DOKK Library

Dr. Generative - Or: How I learned to stop worrying and love the iPhone

Authors James Grimmelmann Paul Ohm

License CC-BY-3.0

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                                           Book Review
                          DR. GENERATIVE
                         LOVE THE IPHONE

                       BY    JAMES GRIMMELMANN*                      AND      PAUL OHM**


    I. THE POWER OF GENERATIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . .                               913     R
       A. What Makes the Internet Special? . . . . . . . . . . . . . . . . . .                                         913     R
       B. Generativity’s Downside. . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             917     R
       C. The Generative iPhone? . . . . . . . . . . . . . . . . . . . . . . . . . . . .                               920     R
   II. EVALUATING GENERATIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             924     R
       A. Generativity Is the Right Theory . . . . . . . . . . . . . . . . . . . .                                     925     R
       B. The Wiki Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     930     R
       C. What’s Wrong with This Picture? . . . . . . . . . . . . . . . . . . .                                        932     R
  III. GENERATIVE ENOUGH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       936     R
       A. Generativity Is Only One Virtue Among Many . . . . . .                                                       937     R
       B. Generative Enough Is Good Enough . . . . . . . . . . . . . . . .                                             940     R
       C. The Goal: A Sustainable Ecosystem for Generativity .                                                         943     R
           1. Generativity Across Layers . . . . . . . . . . . . . . . . . . . . . .                                   944     R
           2. Generativity Across Devices . . . . . . . . . . . . . . . . . . . . .                                    945     R
           3. Generativity Across Time . . . . . . . . . . . . . . . . . . . . . . .                                   947     R
  IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               948     R
EPILOGUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   950     R

    In The Future of the Internet—And How to Stop It, Jonathan Zittrain
presents a compelling new theory of why the Internet has succeeded.1
His big idea is “generativity”: Personal computers and the Internet are

Copyright  2010 by James Grimmelmann and Paul Ohm. This Book Review may be freely
reused under the terms of the Creative Commons Attribution 3.0 United States license.
Creative Commons—Attribution 3.0 Unported,
     * Associate Professor of Law, New York Law School.
   ** Associate Professor of Law, University of Colorado Law School. We both thank
Jonathan Zittrain, Lawrence Lessig, and Jonathon Penney for their comments on earlier

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technologies that individuals can use in ways their creators never
imagined. Descriptively, Zittrain has nailed it. Generativity elegantly
combines prior theories into a succinct explanation of the technical
characteristics that make the Internet what it is. He offers a
convincing normative argument that preserving generativity is
essential for future innovation and creativity.
      There’s something missing from Zittrain’s prescriptions, though.
He writes as though it’s largely unproblematic to tell which systems
are generative and which aren’t. But in the complex world of Internet
policy, subtle technical tradeoffs are the order of the day; it’s not
always obvious whether a given intervention will help generativity or
hurt it. Even Zittrain’s bête noire, the “sterile” iPhone, has profoundly
generative features, including an App Store that has racked up three
billion downloads and a browser that gives the handheld iPhone the
web-enabled power of a desktop computer.2 Even his great generative
example, the Apple II, succeeded in part because it put severe limits
on what its users could do with it. Unlike many previous personal
computers, it came preassembled, rather than as a bag of
customizable parts.3
      Zittrain recognizes some of these subtleties. He perceptively
argues that unrestrained generativity opens the floodgates to spam,
malware, and other threats. Left unchecked, these threats in turn
lead to user backlash against generative platforms.
      But The Future of the Internet is never fully rigorous in explaining
how to assess generativity in the real world. Zittrain doesn’t
distinguish clearly between systems that are subject to remote control
by their makers and systems that are actually ungenerative. He calls
for compromises to preserve generativity, but doesn’t provide a
roadmap for distinguishing good compromises from bad. He never
quite admits that his preferred solutions themselves involve
controversial tradeoffs against generativity.
      In this Book Review, we offer a series of (we hope) friendly
amendments to The Future of the Internet. We celebrate Zittrain’s
identification of generativity as a key technical virtue, and then
reconstruct the concept to make it more robust. The ambiguities that
Zittrain downplays can’t be eliminated; they’re inherent
characteristics of complex real-life technological systems. A useful
theory of generativity must work through these difficulties, not duck

      2. See infra Part I.C.
      3. See infra Part III.B.
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912                                    MARYLAND LAW REVIEW            [VOL. 69:910

     Thus, we would rephrase Zittrain’s core insight as the claim that
generativity is essential but can never be absolute. No technological system
is perfectly generative at all levels, for all users, forever. Tradeoffs are
inevitable. This fact should not be any more discouraging than it is in
political theory, where liberty is never absolute, either. System
designers and legal regulators should seek to maximize the innovative
and creative capabilities of users. Restricting generativity in one place
(for example, by building computers with fixed circuit boards rather
than a tangle of reconfigurable wires) can massively enhance
generativity overall (by making computers cheap and usable enough
that everyone can tinker with their software). This reformulated
generativity principle easily accommodates all of Zittrain’s specific
recommendations, but also makes it easier to act in the generative
     To aid in implementing this principle, we offer a series of three
corollaries for system designers and policymakers. First, generativity is
only one virtue among many. While it is essential for the future of the
Internet to preserve generativity, there are also other, important
values for Internet policy—such as human dignity and freedom from
coercion—that can’t be entirely reduced to generativity itself. Even if
generative systems can help defend against censorship, at the end of
the day, it remains a problem of free expression. Second, the perfect
must not be the enemy of the good. A system that is generative
enough is good enough. As Zittrain cogently argues, some limits on
generativity are necessary to keep spam, viruses, phishing, and other
modern horrors from completely overwhelming our technical
infrastructure. Third, generativity is a systemic property, not a local
one. We shouldn’t ask whether each individual chunk of software and
hardware is as generative as it could be. Instead, we should ask
whether the overall ecosystem of the Internet—viewed across different
layers of abstraction, across different devices, and across time—offers
its users the generativity they need.
     This Book Review will proceed in three Parts. Part I will sketch
the argument of The Future of the Internet. Part II will focus on the idea
of generativity itself, explaining why it’s an intellectual advance over
previous theories and bringing out some of the ambiguities in
Zittrain’s formulation. Part III will reconstruct generativity as a
relative and context-sensitive virtue, while showing how this
reconstructed version deals sensibly with the difficulties Zittrain
glosses over. Throughout this Book Review, we’ll use the Apple II and
the iPhone—the hero and the villain of the story as Zittrain tells it—to
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show how his apocalyptic narrative of freedom versus control is too
cleanly black-and-white.

      Its title notwithstanding, The Future of the Internet is also a book
about the Internet’s past and present. Zittrain takes up a question
that has obsessed many before him: What makes the Internet so spe-
cial? It’s not just that an agglomeration of computers has become a
“consensual hallucination experienced daily by billions”4 or that daily
life and the economies of nations are now thoroughly interwoven with
digital threads. It’s also that the net impact of computer technologies
for human well-being has been unambiguously huge and positive.5
There aren’t many other technologies you could say that about.
There’s something special about the Internet, something important.
      The nature of the Internet’s secret sauce may be a question in the
history of science and technology, but policymakers need to care
about the answer. If we know what makes an Internet flourish, we can
take good care of the one we have—and possibly even plant the seeds
of other, equally fruitful technologies. If we don’t know how the In-
ternet ticks or don’t use that knowledge wisely, we risk squandering its
      Zittrain’s answer to this question is generativity, which he defines
as “a system’s capacity to produce unanticipated change through un-
filtered contributions from broad and varied audiences.”6 This Part
will explore Zittrain’s argument that generativity explains the In-
ternet’s past and is vital to its future. It traces how Zittrain derives the
generativity principle, explains why Zittrain believes generativity is in
mortal peril, and shows that even critics who question whether genera-
tivity is as endangered as Zittrain believes it to be nonetheless agree
with him on its importance.

   A. What Makes the Internet Special?
    The Future of the Internet opens with a coincidence: Apple’s
mercurial CEO, Steve Jobs, introduced two of his company’s defining
products—the Apple II and the iPhone—almost exactly thirty years
apart at computer conferences in “nearly the same spot” in San Fran-

     5. See, e.g., Austan Goolsbee & Peter J. Klenow, Valuing Consumer Products by the Time
Spent Using Them: An Application to the Internet, 96 AM. ECON. REV. 108, 108 (2006) (estimat-
ing consumer surplus from the Internet at thousands of dollars per year per user).
     6. ZITTRAIN, supra note 1, at 70 (emphasis omitted).                                        R
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cisco.7 For Zittrain, these two devices are emblematic of two opposing
ways to build computer systems.
     The Apple II was generative:
       It was a platform. It invited people to tinker with it. Hobby-
       ists wrote programs. Businesses began to plan on selling
       software. Jobs (and Apple) had no clue how the machine
       would be used. They had their hunches, but, fortunately for
       them, nothing constrained the PC to the hunches of the
       founders. Apple did not even know that VisiCalc [the first
       spreadsheet program, created by third-party developer Dan
       Bricklin] was on the market when it noticed sales of the Ap-
       ple II skyrocketing. The Apple II was designed for
       surprises . . . .8
    In contrast, the iPhone was a “sterile appliance,” a technological
dead end:
       Rather than a platform that invites innovation, the iPhone
       comes preprogrammed. You are not allowed to add pro-
       grams to the all-in-one device that Steve Jobs sells you. Its
       functionality is locked in, though Apple can change it
       through remote updates. . . . The machine was not to be
       generative beyond the innovations that Apple (and its exclu-
       sive carrier, AT&T) wanted. Whereas the world would inno-
       vate for the Apple II, only Apple would innovate for the
The Future of the Internet tells a story of the history and future of the
tension between these two ways of designing computer systems. Chap-
ter 1 briefly reviews the history of computers over the last few decades
with an emphasis on this tension. Zittrain argues that generativity en-
abled personal computers (“PCs”) like the Apple II to beat out less
generative alternatives like batch processing (in which only a few qual-
ified insiders are allowed to run programs) and time-sharing (in
which multiple users log into a single central computer simultane-
ously).10 Chapter 2 does the same for networks. The Internet, on
which anyone can upload any content they like and try out any new
applications (“apps”) they like, beat out centralized, proprietary net-
works that restricted what programs users could run and who they
could communicate with. Zittrain uses the “walled gardens” of

     7.   Id. at 1.
     8.   Id. at 2.
     9.   Id.
    10.   See id. at 12–18.
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America Online and the now-defunct CompuServe to illustrate the
significance of an open Internet.11
     In making these claims, The Future of the Internet echoes themes
sounded by such visionaries of the information age as Vannevar
Bush,12 J.C.R. Licklider,13 Ted Nelson,14 Douglas Engelbart,15 Stewart
Brand,16 Richard Stallman,17 and Yochai Benkler.18 In their various
ways, they have argued passionately for two ideals: That ordinary indi-
viduals ought to have powerful, personal computers, and that both
people and computers ought to be linked together in networks of
sharing, conversation, and collaboration.19 They understood that
computing undergoes a profound social change when it becomes ac-
cessible enough to satisfy the basic human urges to create and to
share. It becomes a tool of liberation and empowerment.
     There’s a reason that the first truly personal computer, the Altair
8800, is inextricably linked in historical memory with a hobbyist user

    11. Id. at 29.
    12. See Vannevar Bush, As We May Think, ATLANTIC MONTHLY, July 1945, available at (describ-
ing the “memex,” a “future . . . device in which an individual stores all his books, records,
and communications, and which is mechanized so that it may be consulted with exceeding
speed and flexibility”).
    13. See J.C.R. Licklider, Man Computer Symbiosis, IRE TRANSACTIONS ON HUMAN FACTORS
IN ELECTRONICS, Mar. 1960, at 4 (describing a future in which “human brains and comput-
ing machines will be coupled together very tightly, and . . . the resulting partnership will
think as no human brain has ever thought”). See generally M. MITCHELL WALDROP, THE
    14. See TED NELSON, COMPUTER LIB/DREAM MACHINES (1974) (“You can and must un-
derstand computers NOW . . . . New Freedoms Through Computer Screens.”).
ORIGINS OF PERSONAL COMPUTING 1 (2000) (arguing that Engelbart helped create “an in-
tegrative and comprehensive framework that tie[d] together the technological and social
aspects of personal computing technology”).
Brand’s influence on personal and social computing). See generally JOHN MARKOFF, WHAT
INDUSTRY (2005).
ARD M. STALLMAN 9 (2002) (describing Stallman as a philosopher who argued that “code,”
the technology that makes computers run, should be “transparent to all,” so that anyone
can take control of it and modify it). See generally SAM WILLIAMS, FREE AS IN FREEDOM:
FORMS MARKETS AND FREEDOM 5 (2006) (describing “the rise of effective, large-scale cooper-
ative efforts—peer production of information, knowledge, and culture”).
    19. See supra notes 12–18 and accompanying text.                                             R
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group, the Homebrew Computer Club.20 The social processes of
building on each other’s ideas go hand-in-glove with the technical
processes of playing with the hardware and software of a computer
that you yourself control. And both were instrumental in convincing
two young hackers and friends, Steve Jobs and Steve Wozniak, to start
a company named “Apple” to build their own personal computers.21
Generativity elegantly fuses the ideals of personal computing and so-
cial computing to identify the role they play in catalyzing a self-rein-
forcing cycle of innovation.
     Zittrain explains that generativity works because it unleashes in-
novation from users—far more innovation than a company’s design-
ers could develop on their own.22 The Apple II had expansion slots,
allowing owners to install new hardware and opening up new markets
in creating Apple-compatible peripherals like disk drives and
monitors.23 The Apple II was also open at the software level, enabling
users to easily write and run their own programs.24 This open archi-
tecture made the Apple II generative; Dan Bricklin could write Visi-
Calc and users could run it because the Apple II was designed to let
     Similarly, the Internet has a surprisingly open architecture at the
hardware level. As long as your device has the right software and the
right kind of plug or wireless transmitter, you can hook it up to the
Internet. That’s how Apple could make the iPhone work with the ex-
isting web, even though most web designers never expected that their
websites would be viewed on handheld touch-screen phones. The In-
ternet is also generative at the software level: You can design a new
application and roll it out to millions of users, all without needing to
ask anyone’s permission. Apple can push software updates out to
iPhone users using a protocol it designed for that purpose, and the
Internet just works at getting the data there. The road to the iPhone
wouldn’t have been possible unless generativity worked—and worked
almost beyond anyone’s wildest imagination.

