Download - Future of the Internet – And how to stop it.

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an obligation to another without a contract or other agreement between them;
acting in a way that might cause someone else to reasonably rely on those actions
can create a “quasi-contract.” 36 These doctrines point to a deeply held
norm that certain consistent behaviors can give rise to obligations, sometimes
despite fine print that tries to prevent those obligations from coming about. 37
Recall Bill Gates’s insistence that the Xbox video game console is not just for
games: “It is a general purpose computer. ... [W]e wouldn’t have done it if it
was just a gaming device. We wouldn’t have gotten into the category at all. It
was about strategically being in the living room.” 38 Network neutrality’s spirit
applied to the box would say: if Microsoft wants to make the Xbox a generalpurpose
device but still not open to third-party improvement, no regulation
should prevent it. But if Microsoft does so by welcoming third-party contribution,
it should not later be able to impose barriers to outside software continuing
to work. Such behavior is a bait and switch that is not easy for the
market to anticipate and that stands to allow a platform maker to harness generativity
to reach a certain plateau, dominate the market, and then make the result
proprietary—exactly what the Microsoft antitrust case rightly was brought
to prevent.
The principles and factual assumptions that animate network neutrality—
that the network has been operated in a particular socially beneficial way and
that, especially in the absence of effective competition, it should stay that
way—can also apply to Internet services that solicit mash-ups from third-party
programmers described in Chapter Five, like Google Maps or Facebook, while
makers of pure tethered appliances such as TiVo may do as they please. Those
who offer open APIs on the Net in an attempt to harness the generative cycle
ought to remain application-neutral after their efforts have succeeded, so all
those who have built on top of their interfaces can continue to do so on equal
terms. If Microsoft retroactively changed Windows to prevent WordPerfect or
Firefox from running, it would answer under the antitrust laws and perhaps
also in tort for intentional interference with the relationship between the independent
software makers and their consumers. 39 Similarly, providers of open
APIs to their services can be required to commit to neutral offerings of them, at
least when they have reached a position of market dominance for that particular
service. Skeptics may object that these relations can be governed by market
forces, and if an open API is advertised as contingent, then those who build on
it are on notice and can choose to ignore the invitation if they do not like the
prospect that it can be withdrawn at any moment. The claim and counterclaim
follow the essential pattern of the network neutrality debate. Just as our notions