Are We There Yet?
by Michael Nygard, February 1, 2000
The Winter Of Their Content
The last few weeks have seen a few notable Events (please note the capital
'E'). I've been anticipating one of them eagerly, dreading another, and
caught completely off guard by the third. The first Event, the one I was looking
forward to, was the Transmeta announcement. By now, even if you are
Robinson Crusoe, you've heard all about that one. The second Event was the
announcement of the super-huge, mondo-giganti-merger of AOL and
Time-Warner. I suspect you are just as sick of hearing analysis of that
one as I am, but bear with me...I only have a few things to say about it.
The third Event doesn't seem to have attracted as much mainstream
attention. Not surprisingly, only one of the companies involved has
really been talking about it. I'm referring to the patent
jackpot struck by Geoworks.
Other than being endlessly hashed over on Slashdot, what can those three
events possibly have in common? Before answering that, I have to digress
for a little while.
Last year, Harvard Law Professor Lawrence Lessig published a remarkable and
truly alarming book entitled, "Code and Other Laws of
Cyberspace". I can't possibly do this book justice in the space of
this column, but I want to bring up a key argument. In the book, Lessig
skewers a sacred cow of the Internet which claims that the net is essentially
impossible to control. Lessig points out that this common meme only
reflects the current implementation of the network protocols, not an essential
quality shared by all communication networks. Another, equally possible
implementation could enforce complete control, at the inescapable level of the
architecture. In cyberspace, Lessig argues, architecture provides the
"laws of physics" that absolutely constrain what is possible and what
is impossible. The code is law.
From this perspective, it is easy to understand why the architecture of the
Internet today is so difficult to control. From the beginning, it was
imbued with the values of its creators: openness, academic freedom,
impossibility of subversion. These architectural values embody the
constitutional values held by most people in free and democratic states.
Other states, however, have distinctly different values. As these states
have found that like plugging leaks in a dam, attempts to impose controls that
the architecture does not support are doomed. (Following Lessig's lead, I
am using architecture in this column as an umbrella term for the transport layer
and application layer protocols.) But what about the future? What architectures will the networks of the
future have? What values will these future networks make real in their
code? If we postulate that the architecture of a space embodies the values held
by its creators, then it pays to look at those creators.
First, let's consider AOL/Time-Warner. No matter how much the media
companies tell me that the merger is about content, I just don't buy it. It's
natural for the media to focus on the media content. After all it's their
business. But, does Time-Warner really need the extra 20 million AOL
subscribers as a content channel? Let's
be serious. The typical worldwide audience for a major motion picture
measures in the hundreds of millions. Music releases have smaller
volumes, but still enormous. Streaming Time-Warner's media content down to AOL
users is not going to show off their properties. Time-Warner does have
something that AOL wants, though. Only three months after the FCC declined to
force broadband operators to open their cable lines to alternative ISPs, AOL
purchased the number 2 broadband provider in the country. This deal is all
about the pipes. (There goes that cynical voice again, telling me to watch
AOL start opposing open cable access.) It wouldn't even surprise me
to see the Time-Warner media properties get spun off in a few years.
We can speculate on the values the AOL-over-cable network would embody by
extrapolating the values currently embodied in AOL's own network.
Offensive speech is prohibited and is grounds for termination. The
regulators of the space have one-way broadcasting to the inhabitants.
Connecting to the AOL network is not connecting to the Internet, no
matter what the commercials say. A user has no choice but to use the client software
provided by AOL. That client software facilitates monitoring and one-way
commercial traffic. I am not trying to make value judgments about this
architecture, only to point them out for your consideration.
AOL is an opt-in system. Your modem will work equally well with AOL or any
ISP. Phone companies provide the transport layer access for most
users. The ISP provides application layer access to email, news, web
browsing. Because these layers are mostly independent, and because each
layer is subject to competition, they tend toward interoperable standards.
This need not be the case when the transport layer access
provider--Time-Warner--also controls the software layer--AOL. It is not hard to
imagine AOL client software, tied to the AOL network via AOL broadband. No
interoperability requirements, therefore no opt-out whatsoever. Once Wall
Street analysts realize the level of control and monitoring available to AOL
under this deal, expect to see AOL's stock come back out of the mild slump it
has been in.
If anybody doesn't believe in the value of controlling the architecture, just
look at Geoworks. Their stock hadn't seen the high side of $10/share since
January 1998...until they revealed their patent lurking inside of WAP. Now
they are trading in the 30's, with a huge expected revenue stream independent
of any product whatsoever. They don't have to create anything, build
anything, or sell anything to keep making money from this patent. Of
course, they have no intention of stifling innovation, just getting a piece of
the action. A piece of all the action. Companies with revenues under
$1,000,000 per year may be eligible for a fee waiver, if the license is executed
prior to 1 July 2000. (Look at the fine print in note
2 for the equivocal language.) Folks, a consulting company with five
people is probably bringing in a million a year. Do you think they can
spare $20K for a patent license? Of course not.
The WAP Forum membership
application clearly spells out the rights and obligations of the companies
involved in the Forum. Paragraph 5.7 states (regarding the company
executing this agreement):
5.7 it will grant
on request to all other members of the Company ..., subject to paragraph 5.8,
a non-exclusive licence to use any of its Essential IPR on fair, reasonable
and non-discriminatory terms and conditions.
The application defines "Essential IPR" as any
technology without which a specification cannot be implemented.
According to the terms of this agreement, Geoworks has acted properly. (So
why does it smell so bad from here?)
Here's what will really happen as a result of this brouhaha. Other
members of the WAP Forum who have their own patent arsenals will announce
similar licensing fees. These fees will, by the way, be waived in the
event of a reciprocal licensing arrangement. We should expect to see a
knot of entangling alliances to rival Europe in 1913. Anyone without a war
chest full of patents will either pay up or go home.
The WAP architecture looks open. After all, anyone can download the
specifications. In this case, however, control comes not directly from the
architecture, but from the interaction of architecture and laws. The spec
says you have to use this patented technology, and the law says you have to pay
the patent holder to use it.
Software developers have long said that any problem can be solved by adding
another layer of indirection. Network protocols have a corollary about
layers in the stack. Until now, however, this has not been true of
hardware. Transmeta changes that. In the past, any x86 clone has
been on the Intel treadmill. The Intel treadmill is the technical device
that Intel wields as the defining force in the x86 market. Any time
Intel's high margin products got threatened by a cloner...BOOM, new instruction
set. All the cloners go back to the drawing board, letting Intel have
another six to nine month window without significant competition for their new
high margin products. The six to nine month lag comes from the time it
takes to get a design into production silicon. Intel cannot use this level
against Transmeta. In fact, it would probably backfire. Transmeta
might actually be able to get new instructions implemented via code morphing faster
than Intel can get them into silicon.
For Intel, controlling the architecture no longer means controlling the
market. Someone has built a smarter architecture. The WAP Forum
should learn from Intel, or they just might get "Crusoe"-fied .
About The Author: Michael is Chief Scientist of Javelin Technology, a Minneapolis-based
consulting firm. His experience runs the gamut, covering scientific,
military, financial, educational, banking, and manufacturing applications.
Michael is focusing on true integration of wireless devices in the
enterprise. He can be reached at firstname.lastname@example.org.