My iPad? A Great Bundle of Sticks

by Andrew McAfee on June 7, 2010

I got an iPad as a birthday present a little while back (thanks again, Mom!), and am loving it. So when I heard that Cory Doctorow, the science fiction author and editor of geek candy blog Boing Boing, was not enamored of the device I was eager to learn why. I checked out his post expecting to read a review, but instead found a diatribe. And one that cries out for a response.

Why I won’t buy an iPad (and think you shouldn’t, either)” is Doctorow’s accurate and self-explanatory title. He concedes that the iPad’s design reflects “a lot of thoughtfulness and smarts,” but is still not going anywhere near one and wants everyone else to stay away, too. In other words, he likes the device just fine; he just hates what it stands for. Like property rights and the clearly expressed desires and preferences of millions of people.

Doctorow is a well-known advocate of openness, sharing, and tinkering with gear. He writes “I believe — really believe — in the stirring words of the Maker Manifesto: if you can’t open it, you don’t own it.” He rails against the fact that it’s hard to physically take apart the device, but he seems even more angry at the “technical and social infrastructure that accompanies it.” This infrastructure includes:

  • Prohibitions on swapping, sharing, reselling, and forwarding many kinds of content once they’re downloaded to the device. Comics from Marvel, ebooks from Amazon, and many other digital wares can’t be easily copied and endlessly passed on.
  • Gatekeeping by Apple with the App Store. Only Apple-approved apps can be easily installed on iPads, and the company works to keep out porn, malware, and other stuff it deems inappropriate. Doctorow writes that the iPad’s “universe of apps [is] constrained to the stuff that the Cupertino Politburo decides to allow for its platform. As a copyright holder and creator, I don’t want a single, Wal-Mart-like channel that controls access to my audience and dictates what is and is not acceptable material for me to create.”

Neither do I, which is why I’m really glad for the one-two punch of the 1st Amendment and the Web. Doctorow, I and everyone else with Internet access in America are free to create almost anything we want with astonishingly few restrictions (the Supreme Court recently decided that even appalling depictions of animal cruelty are protected speech), and to distribute our digital content via the Web. And the iPad provides Politburo-free access to all this Web content.

Doctorow dislikes that in addition to providing Web access, Apple has also created the walled garden of the App Store and allowed companies like Marvel and Amazon to place restrictions on replicating some content delivered to the iPad. And even though I like free stuff, too, I’m really happy Apple put this infrastructure in place. Let me explain why.

Marvel’s comics are the company’s property, and the App Store is Apple’s. Every first year law student learns to think about property rights as a bundle of sticks, with each stick corresponding to a different right. As law professor Jerry Anderson writes, these include “the right to convey, the right to devise, the right to use, and, at the top of the pile, the right to exclude,” or to keep others from doing certain things with the property.

Anderson is not alone in putting exclusion at the top of the pile. A 1982 Supreme Court ruling emphasized that the right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” It’s the right at the heart of the patent system (a patent gives you the right to keep others from using your innovation without your permission) as well as the concepts of copyright, trademark, and other forms of intellectual property (IP).

So Marvel, Apple, and the other players in the iPad ecosystem aren’t doing anything new, weird, Orwellian, or unAmerican. In fact, quite the opposite. They’re thinking about how to take care of and gain value from their property, two activities that have been at the heart of our legal, economic, social, and technical infrastructure for a LONG time. Article 1, Section 8 of the US Constitution gives Congress a set of powers, including “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Framers realized, as did their predecessors in English common law, that strong and clear intellectual  property rights generate innovation.

Technology changes lead to important clarifications and extensions of the IP infrastructure, but they certainly don’t invalidate it. The fact that digital property can be perfectly, endless, and near-costlessly copied and replicated does not in any way imply that it always should be. The fact that digital platforms can be opened to all comers doesn’t mean that all of them must be.

Doctorow wants to give others the right to share and alter his own IP, and has taken advantage of legal innovations like Creative Commons licenses to permit this on terms he finds acceptable. Which is great. What’s not great is the insistence that other terms are harmful to society and worthy of contempt. Such a stance is wrong in both theory and practice.

The theory I hear him espousing in the iPad post and elsewhere is that the right to exclude with should be curtailed (if not eliminated) when it comes to IP —  that digital goods should become something like communal property. If this argument were being made about physical property we’d recognize it immediately as an argument for communism, wouldn’t we? And once we did, wouldn’t we stop taking it seriously, and place it somewhere on the kooky-to-dangerous spectrum?

