There’s an Internet Showdown Brewing

Back home in West Virginia, our Verizon phones have no 3G service. There’s no fundamental technical issue; Verizon and US Cellular just won’t enter a 3G roaming agreement.

This scenario captures a core net neutrality concern: are we moving to an Internet where our access is determined more by business agendas and less by technical issues?

Recently, streaming video demand has been forcing this issue. Netflix’s traffic has been growing, and measured throughput has dropped for some major ISPs (e.g. down 14% for Verizon in one month). Verizon is seeking payment to carry Netflix’s traffic, and Craig Silliman (Verizon’s head of public policy and government affairs) has said that Verizon’s policy is to require payment from networks that send more data than they carry in return. “When one party’s getting all the benefit and the other’s carrying all the cost, issues will arise”.

This is going to get more interesting.

Clearly, ISPs are maneuvering to “double dip”: subscribers pay for access to content, and now ISPs want content providers to also pay for access to subscribers. That’s not bad business if you can get it, but it makes you wonder if the ISPs are merely leveraging their powerful position. After all, Netflix is sending data to Verizon’s network because a paying Verizon subscriber asked for it!

The problem is ISPs sell “unlimited data” (effectively), but their networks are nowhere near the capacity needed for all subscribers using full bandwidth. The ISPs bet subscribers use only a small average bandwidth fraction. In the past, this model has worked well: legacy telephone and cable networks have relatively stable demand patterns.

Now, for the first time, these providers are surfing Moore’s Law and Metcalfe’s Law. Advances in computation and network performance (not to mention billions of people on-line) are driving exponential demand for bandwidth, as well as an expectation that services will be better, faster, and cheaper over time.

Worse, ISPs have been famously unimaginative about future applications and bandwidth demand (e.g. comments by Time Warner’s CFO that customers don’t really want gigabit speeds). Your next TV will likely be 4K with IP-delivered video. Don’t forget video conferencing: HD-quality cameras are cheap and 4K cameras are a few hundred dollars. At some point, we’ll be able to look around a remote location with VR goggles.

Even worse, most ISPs are fundamentally conflicted: IP-streaming video competes with their own proprietary video offerings. However, should they be allowed to slow down and tax these new competitors? And if they charge content providers like Netflix, can they discriminate or must they offer identical terms to any content provider?

As I said, it’s going to be interesting.

Boy, Was I Wrong About Dropbox

A few years ago, I was bearish on Dropbox.  I thought they would be an OS feature in time and that turning down a (rumored) $800m from Apple was a bad move. On Quora, I wrote:

I think “slow fade” is another probable outcome.

I’m reminded of FTP Software, which went like gang-busters selling a TCP/IP stack for Windows. Their revenues fell very quickly after Microsoft started shipping TCP/IP as part of the OS.  (The same thing happened with all of the disk-compression companies).

Wow, was I off base!  I think it’s good to evaluate big entrepreneurial and investment misses and I missed several things (at least).

First, a great product goes a long way.  Dropbox has absolutely nailed the product design and user experience in virtually every aspect.

Second, the service is inherently viral.  I routinely create new Dropbox users by sharing files with them.

Third, they covered every platform equally well.  iCloud works well on OS X, and OneDrive is great on Windows, but Dropbox surfed the whitespace between all of the platforms.  They did an excellent job on everything:  the iPad version isn’t just the iPhone version running 2X and they even support Linux.

I can’t wait to see their IPO.

Email will Be Mostly Mobile

When the Blackberry first came out, it was quickly dubbed the “crackberry” because mobile email access was so addictive.  Now with ubiquitous smart phones, we’re all email addicts to some extent.

So it’s no surprise that now over 40% of email opens are on mobile devices, and mobile is on track overtake the PC this year.  It’s pretty amazing when you consider the smartphone, as we know it, was launched less than 6 years ago.

Mobile and Web are blurring together, slowly ceasing to be distinct “things” (I’ve written before about a mobile strategy for Web sites).  This trend suggests some best practices for emails:

  • Format emails for mobile.  This is basic stuff that a lot of designers seem to mess up.  Make sure emails open and render well on mobile devices.
  • Mobile-optimize email click-through landing pages and flows.  If users are reading emails on mobile devices, they’re also clicking through links on mobile devices.  Check your Web usage stats:  you might find that a significant percentage of your site usage by mobile users is coming from email click through paths.  Nothing kills the user experience like a landing page that hasn’t been mobile formatted.

Why Spectrum Auctions are a Bad Idea

Unless you’re still on a flip phone, it’s hard to miss the demand for mobile wireless bandwidth. The FCC is under intense pressure to make more spectrum (frequencies) available for data services, repurposing underused spectrum and obsolete applications (e.g. old UHF TV channels).

