We sometimes hear people say that BitTorrent as a technology is only good for infringement. We know that's not true, but then people will point to examples of how frequently it's used for infringement. Of course, that's meaningless when you look at both the larger picture and the nature of trends. When new distribution technologies are introduced, it's not surprising that they're used that way because there's so little legitimate activity on the system. But that changes over time. Remember, when the VCR first came about, nearly all activity on it was described as "infringing" by some, because there was no legitimate content being offered. However, obviously, over time that changed and more and more legitimate content was offered.

Over the years, we've certainly seen an increase in content being offered via BitTorrent, but today there's a big addition: the Internet Archive has enabled over one million torrents of books, music and movies from its collection.

The Internet Archive is now offering over 1,000,000 torrents including our live music concerts, the Prelinger movie collection, the librivox audio book collection, feature films, old time radio, lots and lots of books, and all new uploads from our patrons into Community collections (with more to follow).

And while some ignorant organizations may declare that the Internet Archive is a "rogue site," I think most people recognize that it's a wonderful repository of all sorts of legal content, much of which is now available using the rather efficient distribution technology BitTorrent.

The technology used behind the scenes at the Olympics is getting better all the time. It's not an easy task to measure people moving with extreme accuracy, but it can be done. There are some other tasks that aren't so easy to do as well, and the judges are relying on robots and lasers to get these jobs done. Here are just a few examples of more technology creeping into the games.

• The speed of sound is apparently too slow for the Olympics now, so the starting pistols have been replaced by electronic beeps. Perhaps there shouldn't be a starting pistol at all, and the judges should simply measure when the athletes start and finish? [url]
• Robotic cameras are catching more action at the Olympics. Not too surprising that cameramen can't run alongside Olympic athletes and keep up.... [url]
• The modern pentathlon is using laser pistols instead of real guns this year. No sound effects like "pew pew pew!" will be tolerated from the audience. [url]
• While the testing for performance enhancing drugs has generated some controversy, the testing of athlete gender seems a bit trickier to handle. Does a person with XXY compete in the male or female events? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

As you hopefully remember, the Techdirt "book of the month" for July was Rob Reid's Year Zero, the sci-fi novel about aliens realizing they owe the earth all the money in the universe because they've been infringing US copyright law while listening to all of our music (which they love). We published an excerpt here. For the last few books, we've held text chats via CoverItLive, but with Rob, we're going to try something different. On Thursday, at 12:30pm PT/3:30pm ET, we'll be broadcasting a live video chat (via Google's "Hangouts on Air" and YouTube) between myself and Rob (he'll be live at Techdirt's offices). I'll have a bunch of questions for him, but we'll also be taking questions online, which you can submit via Twitter during the chat, using the hashtag #yearzero, which we'll be monitoring. You'll also be able to submit questions via Google Plus. As with the text chat, this will be an experiment, so we'll see how it goes.

We also wanted to announce the August book of the month, which is No Safe Harbor, a collection of essays, on a variety of topics that we cover here on Techdirt, put together by the US Pirate Party. You can buy the book at Amazon or (of course) download it from the link above in pretty much every format imaginable. We'll be talking to Andrew "K'Tetch" Norton, who put the book together late in August or early in September.

We've written about the ridiculousness of the ongoing auction over Kodak's patents -- the final sad legacy for the once giant company. However, it's getting even more ridiculous. On Monday, a bankruptcy court judge approved about $6 million in "performance" bonuses for execs, including some that are based on how much the company gets from these auctions. Think about the ridiculous incentive structure here. You have executives who are running a bankrupt company, who are set to make millions (in a court approved manner), for handing off the company's patents to trolls, so they can go out and sue the actual innovators.

The execs make out like bandits. The buyers likely make out like bandits after shaking down some companies. The lawyers (of course) make out like bandits. And... who gets screwed? Oh yeah, the companies who are actually innovating successfully in the market and the public (who we thought the patent system was supposed to benefit).