(describing the meeting of the Homebrew Computer Club where the Altair 8800 was first
    21. Id. at 252–53.
    22. ZITTRAIN, supra note 1, at 86 (discussing ERIC VON HIPPEL, DEMOCRATIZING INNOVA-     R
TION (2005)).

    24. See supra text accompanying note 8.                                                  R
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   B. Generativity’s Downside

     Generativity, as Zittrain describes it, sounds like a profoundly
good thing. Precisely for that reason, one might wonder what there is
to worry about. Won’t people recognize how great generativity is and
seek to create as much of it as possible? Why say so much if it all goes
without saying? The Future of the Internet’s normative argument is that
generativity, while insanely great (to use Steve Jobs’s phrase25), isn’t
an unalloyed good—and, for that very reason, its future can’t be taken
for granted.
     In Chapter 3, Zittrain looks at the dark side of generativity’s fruit-
fulness.26 The problem is that not all innovation is to the good;
swamps are fecund places, too. Openness to user-created programs
also means openness to user-created spyware. The same e-mail pro-
grams and protocols that transmit meeting reminders and love notes
also carry fake-watch spam and Nigerian 419 scams. Anyone can cre-
ate a website about how to adopt hedgehogs; anyone can create a web-
site about how female bloggers are sluts who deserve to be killed.
Indeed, the kinds of deep-seated openness to user-created changes
that enable fundamental new innovations also enable fundamental
technical attacks on the generative systems themselves. The botnets of
malware-infested computers available for hire by any would-be cyber-
vandal have grown so gigantic that some security research firms have
given up trying to count them.27
     Zittrain calls this tendency the “generative pattern”: A system that
has flourished because of its generativity also develops instabilities and
insecurities for the same reason.28 The result is a flight to safety (in
Zittrain’s words, a “movement toward enclosure”).29 People want an
experience that doesn’t expose them to these risks and annoyances.
They get it by switching to ungenerative systems or by making the sys-
tems they rely on less generative.
     The iPhone is, for Zittrain, a perfect symbol of these trends. In-
deed, The Future of the Internet ends where it began, with the iPhone
looming ominously like the Ghost of the Internet Future. When he
says that it “bottles some of the best innovations from the PC and In-

  26. ZITTRAIN, supra note 1, at 36–65.                                                   R
  27. Gadi Evron, How Many Bots? How Many Botnets?, CIRCLEID, Feb. 20, 2007, http://
  28. ZITTRAIN, supra note 1, at 99.                                                      R
  29. Id.
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918                                    MARYLAND LAW REVIEW                [VOL. 69:910

ternet in a stable, controlled form,”30 he doesn’t mean it as praise.
That “stable, controlled form” was a repudiation of generativity. The
iPhone was a sealed black (and silver) box. On the hardware side, you
couldn’t even open it to replace the battery. On the software side,
Apple controlled every last detail. Users couldn’t install their own
programs—or even change the layout of the icons.
      Importantly, Zittrain’s account of the generative pattern isn’t a
conspiracy theory. Apple didn’t make the iPhone a sealed device be-
cause Steve Jobs is an evil genius bent on destroying the Internet and
enslaving users. Apple made the iPhone a sealed device because Steve
Jobs and his team understood that it would sell like hotcakes.31
      Take a moment to reflect on what a well-designed device the
iPhone is.32 Not only is it sleek and elegant, the software that runs on
it is a triumph of user-interaction design. Making it into a touch-
screen-only device required an unsparing focus on design simplifica-
tion. Everything works consistently, with an interface that guides the
finger to the right active spots and trains the brain to move around
the iPhone’s features with ease.
      Like Apple’s other products, the iPhone “just works.”33 Lest this
seem like an empty statement, think about your last experience using
a Windows PC. Did it “just work”? Apple’s “Hello, I’m a Mac. And
I’m a PC,” ad campaigns have relentlessly focused on the fact that
Windows PCs don’t.34 John Hodgman’s poor anthropomorphic Win-
dows PC has to deal with malware, broken peripherals, crashes, and
the other indignities of a design that doesn’t just work. Every day
there are new viruses taking advantage of its openness to steal per-
sonal data, flood the Internet with spam, and bombard users with
scams and ads.
      The decision to make the iPhone an appliance thus responds to
the hazards of untrammeled generativity. Users who can’t modify the
software can’t be tricked into downloading viruses. Developers who
can’t write custom UIs can’t write unusably ugly ones that thwart
users’ expectations. If Apple controls the horizontal and the vertical,

    30. Id. at 5.
    31. See Brian Caulfield, How Apple Will Sell 50 Million iPhones, FORBES, Aug. 19, 2009,
(predicting that Apple would sell fifty million iPhones in 2011).
TURE, AND COOLNESS (2006) (calling the iPhone’s predecessor, the iPod, a “perfect thing”).
    33. See Apple, Why You’ll Love a Mac,
(last visited May 31, 2010).
    34. YouTube, Buy a Mac, (last visited
May 31, 2010).
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it can provide a safe, unsurprising, reliable experience. Zittrain
quotes Jobs: “You don’t want your phone to be like a PC. The last
thing you want is to have loaded three apps on your phone and then
you go to make a call and it doesn’t work anymore.”35
      It’s not an isolated example. On Zittrain’s view, closely con-
trolled devices—for example, the Xbox gaming console—are taking
over jobs that would have gone to a computer.36 Meanwhile, closed-
world services—for example, Facebook for private messaging—are
making inroads on jobs that would have gone to more open parts of
the Internet, and “cloud computing”37 services that store your data
remotely—for example, Google Docs—are making inroads on jobs
that would have been done locally on your PC.
      Zittrain’s term for the iPhone and these other sealed boxes of the
information age is “appliance[s]”—“predictable and easy-to-use spe-
cialized machines that require little or no maintenance”38 that “take
the innovations already created by Internet users and package them
neatly and compellingly.”39 Like your toaster, they do their job well.
But also like your toaster, they’re one-trick ponies. Generative tech-
nologies can grow, adapt, learn, become. An iPhone will always be
only just an iPhone. So will a TiVo; it has a powerful computer in it
but all it can do is record and play back television shows. The same
goes for cloud computing; your idea for how to improve YouTube is
worthless unless you work at Google.40 Appliances are hedgehogs;
computers and the Internet are foxes. Foxes are better for humanity,
but sometimes the hedgehogs win.
      The triumph of generative over non-generative technologies,
then, is not safely settled in the past. Nor is it a foregone conclusion
in the future. Instead, it is a constant choice in the present. In every
generation, every user must regard herself as though she herself had
been a slave to appliances. We must enter by the narrow gate of
generativity, for wide is the gate that leads to the iPhone.

   35. ZITTRAIN, supra note 1, at 3 (internal quotation marks omitted).                       R
   36. Id. at 3–4.                                                                            R
   37. See Webopedia, What Is Cloud Computing?,
C/cloud_computing.html (last visited May 31, 2010) (defining “cloud computing” as “[a]
type of computing, comparable to grid computing that relies on sharing computing re-
sources rather than having local servers or personal devices to handle applications”).
   38. ZITTRAIN, supra note 1, at 17.                                                         R
   39. Id. at 3.
   40. See Jonathan Zittrain, Lost in the Cloud, N.Y. TIMES, July 20, 2009, at A19
(“[F]reedom is at risk in the cloud, where the vendor of a platform has much more control
over whether and how to let others write new software.”).
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920                                    MARYLAND LAW REVIEW                  [VOL. 69:910

   C.      The Generative iPhone?

     In hindsight, picking the iPhone as his poster child may not have
been Zittrain’s best call. If the locked-down iPhone was to be the dys-
topian “Future of the Internet,” the future lasted a year and twelve
days. The iPhone went on sale on June 29, 2007; Apple unlocked it
on July 11, 2008.41 Since then, the App Store42—an extension of the
iTunes Store through which Apple sells downloadable music—has al-
lowed iPhone owners to download and install applications of their
choosing. Some are fancy, some are simple; some are expensive,
many are free. Developers have created over 100,000 applications;43
users have downloaded them over three billion times.44 Zittrain man-
aged to slip a parenthetical into the manuscript of The Future of the
Internet as it was on its way to press—“[a] promised software develop-
ment kit may allow others to program the iPhone with Apple’s permis-
sion”45—but even as the book hit the shelves, the world was going
crazy with iPhone App-mania.
     In fact, it‘s not just the iPhone. At the mall today, after checking
out the iPhone at the Apple Store, you could head to the Verizon
store to buy a Motorola Droid running Google’s open-source Android
operating system instead.46 Or, if you wanted, you could go up the
escalator to the Sprint store and buy a Palm Pre, which features its
own set of powerful APIs and an Apple-style App Store.47 In the space
of just the last two years, the mobile phone market has flipped from
one utterly dominated by closed platforms to one in which open, ex-
tensible systems are taking substantial market share.48 The last few

     41. See Kent German, New iPhone Could Go on Sale July 17, CNET, May 20, 2009, http:// (explaining that the original iPhone
went on sale on June 29, 2007, and the iPhone 3G went on sale on July 11, 2008).
     42. Apple, Apps for iPhone, (last vis-
ited May 31, 2010) (“Explore some of our favorite apps here and see how they allow
iPhone to do even more.”).
     43. Press Release, Apple, Apple Announces Over 100,000 Apps Now Available on the
App Store (Nov. 4, 2009), available at
     44. Press Release, Apple, Apple’s App Store Downloads Top Three Billion (Jan. 5,
2010), available at
     45. ZITTRAIN, supra note 1, at 2.                                                           R
     46. Droid by Motorola,
Product-and-Services/Mobile-Phones/ci.Motorola-DROID-US-EN.vertical (last visited May
31, 2010).
     47. Palm USA, Palm Pre Phone, (last
visited May 31, 2010).
     48. See Sara Silver, Apple, RIM Outsmart Phone Market, WALL ST. J., July 20, 2009, at C6
(stating that Apple’s iPhone and Research In Motion’s BlackBerry accounted for only
three percent of cell phones sold worldwide in 2008 but thirty-five percent of operating
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years in the cell phone industry, in other words, have not been good
to Zittrain’s appliancization thesis.
     This disjuncture has opened up an important line of criticism.
Libertarian commentators have claimed that Zittrain mistakes the nor-
mal, healthy diversity of technology markets—in which different ap-
proaches compete for customers—for a Clash of the Titans between
two inherently incompatible futures.49 These critics think that Zit-
train’s prediction—appliances will displace generativity, rather than
coexisting with it—is simply wrong. Toasters haven’t replaced pots
and pans in most kitchens; they’ve supplemented them. Adam
Thierer, for example, predicts a “hybrid” world where appliances and
generative devices mingle freely.50
     Zittrain, of course, is free to respond that the pressures opposing
generativity are real and growing, the iPhone notwithstanding. It’s a
big Internet out there, and the iPhone is just one data point. Still, it
wasn’t Zittrain’s critics who chose to make the iPhone the organizing
metaphor for The Future of the Internet. Did the bête noire turn out to be
a paper tiger?
     We think not. It’s true that the course of the long-term struggle
between Dr. Generative and the Army of Appliances has yet to be de-
termined. But we think that this counts as proof of the thesis of The
Future of the Internet, rather than a refutation of it. We see an impor-
tant distinction between Zittrain’s claims about the direction of his-
tory (on which the jury is still out) and his identification of
generativity itself and the forces that drive it (on which the verdict is
unanimous in Zittrain’s favor). Thierer, Post, and the others may not

