1. ‘Prosumer Law’:
Consumer Protection via
Platform Interoperability
and Fundamental
Rights
EUI GGP 14 December 2012

2. Regulating Code
Good Governance and Better Regulation in
the Information Age
Ian Brown (Oxford) Chris Marsden (Sussex)

3. Book due out spring 2013

4. Biographies
 Chris Marsden is
◦ Professor of Law,
◦ author of
 Net Neutrality:
 Towards a Co-Regulatory
 Solution (2010),
 Internet Co-regulation (2011)
 and three other books.

5.  Ian Brown is
◦ Senior Research Fellow at
◦ Oxford University's Oxford Internet
Institute.
◦ Computer scientist with public policy focus
◦ editor of 'Research Handbook on Internet
Governance„ (Elgar 2013)

6. Holistic regulation of the Internet
 Interdisciplinary approach written by
◦ socio-legal scholar (Marsden)
◦ computer scientist (Brown)
 Core idea: develop a „prosumer law‟
◦ Must work with innovation and socio-
economic incentives
◦ Human rights continual focus

7. Regulation and governance
 Internet use now ubiquitous
◦ but governments, legislators and regulatory
agencies
◦ falling further behind rapidly changing Internet
technologies and uses.
 Regulatory lawyer Marsden and computer
scientist Brown critically analyze regulatory
shaping of “code”
◦ Technological environment of the Internet
 „code is law‟ and coders operate within normative
framework
◦ more economically efficient and socially just
regulation
◦ Critical socio-technical and socio-legal approach

8. Literature
 Previous legal focus on elephant‟s trunk?
◦ Benkler, Wu, Lessig, Zittrain, Van Schewick
◦ Wikipedia + Apache + Firefox + GPL
◦ But fatally flawed by lack of trust in federal
government
 More „worldly‟ view Mueller (2010) De Nardis
(2009)
◦ Institutional economic and political science
literature
◦ Note new Mansell book…
 Fascinating but limited view
◦ World uses Facebook on Windows...on mobile
(and not the Jesus-phone and Fondle-slab)
 Ohm‟s Myth of the Super-User? Code V2.0?

9. „Governments of the
Industrial World, you weary
giants of flesh and steel, I
come from Cyberspace,
the new home of the Mind.
On behalf of the future, I
ask you of the past to
leave us alone. You are not John Perry Barlow
welcome among us. You A Declaration of the Independence
of Cyberspace (1996)
have no sovereignty where response to Communications Decency
we gather.‟ Act 1996
(partly struck down in Reno v. ACLU
1997)

10. The nation strikes back?
Respect for national borders Governance by
and regulation by nation or? supra-national bodies and
networks
states

11. Complexity and pace of change
 Technical variety of different devices and platforms
◦ 4G mobile vs. PC, Kindle vs iPad
 Sociological variety in how different platforms and
devices are used
◦ child‟s PC located where it can be monitored, but not
phone
 Differing industry standards across different
companies
◦ means technological „fixes‟ hard to implement.
 Multiplicity of players; ecology of actors even more
complex in the world of „apps‟ and cloud computing.
 Pace of change means that any regulation has to be
„future-proofed‟ if it is to avoid becoming redundant.

12. “…generativity is a system's
capacity to produce
unanticipated change through
unfiltered contributions from
broad and varied audiences”
‘Generativity’
Jonathan Zittrain
2008

13. MODALITIES
OF
REGULATIO
N
Lawrence Lessig
Code 2.0 (2006)

14. Test the existing 'received
truths'
Strawmen:
 [1] Self-regulation and minimal state involvement
is most efficient in dynamic innovative industries;
 technology is never neutral;
 [2] Self-regulation critically lacks constitutional
checks and balances for the private citizen,
including appeal;
 network and scale effects drive massive
concentration
 [3] Multi-stakeholder co-regulation chance to
reconcile the market failures and constitutional
legitimacy failures in self-regulation
 voters will not allow governments to ignore the
Internet.