Techdirt has dealt a great deal with how artists and companies should be connecting with their fans and customers and how an active community can increase the brand. We've also discussed the value of comments and commentors on websites and what they can mean for discussion and for business. But now, thanks to an Australian advertising watch group, we're presented with a question that intersects between the two: should a business community's comments be considered advertising?

The Australian details the story of how the Advertising Standards Bureau is releasing a report attacking Carlton & United Breweries over comments users posted to their Facebook pages. Like many companies, they have a presence on social media with which they engage their customers and ask deep, contemplating questions like "What's the next essential needed for a great Australia Day BBQ?" Personally, I would've answered with something involving marsupial-racing, but, in a turn of events nobody except everybody could have predicted, some user comments were what expert socialogists call "dick-ish." The ASB decided that these abhorrent comments qualified as the brewery's advertising:

"In a copy of the report obtained by Media, the ASB said comments left by people on the social network site constituted advertising, even though the company had not posted them.

The complaint to the ASB claimed that the Facebook page breached alcohol advertising guidelines by connecting alcohol with social or sexual prowess and promoted irresponsible drinking and excessive consumption."

Perhaps the folks at the ASB had had one too many Foster's, because in my dictionary the definition of advertising involves the company calling attention to a product or service in the hopes of gaining more customers. I'm not sure how user comments on a Facebook page fit that definition, but then again, I'm not insane. It'd be bad enough if this was some regular occurrence left completely unchecked by the brewery, but all along they had been checking the page twice a day to remove inappropriate comments. They were already self-policing, but the ASB still felt compelled to assign ownership of user comments to the brewery.

The concern, of course, is the way this is going to stifle brands jumping into social media. As we've discussed here many times in the past, the basic safe harbor protections from secondary liability are a large part of what makes the internet work. If the brewery is responsible for user comments to the degree that the ASB seems to be indicating, the liability and staff required to monitor comments won't be worth the exposure, and brands and fans alike will lose a valuable way to connect with one another.

""It would be unduly onerous on alcohol beverage producers and indeed any company participating in this medium to interpret the code as including user comments on Facebook pages as falling within the scope of 'advertising or marketing communications', since CUB does not have a reasonable degree of control over them," the company said."

And that results in the very antithesis of connecting with your fans/customers. Overly restrictive advertising regulations like this can only stifle business, all in the apparent attempt to pretend that some people aren't jerks. Let's hope that the ASB's report is struck down.

Nothing seems to piss off institutions more than efficiency, especially efficiency that routes around the "damage" endemic to the system. Institutions of higher learning are no exception, as UCF student Tim Arnold found out when he tried to make registration more convenient for other students. Instead of being praised for his efforts, Arnold found himself staring down the barrel of academic probation, courtesy of the displaced gatekeepers at UCF.

Arnold set up a website (called U Could Finish) which alerted students when seats opened up in classes they wished to attend. (The site name is a play on "U Can't Finish," a less-than-affectionate acronym bestowed on the University of Central Florida for its years of over-enrollment.) Signing up for the service allowed students to place themselves in queues for open seats. Once a seat opened, any students desiring this spot were alerted with a text message and could log in to UCF's student portal to claim it.

However, a week after Arnold offered this service to students, UCF shut down his access to its site. Arnold was notified (after the shutdown) that he had violated UCF policies on technology use. The violations included using university tools to make money (Arnold had charged for access based on search frequency and had managed to take in nearly $8 by the time his access was shut off) and "disrupting normal technology use."

UCF claims Arnold's program accessed the public side of its site "over 200,000 times" from December to June, with a spike in May and June (development restart and fall registration). This additional access was termed by the university as being equivalent of a denial-of-service attack, which could "affect the entire search system for all users."

Arnold denied his site stressed UCF's system to the extent it claims:

But Mr. Arnold said that his own data do not support the numbers Mr. Hartman provided. His logs show that U Could Finish interacted with the university’s server much less frequently.

"Even if I were to access the server that frequently, that shouldn’t be a problem over that long of a frequency of time," he said. "The UCF servers handle 15,000 requests a day, I don’t believe I could cause it to slow down."

There's also the matter of how the shutdown was handled. Arnold feels that his treatment has been more severe and punitive than similar situations in the past. Previously, a student had tried to create a similar tool and was sent a cease-and-desist e-mail. There were no hearings or sanctions.