profits, and that those numbers could reach five percent and fifty-eight percent, respec-
tively, in 2009).
     49. See, e.g., Timothy Lee, Why Zittrain’s Techno-Pessimism Is Unwarranted, TECHDIRT, July
2, 2008, (“It doesn’t,
therefore, make sense to view the iPhone [a closed technology] as a threat to ‘generativ-
ity.’”); Adam Thierer, Apple, Openness, and the Zittrain Thesis, TECH. LIBERATION FRONT, Mar.
30, 2008,
(“[T]here is no reason that we can’t have the best of both worlds [open and closed].”).
     50. Adam Thierer, Review of Zittrain’s “Future of the Internet,” TECH. LIBERATION FRONT,
Mar. 23, 2008,
internet. See generally David G. Post, The Theory of Generativity, 78 FORDHAM L. REV. 2755
(2010). These criticisms echo those made against Zittrain’s intellectual and temperamen-
tal role model, Larry Lessig. See, e.g., Timothy B. Lee, Sizing Up “Code” with 20/20 Hindsight,
FREEDOM TO TINKER, May 14, 2009,
code-2020-hindsight; Ira Rubinstein, Anonymity Reconsidered (Apr. 24, 2009) (unpub-
lished manuscript, on file with authors).
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agree with Zittrain that generativity is at risk, but they share his appre-
ciation of its value and power.51
     As an illustration of the importance of generativity, consider the
iPhone again. Specifically, look at how Apple explained the iPhone to
generativity’s core constituency—software developers. In a keynote
address less than a month before the iPhone’s launch, Jobs gave devel-
opers who wanted to write programs for it what he described as a
“‘very sweet solution.’”52 Since the iPhone came with Apple’s full Sa-
fari web browser built in, Jobs explained, developers could write so-
called “applications” that ran in Safari—that is, they could make
webpages.53 It was a striking answer in at least four ways, all of which
point up the importance of generativity.
     First, Jobs felt he had to offer developers some “solution” to con-
vince them to work with Apple and the iPhone. Offering a phone
with no generativity story whatsoever was not an option that Jobs and
Apple were even willing to consider.
     Second, by putting a top-notch browser on the iPhone, Apple re-
ally was offering a more genuinely generative experience than was
available on most other handsets on the market at the time. The mo-
bile world was characterized by small, idiosyncratic, tightly controlled
applications; most phones’ browsers were useless for any interactive
online websites.54
     Third, developers recognized Jobs’s “sweet solution” for the crock
it was. Apple’s own iPhone applications—its iPod features, its weather
widget, its stock ticker, and so on—ran “natively,” that is, with full ac-
cess to all the software and hardware power of the phone.55 Anyone
else’s application could run only as a webpage, unable to do basic
tasks like take a picture through the iPhone’s camera.56 Jobs’s an-
nouncement was met with nervous silence by the developers who had,

    51. See generally Post, supra note 50 (praising the half-appliance/half-PC world as being    R
    52. Peter Cohen et al., WWDC Live Keynote Coverage, MACWORLD, June 11, 2007, http://
    53. See id.
    54. Elena Malykhina, Six Things Customers Hate About Cell Phone Service, INFO. WK., May
12, 2007, available at
=199501208 (describing cell phones offering restricted views of the Internet and text-only
versions of websites).
    55. See John Gruber, WWDC 2007 Keynote News, DARING FIREBALL, June 11, 2007, http:// (“Think about it this way: If web apps—
which are only accessible over a network; which don’t get app icons in the iPhone home
screen; which don’t have any local data storage—are such a great way to write software for
iPhone, then why isn’t Apple using this technique for any of their own iPhone apps?”).
    56. See id.
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just minutes before, been wildly cheering his announcements about
the generative features of Leopard, Apple’s new desktop operating
system.57 This was an audience that cared about generativity.
     And fourth, Jobs’s claim that webpages would be Apple’s iPhone
app solution was a complete lie. Apple’s engineering team was al-
ready working on a full software development kit (“SDK”) to enable
developers to write real, native iPhone apps. In March 2008, Jobs
would be back on stage, announcing the SDK for developers and the
forthcoming App Store for users.58 Apple, in short, had been aiming
at a more generative solution all along.59
     Whatever this story means for Zittrain’s pessimism about the fu-
ture, it’s a powerful confirmation of his claims about the value of
generativity. The App Store is, by some estimates, now a multi-billion-
dollar-a-year business.60 The iPhone is a hotbed of creative tinkering;
people are doing amazing things with it. Nearest Tube shows you the
way to the nearest subway stop by placing floating, imaginary subway
signs atop a video image of the world in front of you.61 Shazam en-
ables an iPhone to listen to and identify the ambient music playing
wherever you happen to be.62 Ocarina turns it into a musical instru-
ment that you play by blowing into the microphone.63 Brushes allows
artists, including David Hockney, to create beautiful paintings on
their phones’ little glass canvases.64 Open up a little generativity and
you get a lot back.

     57. See id. (“Perhaps it’s playing well in the mainstream press, but here at WWDC, Ap-
ple’s ‘you can write great apps for the iPhone: they’re called web sites’–message went over like a
lead balloon.” (emphasis and internal quotation marks omitted)).
     58. Antone Gonsalves, Apple Releases iPhone SDK in Beta, INFO. WK., Mar. 6, 2008, availa-
ble at
     59. Google’s announcement of the open-source, generative Android operating system
for mobile phones couldn’t have hurt, either. See Android Open Source, http://source. (last visited May 31, 2010) (“Android is an open-source software stack for
mobile devices, and a corresponding open-source project led by Google.”). Apple needed
to offer something more compelling than webpages, lest it be outflanked on the applica-
tion front.
     60. Om Malik, How Big Is the Apple iPhone App Economy? The Answer Might Surprise You,
GIGAOM, Aug. 27, 2009,
     61. Nearest Tube, (last visited May
31, 2010).
     62. Shazam on iPhone, (last
visited May 31, 2010).
     63. Ocarina, (last visited May 31, 2010).
     64. Lawrence Weschler, David Hockney’s iPhone Passion, N.Y. REV. BOOKS, Oct. 22, 2009,
available at
iphone-passion; see also Stephanie Clifford, New Yorker Cover Art, Painted with an iPhone, N.Y.
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924                                    MARYLAND LAW REVIEW                [VOL. 69:910

     The App Store-enabled iPhone has generated so many compel-
ling generative surprises that blogger Jason Kottke has drawn out an
extended parallel between it and the Internet of the late 1990s.65
Kottke compares the iPhone to mobile phones, PDAs, iPods, point-
and-shoot cameras, personal computers, portable gaming consoles,
GPS units, handheld video cameras, compasses, watches, portable
DVD players, and e-book readers, concluding, “Well, the iPhone does
a lot of useful things pretty well, well enough that it is replacing sev-
eral specialized devices that do one or two things really well.”66 That
is a generativity story; third-party user-installable applications make
the iPhone adaptable enough to out-complete whole hordes of appli-
ances. Just as the Internet forced “any organization offering en-
tertainment or information”67 to rethink its business, the iPhone is
doing the same for anyone making computer hardware or software. If
the iPhone is a test of the descriptive half of his generativity thesis,
Zittrain passes with flying colors.


      The Future of the Internet gets a lot right, but not everything. We’ll
have a lot to say about what Zittrain misses, but our critiques should
be read in the context of our profound appreciation for his theory.
His work on generativity is a milestone in Internet law scholarship.
It’s the best descriptive and normative theory to date on what makes
the Internet special. Zittrain’s analysis becomes muddled only when
he tries to extract a prescriptive policy agenda from it.
      This Part will deconstruct generativity to identify what Zittrain’s
theory gets right—and where it goes wrong. This Part will first com-
pare generativity (favorably) to the previous work on which it builds.68
Then, this Part will look at Zittrain’s policy prescriptions.69 Finally,
this Part will explain the gap between his theory and his practice.70

TIMES, May 25, 2009, at B4 (discussing how artist Jorge Colombo created a cover for the
New Yorker with his iPhone).
   65. Jason Kottke, Your Company? There’s an App for That, KOTTKE, Sept. 16, 2009, http://
   66. Id.
   67. Id.
   68. See infra Part II.A.
   69. See infra Part II.B.
   70. See infra Part II.C.
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   A. Generativity Is the Right Theory
     Zittrain’s identification of generativity as the Internet’s critical
characteristic both builds on and improves on previous scholars’ work.
He’s hardly the first to identify key technical characteristics of com-
puters and the Internet. Nor is he the first to recognize that com-
puter technologies are socially valuable, catalysts for innovation, and
instruments of individual freedom. But his idea of generativity both
generalizes from and unifies previous thinkers’ attempts. Generativity
is a scholarly improvement on the related ideas of an “end-to-end”
network, a “neutral” network, a “layered” network, technical “stand-
ardization,” a “decentralized” system, “tinkerable” computers, and
“free” or “commons” content.71
     End-to-End Networking: Consider first the engineering heuristic of
an “end-to-end” network72: When designing a system that works over a
network, the most robust solution will make the network as simple
and stupid as possible, keeping the intelligence in the computers at
each end.73 Zittrain’s description of the Internet’s “hourglass archi-
tecture”74 captures this point. At a low level, the Internet has a diver-
sity of connections and protocols, all of which support the Internet
Protocol (“IP”), which in turn supports a diversity of protocols, appli-
cations, and content.75 And IP—the narrow neck of the hourglass—is
a minimalist, almost willfully ignorant protocol.76 All it does is sling
packets around. Zittrain goes beyond end-to-end, however, in recog-
nizing that the same hourglass architecture also applies to PCs.77
There, the operating system sits at the narrow neck, with hardware
below and applications above.78
     Network Neutrality: Legal scholars have seized on a side effect of
the end-to-end engineering principle, arguing that IP’s agnosticism is
an important guarantor of freedom and innovation.79 It enables the

    71. See infra notes 72–107 and accompanying text.                                               R
    72. See generally J.H. Saltzer et al., End-to-End Arguments in System Design, 2 ACM TRANSAC-
TIONS ON COMPUTER SYS. 277 (1984), available at
tions/endtoend/endtoend.pdf. Cf. David Isenberg, Rise of the Stupid Network, J.
HYPERLINKED ORG., (last visited May 31,
    73. See infra text accompanying notes 74–78.                                                    R
    74. ZITTRAIN, supra note 1, at 67.                                                              R
    75. Id. at 67–68.
    76. Id. at 69.
    77. Id. at 69–70.
    78. Id.
    79. The argument was first made in 2000. See Mark A. Lemley & Lawrence Lessig, The
End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era 6–8 (U.C.
Berkeley Program in Law & Econ., Research Paper No. 2000-19, 2000), available at http://
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926                                    MARYLAND LAW REVIEW                 [VOL. 69:910

launch of new applications without the need for support from the net-
work and thus without the need for permission from the incumbent
owners of network infrastructure. “Network neutrality” has come to
be the preferred term for this principle—legally mandated technical
      Generativity recognizes the value of end-user innovation free of
an incumbent’s veto. But it also shows the limits of a strict neutrality
principle. This is where Zittrain’s decision to treat PCs and the In-
ternet together best justifies itself. A neutral network that connects
only appliances isn’t generative; an occasionally discriminatory net-
work that connects PCs can be. Zittrain, for example, is willing to let
Internet Service Providers (“ISPs”) filter for viruses if that would free
PC owners to be less paranoid and more open to new innovations.81
      Layering: A related technical principle is “layering”: Application
writers don’t need to worry about how the Transmission Control Pro-
tocol (“TCP”) creates reliable connections between computers, only
that it works. TCP implementers, in turn, don’t need to worry about
how the lower-layer IP routes packets from one computer to another,
only that it works, and so on down to the raw silicon and fiber-optic
cables.82 Lawrence Solum and Minn Chung have argued that the
technical separation between layers should presumptively be treated
as inviolate by policymakers.83
      Once again, generativity incorporates this insight: Hourglass ar-
chitecture is a point about layering. But generativity also shows how
layering is both too broad and too narrow. It’s too narrow because it’s
not a sufficient condition; a layered protocol stack can be tightly con-
trolled, or connected only to appliances. And it’s too broad because
plenty of layer-crossing designs are clever, generativity-enhancing
hacks. Skype, which made peer-to-peer voice-over-IP a practical real-
ity, uses its own highly customized transport protocol.84 As the hour-; see also Written Ex
Parte of Professor Mark A. Lemley and Professor Lawrence Lessig, In re Application for
Consent to the Transfer of Control of Licenses MediaOne Group, Inc. to AT&T Corp., CS
Docket No. 99-251, available at
    80. See generally Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. TELECOMM. &
HIGH TECH. L. 141 (2003).
    81. ZITTRAIN, supra note 1, at 165.                                                          R
    82. See Lawrence B. Solum & Minn Chung, The Layers Principle: Internet Architecture and
the Law, 79 NOTRE DAME L. REV. 815, 831–35 (2004).
    83. Id. at 849–54.
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glass design shows, IP is the only layer that really, truly matters. It
turns out that most of Solum and Chung’s examples of what not to do
involve breaking IP in some fashion or other.85
     Standardization: The Internet standardizes everyone who uses it
on a common set of communications protocols, with the result that it
offers universal connectivity. Likewise, computers are standardized by
operating system Application Program Interfaces (“APIs”)86 and file
formats. This standardization plays a role in three effects celebrated
by scholars. The first is network effects—the positive externalities that
come from having many people using the same network.87 The sec-
ond is universal service—the idea that everyone should be entitled to
a baseline of communications services adequate to meet their needs as
humans and members of society.88 The third is that standards prevent
fragmentation for self-interested commercial or political reasons.89
     Generativity again builds on these characteristics. Network ef-
fects are the traces of generativity; they show individual users sharing
with each other. Universal service provides individuals with the tech-
nical resources they need to participate in a generative system.90 And
a single network maximizes the number of others from whom an indi-
vidual user can learn and with whom she can share. But generativity
goes beyond standardization in recognizing that these characteristics
aren’t sufficient by themselves. The Bell telephone network was na-
tional in scope, had an explicit universal-service goal, and had few in-
ternal divisions.91 But it wasn’t significantly generative in Zittrain’s
     Decentralization: Batch processing was centralized; a small cadre of
technicians controlled access to the machine.93 As a system, personal
computers are decentralized. If you have one, it is yours to use as you