I am honestly puzzled why this argument gets any other reception when it’s made about IP. We all agree that intellectual property is becoming more and more important. But how many of us think a digital Bolshevik Revolution is the way forward, or a cure for what ails our economy and society at present? How many of us think the Framers of the US Constitution just got it dead flat wrong in Article 1, Section 8, Clause 8? Or that the appearance of the Web invalidates their insights?

If the ‘information wants to be free’ argument were right in practice, the iPad, Apps Store, and other elements of non-communal digital infrastructures would be failures; people would recognize them as big corporate cons, and stay away. Neither IP producers nor consumers would abide their restrictions, especially when totally open hardware+software+content ecosystems are available (Doctorow, for example, uses a Thinkpad running Ubuntu to surf the Web).

Well, more than 2 million iPads were sold within sixty days, and developers have created more than 5,000 apps for it (in addition to the more than 200,000 available for iPhones). It’s been welcomed by large and enthusiastic crowds around the world. It seems that many, many people have been waiting for something like the iPad —  a reliable, easy to use, malware-free device that serves up many kinds of content, some of them free, some not.

Since these folk have very different beliefs and preferences than Doctorow’s around IP, they’re clearly worthy of his contempt. I realize that ‘contempt’ is a strong word, but it’s the right one. He writes that

The model of interaction with the iPad is to be a “consumer,” what William Gibson memorably described as “something the size of a baby hippo, the color of a week-old boiled potato, that lives by itself, in the dark, in a double-wide on the outskirts of Topeka. It’s covered with eyes and it sweats constantly. The sweat runs into those eyes and makes them sting. It has no mouth… no genitals, and can only express its mute extremes of murderous rage and infantile desire by changing the channels on a universal remote.”

(I want to point out that this is not necessarily Gibson‘s own view of consumers. These are words spoken by a character in his novel Idoru)

Got that, my 2 million+ fellow iPad owners? Never mind that we can use the device to surf the entire Web, not just access Apple-approved content. Never mind that we can use it to compose and play music, write, draw, and do other creative tasks. Never mind that we can develop apps for it and give them away if we choose via the App Store. We’re still fat, pale, infantile trailer trash because we buy into its model of interaction with IP.

I lose track of the number of ways in which that attitude is snotty, offensive, and dumb. It’s almost not worth taking seriously or paying attention to at all, except that lots of people do take Doctorow and his ideas seriously. So it’s important to engage with them, and to provide a different perspective on the situation.

I want to be clear about a few things: I like Creative Commons licenses, Wikipedia and Linux, the Maker Faire, and so on. I think the ethos they embody of tinkering, volunteering, and sharing is wonderful. And while I’m not a code-slinging professional geek, I learn a lot from them and like hanging out with them. I’m a Fellow at Harvard’s Berkman Center, got invited to Tim O’Reilly’s 2010 FOO Camp East, and presented at SXSWi.

But I’ve also been teaching and researching at business schools for the past 15 years, and I’m an ardent capitalist. I feel about it the way Winston Churchill felt about democracy, which is that it’s the worst system for organizing economic activity except for all those other forms that have been tried. I believe that America’s extraordinary track record of innovation and creativity exists not despite its IP laws, but at least in part because of them. I applaud the fact that IP creators and owners have strong rights to exclude, even when these creators and owners are big, powerful corporations. And I really like the bundle of sticks contained in my iPad.

What do you think of all this? Leave a comment, please, and let us know.

  • http://radar.oreilly.com timoreilly

    I agree with you, Andrew. I've always disliked the moralistic approach to copyright. I dislike the direction of our copyright laws, which give near-perpetual protection even to works that are abandoned by their owners, and that's a real problem. And our patent system is worse, granting rights for “inventions” that are obvious, or have never even actually been made.

    But in general, I prefer arguments that make the practical case for sharing rather than some kind of moral case. That's what I wrote about in my essay Piracy is Progressive Taxation http://openp2p.com/pub/a/p2p/2002/12/11/piracy…. and in the piece about free software that I wrote for Nature entitled Information Wants to Be Valuable http://www.nature.com/nature/debates/e-access/A

  • http://andrewmcafee.org/blog amcafee

    Tim, thanks for your comment.
    I'm with you that elements of our IP infrastructure (like the ones you cite) need to be tinkered with / changed / overhauled. And I appreciate the work you've done to highlight and discuss them.
    I find myself unwilling to cede the moral high ground to the collectivists here. Strong and clear property rights are good. Not always and in every case good, but generally so. They're good for the owner, good for society, and good for progress. The main constituencies for whom they're not good are actors (the state, individuals, corporations) who want to take or use property without compensating owners, or without getting their consent. And who wants to give those guys the moral high ground?