15. Government and market
failure
 Industry capture of regulators and
legislators,
 Incumbents protect/introduce new
barriers to entry
 Continued exclusion of wider civil society
from the policy discussion – but
◦ tenuous chain of accountability of
participants to voters, shareholders and NGO
stakeholders.
◦ effectiveness, accountability and legitimacy
of these groups in representing the public
interest?

16. 5 Case Study Chapters
1. Data protection
1. Enforcement failures, Privacy by Design
2. Copyright
1. Capture of law by lobbyists, code solutions
outflank
3. Filtering
1. Growth of censorship, surprising degree of
freedom – disappearing?
4. Social Networks
1. Dominance, network effects, corporate social
irresponsibility
5. Smart Pipes
◦ Net neutrality argument, DPI deployment

17. Lessons from 5 case studies
 Lessons for better future regulation from the
◦ regulatory and interoperability failures illustrated.
 Conclusion:
 governments, users/citizens and functioning
markets
 need a smarter "prosumer law" approach.
 Prosumer law would be designed to
◦ enhance the competitive production of public
goods,
◦ including innovation, public safety, and
◦ fundamental democratic rights.

18. Empirical Investigation
 Five case studies and one „prior art‟
 (encryption, anonymity, security: a „case
apart‟)
◦ Multi-year empirical investigation
◦ Builds on various EC/other studies including
 „Self-regulation.info‟ (2001-4), „Co-regulation‟ (2006-8),
„Towards a Future Internet‟ (2008-10), „Privacy Value
Networks‟ (2008-11), „Network neutrality‟ (2007-10)
„Internet science‟ (2012-15)
 Timeline important as partly historical studies
 Reassesses prior art in view of „hard cases‟
◦ Topics with no organised regulation/self-regulation
◦ Due to lack of consensus over solutions
◦ Clash between market outcomes and human

19. Example: Smart Pipes
 Legislation and regulation in place
◦ 10 year evidence base of discrimination by
protocol/user
◦ Merger reviews ex ante regulation
◦ EC Directives and Netherlands law
 Political will to act on freedom of expression
◦ Especially in view of broadband universal service
◦ Reinforced by competition problems in
video/voice
 Enforcement? Problems Canada,
Netherlands, UK
◦ Co-regulatory solution? BITAG (US), Berners Lee
(UK)
◦ Innovation in the core? Mobile true test case

20. Recent net neutrality work
 „‟Three Wise Monkeys‟ 2011
◦ www.globalpolicyjournal.com/
 „Mobile Net Neutrality‟ 2011
◦ ejlt.org//article/view/32
 „Net Neutrality: A Research Guide‟ 2013
◦ ssrn.com/author=220925

21. Approach embraces
complexity
 No easy examples that demonstrate the
'truth' of
◦ technical, political, legal or economic
solutions
◦ based on self-, co- or state regulatory
approaches.
◦ Cf. Mansell (2012) Imagining the Internet
 Examine the deficiencies and benefits
◦ Match market and social developments
◦ With human rights concerns
◦ E.g. In fields of privacy and freedom of
expression
 Note: analysis based on Article 19 UDHR not 1st
Amendment
 Most of world uses variants of Article 19

22. Not just a book - epilogue
 We assess the environmental
preconditions for prosumer law to
operate in Europe.
 The multi-stakeholder environment for
Internet governance and regulation,
 in which user groups lobbied along
with business and governments,
 insights of new institutionalism.

23. Towards Interoperability as
Prosumer Law
 We note the failures and capture of government
by „information giants‟
 Many (not all) problems caused by giants‟
perceived need to maintain proprietary lock-in via
code
◦ Microsoft/Google/Facebook/ad industry
◦ Favoured by big government as big solution
◦ Aiding in control of networks for government interest
 Solution in favour of prosumers and competition:
 Interoperability
◦ (Note: this is detailed software interoperability, not the
general description offered by Gasser/Paltrey 2012)

24. Prosumer law suggests a more
directed intervention
 Example:
 proposed solution to the problems of
dominant social networking sites,
 to prevent Facebook, Google+ or any
other network
 from erecting a fence around its piece
of the information commons:
 to ensure interoperability with open
standards.