    85. Solum & Chung, supra note 82, at 880–926.                                                R
    86. See Webopedia, What Is API?,
(last visited June 1, 2010) (defining “application program interface” as “a set of routines,
protocols, and tools for building software applications”).
    89. See LAURA DENARDIS, PROTOCOL POLITICS 210, 218 (2009).
    90. In Zittrain’s terms, universal service makes a network maximally “accessible.” ZIT-
TRAIN, supra note 1, at 72–73.                                                                   R
    91. Id. at 81.
    92. See id.
    93. For a literary take on the political implications of centralized computing, see Paul
Ford, Speculation: ReichOS, FTRAIN, Dec. 14, 2000,
wwii.html (positing a totalitarian history of computing in an alternate universe in which
the Germans won World War II).
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928                                    MARYLAND LAW REVIEW                 [VOL. 69:910

see fit. An ATM network is centralized; each terminal can only talk to
the main server. But the Internet is decentralized. One computer
can talk to another without needing to pass every packet through a
preassigned central server.
     Scholars have celebrated decentralization.94 A centralized system
couldn’t possibly handle the Internet’s huge volume of traffic; no sin-
gle administrator could respond to the individual needs of the In-
ternet’s billion-plus users. And a decentralized system has no single
chokepoint, making it harder for powerful actors (like the govern-
ment or large corporations) to control.95
     This lack of central control has consequences that call generativ-
ity to mind. A decentralized communications system enables the
spread of a wide range of diverse viewpoints—much more so than a
mass medium controlled by a single actor with room only for a few
speakers.96 Nor is there anyone who can take away the punchbowl just
as the innovation party starts to get fun. Even if a centralized system is
open to user-driven changes at the endpoints, it’s always subject to a
take-back from the center.
     Tinkerability: The idea that a technology’s users should also be
able to modify it is a resonant one in computer circles.97 This positive
vision of user/creators emphasizes the idea’s beneficial effects for au-
tonomy98 and innovation.99 This process has obvious connections to
generativity. The same people are tinkering with their toasters, crowd-
ing the Maker Faire, passing good ideas back upstream to the compa-

CYBERSPACE 170–71 (2009) (discussing the advantages of decentralized governance).
(2006) (discussing the potential regulability of the Internet).
    96. See Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law,
76 N.Y.U. L. REV. 23, 74–75 (2001).
    97. See, e.g., Freedom to Tinker, (last visited June 2,
2010) (advancing “your freedom to understand, discuss, repair, and modify the technologi-
cal devices you own”). Compare Freedom 1 from the Free Software Definition, the “free-
dom to study how the program works, and change it to make it do what you wish.” Free
Software Definition, GNU Project, (last vis-
ited June 2, 2010). Freedom 3 adds the ability to share those changes with others. Id.
    98. See Richard Stallman, The Right to Read, 40 COMM. ACM 85 (1997), available at http:/
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nies that make the tinkered-with devices,100 and starting their own
companies to carry on the tradition.101
     Generativity expands on tinkering by emphasizing the role of
tools in addition to finished systems. Tinkering is an act of creative
deconstruction: If I take this thing apart and reassemble it in this way,
what will happen? Zittrain also points out the importance of less-as-
sembled inputs—bags of Lego blocks, paints and canvases,102 CPU cy-
cles and bandwidth. Both raw materials and well-functioning
products are useful in the analytic-synthetic cycle of generativity.
     Commons: There’s a burgeoning academic interest in the “com-
mons.”103 The object of study here is typically a set of information
resources not subject to legal restriction on reuse, thus forming an
intellectual commons open to all.104 Zittrain discusses tangible infra-
structure,105 rather than intangible information goods. But there’s a
close affinity between his claims about generativity and the common-
ers’ claims about freedom. Both have in mind a very similar human
moral subject: Someone who’s inclined to creativity and inclined to
share with others.106 Both seek to remove the obstacles in the way of
creativity and sharing and to provide individuals with the foundations
they need to fully develop their creative capacities. In this sense,
generativity is an argument for the commons that doesn’t depend on
special pleading about the non-rival nature of information goods.107
     In sum, Zittrain’s theory of generativity is an elegant synthesis of
an enormous body of prior scholarly research. He brings many in-
sights together in one clear and powerful idea. The Future of the In-

   100. See ZITTRAIN, supra note 1, at 86 (discussing ERIC VON HIPPEL, DEMOCRATIZING INNO-        R
VATION    (2005) (cataloging examples of user innovation)).
   101. Hewlett-Packard, Apple, and Google were all launched from garages, a piece of
corporate history that plays off the close affinity between automotive and digital tinkering.
See, e.g., Associated Press, Google Purchases the Garage that Launched the Company, BOSTON
GLOBE, Oct. 2, 2006,
   102. ZITTRAIN, supra note 1, at 74–76.                                                         R
OF THE MIND (2008).
   104. See generally James Grimmelmann, The Internet Is a Semicommons, 78 FORDHAM L. REV.
(forthcoming 2010) (discussing ways in which the Internet is and is not a commons).
   105. See, e.g., ZITTRAIN, supra note 1, at 246 (“The deciding factor in whether our current    R
infrastructure can endure will be the sum of the perceptions and actions of its users.”).
   106. See James Grimmelmann, The Ethical Visions of Copyright Law, 77 FORDHAM L. REV.
2005, 2029–31 (discussing moral rhetoric of sharing creative works).
COMMONS IN A CONNECTED WORLD (2001), which also connects content and network layers.
ZITTRAIN, supra note 1, at 78.                                                                    R
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930                                    MARYLAND LAW REVIEW                [VOL. 69:910

ternet convincingly presents generativity as the summum of technical
virtues—the one that really matters.

   B.      The Wiki Way
      Zittrain also offers a set of prescriptive recommendations to in-
crease and defend generativity. In light of the many instabilities (such
as spam and viruses) induced by generativity, he concedes that com-
promises against generativity are necessary. He accepts that “[w]e
need a strategy that blunts the worst aspects of today’s popular genera-
tive Internet and PC.”108 That strategy, however, can’t simply be app-
liancization, which destroys the generative village in order to save it.
      Instead, he turns to a perhaps unlikely source of inspiration:
Wikipedia,109 the impossible encyclopedia. Chapter 6 opens with a
suggestive metaphor about a Dutch city where the roads are verkeer-
sbordvrij—free of traffic signs.110 But even without a centralized, au-
thoritative source of coercive orders, drivers and pedestrians manage
to get around without constantly getting into accidents.111 Indeed,
the streets are substantially safer.112 Once people realize that they’re
(collectively) responsible for their own safety—and the absence of
traffic signs sends a strong signal to that effect—they start paying
more attention to each other, looking out for upcoming dangers, and
using better judgment.113 The result is a friendlier, safer equilibrium.
      The substitution of bottom-up social norms for top-down enforce-
ment is, of course, another commonplace of legal scholarship.114 But
in Zittrain’s hands, verkeersbordvrij becomes a powerful metaphor for
another way to deal with the toxic side effects of generativity. Instead
of locking down platforms like the iPhone, why not harness the same
cooperative, socially-oriented forces that keep drivers from indiscrimi-
nately running down bicyclists? Instead of appliances and “points of
control,” he offers a vision of people who “take the welfare of one
another seriously and possess the tools to readily assist and limit each

   108. ZITTRAIN, supra note 1, at 150.                                                         R
   109. See Wikipedia, (last visited June 2, 2010) (declaring the web-
site “The Free Encyclopedia”).
   110. ZITTRAIN, supra note 1, at 127.
   111. Id.
   112. See id.
   113. See id.
PUTES 141 (1991) (arguing that people generally look to norms rather than law to decide
   115. ZITTRAIN, supra note 1, at 129.                                                         R
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     Zittrain sees the verkeersbordvrij spirit in Wikipedia.116 Anyone can
edit it; hundreds of thousands of people do. Not all of them are well-
intentioned: The site must deal with extensive vandalism and sock-
puppetry.117 But deal it does; the English-language Wikipedia is
viewed over a hundred million times a day.118 Its quality and accuracy
are decent, and its coverage of many topics utterly swamps its more
traditional competition. There are no Galactic Wikipedia Police rul-
ing the site with an iron fist; instead, individual editors go around
making things better here and there, fixing vandalism, and endlessly
debating policies and entries.119 It’s a mess, but it more or less
works.120 Zittrain calls Wikipedia the “canonical bee”: It shouldn’t be
able to fly, but fly it does.121
     Chapters 7, 8, and 9 of The Future of the Internet are dedicated to
replicating the success of Wikipedia on the Internet as a whole.122 Us-
ing Wikipedia’s verkeersbordvrij spirit as a metaphor, Zittrain offers so-
lutions that try to empower well-intentioned users to collaboratively
cope with generativity’s risks.123 These solutions, he hopes, will let us
have our cake and eat it, too: An open and generative technical archi-
tecture, coupled with a social architecture to respond to those few
who don’t want to cooperate.124
     Despite its pessimistic title and tone, The Future of the Internet actu-
ally recommends very little in the way of legal intervention. These
three chapters are devoted largely to clever new technical designs that
computer companies and ISPs could offer. In Chapter 7, on security
threats, he suggests, for example, that home users would appreciate

   116. Id. at 133.
   117. See Wikipedia: Sock Puppetry, (last
visited June 3, 2010) (“The default position on Wikipedia is that editors who register
should edit using one account only. The purpose of this policy is to forbid deceptive or
misleading use of multiple accounts and to explain where editors may legitimately use a
second (alternate) account. A second account used in violation of this policy is known as a
sock puppet.”).
   118. See Wikipedia Statistics, (last visited
June 15, 2010).
   119. See David A. Hoffman & Salil K. Mehra, Wikitruth Through Wikiorder, 59 EMORY L.J.
151, 172–73 (2009) (discussing Wikipedia’s internal norms and dispute-resolution
   121. ZITTRAIN, supra note 1, at 148.                                                           R
   122. See id. at 149–234.
   123. See id. at 228; see also id. at 146 (explaining that “[t]he elements of Wikipedia that
have led to its success can help us come to solutions for problems besetting generative
successes at other layers of the Internet” and listing verkeersbordvrij as one such element).
   124. See id. at 228.
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932                                    MARYLAND LAW REVIEW         [VOL. 69:910

computers that could run in both “green” (secure but restricted) and
“red” (less secure but easier to tinker with) modes.125 These red/
green computers would retain their generative capacity but wouldn’t
force users to live with its risks all of the time.126 Other solutions in-
volve giving communities the tools they need to communicate and act
responsibly. At Harvard’s Berkman Center for Internet & Society, Zit-
train helped found the StopBadware initiative, which collects informa-
tion on virus-spewing servers.127 The information is used to put
warning signs around dangerous servers, rather than impassable cor-
dons sanitaire.128 Zittrain’s legal instincts, if not exactly libertarian, are
prudentially modest. Even though he calls for a “latter-day Manhattan
project,” he means only a sustained collaborative “series of conversa-
tions, arguments, and experiments.”129 The very spirit of verkeersbord-
vrij, it might seem, precludes more ambitious regulatory

   C. What’s Wrong with This Picture?
     This is an attractive story, not least because it appeals to human
instincts of decency and collaboration. But it’s not clear that Zittrain’s
recommendations really lead to a comprehensive and implementable
program. The problem is that in order to pick and choose the “tools
and practices” that will preserve generativity rather than hasten its de-
mise,130 we need to be able to recognize generativity in the wild.
When we predict the likely consequences of a given intervention, we
need to be able to say whether it will nourish generativity or suffocate
it. We need, in other words, a good way to measure generativity.
     Yet, Zittrain never offers one. Instead, he offers lists. Generative
systems include: the Apple II,131 the personal computer,132 the In-
ternet,133 wikis and blogs,134 open wi-fi networks,135 Microsoft Win-
dows,136 and MySpace.137 Non-generative systems include: the

   125. See id. at 155.
   126. Id.
   127. About StopBadware, (last visited June 2,
   128. StopBadware Frequently Asked Questions,
(last visited June 2, 2010).
   129. ZITTRAIN, supra note 1, at 173.                                                 R
   130. Id. at 152.
   131. Id. at 2.
   132. Id. at 13.
   133. Id. at 27.
   134. Id. at 95.
   135. Id. at 194.
   136. Id. at 77.
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Brother word processor,138 the toaster,139 TiVo,140 and iTunes.141
Somewhere in the middle are systems he regards as somewhat but not
sufficiently generative, including Microsoft’s Xbox 360 video game
console,142 cell phones,143 and Google Maps.144 But the dots remain
unconnected. In pure generativity terms, it’s hard to understand
what’s wrong with Google Maps145 (to pick an arbitrary example).
Compared with a paper atlas, Google Maps looks pretty good. Search
makes it easier to use; its sharing features make it more collabora-
tive.146 And no paper atlas has ever offered anything even remotely
like the Google Maps API, which lets developers create their own
mash-up applications to add new functionality to the maps.147
      Zittrain does break generativity down into five factors: leverage,
adaptability, ease of mastery, accessibility, and transferability.148 A
tool with leverage enables users to do a task more effectively, while an
adaptable tool can be used for a wide range of tasks.149 The easier it is
for a new user to learn, the more generative the tool; it’s also more
generative if it’s available to more potential users.150 Moreover, a
truly generative tool isn’t just personally useful: It lets users transfer
their improvements to others.151 This is a helpful taxonomy; it pro-
vides the who, what, when, where, and how of generativity.
      But if Zittrain indicates what questions scholars and designers
should ask, he doesn’t say much about what to do with the answers.
Having introduced these factors, he explains that “the absence of one
of these factors may prevent a technology from being generative . . .
[as] a major deficiency in any one factor greatly reduces overall gener-
ativity.”152 The analysis essentially stops there. The five factors appear
almost nowhere in the book except in the chapter introducing them.