"In my case, I didn’t hear any information about there being any issue for seven days, and when I did, it was from Student Conduct itself," he said. "So, these two cases were handled extremely differently, even though they were very similar in the way the apps functioned."

Mr. Arnold attended a hearing on July 24, and was sanctioned on July 27. He plans to appeal his sanctions, which also require him to write two papers and prevent him from holding student office.

"I just feel that the actions they did were very extreme considering my intent was to help students and not to intentionally subvert the rules," he said.

The terms of his punishment are heavy-handed and nothing short of ridiculous. Arnold has been placed on disciplinary probation through the spring semester of 2013. In addition, he is required to type up two research papers: one on how he would update the MyUCF software for the university and one on what he learned from a one-on-one coaching session with the Office of Integrity and Ethical Development. The first paper has the asinine requirement that he not use it to "justify his actions, nor evaluate the actions of others." The second paper he gets to pay for -- a $15 fee is required for "coaching sessions."

Beyond the vindictive stupidity of the penalties is the pure stupidity of the situation. UCF's software already has the functionality U Could Finish added. For whatever reason, it's not enabled. There's no denying that Arnold broke school policy when he charged students usage fees, but any other argument doesn't wash. The function is present in the software. UCF doesn't use it. Despite its obvious usefulness to students, especially in a school known for over-enrollment, UCF has apparently decided that it's unnecessary.

Not that UCF seems to know (or care) what might be of use to its students. In Arnold's presentation to the Student Conduct board, he points out an earlier app he created, free-of-charge, for the student body. This app delivered constantly updated numbers on garage capacity to help students find open parking. Here's how the administration responded:

"Students wouldn't find it useful."

Without even seeing the poll results, anyone who's attended a major university knows this simply isn't true. It's the sort of brush-off statement delivered by someone who has an assigned parking space. Now, here's what students actually thought: The obtuseness and hypocrisy of the university is astounding. The administration all but comes out and says, "Screw the students. They can use our clunky, nearly-useless software and like it. After all, they're paying for it." And as for Arnold's monetization of a useful service? How many goods or services does the university charge for? Fees for labs. Fees for the library. Transcript fees. And, of course, this is over and above thousands of dollars per semester and hundreds of dollars worth of books, all paid for by the students.

UCF seems to be going out of its way to make an example out of the guy who made its system actually usable. God knows what the administration's motivation is. All it's actually going to do is project an image of ivory-tower insulation that won't be easy to shed.

With the Cybersecurity Act failing in the Senate, there's been some buzz that President Obama might push through a bunch of provisions via executive order. From a political standpoint, there are tons of reasons to do so. If nothing gets done, and some sort of attack does happen, opponents can claim that he failed to strengthen our cybersecurity. But this way, he can claim he's doing what he can, and pin the blame on Congress for not doing their part.

But what would it mean if he goes down this route? The Daily Caller has a hysterical and totally misleading piece claiming that this would allow for an "internet takeover." As skeptical as I am for the need for such cybersecurity legislation (and I'm pretty skeptical), that article is just pure hyperbole. This has nothing to do with "taking over the internet," and that's just someone who's lying or clueless.

The original link above, from The Hill, points out that, when it comes to industries that are already regulated, the administration could easily order them to include certain cybersecurity standards among their existing regulations:

Many companies managing vital computer systems are already heavily regulated. Lewis said the president could order agencies to require the industries they regulate to meet cybersecurity standards.

"You don't need new legislative authority to do that," Lewis said.

He noted that some regulatory agencies, including the Federal Communications Commission and the Nuclear Regulatory Commission, are independent and not bound to follow executive orders. But Lewis predicted that even the independent agencies would likely enforce an executive order on cybersecurity.

That likely would lead to some pushback concerning the limits of regulatory control, but if it actually solves the few problems we hear about (such as critical systems being connected to the internet) then perhaps it's a more reasonable way to deal with things.

