of the personal computer.
When, in 1997, following another boardroom coup, Steve Jobs took back control of Apple, it was clear he had not changed or abandoned his basic ideas; to the contrary, he had intensified them, taking his whole ideology to, as it were, the next level. In doing so he repudiated, now decisively and forever, Steve Wozniak’s vision of the firm. The transformation would be symbolized by the moment in 2007 when Jobs renamed Apple Computers “Apple Inc.”—and at roughly the same time, as a personal flourish, refused to write a foreword for his old friend’s autobiography, iWoz.19
By the dawn of the decade, the cornerstone of Jobs’s strategy seeking perfect control over product and consumer had been laid; it took form as a triad of beautiful, perfect machines that have since won the allegiance of millions of users. Usurping the throne of the personal computer, in their order of succession, came the iPod, the iPhone, and the iPad. These would be, if all went according to plan, the information appliances of the 2010s.
On the inside, the iPod, iPhone, and iPad are actually computers. But they are computers that have been reduced to a strictly limited set of functions that they are designed to perform extremely well. It’s easy to see this with the iPod, which, rather obviously, is designed solely and optimally for playing music and watching videos. The limitation is much harder to see on the iPhone and the iPad, both of which can do things like make phone calls, send email, surf the Web, and allow one to read books, in addition to the seemingly unlimited variety of functions that can be acquired through the “app store.” But even if invisible to many consumers, the inescapable reality is that these machines are closed in a way the personal computer never was. True, Apple does allow outsiders to develop applications on its platform—the defeat of the Macintosh by Windows taught Jobs that a platform completely closed to outside developers is suicide. Nevertheless, all innovation and functionality are ultimately subject to Apple’s veto, making these devices antithetical to the Apple II and all the hardware development it inspired.
Apple’s new generation of devices are user-friendly, but also what you might call “Hollywood-friendly.” They are engineered with an eye to complicated deals the firm has made with the existing entertainment conglomerates, deals securing access to content that Apple’s rivals have had trouble matching. In exchange for this access, Apple generally, if not quite perfectly, guards the intellectual property of its partners. The devices, in a similar way, are also “telecom-friendly”: designed to operate with one carrier only, they reinforce the favored telephone company’s power—for a price.
The veto that Apple maintains over functionality and specific applications is not notional, but one wielded in service of its partnerships’ interests. The first major exercise was in blocking Skype, the voice-over-IP firm whose software lets users call each other over the Internet for free, eating into AT&T’s long distance margins. Later, during the summer of 2009, Apple bodychecked an application written for the iPhone by Google. The product, named “Google Voice,” was designed to make a single phone number, when dialed, ring on all one’s phones at once. The rejection of this service six months after its submission for consideration was not another effort at protecting the telephone partner (all GV users would place and receive calls over their carriers’ networks and not, as some had feared, over the Internet). Rather, this rejection of a widely anticipated function appears to have been motivated by perceived competition with existing Apple applications such as the dialer, voice mailbox, and others. This, in a way, makes the move seem pettier. And the pattern would continue. As Tom Conlon of Popular Science would write when the iPad was unveiled, “How long before it [Apple] blocks movies, TV shows, songs, books and even web sites? Scoff now, but don’t be so naïve as to believe that this isn’t possible.”
GOOGLE’S COUNTERMOVE
Throughout the summer of 2007, rumors flew that some kind of Google phone was in the works. At the Googleplex, the firm’s storied campus, a suspicious statue, a human-robot, or android, with red eyes showed up in a nondescript building across from the main campus. Finally, on November 5, 2007, Google effectively announced the Gphone—by letting it be known that there was no such thing.
In contrast with the unveiling of the iPhone, there was no stadium event, no screaming crowd, and most important, no product. Instead, there was just a blog post entitled “Where’s My Gphone?”20 An employee named Andy Rubin wrote the following: “Despite all of the very interesting speculation over the last few months, we’re not announcing a Gphone. However, we think what we are announcing—the Open Handset Alliance and Android—is more significant and ambitious than a single phone.”*