As you might imagine, an exclusive FCC license can have significant commercial value.  Given this, the primary method of making wireless bandwidth available (as directed by Congress) is to auction it off.

On the surface, this seems like a reasonable approach.  Companies shouldn’t get a government “free lunch”, and we can certainly use the cash ($60 billion to date).  Companies can’t mine Federal land without paying, and the patent system shows how exclusivity incents commercial investment.  Also, a market-based system sounds appealing.

But if our goal is driving innovation and meeting growing bandwidth needs, it’s time to consider that the policy (as the primary way to allocate bandwidth) is seriously flawed.

Unlike oil drilling, spectrum is not a commodity:  1GB used today doesn’t mean there’s less tomorrow.  And license exclusivity is not like patents:  the wireless bidders are not providing a documented technological advance.  Spectrum is a public right-of-way:  what if your local government auctioned off public roads to the highest bidder?  (To be clear:  I’m not suggesting government wireless infrastructure.)

The real problem is that we’re stuck in the translation trap that often happens when we attempt to treat intangible licenses as physical property.  The failure is becoming more clear:  much auctioned spectrum remains underused.  Winners generally have little obligation to actually do anything, and technology advances make it notoriously difficult to estimate future value and bid accurately.  Licenses are for very long periods, not matched to the rapid pace of innovation.

As a result, licenses become expensive trading cards for large wireless companies, with lawyers and regulators involved with every exchange.  Witness the arguing and posturing that’s between Sprint, Clearwire, and all the other wireless companies.  (TL;DR:  Clearwire’s WiMAX business hasn’t gone so well, Sprint wants to buy them for the spectrum value).   Spectrum ends up stuck in a slow-moving, heavy-friction “market”, without being efficiently deployed.

We need a policy that removes friction, by making more unlicensed (or lightly licensed) spectrum available.  The unlicensed bands are a source of significant innovation, starting with CB Radio, and continuing with cordless phones, the Family Radio Service, Wifi, and Bluetooth.   Where else can you buy a 150mbit radio for under $3?  We all switch our phones over to Wifi if it’s available (often provided by a $50 access point).

Our current spectrum policy is a vestige of the old “walled garden” mobile market, where the wireless carriers had exclusive control of the mobile device.  We need a policy that’s aligned with the app-store world, with more spectrum available to innovators that don’t have lawyers and billions of dollars.

This is Not Your Father’s Software Industry

The software industry has seen major changes in the past 10 years, as the business of software has gotten increasingly efficient and friction-free.  Expensive software stacks, primitive tools, million dollar server farms, and 50+ person development teams have given way to free, open source, high-quality tools, small teams, and rentable infrastructure.  There are more skilled people creating software than ever before, and the market provides ways for the best talent to find opportunity well above an annual salary.  And just when you think it couldn’t get any easier to create software, it does.

As friction goes away, things become much more fine-grained.  You don’t need $5m anymore to start a company:  a laptop and a cafe wifi connection will do.  This enables an explosion of new projects, but with smaller teams and narrower ideas.  The industry gorilla platforms fuel a “feature ecosystem”:  are those icons on your phone “apps” or “features”?  Viewed in person terms:  a thousand 100-person software teams might now be 30,000 3-person teams.  Software is no longer a sport of kings.

This effect, in turn, is flattening the industry.  Most projects now start on nearly identical footing, often with many competitors or near-competitors.  It’s like starting a civilization in a desert vs the mountains; there are far fewer strategic passes and valleys to control and extract disproportionate value from surrounding areas.  It’s a maddening conundrum for entrepreneurs and investors:  we’re all toting personal super computers, the world is bathed in wireless access, and there are millions & millions of mobile apps and Web sites.  But why does it feel harder than ever to create a $1b software company?  This is why.

Does this mean software’s dead?  Not at all, not even close.  When Marc Andreessen said “software is eating the world“, he got it exactly right.  Software & computation are fueling a level of innovation, disruption, and advancement never seen before.  But the way software companies extract value is evolving.  In the beginning, software was sold as a product;  then, rented as a service.  Now, many companies use software to enable other services and business models.

However, for the reasons outlined above, companies who are “just software” will have a much harder time achieving scale.  The real opportunities are in the next phase:  embedded software.  This might be software literally embedded in hardware, or cases where software value is embedded in (and enabling) some other business.  For example, Amazon is on their way to being the world’s largest retailer, and is the largest software company that doesn’t sell any software.  Uber is building the world’s largest virtual taxi fleet, and Airbnb has built the world’s largest vacation rental network.

My bet is that the next wave of disruptive software companies will look more like these examples, and less like Oracle, Microsoft, Facebook, or

This is not your father’s software business any more.