25. 50 Ways to Leave Facebook
 Not sufficient to permit data deletion
◦ as that only covers the user‟s tracks.
 Interconnection and interoperability,
◦ more than transparency and
◦ theoretical possibility to switch.
 Ability for prosumers to interoperate to
permit exit.

26. Standards wars continued
 Exit and competition for standards
 increasingly critical in the information
economy;
◦ Textbook examples:
 3G (Qalcomm/Ericsson)
 VHS/V2000/BetaMax
◦ New example: patent pooling/trolling inc.
 Apple/Samsung/Google-Motorola, MSFT
 We focus on interoperability,
◦ lower entry barriers, increased consumer
welfare

27. Prosumers not super-users
 United States administrative and
academic arguments (Wu 2010,
Zittrain 2008, Lessig 2006) for self-
regulation to have demonstrably
failed,
 I focus on the European regulatory
space as a more fertile ground
 to explore prosumerism as both a
 market-based and citizen-oriented
regulatory tool

28. „Islands in the Bitstream‟
(Borrus, Bar 1995)
 “Inquiring into interconnection and interoperability
is a bit like the search for justice.
 Everyone avows its virtue; but....”
 “peculiar economic character of interface
standards raises real questions about
 whether market mechanisms will be sufficient to
create a highly interoperable [Internet]”

30. Gasser et al (2007)
Breaking Down Digital Barriers
 There is no one-size-fits-all way to achieve
interoperability in the ICT context.
 Our conclusion: interoperability generally
supports innovation in ICT context,
 but that the relationship between the two is
highly complex and fact-specific.
 We conclude also that the best path to
interoperability
◦ depends greatly upon context and which
subsidiary goals matter most
 cyber.law.harvard.edu/publications/2007/Breaking_Down_Digital
_Barriers

31.  “Not surprisingly, European attitudes
toward the mode of accomplishing
interoperability are quite different from
American inclinations.”

32. Range of approaches have
relative merits in circumstances
 Efforts within a single firm to
interconnect products or within firms;
 collaboration between or among two
or more firms;
 standards processes, including open
fora and ad hoc cooperation;
 and a wide range of roles for
governments,
 most are ex post not ex ante modes of
regulation.

33. European Moves in 2013?
 Public Consultation on the
 Access to Interoperability Information
of
 Digital Products and Services
◦ http://ec.europa.eu/yourvoice/ipm/forms/di
spatch?form=Interoperability&lang=EN

34. What regulation teaches about
code
 Ex ante and ex post intervention -
regulation
 Interoperability and open code/data -
procurement
 A biased policy towards open code –
◦ Data open to mash-ups (govt)
◦ Systems interoperable (procurement)
◦ Use of alternatives to market leader (e.g.
Linux)
◦ But not to exclusion of average users

35. Economics and Human
Rights
Interoperability linked to open data, open code, and
arguably though technologically deterministically
to free speech.
Blizzard of Internet governance principles in 2011
have
◦ origins in law and economics,
◦ or human rights, but
◦ apparently do not translate one to the other.
 This apparent dialogue of the deaf is a
competition policy (Brown and Waelde 2005),
and corporate governance problem.
Urgent task: dialogue between previous discrete expert
fields
◦ ICT growth driver and transformative technology
◦ equally transformative role in human communication
and dialogue.