   137. Id. at 233.
   138. Id. at 19.
   139. Id. at 80.
   140. Id. at 106.
   141. Id.
   142. Id. at 3.
   143. Id. at 58.
   144. Id. at 124.
   145. Google Maps, (last visited June 2, 2010).
   146. See id. (allowing users to search maps and providing the option to share links to
maps with others).
   147. See Google Maps API Family, (last visited June
2, 2010).
   148. ZITTRAIN, supra note 1, at 71–73.
   149. Id. at 71.
   150. Id. at 72–73.
   151. Id. at 73.
   152. Id. at 74.
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934                                    MARYLAND LAW REVIEW                  [VOL. 69:910

Instead, the remaining chapters proceed as though the problem of
measuring generativity were now so completely solved as to be trivial.
In the rest of the book, Zittrain the policymaker treats generativity as
though it were like the weather—trivial to measure (it’s forty-eight
degrees out), easy to characterize (today is cloudy, not sunny), and
moderately predictable (tomorrow will be warmer). We’re not so
      Take another example: Google Docs, the online suite of word-
processing, spreadsheet, and presentation tools.153 It can be lever-
aged, is adaptable to a huge range of intellectual purposes, is easy to
master, is highly accessible, and makes it trivial to transfer documents
to other users. True, it’s hard for a user to add new behaviors to its
word processor, but it’s hard to do that in most word processors, and
the Google Docs spreadsheet application is as computationally power-
ful as any programming language. What, then, is wrong with it? Zit-
train’s theory—at least as he explains it—doesn’t say. But Zittrain’s
arguments against Google Maps—based on Google’s centralized con-
trol—would apply equally well to Google Docs.154
      Zittrain also isn’t clear on when and how to sacrifice some gener-
ativity for the greater good. He rejects a “categorical end-to-end ap-
proach” because he thinks that a fully neutral network will lead to
“digital gated communities” at the endpoints.155 This is a sensible
enough recommendation, but the link from his “new generativity
principle,” which requires that modifications “do the least harm to
generative possibilities,”156 to this specific decision is undertheorized.
On what basis does he conclude that extensive firewalling and virus
scanning is worse for generativity than some packet filtering? He’s
probably right, but it’s hard to escape the conclusion that Zittrain’s
gut is doing as much work here as his theory. He knows generativity
when he sees it.
      The problem with this approach is that there are genuinely hard
cases. Take the iPhone again. Should Zittrain conclude that its new,
mostly-unlocked form makes it generative? The availability of tens of
thousands of applications would suggest that he should. Jason
Kottke’s point that “[t]here’s an app for that” for almost everything
would indicate that the iPhone has become powerfully generative.157

   153. See Google Docs, (last visited June 3, 2010).
   154. See ZITTRAIN, supra note 1, at 124 (discussing the pitfalls of Google Maps’s central-
ized control).
   155. Id. at 165.
   156. Id.
   157. Kottke, supra note 65.                                                                   R
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      Zittrain would likely respond that Apple retains sole approval
over which apps appear in its App Store; it’s “tethered,” to use Zit-
train’s phrase.158 Moreover, the iPhone has a built-in “kill switch,”
which allows Apple to deactivate remotely any application already in-
stalled on an iPhone.159 Apple has rejected dictionaries that contain
four-letter words160 and pulled applications over tenuous copyright
and trademark complaints, some of which verge on being objectively
baseless.161 Most contentiously, Apple flatly bars applications that
would re-implement any of the iPhone’s central features—web brows-
ers, music library players, and telephone apps that work over the cellu-
lar network.162 After Google Voice disappeared down the App Store’s
black hole, the Federal Communications Commission launched an in-
vestigation.163 Developers who have worked with the App Store’s ap-
proval process report Orwellian doublespeak and Kafkaesque
inconsistency in equal measure.164

   158. See, e.g., Tom Krazit, Apple Apologizes for Baby Shaker, CNET, Apr. 23, 2009, http:// (explaining that Apple has the power to
reject applications from inclusion in the App Store); see also ZITTRAIN, supra note 1, at
   159. See Nick Wingfield, IPhone Software Sales Take Off: Apple’s Jobs, WALL ST. J., Aug. 11,
2008, at B1 (confirming that Apple has such a capability). Further, the 3.0 update to the
iPhone’s operating system includes a “remote wipe” feature that owners can use to erase
stolen iPhones. MobileMe: Troubleshooting Find My iPhone and Remote Wipe, http:// (last visited June 3, 2010). If users can do it from afar, so
can Apple.
   160. See Pete Cashmore, Apple Rejects Dictionary App for Containing Swear Words, MASHABLE,
Aug. 5, 2009, (“Today comes
news of what might be the strangest App Store rejection yet: a dictionary was rejected twice
because it contained swear words.”).
   161. See Robin Wauters, TweetPhoto iPhone App Rejected Because Logo Resembles Polaroid Shot,
TECHCRUNCH, Aug. 24, 2009,
iphone-app-rejected-because-logo-resembles-polaroid-shot (discussing Apple’s reasons for
rejecting various applications, including TweetPhoto, which Apple rejected because it had
images resembling Polaroid photographs). Your app can also be bounced for being “‘po-
litically charged,’” as the developer of an application to help users advocate for single-
payer healthcare discovered. See iSinglePayer iPhone App Censored by Apple, LAMBDAJIVE, Sept.
26, 2009,
   162. See Reed Abelson, F.C.C. Looking into Rejection of Google App for iPhone, N.Y. TIMES,
Aug. 1, 2009, at B5 (describing Apple’s rejection of Google Voice, which provides users
with free domestic calls, inexpensive international calls, and other mobile services). This
restriction prevents users from surmounting limitations in Apple’s own software. The re-
jected Google Voice offered users a set of voicemail options that were in some ways more
sophisticated than Apple’s own.
   163. Id.
   164. See, e.g., There’s No App for That, RIVERTURN, July 28, 2009, http://www.riverturn.
com/blog/?p=455 (describing an Apple employee’s response after an application was re-
moved from the store: “I understand your point but I can’t help you with that.” (internal
quotation marks omitted)); see also John Gruber, Choice Nuggets from Apple’s Response to the
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936                                    MARYLAND LAW REVIEW                     [VOL. 69:910

     Even with these restrictions, though, it isn’t obvious that the App
Store is all that far away—from a generativity perspective—from
Wikipedia. Many of the charges that could be hurled against the
iPhone would also stick to Wikipedia. Many Wikipedia edits are re-
verted quickly after they are made. Some IP addresses are banned
entirely.165 One organization has its finger on Wikipedia’s master
override switch, and sometimes it uses that power. For example, the
news of a New York Times reporter’s kidnapping in Afghanistan was
suppressed for almost a year, on orders straight from Wikipedia’s
founder.166 Compared with some of the convoluted fights over
Wikipedia article edits,167 the iPhone App Store application process
sometimes seems like a model of bureaucratic rationality.
     This isn’t to say that Wikipedia is ungenerative, or dystopian, or
doomed. It isn’t. But it is a complex, messy system, and one that ac-
cepts significant limits to its generativity. Those limits may be neces-
sary to make the whole thing work, of course. Someone has to run the
server, someone has to resolve disputes, someone has to deal with
spammers and sock puppets,168 and so on. But structurally, this is the
same argument used to justify Apple’s control over the iPhone envi-
ronment. The Wikipedia model may be superior to the Apple model,
all things considered, but it’s not self-evidently superior. Or, put an-
other way, it’s easy to say the first-generation, locked-down iPhone was
generatively inferior to Wikipedia, but it’s much harder to explain
why Wikipedia beats the modern iPhone. They both make sacrifices
in the name of overall generativity. You need a more precise analyti-
cal framework than what Zittrain provides to explain why one tradeoff
is better than another.

    We’d like to help. We don’t believe that generativity can be re-
duced to a simple set of if-then conditions; it’s necessarily a fact-bound
inquiry. Zittrain deserves credit for recognizing that complexity in his

FCC’s Inquiry Regarding the Rejection and Removal of Google Voice Apps from the App Store, DARING
FIREBALL, Aug. 21, 2009, (criticiz-
ing Apple’s explanation for why Google Voice had not been approved).
  165. See Eric Goldman, Wikipedia’s Labor Squeeze and its Consequences, 8 J. TELECOMM. &
HIGH TECH. L. 157, 164 (2010) (explaining that Wikipedia has “block[ed] IP addresses of
repeat offenders, such as a controversial block of all IP addresses owned or operated by the
Church of Scientology”).
  166. Richard Pérez-Peña, Keeping News of Kidnapping off Wikipedia, N.Y. TIMES, June 29,
2009, at B4.
  167. See Hoffman & Mehra, supra note 119, at 154.                                                  R
  168. See supra note 117.                                                                           R
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case studies. Still, we think that giving more attention to the problem
of how best to measure generativity would help policymakers apply his
     We offer, then, some observations about the real-world problem
of maximizing generativity. All of these ideas are to some extent im-
plicit in The Future of the Internet and exert a gravitational pull on Zit-
train’s recommendations. Acknowledging them and making them
explicit would make clearer what’s at stake in generativity debates.
They help organize the difficult process of sorting through technical
and social facts to understand how generativity operates in the real
world. We hope that Zittrain will accept them as friendly amend-
ments to his work.
     Our points number three: First, generativity is only one virtue
among many; it won’t avoid every problem or resolve every dispute
online. Second, generativity is never absolute; no system has ever
been perfectly generative, and, indeed, no perfectly generative system
is possible. Third, generativity is normatively a system-wide, not a lo-
cal, property; it can be counterproductive to maximize generativity at
one layer, on one device, or at one time. Instead, we should seek to
create a sustainable ecosystem of generativity.

