Mandatory Data Portability and Interoperability: The Next Frontier?

My laptop has been dying over the last two weeks, and, as of Tuesday, no longer would turn on. Since the machine didn’t just keel over and die, I had a chance to assess the status of all of the content “on” the machine to make sure that I didn’t lose anything. Of course, “on” the machine doesn’t mean what it used to. The law school mirrors big chunks of the content stored on my laptop (though not all of it, as we needed to deal with locally-stored items in Outlook). More interesting and more relevant to law, more and more of my content is stored centrally with someone else, in my case, Google.

I am a big, big fan of RSS and use Google Reader to manage that content. If you want to know what I am interested in right now—what I found interesting in the 136 subscriptions currently flowing through Google Reader (is that a lot?)—you want to look at my Google Reader tag cloud. But the right question for law is: as we move from products and local storage to services and centralized storage, who owns the data and what establishes rights to access and use the data?

Suppose, for example, that I wanted to drop Google Reader and switch to another tool for managing RSS, say FeedDemon, recommended to me by Chris James, a student at the Law School. I can obviously just start running FeedDemon, but would I have to re-type or re-link to the feeds to get them into FeedDemon? And what of my tagged items? I don’t know how to tell how many items I have in Google Reader with tags, but I suspect that the relevant order of magnitude is in the 1000s.

The answer on the feeds is OPML. Yes, I have no idea what that is either (actually, OPML is the Outline Processor Markup Language), and it is used precisely to create an XML file that should be readable by another RSS program. This isn’t as easy as switching from Diet Pepsi to Diet Coke—the contrary choice is inconceivable—but, assuming that your RSS reader supports importing and exporting OPML, it is doable.

But moving the list of feeds over is just one small piece of my information. The detailed matching of news stories and tags represents a much greater share of the value. I don’t see any particularly easy way to export that information into another RSS program.

We can count on competitors to help lower these switching costs. In one classic case, Borland did this when it sold the spreadsheet Quattro Pro with an alternative interface that emulated that of Lotus 1-2-3, the dominant spreadsheet of the day. Lotus tried to rely on copyright law to defeat Borland and failed though do remember that the vote in the Supreme Court was 4-4 and ties go to the lower court winner, in this case Borland. When I switched my main browsing program from Internet Explorer to Firefox, Firefox looked on my hard disk to find the links that I had stored as IE Favorites, again reducing the transaction costs of switching.

But we see how design matters when we return to my tagged stories. I don’t know for sure—perhaps the computer savvy can tell me—but I don’t think much if any of my Google Reader info is stored locally on my machine. I have been using my wife’s laptop at home at night while my laptop has been dying and, once I have logged in, Reader works on her machine as it would if I were logged on my machine. I don’t think that there is any locally-stored info for FeedDemon to examine were I trying to switch over both my feeds list and my tagged stories. And the question is whether FeedDemon could write something that would burrow through my Google Reader “subscription”—that seems like a fair description—to extract my tagged stories. And these design issues are even more embedded than that suggests, as Nick Carr makes clear in his recent post on this.

As the Lotus/Borland saga makes clear, law matters for switching costs and portability. Sometimes that law will be copyright law as it was there. Other times it will be antitrust, as the European Union is trying now in forcing Microsoft to disclose more so as to increase interoperability between operating systems and servers. (My colleague Richard Epstein criticizes this here.) In other cases, we will legislate portability and interoperability, as we have done with telephone number portability and as parts of Europe may push Apple on iTunes and the iPod.

We will get to embedded data at some point. That embedded data raises a variety of legal issues—privacy being near the top of the list—but switching costs lock in consumers and lock out competitors. Design choices that create unnecessary switching costs aren’t likely to be embraced by the law in the long run.

Comments

[Erasmussimo]

What makes the interoperability issue so difficult is the impossibility of predicting whether a given product will become a standard. A software designer with an idea for a new product has no idea whether his product will crash and burn or blast off and become The World Standard. Moreover, building it for interoperability slows it down, makes it clumsier, and raises the cost of development and deployment. Therefore, the designer ends up ignoring interoperability considerations.

Then, a few years later, he discovers that his product is in fact The World Standard, and lots of people are copying his idea and there are all manner of interoperability issues. Mr. Software Designer is really torn. On the one hand, a lot of his users have their IP on his product, and he knows he has an ethical if not legal responsibility to give them control over their IP. On the other hand, if they migrate to a competitor, it's because the competitor has stolen Mr. Software Designer's IP -- why should he assist them?

The problem here is that the IP created by the consumer has mixed ownership. It was created by the consumer, but using the IP of Mr. Software Developer. For legal purposes, we'd love to have a nice way to disentangle the two IPs so that we can allocate rights cleanly, but in some cases, that simply isn't possible.

Here's an example: suppose our software developer has created an animated face display program. It allows the user to create an image of a human face. The user does so by adjusting various numbers that control the shape of the face. Suppose that one of those numbers is the "pinchiness" of the face. A face with a high value of "pinchiness" is a very pinched face, while a face with a low value of "pinchiness" is broad. Clearly, the consumer owns that number. But the number is only meaningful when interpreted by the software developer's algorithm. If we know that the pinchiness is 27, that doesn't mean a damn thing until you plug that number into the face display algorithm -- which is owned by the software developer. The real information here is owned by BOTH the software developer and the consumer, and if we separate the two, then what each individual owns is meaningless. The consumer owns a "27" -- not much of value there. The software developer owns an algorithm -- without data, that's meaningless, too.

The solution, of course, is for the software developer to take out patents on his work or keep it a trade secret. But such efforts obviate competition -- which is not good for the consumer. Still, we have already established the principles behind patents and I think that these principles should not be abandoned.

[Doug Lay]

>> Design choices that create unnecessary switching costs aren’t likely to be embraced by the law in the long run.

I'm not sure why the law should be "embracing" design choices at all, but I wonder if this offhand comment means you're finally seeing the writing on the wall regarding your foolish embrace of TPMs and the DMCA anti-circumvention provision.

I looked at Prof. Epstein's op/ed in the FT. Love the disclaimer the FT tacked on at the end. "Extensive ties with Microsoft" - they may as well have written "shill" across his forehead.