Game Consoles: The Last Remaining Walled Garden

The reddit user kmesithax wrote a brilliant comment yesterday about the realities of game console development, describing the tools and costs:

Well, no, there is no OpenGL or any graphics API for that matter, it’s all some stupid low-level hardware API that you have to tickle to get any 3D rendering to work.


So let’s say you get over your initial API shock, you have a decent handle on what all the little libraries do, and you wanna buy some development hardware now. Well, uh, okay. That’ll be anywhere from $2,600 (leaked 3DS devkit figures) to $10,000 or more (leaked Xbox 360/PS3 devkit figures).

This reminds me exactly of the pre-iPhone “walled garden” mobile app world, when you needed ~$10,000 for a development license for Qualcomm’s “BREW“.  The original article  “The Minecraft Test” (e.g. could your platform spawn the next Minecraft?) is a fabulous way to think about platform openness.  (Also see Nate Brown’s post “Stupid, Stupid Xbox!!” for an insider critique).

The console platforms have completely missed the market transition to open, low-friction developer on-ramps, and it’s no surprise the console market is now anemic.  In contrast, the new OUYA console (I have one on pre-order) has a fledgling, but very open SDK and just had a “game jam“.  The OUYA is under-powered relative to current consoles, but I bet the openness will more than make up for that issue.

Gorilla Anti-Trust Posturing

As the big four (Google, Apple, Amazon, and Facebook) continue to wield disproportionate influence over the digital ecosystem, these gorillas are having to worry a lot more about anti-trust issues.  Nobody wants to be broken up like the Bell System.

For example, last month, Liz Gannes wrote about Facebook’s search plans:

…the fact that Facebook has finally made its search intentions known could actually be really good for Google. That’s because regulators — especially those in Europe, who are in the thick of deciding whether to settle with Google over antitrust — now have the prospect of additional search competition to consider.

Also, Google now has Gmail, Maps, and Chrome on the iPhone, where Apple had previously rejected apps that “duplicate the functionality” of built in iOS apps.  But it doesn’t look good (in anti-trust terms) for Apple to reject competitive apps, and Google’s smart to get as many apps as possible to dilute Apple’s platform influence.

I think it’s net-good for consumers, as it increases the chances that more of our devices and systems will interoperate.  But what we really need are some new gorillas.

IP-Delivered TV: Are We There Yet?

I’ve started watching Netflix’s new original show, House of Cards.  I’m only ~2 episodes in; it’s rough in some places, but I like it.  It definitely has a unique feel and visual style.  More deeply, it’s a $100m bet by Netflix they can “become HBO faster than HBO can become us.”  (One of the clearest strategy articulations I’ve heard in a long time.)

I think they’ve got a decent shot.  I’ve always felt television, in the limit, will be delivered over IP.  Specialized, proprietary cable TV distribution is gradually giving way to big, fast, cheap IP pipes. Your phone, tablet, and TV screens will be iOS or Android-powered, and will stream video from anyone. Of course, HTML5 & native apps will enable the long-awaited vision of “interactive TV”.

I’ve written about this before (going back years):

What’s taking so long?!?

The problem isn’t technology; it’s the business model.  The way our traditional television content is produced, financed, and distributed is balled up in a big legacy with a lot of inertia.  Payments flow in various ways between advertisers, production companies, traditional TV networks, premium networks (e.g. HBO), and cable companies.  This makes it hard for anything to change quickly; if HBO wanted to sell direct Internet subscriptions, they’d be shooting themselves in the foot.

It’s good to see Netflix getting enough critical mass to stir things up.

Why You Can’t Find Any Mobile Developers

In case you haven’t noticed, it’s impossible to find mobile developers. People ask me all the time if I “know anyone”, and I’ve all but given up helping with referrals.

The reason is “self-publishing” is now a reasonable option.  The app store ecosystem has removed most friction from the system, provided a clean and easy business model (70/30 revenue split), and eliminated almost all barriers to entry.  If you have talent, a laptop, and a coffee shop wifi connection, you have a chance at writing the next great app hit.

As a result, many good developers have (or believe they have) a better chance at doing their own thing vs working for someone else for salary or an hourly rate.

Letter to Carmen Ortiz about Aaron Swartz

Stepping off my usual entrepreneurship topics, here’s a letter I sent to Carmen Ortiz, Stephen Heymann, and Scott Garland (the prosecutors in the Aaron Swartz case) earlier this week.

I’m expecting precisely zero effect on anything here, but it captures my analysis of what happened.  Apart from the sadness and tragedy, I think we all need to be very mindful of the growing gaps between technology and our laws.