   A. Generativity Is Only One Virtue Among Many
     Zittrain worries about centralized control. He tells plausible hor-
ror stories about how tethering would threaten freedom and auton-
omy: A judge worried about patent infringement can force a vendor
to downgrade its customers’ tethered DVRs,169 a sovereign can censor
tethered personal computers,170 and a law enforcement agent can
turn a tethered cell phone into a remote, wireless bug.171 Tethering
enables “perfect enforcement,”172 which can obliterate experimenta-
tion, free expression, fair use, and privacy.
     There’s much to like about Zittrain’s arguments against tether-
ing. As a call to arms and a prediction about the evolution of technol-

   169. See ZITTRAIN, supra note 1, at 103–04.                                                    R
   170. See id. at 105. In June 2009, China ordered computer vendors to install Chinese
censorware called “Green Dam” on every computer sold in China. Andrew Jacobs, China
Requires Software on New Computers to Block ‘Unhealthy Information’, N.Y. TIMES, June 9, 2009,
at A11. After a public backlash, China backed down. Aaron Back, China Pulls Back from
Edict on Web-Filtering Software, WALL ST. J., Aug. 14, 2009, at A7.
   171. See ZITTRAIN, supra note 1, at 110; see also Declan McCullagh & Anne Broache, FBI         R
Taps Cell Phone Mic as Eavesdropping Tool, CNET, Dec. 1, 2006,
   172. See ZITTRAIN, supra note 1, at 101–26. Or, as Lessig calls it, “perfect control.” See     R
LESSIG, supra note 95, at 179–80.                                                                 R
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938                                    MARYLAND LAW REVIEW                   [VOL. 69:910

ogy, this is good stuff. We should worry about how technological
tendencies toward centralized control will add to the power of the
powerful. Amazon’s bungled decision to delete copies of 1984 from
tethered Kindles will resonate for a long time.173 These are concerns
that Zittrain shares with other scholars, of course,174 but “tethering” is
a particularly clear and succinct characterization of a serious problem.
     We part company with Zittrain over tethering only because we’re
not yet convinced that this is a generativity story. The same desires for
stability that threaten generativity also threaten to create architectures
of control, but Zittrain hasn’t shown that one can make these argu-
ments from within the generativity framework. We think this is the
point at which the idea of generativity, as useful and powerful as it is,
needs to coordinate with other values that aren’t reducible to it, such
as human dignity and freedom from coercion.
     Although tethering and appliancization sometimes flow from
common pressures, one can exist without the other. Some operating
systems can phone home periodically to look for critical system up-
dates;175 computers configured to update automatically are tethered,
but they aren’t appliances. Similarly, portable GPS units are com-
pletely unmodifiable, but few of them automatically phone home for
updates.176 GPS devices are appliances, but they aren’t tethered.
Even with its auto-update tether, the PC is still profoundly more gen-
erative than the fully appliancized GPS unit. And yet, we suspect that
Zittrain loses more sleep over the tethered PC than over appliancized
GPS units.
     Thus, generativity alone isn’t enough to resolve every online dis-
pute. If you don’t want Amazon to delete your books177 or your ISP to
spy on you,178 generativity alone won’t save you. Generativity doesn’t

  173. See Brad Stone, Amazon Erases Two Classics From Kindle. (One Is ‘1984.’), N.Y. TIMES,
July 18, 2009, at B1 (describing how Amazon dropped George Orwell’s 1984 and Animal
Farm from its Kindle store).
  174. E.g., Julie E. Cohen, Pervasively Distributed Copyright Enforcement, 95 GEO. L.J. 1, 14
  175. See, e.g., DAVID POGUE, WINDOWS VISTA: THE MISSING MANUAL 614–15 (2007) (ex-
plaining the process by which Windows delivers its updates).
  176. See Jeffrey L. Wilson, How to Update Your GPS, LAPTOP MAG., Mar. 28, 2008, http:// (describing the updat-
ing process for various GPS navigators).
  177. See Stone, supra note 173.                                                                  R
  178. See Paul Ohm, The Rise and Fall of Invasive ISP Surveillance, 2009 U. ILL. L. REV. 1417,
1417 (describing how ISPs “carry their users’ conversations, secrets, relationships, acts, and
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2010]                                       BOOK REVIEW                                   939

say much about the efficient term of copyright,179 the right level of
liability for online harassment,180 the proper extent of personal juris-
diction for online activities, or the correct degree of transparency in e-
government.181 Generativity is an important value in Internet law, but
only one of many. The argument against censorship can be—and
ought to be—made on its own merits, grounded in appeals to democ-
racy, liberty, and dignity.
     There’s room inside Zittrain’s theory to recognize this plurality of
goals. His breakdown of generativity into five factors is an acknowl-
edgement that generativity has multiple axes.182 Consider again the
original black-box iPhone. It provided leverage by making many web-
based tasks much easier. Apple’s intensive design focus made it easy
to master, and even if the initial $599 price tag was steep,183 Apple
quickly slashed the price until, within a year, it was as accessible as any
other mobile phone.184 True, the iPhone wasn’t particularly adapta-
ble, and almost by definition, users couldn’t transfer their improve-
ments to each other, but still. Three out of five ain’t bad.
     Further, Zittrain focuses on technological generativity, but the
idea is rich enough to embrace other forms of generativity as well.
Wikipedia provides a good example. Although he celebrates the bur-
bling font of innovation that produced Wikipedia, he can’t quite
bring himself to celebrate Wikipedia itself as a paradigmatic example
of generativity. Instead, he repeatedly refers to the “lessons of
Wikipedia,”185 which he thinks should be imported from “generativity
at the content layer,”186 a species of generativity he seems to treat as a
pitiable second-class to what he seems to regard as real, technological

   180. See Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 85–88 (2009) (advo-
cating tort and criminal liability for cyber harassment).
   181. See David Robinson et al., Government Data and the Invisible Hand, 11 YALE J.L. &
TECH. 160, 160 (2009) (arguing that government should provide reusable data to satisfy its
online publishing responsibility).
   182. See ZITTRAIN, supra note 1, at 71–73 (discussing the five factors of generativity).       R
   183. See Chris Ziegler, The Apple iPhone, ENGADGET, Jan. 9, 2007, http://www.engadget.
com/2007/01/09/the-apple-iphone (announcing the arrival of the iPhone and noting in-
troductory prices).
   184. See Mikael Ricknäs, iPhone Timeline, ITWORLD, June 9, 2008, http://www.itworld.
com/iphone-timeline-080609 (noting that just months after the iPhone’s debut, Apple low-
ered the price of the eight gigabyte model to $399).
   185. See ZITTRAIN, supra note 1, 127–48.                                                       R
   186. Id. at 123.
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940                                    MARYLAND LAW REVIEW               [VOL. 69:910

      This isn’t a distinction worth maintaining. Wikipedia is genera-
tive, and “generativity at the content layer” is worth caring about and
trying to foster in exactly the same way that generativity at the hard-
ware, IP, and application layers is. An encyclopedia is a tool for pro-
ducing knowledge, just as a soldering iron is a tool for producing
circuits. Wikipedia is highly leveraging for any task involving knowl-
edge of the world, easily adaptable for any such task, trivially transfera-
ble once you hit “Save Page,” and accessible from any Internet
connection. Even though its wiki syntax isn’t intuitive, it’s still far eas-
ier to master than computer programming languages. There’s no
need to treat Wikipedia as a metaphor for generativity; Wikipedia is a
generative that we should learn from and preserve in its own right.
      Wikipedia’s emergent community also provides a striking illustra-
tion of social generativity. While Zittrain celebrates the norms that
make it work,187 if anything he underplays the way in which those
norms develop through a process that looks amazingly like the cycle
of experimentation, sharing, feedback, and refinement that character-
izes technical generativity. This is a general pattern, one seen in many
other thriving online communities: Given a platform with sufficient
affordances, users will build amazingly complicated social struc-
tures.188 Social generativity is as important and valuable as the other
forms celebrated by Zittrain. Policymakers should seek to foster this
kind of creative ferment.
      There is no one master virtue of generativity, then. On the one
hand, the concept isn’t so large as to capture everything policymakers
need to care about, and there will be times that it must give way to
other values. On the other hand, generativity itself contains multi-
tudes, and there’s no guarantee that they won’t conflict. Ease of mas-
tery, for example, is always in tension with adaptability—the fewer the
possible uses, the easier it is to learn them. Working with generativity
in the real world means engaging with these tensions, both between
generativity and other values, and within generativity itself.

   B. Generative Enough Is Good Enough
    A reader of Zittrain’s book may be left with the impression that
PC and Internet technologists have created systems that maximize
generativity, but this overstates the case. No one has ever created, and

  187. See id. at 127–48 (discussing Wikipedia in a positive light).
SERVICE 149–50 (2009), (describing
how Twitter’s “commitment to simplicity” allowed its users to create a “grammar” of shared
social norms to organize conversations in ways that have fueled its astronomical growth).
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no one will ever create, a system that allows any user to create any-
thing he or she wants. Instead, every system designer makes innumer-
able tradeoffs and imposes countless constraints. System design
should be seen as an exercise in thoughtful deprivation: All designers
take away from their users the types of generativity that they think
their users don’t want, shouldn’t have, or can’t use. Indeed, con-
straint itself is an essential component of creativity.189
      Take again, for example, the Apple II computer, the “quintessen-
tially generative” example Zittrain uses to open his book.190 Before
the Apple II, hobbyist computers arrived as electronic kits, piles of
microchips, and other electronic parts that one had to assemble
before using. Before programmers could program the original PC,
the Altair 8800, they first had to assemble and solder the parts to-
gether.191 Zittrain notes as an aside and without irony that “[t]he Ap-
ple II was a machine for hobbyists who did not want to fuss with
soldering irons.”192 In other words, part of the reason the Apple II
was successful was that it was partly non-generative.
      Steve Wozniak and Steve Jobs understood the virtue of thought-
fully constrained generativity. By fixing hobbyists to a common refer-
ence point—their computer’s design—and by doing the soldering for
them, the pair could encourage generativity at the software layer even
as they diminished it at the hardware layer. Users couldn’t easily
“soup up” the Apple II’s MOS Technology 6502 microprocessor.193 A
subsequent version, the Apple IIc, was a wholly closed system; it didn’t
even have expansion slots.194 Wozniak and Jobs imposed these limita-
tions as tradeoffs to let software hackers get right to work, without
having to worry about solder-scalded fingertips or fried microchips.
      Every generative technology faces similar tradeoffs. Good system
designers always restrict generativity of some kinds in order to en-
courage generativity of other kinds. The trick is in striking the bal-
ance. Like the Apple II, from which they trace their lineage, today’s
PCs are easy to upgrade in some ways, but very difficult to hack at the
solder-and-microchip level: Over time, PC designers have reduced the
number of expansion slots inside their computers while adding Uni-

(“Whatever diminishes constraint, diminishes strength. The more constraints one im-
poses, the more one frees one’s self of the chains that shackle the spirit.”).
  190. ZITTRAIN, supra note 1, at 2.
  191. See LEVY, supra note 20, at 195.                                                  R
  192. ZITTRAIN, supra note 1, at 1.
  193. See LEVY, supra note 20, at 251.                                                  R
  194. LINZMAYER, supra note 23, at 17–18.                                               R
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versal Serial Bus (“USB”) ports for external peripherals.195 It’s be-
come harder to hack your motherboard itself—but much easier to
add new hardware functionality, which is what really matters.
     Or, take operating system APIs, the narrow neck of the PC hour-
glass.196 Microsoft Windows supports a vast and generative ecosystem
of applications—and yet Microsoft has at times controlled the APIs
themselves so tightly it faced antitrust lawsuits over them.197 Likewise,
on the Internet, IP is strongly generative but also strongly constrained.
For example, IP requires all computers to use IP addresses, a finite
resource.198 Because the original Internet architects failed, forgivably,
to foresee the potential growth of the network, they allocated only
four billion possible IP addresses,199 and every few years somebody
raises new concerns that we’re about to run out of them.
     Finally, consider the evolution from low-level to high-level com-
puter programming languages,200 an example Zittrain omitted from
this book, but described in an earlier article about generativity.201
Programmers today generally use programming languages that use
English words like WHILE and NEXT to enhance readability, which
make these languages easier to learn.202 If programmers wanted, they
could choose a lower-level language, such as assembly language,203
which, although it isn’t quite ones and zeroes, is a good software meta-
phor for Wozniak’s soldering iron. Assembly language is in some ways

PUTER   SYSTEM CONCEPTS FOR REAL LIFE 96 (3d ed. 2008) (“It is not unusual to find six or
more USB ports on a new computer . . . .”).
   196. The hourglass architecture metaphor calls attention to the constraints imposed at
the neck, where only a few grains of sand can pass at a time. An hourglass that wasn’t
constrained wouldn’t work; all the sand would fall in an instant.
   197. See, e.g., United States v. Microsoft Corp., No. 98-1232, 2002 U.S. Dist. LEXIS 22864,
at *9 (D.D.C. Nov. 12, 2002) (imposing an obligation on Microsoft to share API informa-
tion with competitors).
   198. See Stephen M. Ryan et al., Legal and Policy Aspects of Internet Number Resources, 24
SANTA CLARA COMPUTER & HIGH TECH. L.J. 335, 336–37 (2008) (explaining how IP address
space is finite).
   199. Id. at 367.
102–04 (2009) (describing categories of programming languages).
   201. Jonathan L. Zittrain, The Generative Internet, 119 HARV. L. REV. 1974, 1983–84
   202. See AKSOY & DENARDIS, supra note 200, at 102 (explaining that instructions in low-        R
level languages use short, targeted words, whereas instructions in high-level languages re-
semble sentences used regularly in English so that people can understand the command).
Before these “high-level” languages can control a computer, the programmer converts the
English words into the ones and zeroes that the computer understands using a compiler or
an interpreter. Id. at 103.
   203. Id. at 102–03.
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2010]                                       BOOK REVIEW                            943

much more generative than higher-level languages: It provides finely
tuned control over the computer, allowing the programmer a level of
control impossible with a high-level language. This control matters
for some programmers, such as game developers trying to squeeze
every last bit of graphical detail they can. But assembly is much
harder to use, which tips the overall generativity balance toward
higher-level languages for most purposes.
      The same patterns are replicated when one compares different
high-level languages. With the programming language C, it is easy to
write data into almost any part of a PC’s memory,204 which enhances
generativity by providing incredibly fine-tuned control. This genera-
tive feature, however, has a downside. It makes it all too easy to write
to the wrong part of memory, overwriting crucial data; computer vi-
ruses often exploit these bugs, the most common variant of which is
called a “buffer overflow.”205 Generativity at the language level in-
troduces risk. In contrast, Java provides less powerful but safer mem-
ory allocation.206 The inventors of Java restricted the generativity of
memory allocation, avoiding the kind of errors loved by virus writers.
      Every generative system is non-generative in many ways. No tool
or system is perfectly, maximally generative. Generativity is a relative
goal. We want a system that is generative enough—one that enables
broadly generative production—but we never want a system that is ab-
solutely generative, because that way lies chaos. This point is inherent
in Zittrain’s argument, which calls for small sacrifices to preserve
generativity. The argument would be stronger if he more explicitly
acknowledged that what we are sacrificing is itself generativity—and
that computer designers have always done this. Generativity is a
Benthamite value, not a Kantian one: Our goal is the greatest genera-
tivity for the greatest number, not perfection.

