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The Problem: Proprietary Software, Bundling, and Vendor Lock-In
Most computer users today regularly use proprietary software to help operate their computers and perform a myriad number of useful tasks. Most of the world’s computers run some version of the Windows operating system, with a much smaller percentage running Apple’s Mac OS X operating system. Linux, the open source alternative to these operating systems, makes up only a tiny fraction of the overall total. Microsoft’s dominant position in the industry is not necessarily a sign of the popularity of its information products—in fact, Microsoft’s Windows Vista operating system has been much maligned in the popular press, becoming a kind of corporate albatross that the company hoped to remedy with the release of Windows 7 in 2009. The factors most responsible for the ubiquity of proprietary software have to do with the outsized influence the companies that manufacture this software enjoy and their close ties with other market players to effectively “bind” the software together in packages for sale to consumers. For instance, the Windows operating system is often the default operating system included on new computers that are sold to consumers because of preexisting business relationships between Microsoft and computer hardware manufacturers like Hewlett-Packard and Dell. Along with this operating system bundling, Microsoft bundles its own Internet browser (called Internet Explorer) in the operating system itself, thereby encouraging end users to utilize this browser by default when they start up the computer for the first time.
This practice is potentially harmful to consumers because it denies them the opportunity to decide whether or not to purchase a specific operating system or software package, and it makes the potential cost of changing to another software application more difficult because of potential incompatibilities with other types of software. Moreover, deals between companies to bundle materials for the customer can thwart market competition because the choice of which product to purchase is taken out of the hands of the consumer and placed in the hands of the companies making cooperative arrangements in advance of manufacturing and distribution to the market. Since so few end users actually modify the default settings of their computers, these actions by technology firms may constitute a de facto form of regulation.2 This last problem was one of the major anticompetitive practices that resulted in the US Department of Justice’s investigation of Microsoft in the late 1990s.3
The proprietary model of bundling software and hardware applications together for sale to consumers has begun to extend into other media industries as well. Faced with dwindling audience share for mainstream media outlets like broadcast and cable television, as well as broadcast radio, media corporations have turned increasingly to the Internet to try to reconnect with past audiences and to colonize new ones. The problem faced by these companies is that they have had to compete with the sheer enormity of offerings available on the web, many of which have been created by other Internet users. Easy distribution of copyrighted content via peer-to-peer file sharing also makes the Internet a somewhat unlikely partner for traditional media firms. The solution media conglomerates have found for the convergence and digitalization of copyrighted content is to slowly absorb important distribution channels on the Internet and then begin to exert control over the kinds of information that are found there. This has already happened with the popular video-sharing website YouTube, for instance, which was purchased by new media giant Google, and MySpace, which was purchased by Rupert Murdoch’s News Corporation. The consequence of these moves is the artificial fencing off of separate, proprietary realms on the Internet and through software programs that are increasingly necessary to productively interface with the Internet.
The creation of these artificial barriers by media companies has been likened to a “second enclosure movement,” a reference to the practice of taking public lands and handing them to private interests for commercial exploitation.4 This first “enclosure” movement occurred during the emergence of capitalism in feudal Europe, resulting in “the transformation of the European agricultural system from production for use to production for exchange . . . Throughout Europe, the mercantilist states enacted laws privatizing the village commons and depriving the peasantry of its means of subsistence, forcing many into wage labor. The enclosure movement, therefore, involved tendencies that brought both land and labor into the realm of commodity production.”5 The goal of restricting access to hitherto public lands was twofold: (1) to amass surplus production for the purposes of exchange and (2) to create incentives for wealthy landowners to invest in new aqueducts and irrigation systems in order to maximize the productive potential of these lands. The artificial creation of private property was intended to ward off the so-called tragedy of the commons, in which lands left to the common interest would lie fallow and underutilized (thereby endangering the full economic potential of such lands).6
The “second” enclosure of information materials is a trend with deep historical roots, dating back to the invention of the printing press, when monarchs began granting exclusive licenses to printers for specific types of documents, often appropriating as proprietary certain plays, poems, and songs that had been popularly available.7 This shift—defining information and intellectual products as property akin to land—became the core of English copyright law, which was transferred to the American colonies in the 1800s. More recently, the reach of copyright was extended to computer software in the Computer Software Act of 1980, which characterized computer source code as “a form of writing” and thereby subject to intellectual property protections.8 This law opened the floodgates for the enclosure of computer programming during the deregulatory zeal of the 1980s. Writing in his 1981 book Who Knows?, critical scholar Herbert Schiller expressed alarm at the enormous sums of taxpayer funds that were poured into research and development in areas such as microcomputing and nuclear power, only to see the outcomes of those project immediately transferred to the private sphere. These public investments, spurred by Cold War fears, became the private intellectual property of Fortune 500 corporations and deprived the public of the benefits of these government-funded programs. In Schiller’s words, “The private attack is characterized by an insistence that information is a commodity and that those who wish to use it should pay for it.”9 In the 1990s, the equation of computer software with intellectual property had become so ingrained in the legal and political discourse that protecting copyrighted material over the Internet emerged as one of the major cornerstones of efforts such as the Clinton administration’s National Information Infrastructure (NII).10
While the rigorous protection of intellectual property may have spurred new innovations in technology, there are numerous potential dangers here for democratic citizenship, the most glaring of which is freedom of speech: “As culture increasingly becomes fenced off and privatized, it becomes all the more important for us to be able to comment on the images, ideas, and words that saturate us on a daily basis—without worrying about an expensive, though meritless, lawsuit. The right to express one’s views is what makes these “copy fights” first and foremost a free-speech issue. Unfortunately, many intellectual-property owners and lawyers see copyright only as an economic issue.”11
There are numerous recent examples in which the types of “copy fights” that Kembrew McLeod mentions have boiled over onto the pages of the mainstream media. For instance, users of the Amazon.com’s ebook reader, the Kindle, were outraged in July 2009 when the company surreptitiously deleted copies of books that users had already purchased due to a disputed licensing agreement with the estate of the author.12 In this case, digital content that end users believed that they owned was reclaimed and deleted by Amazon. This copyright tussle was fraught with ironic overtones because the titles that were deleted from users’ Kindles were books by George Orwell such as 1984 and Animal Farm. Although the company subsequently apologized and agreed to restore the books to readers’ Kindle devices, the incident vividly demonstrated the pitfalls of vendor lock-i n for the digital distribution of media content. Apple’s iTunes software and proprietary audio encoding codec (AAC) also exemplifies an attempt to lock users into a particular content delivery system: Apple’s iTunes store. Even though other hardware manufacturers such as Palm have attempted to link their hardware devices (such as the Palm Pre smartphone) to Apple’s iTunes, Apple has continually modified its software through updates to prevent this linkage, thereby protecting the locked-in nature of the software and hardware ecosystem that is a key profit center for the company.13 These are but a few examples of issues of information control and copyright protection that proprietary software is designed to support. What alternatives, if any, exist to these closed information ecosystems?
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