January 28, 2013

The Honorable Carmen M. Ortiz
United States Attorney for Massachusetts
John Joseph Moakley
United State Federal Courthouse
1 Courthouse Way, Suite 9200
Boston, MA  02210

Dear Mrs. Ortiz:

I’m writing you (and Mr. Heymann), as many have, regarding Aaron Swartz.  I know emotions are high, and I’m sorry the criticism has been so unfair and uninformed.  I’m sharing constructive comments I hope will be helpful as you consider this matter.  I’ve reviewed the public court documents and several relevant legal opinions.  I am a pioneer of the Internet economy, and a technology and business method expert in the subjects of this case.

It is clear Swartz did something wrong and should have been punished.  However, I have come to agree the prosecutorial stance did not match the severity of Swartz’s deeds.

I believe that you and Mr. Heymann were doing “what any good prosecutor would do”, and as you’ve noted, prosecutors don’t make the laws and penalties.  However, the CFAA is unusually broad and ambiguous, by design, to address a major policy issue.  Technology is advancing much faster than our laws, and the Justice Department has argued for legal flexibility with this Act (e.g. Richard Downing’s House Judiciary Subcommittee testimony in Nov, 2011).  That flexibility requires discretion in application, perhaps more than any other statute you prosecute.

This case is a nearly perfect test of that discretion, because it’s missing most of the typical criminal elements.  Swartz was not pursuing financial gain.  He wasn’t trafficking in credit cards, passwords, national secrets, or confidential/proprietary information.  He didn’t destroy data or access personal records.  He didn’t access something he wasn’t supposed to; he accessed more than he should have.

Swartz, like any MIT guest, was allowed to download JSTOR articles.  He enjoyed no greater access than any normal user would, but he violated JSTOR’s Terms of Service (ToS) by automating his download process.  His violation of MIT’s guest ToS is less clear:  MIT is famously and widely known for an open campus and network, and there’s a reasonable argument MIT’s effective ToS is much more permissive.  (Also, MAC address manipulation is not analogous to VIN tampering; if it were, it would criminalize the “Change MAC Address” feature available in nearly every consumer router.)

Regarding damages, JSTOR’s articles are freely available at 7,000 institutions worldwide, and many documents are public domain.   MIT’s $50,000 annual subscription amounts to $136/day, a starting point for calculating damages.  However, subscription fees have limited use in determining damages, because they mix the access costs with document value.  For example, PACER’s public documents “cost” $0.10/page, but their value is zero.  JSTOR’s quick civil settlement, their public stance in this case, and their subsequent public release of millions of articles are all extremely telling.

Swartz did not destroy or damage data or infrastructure.  There’s no (public) evidence his actions caused more than minor service outages and investigation costs at MIT and JSTOR.  Swartz’s actions were “minimally criminal”, and justice should have been sought on those terms.  (In addition, if your case had prevailed on the basis of ToS violations, there’s a solid appeal to void this interpretation for vagueness.  It’s nearly impossible to pass the “average citizen” test for defining criminal behavior with CFAA+ToS.)

At this point, you will likely say Swartz would have had every opportunity to make these arguments.  That’s true of course, but I’d respectfully say it’s disingenuous.  From the moment you indict and issue a press release, you frame the case.  The use of Secret Service resources, the home search warrant, the discovery refusal to provide raw hard drive images, the superseding indictment, and the reported plea negotiations & constraints; these all signal that Swartz’s acts were extremely serious, worthy of government resources.  Furthermore, Mr. Heymann is a seasoned prosecutor and computer crime expert;  the judges, jury, MIT, and JSTOR take cues from his stance.

Again, the unique ambiguity in the CFAA demands a prosecutorial duty of discretion above and beyond normal.  Our goal is to seek justice, and to that end, I share several suggestions.  First, I strongly recommend you proactively and immediately release all non-exempt case documents, and consider selectively waiving FOIA exemptions for other material.  The content may be unflattering, but transparency would be a very powerful leadership act on your part.  The people have a right to know how their attorneys conduct business, and the full record will help us enact the best policies.

Second, I would encourage you to support sensible CFAA revisions.  For critics, this case is a poster example of why the statute needs to be less vague.  Congress looks to Justice for advice, and you now have the best perspective of any prosecutor on finding a balance between (a) a flexible law, (b) a clear definition of criminal behavior, and (c) the prosecutor’s duty of discretion.

Third, I suggest you consider future CFAA cases more carefully, especially cases missing the obvious criminal elements.  The computer fraud case volume is relatively thin, making each case a bounds test almost by definition.

I pray you find these thoughts helpful in this sad and tragic story, and I hope they constructively capture the broader criticism about proportionality.

Finally, if an informal discussion regarding this matter (or fraud policy in general) would ever be useful, I would welcome that opportunity.

My email is <andy [at] payne [D O T] org>.


Andrew C. Payne

Cc:       Stephen P. Heymann, Assistant U.S. Attorney
Scott L. Garland, Assistant U.S. Attorney