   C. The Goal: A Sustainable Ecosystem for Generativity
     We should treat generativity as a quality of an ecosystem, not as a
feature of individual parts. Those worried about promoting generativ-
ity shouldn’t focus single-mindedly on any one layer, device, or mo-
ment in time. Generativity conservationists should instead canvass the
overall level of generativity across layers, across devices, and across

  204. See T.D. BROWN JR., C FOR BASIC PROGRAMMERS 77 (1987) (“C pointers can be used
to access arbitrary memory locations.”).
  205. 2010 CWE/SANS Top 25 Most Dangerous Programming Errors, http://cwe.mitre.
org/top25/#CWE-119 (last visited June 6, 2010).
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944                                    MARYLAND LAW REVIEW                 [VOL. 69:910

       1.     Generativity Across Layers

      Zittrain comes close to recognizing the need to look for genera-
tivity across layers with his distinction between generative “tools” and
generative “systems”; he defines “systems” as “sets of tools and prac-
tices that develop among large groups of people.”207 He recognizes
that generativity can vary from part to part or layer to layer in a system.
But his conclusion—“frequently generativity at one layer is the best
recipe for generativity at the layer above”208—is too simplistic. It over-
looks that non-generative and generative systems and layers can be
usefully complementary.
      We think Zittrain focuses too much on one example: Com-
puServe, an early commercial online service. He offers CompuServe
as a cautionary tale,209 proof that non-generativity dampens innova-
tion. CompuServe, however, was non-generative at every technical
layer. It layered a proprietary, restricted software package atop a pro-
prietary, restricted network.210 Users couldn’t create a different com-
puter program that relied on CompuServe’s network for transport,
nor could they build a plug-in to extend CompuServe’s software pack-
age. If CompuServe were the only network or software provider in the
world, we would worry.
      But Zittrain never fully analyzes split-generativity systems, those
with generative layers built upon non-generative layers, or vice-versa.
As we’ve already seen, the Apple II was a split-generative system; it
afforded limited generativity at the solder-microchip level and signifi-
cant generativity at the software level.211 There are many other exam-
ples. The Internet is a generative layer upon which many have built
closed, hard-to-extend systems. Most massively multiplayer online
role-playing games (“MMORPGs”), like World of Warcraft
(“WoW”),212 provide highly dynamic, but generativity-restricted, envi-
ronments.213 The overall combination (WoW running on the In-

   207. ZITTRAIN, supra note 1, at 74.                                                           R
   208. Id.
   209. E.g., id. at 23–25, 29–30.
   210. Id. at 23–25.
   211. See supra text accompanying notes 8, 192.                                                R
   212. See World of Warcraft Community Site, (last vis-
ited June 6, 2010).
   213. In fact, when users tried to gain in-game advantages by creating programs that ran
outside the game, on generative PCs, the MMORPG game designers used both law and
technology to prevent behavior that they disfavored, such as automated gold farming. See
Brian Bergstein & Matt Slagle, With Real Money Now in Play, Game Makers Look to Limit Cheat-
ing, SEATTLE POST-INTELLIGENCER, Oct. 7, 2007 (describing game companies’ efforts to limit
what they described as “cheating”).
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2010]                                       BOOK REVIEW                                945

ternet) is non-generative, but the fact that WoW limits generativity
does nothing to diminish the generativity of the underlying In-
ternet.214 Indeed, part of the point is that the Internet supports both
generative and non-generative applications.
      The dynamic also works in the other direction: Wildly generative
systems can be built atop a non-generative lower layer. Consider the
web. It combines two wonderfully generative technologies, Hypertext
Transfer Protocol (“HTTP”)215 and Hypertext Markup Language
(“HTML”),216 which can be delivered over non-generative transport
layers. Thus, cell phone providers who provide access to HTTP and a
browser to decode HTML but block every other Internet protocol can
still provide an exciting, generative environment. Similarly, one can
read and edit Wikipedia from any cell phone with a good web
browser,217 and the non-generativity of the platform does nothing to
restrict this. Locking down one or more layers doesn’t necessarily
make an overall system non-generative.

       2. Generativity Across Devices

     There’s a horizontal counterpart to vertical generativity across
layers—generativity across devices. Your digital wristwatch is com-
pletely non-generative. The designers of this device chose a set of fea-
tures that they thought users would want to use (although, to be
honest, one of us still can’t get the hang of the lap timer), and they
provide no tools whatsoever to extend or improve it. If you’re worried
by this failure of generativity, you’re missing the forest for the trees.
We should look for generativity across devices, rather than worrying
overmuch about the lack of generativity in any single device. We want
enough people to have sufficient access to sufficiently generative tech-
nology. Don’t complain that a keyboard isn’t generative; connect it to
a computer.

   214. And WoW probably wouldn’t be fun if it were fully generative. Constraint is an
important part of gameplay. See Richard A. Bartle, Virtual Worldliness: What the Imaginary
Asks of the Real, 49 N.Y.L. SCH. L. REV. 19, 23–27 (2005).
   215. See Webopedia, What Is HTTP?,
html (last visited June 6, 2010) (“HTTP defines how messages are formatted and transmit-
ted, and what actions Web servers and browsers should take in response to various
   216. See Webopedia, What Is HTML?,
html (last visited June 6, 2010) (explaining that HTML is “the authoring language used to
create documents on the World Wide Web”).
   217. See Wikipedia: Help—Mobile Access,
(last visited June 15, 2010).
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946                                    MARYLAND LAW REVIEW                  [VOL. 69:910

      Similarly, fretting too much about Apple’s heavy hand in approv-
ing and rejecting applications for the iPhone focuses too narrowly on
one device, because the iPhone has generative competition. At least
five, high-profile, well-funded competitors have developed cell phone
operating systems—Google’s Android, Research In Motion’s
BlackBerryOS, Microsoft’s Windows Mobile, Nokia’s Ovi, and Palm’s
WebOS—that connect to application stores.218 While each company
exercises final say over what apps can appear in the official store,219
some also allow users to download apps through competing, less re-
stricted, more generative channels.220
      In other words, since Zittrain wrote his book, the smartphone
market has become a tournament among different visions of genera-
tivity. Although the iPhone has substantial market share,221 some of
its competitors have been attracting critical buzz. Android in particu-
lar has become a highly credible competitor, as Google rapidly iter-
ates and improves it.222 Aggressive interventions to try to force Apple
to increase the iPhone’s generative potential seem premature, at least
while the iPhone’s generative competitors are making such a strong
showing. A few prominent iPhone app developers have quit their
projects out of frustration with Apple’s heavy hand,223 and if others
follow, Apple will feel pressure to lighten up or risk losing developers
to its competitors. Being serious about generativity requires looking
at system-wide opportunities rather than optimizing individual appli-
cations or devices in isolation.

   218. See John Herrman, Giz Explains: All the Smartphone Mobile App Stores, GIZMODO, Apr.
6, 2009,
(discussing the iPhone’s App Store, Android’s App Market, BlackBerry’s App World, Win-
dows’s Mobile Marketplace, Nokia’s Ovi Store, and Palm’s App Catalog).
   219. Id.
   220. See id. (describing the difference between Apple’s App Store and its competitors’
   221. See Jim Dalrymple, iPhone Triples Android in Mobile Market Share, CNET, June 5, 2010, (reporting that “Apple’s iPhone
OS has more than triple the market share Google’s Android operating system has” and
that Apple is only “second place behind BlackBerry maker Research In Motion”).
   222. Andrew Berg, Froyo Solidifies Android as iPhone Challenger, WIRELESS WK., May 21,
Challenger (explaining that “given that Android has perhaps the first proven competitor
to the iPhone, it’s probably not too much of a long shot to say that Google . . . ha[s]
established a pretty good alternative to Apple’s once untouchable smartphone”).
   223. See Jason Kincaid, Facebook iPhone Dev Quits Project over Apple Tyranny, TECHCRUNCH,
Nov. 11, 2009,
books-massively-popular-iphone-app-quits-the-project (explaining that the developer re-
sponsible for developing the popular Facebook iPhone app quit due to “Apple’s tyrannical
App Store approval policies”).
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       3. Generativity Across Time

      Finally, we should also extend the time horizon for our assess-
ment of the generative ecosystem. The goal is to have enough genera-
tivity, across all of the technology we use, sustained (and sustainable)
over time. Our difference from Zittrain here is more a matter of rhe-
torical emphasis than anything else. He describes the course of gener-
ativity as a single, linear timeline. His “generative pattern” is a story of
birth, growth, overextension, and ultimate enclosure, from generative
birth to appliancized death.224 As he tells it, the story is tragic. All
generative systems are mortal. The most we can do for one is “keep it
alive for another interval.”225
      We’d put the emphasis elsewhere—as a story of potential rebirth.
The whole point of generativity is that generative systems are receptive
to unexpected and valuable new uses. While we agree wholeheartedly
with Zittrain’s emphasis on preserving generativity even in the face of
serious threats, we’d phrase his recommendation as an argument that
policymakers think less about how to maximize generativity now and
more about ensuring that there are ample avenues for experimenta-
tion with new ways of building things and collaborating. Think child-
rearing, not life support.
      That is, the generative pattern is actually a recurring cycle. Even-
tually, the virus and spam writers will catch up, exploiting the residual
generativity in ways that harm people. As they have before, network
and computer architects will lock down their machines, but so long as
they do so with generativity in mind, they won’t foreclose innovation,
just slow it and change it. As long as the ecosystem keeps spawning
new generative things, the old ones can wither and die. It is the circle
of generativity.
      Other parts of Zittrain’s argument implicitly depend on this
longer frame of reference. The procrastination principle embraces
the idea that system designers should avoid making decisions at time
one so that users remain able to make those decisions for themselves
at time two.226 We urge him, as well as the scholars who will follow on

   224. ZITTRAIN, supra note 1, at 99.                                                           R
   225. Id. at 152.
   226. See id. at 31 (“The procrastination principle rests on the assumption that most
problems confronting a network can be solved later or by others. It says that the network
should not be designed to do anything that can be taken care of by its users.”). This point,
if developed further, could provide Zittrain a stronger generativity-based argument against
the iPhone in its current form. Because Apple must approve applications before they can
be downloaded by users, see Apple Answers the FCC’s Questions,
hotnews/apple-answers-fcc-questions (last visited June 6, 2010), its approval process vio-
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948                                    MARYLAND LAW REVIEW                  [VOL. 69:910

the trail that he has blazed, to be more explicit about the temporal
dynamics that affect the uptake of technologies and the regulatory
backlashes against them.

      On the one hand, we’ve made a sweeping claim—that generativ-
ity is the essential characteristic of the Internet for policy purposes.
On the other, we’ve offered a series of modest points—that generativ-
ity is relative, local, and not the only thing that matters. The contrast
may seem disheartening. Was The Future of the Internet for nothing? Is
that all there is to it?
      We think that things aren’t so discouraging. We offer our cau-
tions about generativity because we think it matters. This book pro-
vides the concept to work with; this is the framework that scholars
should push forward. Our corrections around the margins of Zit-
train’s work are meant to smooth the process of applying generativity
theory to the many problems of Internet policy where this theory has
something important to say.
      We see generativity as a powerful new theory of positive liberty for
the Internet.227 Instead of focusing on restraints, limitations, and
technological controls, generativity asks what technology enables peo-
ple to do. Can they remake technologies to make them their own?
Can they use the technologies as platforms for innovation and creativ-
ity? Can they connect with others to share and build further? Genera-
tivity seeks to measure people’s effective capacity to use technologies
in pursuit of their most creative, most social, most human ambitions.
      Seen in this light, our critiques of generativity are merely the ap-
propriate cautions that must attend any theory of positive liberty. Our
warnings that generativity is local and relative, that it is one virtue
among many, and that it must be sustainable across time are merely
echoes of similar themes in the capabilities tradition developed by
Amartya Sen228 and Martha Nussbaum,229 among others. Helping
people achieve their human potential will always be a complex, situa-
tion-dependent job. Generativity’s great accomplishment is to put

lates the procrastination principle. This fact explains why ex ante filtering is worse than ex
post tethering in its consequences for generativity.
(distinguishing “positive” and “negative” liberty).
   228. See generally AMARTYA SEN, DEVELOPMENT AS FREEDOM (2000).
MEMBERSHIP 1, 5 (2006) (using a capabilities approach to resolve problems of social justice
and noting that such an approach must be both responsive to world problems and sustain-
able over time).
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computer and Internet technologies into that complex picture in a
way that succinctly captures their distinctive nature.
     In the end, then, our view of generativity may be less eschatologi-
cal than Zittrain’s. If the job is to keep the Internet “generative
enough” for most people most of the time, then the enterprise is less
fraught and pitched than Zittrain claims. He describes the process of
finding appropriate balance as one of “threading the needle between
needed change and undue closure.”230 Instead, as we understand this
search for balance, generativity is easier to preserve and less likely to
be stamped underfoot by the market’s urge for safer systems. There
will always be room for improvement, but generativity is unlikely to
vanish entirely.
     There’s plenty still wrong with the iPhone. In the summer of
2009, Google accused Apple of lying to the FCC about why it rejected
Google Voice from the App Store.231 There are still apps verging on
the fraudulent, unwarranted copyright and trademark app
takedowns,232 and a data network so overloaded by iPhone usage that
AT&T for many months refused to let iPhone owners use their
iPhones as mobile Internet receivers for their computers.233 The
iPhone universe shows too little generativity in some places and too
much in others.
     But in the three years since the iPhone’s launch, it’s remarkable
how much it has developed in terms of generativity. And it’s not just
the iPhone. Zittrain acknowledges how much computing markets
have favored generativity.234 Because of network effects, innovators
since Wozniak have opted for openness and extensibility. It’s a tech-
industry canard that to succeed, one should try to become a plat-
form,235 and it’s hard to build a platform on a locked-down informa-
tion appliance or web service. People—at least programmers, both
the pros and the amateurs—yearn for generativity, and producers
tend to deliver it. Platform builders also often try to control those
platforms—which gives them a commercial reason to fight generativ-