36. Recent scholarship
 Intellectual Property, Human Rights
And Competition:
◦ Access to Essential Innovation and
Technology
◦ Abbe E.L. Brown
◦ Elgar 2012

37. Developing study of regulating
code
 Similarities and cross-over with
◦ complexity science,
◦ network science and
◦ web science/graph theory
 Match Internet regulation to complexity
theory
 Longstaff (2003) Cherry (2008) Schneider/Bauer (2007)
 Network science fusion of scientific/
fundamental elements from various
components

38. Euro-Interoperability
Framework
 Response to gigantic (billion-euro) anti-
trust cases:
 Microsoft saga (to 2009), Intel (2009),
Apple (2010), Rambus (2009)
◦ Google (2013?) perhaps Facebook....
◦ Coates (2011: Chapters 5-6).
 Announced by Commissioner Kroes in
2009-2010
 Bias in favour of interoperability in policy
 Concerns are broader than competition
◦ Include privacy, IPR, security, fundamental
rights

39. Kroes‟ five-part EIF agenda
1. new standard setting framework;
2. new horizontal agreement guidelines to
establish more transparency in licensing
standards;
3. common framework for ICT
procurement;
4. new „European Interoperability
Framework‟;
5. intervention in competition cases to
establish a principle of interoperability,
◦ including via ex ante requirements.

40. New standard-setting end-
2010
Fast-track approval of [Internet] standards
through:
 process hosted by traditional Euro standards
body
◦ such as ETSI
 through assessment of compliance with certain
criteria
◦ openness, consensus, balance and
transparency.
 [FRAND] New guidelines on the application of
antitrust rules to horizontal agreements.

41. “We don‟t want uniform
rules everywhere”
 “Standard-setting for software interoperability
is not the same as setting a new standard for,
say,
◦ digital television or mobile telephony.
 We should have right rules in the right
contexts...
 I am convinced that a more visible role for fora
and consortia standardisation in Europe
 will already lead to many improvements here.”

42. EIF V2.0
“Higher status and importance than
EIF version 1”
◦ was more guidance than
instruction.
 „Comply or explain‟ requirement
 when governments do not adopt an
available open standard,
◦ as already applies in the
Netherlands.
 Resolvedvia legislation if
necessary.

43. Kroes‟ promise post-Microsoft
 Will “seriously explore all options to
ensure that
 significant market players cannot
 just choose to deny interoperability.
 “The Commission should not need to
run
 an epic antitrust case
 every time software lacks
interoperability.”

44. Commission (2010)
adopted the
Communication
“Common approach for public
administrations”
EC four prong strategy, with:
1. Common frameworks in support of
interoperability
2. “Reusable generic tools”
3. “Common services”
1. (operational applications and infrastructures
of a generic nature to meet user requirements
across policy areas), and
4. “Analysis of the ICT side in new EU
legislation”

45. Interoperability prevents
abuse of vertical
integration
 We argue that proprietorial long-term lock-in
may
◦ tend to limit future competition
◦ by creating lock-in
◦ leading to what has been stated in mid-2011
as
◦ „ICT vendor cartel‟ dealing with
governments.

46.  Such an outcome could have been
avoided with dedication to choosing
interoperable solutions.
 Ganslandt (2010) argues for effective
enforcement strategy, a „hard wired‟
interoperability proposal.
 We agree!
 Devil remains in the detail…

47. Book published
February 2013
‘Prosumer law’
article 2014…
comments
welcome!
Comments to
cmars@essex.ac.uk

48. Dolmans (2010) offers „open‟ definition
of common standard
To qualify as “open” a standard must meet a number
of open conditions:
 • access to the decision-making process
• transparent and undistorted procedures
• published, pro-competitive goals
• published, objective, relevant criteria for
technology selection
• No over-standardization
Access to the standard:
 Open information on blocking patents;
 No unjustified refusal to license;
 Fair (FRAND) pricing

49. Some broad definitions
 Government: formal and institutional processes (usually
national or local) which maintain public order and take policy
decisions on behalf of citizens.
 Governance: the act or process of governing (not necessarily
by government)
◦ Is governance possible without outcomes?
 Regulation: application of laws, policies, rules, codes of
conduct…
◦ Legal assumption of enforcement even if only by exclusion
◦ Even if self-enforcement by habitual obedience
 Self-regulation: operation according to a voluntary code of
conduct or set of principles independent of government
 Co-regulation: State involved with industry in jointly
developing rules and regulations with procedures for
oversight.