  • http://www.compliancebuilding.com Doug Cornelius

    Nicely lawyer-ed up. Lots of areas of IP law have gotten muddied and dysfunctional.

    To some extent Doctorow's argument is the professional versus the amateur. If you are going to devote your business's capital to a project you want some protection that you will be able to recover the capital and realize a profit. (Assuming it is any good.)

    An amateur may be more willing to tinker in his free time and release the results for free. You may be less likely to release it for free if you've spent lots of capital.

  • http://twitter.com/GregoryJRader Gregory Rader

    Hi Andrew,
    I don't want to defend Cory Doctorow's tone, but I do think there are reasonable arguments that the importance and value of IP are changing. One person arguing very persuasively that IP does not have the value it used to is John Hagel (http://bit.ly/uNcCA):

    “We are moving from a world where the source of strategic advantage was in protecting and efficiently extracting value from a given set of knowledge stocks – what we know at any point in time. As knowledge stocks depreciate in value at an accelerating pace, the focus of economic value creation shifts to effective and privileged participation in knowledge flows. Finding ways to connect with people and institutions possessing new knowledge becomes increasingly important.”

    There is a lot of sense in this perspective, that as the pace of innovation increases it becomes much more important to innovate more quickly than your competitors than to protect your existing innovations from them. That is not to say then that IP should explicitly not be protected so much as it is to say that expending resources doing so is a bad strategy.

    I certainly agree with you though that in the long run the market will decide whether this is true. In that regard the iPad presents an interesting dichotomy: on the one hand it provides a platform that effectively protects content/media IP, but on the other hand the device itself is remarkable less because Apple has protected its own IP and more because Apple has simply innovated more quickly than its competitors who are perpetually one step behind.

  • http://www.infovark.com Dean Thrasher

    The greatest fear of a true Internet enthusiast is that someone, somewhere, will transform it into television. That it will be reduced to a collection of shows selected by a network, or of channels picked out by your cable provider, and served up with a generous helping of advertising. Both the seamlessness with which the iPad and App store work together and the strong editorial control that Apple exerts trigger these fears.

    But you'll hear many of the same sentiments and criticism leveled at Facebook, AOL and other “walled gardens”. Most of it is overblown. As you point out, it's easy enough to ditch the apps and gated communities and surf the open 'Net for whatever you like. These negative reactions to the iPad will pass.

    I think the IP concerns are significant, though. Both copyright and patent protections have gotten much stronger in recent decades. Exclusive rights are now granted for a much longer period of time, and protection now applies to all kinds of derivative works. Lawrence Lessig makes a pretty good argument in his book Free Culture that these extensions to IP law have reduced our freedom of expression.

  • Dool

    I thin you overlook some important nuances, particularly around Fair Use.

    Thomas Jefferson was not a friend of IP or copyright protection. He compared it to owning the rights to fire, oxygen or growing corn. He knew innovation depends on the ability to build upon existing knowledge. If Rights-Owners have an absolute right to veto use they cannot control, then they in effect can veto innovation that threatens them.

    Free resources have been crucial to innovation and creativity. There was a time when music could be performed in public without a license from a lawyer; a novel could be turned into a play even if the novel was copyrighted. The very act of creativity was understood to be the act of taking something and re-forming it into something new. Most of the innovation created in the past decade has come not from corporate R&D or the government but from young innovators from around the globe leveraging the availability of free resources.

    Obviously, many resources must be controlled if they are to be produced and sustained. An engineer, author or musician should be entitled to compensation for their works. This preserves the incentive to produce these resources. But consider the implications if people could not share books, or comic books, without paying for the privilege.

    But many resources should be free. I shouldn’t need the permission of the Einstein estate before I test his theory against newly discovered data. Nor should I need someone’s permission to use their content in fair and creative ways. These resources gain value be being kept free rather than controlled by folks like Apple.

    When William Blackstone codified Land Rights in the 1700’s, he described owner’s rights as extending from the center of the earth to an indefinite upwards distance. This doctrine held for centuries until a Napster-like event began to happen. A technology called aviation began to fly overhead; effectively trespassing on property owner’s
    rights. When a lawsuit brought by disgruntled chicken farmers reached
    the Supreme Court in 1946, Justice Douglas wrote:

    “Common sense revolts at the idea. To recognize such public claims to
    these highways, seriously interfere with their control and development
    in the public interest, and transfer into private ownership that which
    only the public has a just claim.”