   230. ZITTRAIN, supra note 1, at 151.                                                            R
   231. See Erica Ogg, Google vs. Apple: Who’s Telling the Truth?, CNET, Sept. 18, 2009, http:/
   232. See supra note 161 and accompanying text.                                                  R
   233. Jenna Wortham, IPhone Overload, N.Y. TIMES, Sept. 3, 2009, at B1.
   234. See ZITTRAIN, supra note 1, at 89 (“[L]ess-generative counterparts to the PC and the       R
Internet—such as stand-alone word processors and proprietary information services—had
far fewer technological offerings, and they stagnated and then failed as generative counter-
parts emerged.”).
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950                                    MARYLAND LAW REVIEW                   [VOL. 69:910

ity in all its fullness—but they can’t avoid it entirely. It’s no accident
that the Firefox web browser, Google’s Android, Facebook, and the
iPhone all include sophisticated plug-in architectures backed by pol-
ished support and training focused on making it easy (and fun!) to
develop apps.236 They may have electronic leashes, but these compa-
nies are all trying to let loose the hounds of generativity.
      The iPhone is not a doomsday device. Even Dr. Generative him-
self should celebrate it for how far it has come and what it might be-
come in the future.

     Call it poetic justice. We tweaked Zittrain for his ironic choice of
the iPhone as his central example—and then suffered the same fate
ourselves. As this Book Review made its way through the editorial pro-
cess, Apple both announced237 and launched238 the iPad, a fully
touch-based tablet computer.239 We think the iPad puts an exclama-
tion point on our argument: Zittrain’s theory of generativity, if
amended to take account of our concerns, provides a powerful intel-
lectual infrastructure for thinking about the future of computing. To
show how, we’ll assess the iPad ecosystem using the analytical frame-
work developed in Part III of this Review.
     Other Values: The iPad, like the iPhone, is a tethered device that
can only run Apple-approved applications.240 As of press time, Apple
was embarrassedly back-pedaling away241 from its previous rejection of
Pulitzer Prize-winner Mark Fiore’s political cartoon app on the
ground that it “contains content that ridicules public figures.”242 In
his words, “[W]hat about someone who hasn’t won a Pulitzer and who

   236. See Add-on Developer Hub: Add-ons for Firefox,
US/developers (last visited June 6, 2010); Android Developers: The Developer’s Guide, (last visited June 6, 2010); Facebook Developers, (last visited June 6, 2010); iPhone Developer Program, (last visited June 6, 2010).
   237. See Brad Stone, With Its Tablet, Apple Blurs Line Between Devices, N.Y. TIMES, Jan. 28,
2010, at A1.
   238. See Brad Stone, Across the Country, Fans Gather for iPad, N.Y. TIMES, Apr. 4, 2010, at
   239. Apple: iPad, (last visited June 6, 2010) (boasting that
users can access websites, e-mail, photos, and movies via a multi-touch screen).
   240. See id. (noting that iPads can run nearly all of the apps created for the iPhone).
   241. See Brian Stelter, A Pulitzer Winner Gets Apple’s Reconsideration, N.Y. TIMES, Apr. 17,
2010, at C3.
   242. Laura McGann, Mark Fiore Can Win a Pulitzer Prize, But He Can’t Get His iPhone Car-
toon App Past Apple’s Satire Police, NIEMAN JOURNALISM LAB, Apr. 15, 2010, http://www.
toon-app-past-apples-satire-police (internal quotation marks omitted).
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is maybe making a better political app than mine?”243 That’s a ques-
tion about free speech and democracy, not just generativity.
     The iPad also has something of a class problem. As Quinn Nor-
ton observes:
       I’m known among my friends for generally having less
       money than they do, for living hand to mouth, and for hav-
       ing thoughtful critiques of the American Poverty Trap, but
       from the inside. . . . [S]ometimes my social group kind of
       goes crazy and forgets that while they have a lot of power, my
       class is a whole lot bigger than theirs. And none of them will
       be buying iPads.244
      The day-to-day experience of the poor, online and offline, is
dominated by concerns that have very little to do with generativity, a
point you should repeat to yourself if you’re ever tempted to make
generativity the only thing you care about.245
      Generative Enough Is Good Enough: The iPad shares many signifi-
cantly generative features with the iPhone, notwithstanding com-
plaints from some commentators.246 Apple’s groundbreaking multi-
touch technology, extensive APIs, and relentless focus on effective de-
sign turn the iPad into the new “blank slate”247—a highly adaptable
technology that, unlike the old blank slate, is also highly leveraging.
The App Store adds transferability, and Apple has made heroic efforts
to enable ease of mastery. And while the iPad may be a luxury item,
its $499 entry-level price tag was still low enough to surprise most ana-
lysts and scare the manufacturers of what used to be bargain-basement
laptops.248 The iPad, in other words, puts in a highly credible per-
formance on all five of Zittrain’s axes of generativity.
      Generativity Across Layers, Devices, and Time: The iPad is sealed shut
at the hardware layer, and Apple rigorously controls much of its

   243. Stelter, supra note 241 (internal quotation marks omitted).                              R
   244. Quinn Norton, Why I Won’t Be Buying an iPad, and Why It Doesn’t Matter as Much as
You Think It Does, QUINN SAID, Apr. 2, 2010,
   245. Norton adds: “Also, the iPad seriously looks like thief bait. We’re not idiots, we
know what our drunk uncles are going to do with it if we come home with one.” Id.
   246. See, e.g., Cory Doctorow, Why I Won’t Buy an iPad (and Think You Shouldn’t, Either),
BOINGBOING, Apr. 2, 2010,
and-think-you-shouldnt-either.html (“If you want to write code for a platform where the
only thing that determines whether you’re going to succeed with it is whether your audi-
ence loves it, the iPad isn’t for you.”).
   247. Adam C. Engst, Why the iPad Is a Blank Slate, and Why That’s Important, TIDBITS, Apr.
5, 2010, (“[T]he iPad becomes the app you’re using.”).
   248. See Posting of Jack Schofield to Guardian Technology Blog, (Jan. 29, 2010, 14:15
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952                                    MARYLAND LAW REVIEW                  [VOL. 69:910

software stack.249 But once you get to the application layer, the profu-
sion of highly innovative apps makes it obvious that the iPad is not a
single-purpose appliance.250 In fact, because one of the built-in appli-
cations is Safari,251 the iPad also gives users unfettered access to the
web, in all its crude and generative glory—a point Apple has empha-
sized in its iPhone advertising.252
     As for devices, the iPad’s size means that it can compete with
PCs—particularly the market category currently known as
“netbooks”253—in a way that the pint-sized iPhone never could.254
Users who traded up to the iPhone from non-generative phones could
well trade down to the iPad from generative PCs. That said, however,
the iPad still presumes that you own a regular computer and regularly
sync your iPad to it—this is a supplement to your PC, not a replace-
ment for it.255
     And across time, everything we said about the iPhone remains
true; Apple has a reasonable defense, in Zittrainian terms, that its iPad
compromises are actually healthy interventions to make generativity
sustainable. Even Apple’s implacable hostility to allowing Adobe’s
Flash Player to run on the iPad256 is arguably a longer-term investment
in generative values: Apple wants programmers to learn how to write
programs that take advantage of the iPad’s new and distinctive

  249. See Doctorow, supra note 246.                                                             R
  250. See John Herrman, Gizmodo’s Essential iPad Apps, GIZMODO, Apr. 1, 2010, http:// (listing various iPad apps).
  251. Apple: iPad, Features, (last visited June 6,
  252. See iPhone new ad 4th: Watered Down,
FmVIp8 (last visited June 6, 2010) (“This is not a watered-down version of the Internet, or
the mobile version of the Internet, or the kinda-sorta-looks-like-the-Internet Internet, it’s
just . . . the Internet. On your phone.”).
  253. See Adam Ostrow, iPad Brings the Growth of Netbooks to a Halt, MASHABLE, May 6, 2010, (explaining that with the launch
of the iPad, netbooks are “seeing a sales slump”); see also Webopedia, What Is Netbook?, (last visited June 15, 2010) (defining
a “netbook” as “a small portable computing device, similar to a notebook” but with “a
smaller form factor” and “more limited features”).
  254. See Jonathan Zittrain, A Fight over Freedom at Apple’s Core, FIN. TIMES, Feb. 3, 2010,,s01=1.html.
  255. See John Gruber, The iPad, DARING FIREBALL, Apr. 7, 2010, http://daringfireball.
  256. See John Naughton, Apple’s iPad War on Adobe and Flash, OBSERVER, Apr. 18, 2010,
  257. See The Progress of the Platform,
platform (last visited June 6, 2010) (“[Apple has] created a whole set of user interface
metaphors that are supposed to be standard and system-wide, and they want developers to
do things the new way not because Apple just loves power, but because they believe it’s
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2010]                                       BOOK REVIEW                                     953

     The iPad may raise some concerns about generativity in the long
run in a more indirect way, however. For one thing, Apple’s contin-
ued inability to make the App Store approval process rational or trans-
parent may eventually cast a pall over developers—making them
fearful and less willing to invest in innovation atop the iPad.258 For
another, even if fully tinkerable computers remain broadly available
(as we expect they will), the rise of the iPad could shut down some of
the avenues by which amateurs become interested in programming.259
One of the most telling of recent App Store rejections was Scratch, “a
well-regarded runtime geared toward allowing kids to create their own
simple games and animations.”260
     All in all, then, we’re as optimistic about the iPad as we are about
the iPhone, and think Zittrain should be, too. He ought to be weep-
ing with joy that Apple hasn’t just invented a new user-interface para-
digm for computing but is actively teaching developers how to take
full advantage of it to make new and amazing things. That sure
sounds like generativity to us.261 So while we may not share Zittrain’s
pessimism about the iPad, we think that it illustrates, yet again, the
importance of his basic insights. Zittrain’s ideas have already shaped
the extensive public debate over the iPad;262 we hope he’ll stay on the

necessary to force developers to think about the new world of touch-based computing cor-
rectly. All of this in service of giving users who are taking their first steps into touch-based
computing a great experience.”).
   258. See John Gruber, It’s Not the Control, It’s the Secrecy, DARING FIREBALL, Apr. 16, 2010, (arguing that by conceal-
ing the rules for the types of applications that the App Store will accept, “what Apple is
losing are iPhone OS apps that aren’t being made in the first place by developers who
aren’t willing to take their chances”); John Siracusa, Apple’s Wager, ARS TECHNICA, Apr. 12,
2010, (arguing that “Ap-
ple’s decisions regarding its mobile platform in particular have been extremely protective
from the very start” and that the company’s policies are angering developers).
   259. See Dale Dougherty, The iPad Needs its HyperCard, O’REILLY RADAR, Mar. 29, 2010,
   260. See John Gruber, App Store Rejection of the Week, Runner-Up: Scratch, DARING FIREBALL,
Apr. 16, 2010,
   261. See, e.g., Xeni Jardin, Review: Apple’s iPad Is a Touch of Genius, BOINGBOING, Mar. 31,
2010, (“Maybe the most
exciting thing about iPad is the apps that aren’t here yet. The book-film-game hybrid
someone will bust out in a year, redefining the experience of each, and suggesting some
new nouns and verbs in the process.”).
   262. See, e.g., Steven Johnson, Rethinking a Gospel of the Web, N.Y. TIMES, Apr. 11, 2010, at
BU1 (mentioning Zittrain); Ed Felten, iPad: The Disneyland of Computers, FREEDOM TO
TINKER, Apr. 8, 2010,
computers (raising Zittrainian themes); Tim Wu, The Apple Two, SLATE, Apr. 6, 2010, http:/
/ (mentioning Zittrain and his appliancization thesis in the first