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Strategies for a Generative Future 183
browser—over third-party software, against the wishes of PC makers who
wanted to sell their hardware with Windows preinstalled but adjusted to suit
the makers’ tastes. 30 By allowing third-party contribution from the start—an
ability to run outside software—after achieving market dominance, Microsoft
was forced to meet ongoing requirements to maintain a level playing field for
third-party software and its own. 31
Yet we have not seen the same requirements arising for appliances that do
not allow, or that strictly control, the ability of third parties to contribute from
the start. So long as the market favorite video game console maker never opens
the door to generative third-party code, it is hard to see how the firm could be
found to be violating the law. A manufacturer is entitled to make an appliance,
and to try to bolt down its inner workings so that they cannot be modified by
others. 32
So when should we consider network neutrality-style mandates for appliancized
systems The answer lies in that subset of appliancized systems that seeks
to gain the benefits of third-party contribution while reserving the right to exclude
it later. Those in favor of network neutrality suggest, often implicitly,
how foundational the Internet is for the services offered over it. 33 If downstream
services cannot rely on the networks they use to provide roughly equal
treatment of their bits, the playing field for Internet activities can shift drastically.
If the AT&T telephone network had been permitted to treat data calls
differently from voice calls—and to change originally generous policies in a
heartbeat—the foundation to link consumer telecommunications with the existing
Internet might have collapsed, or at least have been greatly constrained
only to business models provable from the start and thus ripe for partnerships
with AT&T. Network neutrality advocates might explain their lack of concern
for nonneutral treatment of bits over cable television by pointing out that cable
television never purported to offer a platform for downstream third-party development—and
indeed has never served that purpose. It is bait and switch
that ought to be regulated.
The common law recognizes vested expectations in other areas. For example,
the law of adverse possession dictates that people who openly occupy another’s
private property without the owner’s explicit objection (or, for that matter, permission)
can, after a lengthy period of time, come to legitimately acquire it. 34
More commonly, property law can find prescriptive easements—rights-of-way
across territory that develop by force of habit—if the owner of the territory fails
to object in a timely fashion as people go back and forth across it. 35 The law of
promissory estoppel identifies times when one person’s behavior can give rise to