    In very real ways, Apple’s moves transfer in private ownership that which the public has a just claim. Common sense revolts at the idea.

  • http://zornwil.myopenid.com/ Wilson Zorn

    There are at least 2 big issues I see and where my interests are more with Doctorow on this one are: the iPad/i… series rests on using the iTunes store which is a stranglehold on content and distribution; and the policies of Apple have been, to my view, outrageous in their choices, such as censoring Trent Reznor's app for the mere inclusion of music from the 1990-something album “Head Like a Hole” for being “offensive.”

    I agree that companies do and should have a right to manage content, including restricting reuse, but I do look towards a media company that lives on redistributing content to be more open than Apple and it's unwieldy and inconsistent attempts at censorship (again, I'm not suggesting it doesn't have a right, but I do assert my right not to consume via them, too).

    I would further suggest this issue is not as simple as merely protecting corporate rights towards restrictions of content, either. The problem is the increasing monopolization of content provision. Now, I do NOT believe that the iPhone/iPad/etc. constitutes a monopoly – yet. And as such we should not be mandating anything via government (at least not federal government, but that's another story/distinction I won't bother to make here) to force its openness. But we should be wary, for example, of the content restrictions that effective local monopolies, like Comcast and all other cable providers with localized hegemony over cable, can exercise, and I do believe that such as the force of requiring public access as well as assuring some form of open content provision is critical int hose cases. Further, consider the position of Google in providing content, and how far do we allow the private space to regulate what voices do and do not get heard? Again, I don't see a cause to regulate Google, my point being one of warning rather than imminent or present danger.

    But as consumers, I wholeheartedly believe we should reject Apple's absurd censorship and restraint of trade practices in how it operates its apps store, yes.

  • http://zornwil.myopenid.com/ Wilson Zorn

    Brief additional comment, sorry…but another concept around IP I think consumers should get is ownership upon purchase, rather than the effective leasing model of the Kindle (and I sort of suspect Apple is doing the same but by all means that's simply my suspicion rather than clear knowledge); if I buy a book digitally, I expect to own it, not to have it yanked as in the Orwell book incident on Amazon, even though by all means I actually understood Amazon's unfortunate situation in that it wasn't their's to sell, so shouldn't have been offered in the first place. But fundamentally, if I buy a PDF, for example, I expect to keep it. Now, I do realize that the terms of service re the Kindle (and again, perhaps the iPad et. al.) actually did have some sort of declaration of the lack of ownership rights, that there was even pre-incident an effective leasing going on (although I did read a lawyer's reading that the Amazon agreement pre-incident was contradictory in places on this), but media providers do have to be rather more clear on this point, and I would, if aware, always choose those who sell me something free and clear when it comes to content (even though those annoying software EULAs actually indeed say something quite else and we see digital content based more often on the software model than the old physical media model).

    Which leads me to what I think is a fundamentally important point in this discussion, a more layman-oriented transparency of rights for any/all digital content. We really need to jettison these legalese-laden agreements or at least supplement them with much more readable and straightforward formats for consumers. These sorts of agreements are fine for corporations which employ lawyers and have the luxury of both review and risk management but only work against consumers who haven't those luxuries and need and, IMHO, deserve much greater clarity of agreements and rights. I would suggest the same is true for credit card and other financial arrangements just as it is for purely digital agreements.

  • http://twitter.com/mrmerlot Adam Roades

    Andy, great way to continue the conversation about what value IP has in the digital age. Have you seen Johanna Blakley's TED talk? http://bit.ly/9PNsvj She presents a thought-provoking argument for how industries that don't allow IP (i.e., copyright) actually thrive more (i.e., make more money) and create more innovation than those that promote copyright.

  • WhiskeyTangoFoxtrot-over

    How do you feel about closing all of the libraries. Imagine all the authors who miss out on royalties when evil doers read their works without paying. How about eliminating all loud speakers too. Imagine all the artists missing out on royalties when the same evil doers hear their art from passing cars and houses. Where do you draw the line? Apple continues to draw theirs, and as an earlier poster commented, the market will decide.

  • http://andrewmcafee.org/blog amcafee

    I would feel lousy if libraries were outlawed or we weren't allowed to play music so that others could hear it. Luckily, neither of those is even being contemplated.
    Are you saying that Apple's refusal to let everyone do anything they want within the iCosystem is likely to hasten these bad outcomes? Well, as Carl Sagan said, “extraordinary claims require extraordinary evidence.” Where's yours?
    I agree with you that the market will decide a lot here. I see that Apple has sold 3 million iPads in 80 days, and 1.7 million iPhone 4s in three days. That's a lot of deciding…

  • http://andrewmcafee.org/blog amcafee

    Wilson, thanks for your thoughtful comments. Like you, I'd welcome more transparency and simple language around IP purchases, and hope we get it. It would make it easier for people who care about their IP rights to make decisions.

  • http://andrewmcafee.org/blog amcafee

    Dool, you write that “Apple's moves transfer in private ownership that which the public has a just claim.” What is the public's just claim here? To be able to write and install non Apple-approved applications on iPads? Does the public also have the just claim to write and install any games they want on the game consoles they purchased without needing the approval of Microsoft, Nintendo, etc.?
    “I bought this, so I can do anything I want with it” is a tempting but naive claim. It hasn't applied to books, songs, DVDs, software, or video game consoles. And it doesn't apply to iPads. Common sense revolts at the idea that it should.

  • http://andrewmcafee.org/blog amcafee

    Dean, thanks for the comment. I've also heard a lot of persuasive arguments that IP protections have grown too strong, especially for the intellectual property owned by big corporations that can afford lots of lawyers and lobbyists. So maybe these protections do need to be scaled back. But 'scaled back' is VERY different from 'eliminated,' isn't it?

  • http://andrewmcafee.org/blog amcafee

    Greg, thanks for weighing in.
    If Hagel's argument is right, than companies that spend energy and money protecting IP will lose out to those in the same industry that achieve “effective and privileged partipation in knowledge flows.” That's a testable hypothesis, but it's not an argument for doing away with IP protection.

  • http://andrewmcafee.org/blog amcafee

    I would feel lousy if libraries were outlawed or we weren't allowed to play music so that others could hear it. Luckily, neither of those is even being contemplated.
    Are you saying that Apple's refusal to let everyone do anything they want within the iCosystem is likely to hasten these bad outcomes? Well, as Carl Sagan said, “extraordinary claims require extraordinary evidence.” Where's yours?
    I agree with you that the market will decide a lot here. I see that Apple has sold 3 million iPads in 80 days, and 1.7 million iPhone 4s in three days. That's a lot of deciding…

  • http://andrewmcafee.org/blog amcafee

    Wilson, thanks for your thoughtful comments. Like you, I'd welcome more transparency and simple language around IP purchases, and hope we get it. It would make it easier for people who care about their IP rights to make decisions.

  • http://andrewmcafee.org/blog amcafee

    Dool, you write that “Apple's moves transfer in private ownership that which the public has a just claim.” What is the public's just claim here? To be able to write and install non Apple-approved applications on iPads? Does the public also have the just claim to write and install any games they want on the game consoles they purchased without needing the approval of Microsoft, Nintendo, etc.?
    “I bought this, so I can do anything I want with it” is a tempting but naive claim. It hasn't applied to books, songs, DVDs, software, or video game consoles. And it doesn't apply to iPads. Common sense revolts at the idea that it should.

  • http://andrewmcafee.org/blog amcafee

    Dean, thanks for the comment. I've also heard a lot of persuasive arguments that IP protections have grown too strong, especially for the intellectual property owned by big corporations that can afford lots of lawyers and lobbyists. So maybe these protections do need to be scaled back. But 'scaled back' is VERY different from 'eliminated,' isn't it?

  • http://andrewmcafee.org/blog amcafee

    Greg, thanks for weighing in.
    If Hagel's argument is right, than companies that spend energy and money protecting IP will lose out to those in the same industry that achieve “effective and privileged partipation in knowledge flows.” That's a testable hypothesis, but it's not an argument for doing away with IP protection.

  • http://spiralout.posterous.com/ GregoryJRader

    Appreciate the response…I am in complete agreement until your last sentence. In principle I would agree with you but in practice a company can't opt out simply by not investing in IP themselves because it is still possible for other companies to impose legal costs on them. I think then that you really have two questions. One is a matter of strategy: What is the optimal investment in IP protection? The other is a matter of policy: What sorts of obstacles and penalties should the legal system impose on behalf of those companies that choose to invest in IP and what should be the burden of proof before those penalties are imposed?

  • http://andrewmcafee.org/2011/02/mcafee-apple-itunes-privacy-hole-violation/ SpyTunes

    [...] a big user of Apple products and fan of the iCosystem they’ve built (see posts here, here, and here). But what I’ve described here is a privacy hole they need to plug, [...]

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