The other part of the bill, which was the part that concerned us the most, concerning information sharing, would be much more difficult to go after via an executive order. Stewart Baker has an interesting analysis of the possibility there, and he comes at it from someone who is... well, more hostile towards those of us who believe that privacy rights are important. He's been railing against privacy rights activists and their attacks on the cybersecurity proposals for a while, and doing so in misleading and incomplete ways, unfortunately. He does the same here, suggesting that privacy lobbyists are a part of the problem, while completely misrepresenting their concerns, even to the point of suggesting that privacy activists don't want to allow info sharing because sharing attack info reveals "personal info of the attacker." That's silly. No one has ever argued for that, and Baker is setting up a strawman.

However, he does note ways in which the administration can at least clarify intent via executive order to get around these claimed limitations (which I'm not convinced are actual limitations, as he describes them):

It is hard to fix bad laws with an executive order, but in this case I’m not sure it can’t be done. States with two-party laws are a minority already (about a dozen states, depending on how you count), and their laws are under pressure in the courts (thanks to police officers claiming that it’s a felony for members of the public to record them without their consent). What’s more, despite claims about their chilling effect on signature filtering, two-party-consent laws don’t seem to have stopped the emergence of robust spam filtering by private companies. A clear presidential statement that allowing such laws to bar signature filtering threatens national security would almost certainly resolve any lingering doubts, especially if it’s backed by an order that the Justice Department intervene as necessary in private state suits that challenge signature filtering.

All that’s left then is the federal ban on unsubpoenaed information sharing, and even it might yield to a little creativity. Not everyone is subject to the ban. So can the parties who are covered by the restriction (ISPs, webmail providers) simply share their data with parties who aren’t covered (security firms)? And can the security firms in turn sell their data to government? Maybe so. Again, a clear presidential statement that such a measure is essential for national security would make the courts think twice before declaring that Tinker-to-Evers-to-Chance is simply an evasion of the ban on Tinker sharing with Chance.

However, he also notes that Obama might not want to "tussle" with privacy groups and so this section may get ignored. While I agree that there are some privacy extremists who set forth proposals that go way too far, I think many of the people who were concerned about the cybersecurity bill over privacy issues wouldn't necessarily be against very narrowly defined rules on information sharing, though it still seems unclear how much any existing law is really holding back info sharing for the purpose of cybersecurity. Passing data through third parties, of course, is a lot more controversial, depending on the controls and oversight involved. But, again, it's still unclear how big of a problem this really is.

Either way, it wouldn't surprise me to see some sort of use of Executive Orders here, but the limits on those would hopefully limit most of the really bad stuff found in the bill proposals.

As lots of publications are reporting, over in New Zealand, Kim Dotcom took the stand to testify about how the police treated him during the raid on his home as part of the international effort to seize and shut down everything related to Dotcom and Megaupload. I have no idea if the claims he makes of being kicked and punched and the like are accurate. I'm sure his detractors will question how trustworthy the testimony is. Frankly, I have no idea how accurate it is.

But here's the thing that I find most interesting. Buried all the way at the end of the Stuff article linked above is the following line:

The Crown is seeking for all images and CCTV footage from the raids to be suppressed.

To me, that seems like a point that should be made up top. If Dotcom is being inaccurate in his descriptions, then wouldn't showing the video and images that prove him wrong basically destroy all of his credibility and help the government with their case? The fact that they're trying to suppress that very evidence certainly lends credence to his claims, and (at the same time) calls into serious question the conduct of law enforcement during the raid.

Hadopi, the French 3-strikes program that was "the model" for what the recording industry to push around the world -- trying to get countries to force ISPs to kick people offline after three accusations (not convictions) of unauthorized file sharing -- was one of Nicolas' Sarkozy's key programs. During the recent elections, his competitors certainly hinted that they were less impressed by Hadopi, and now that the Francois Hollande administration is in control, it seems that drastically cutting back Hadopi is in the cards. The new culture minister, Aurelie Filippetti, has made it clear that she is not impressed by Hadopi, arguing that it's a huge waste of money for the government, and is on the chopping block as far as funding goes. Furthermore, she thinks the basis of the program, kicking people offline, goes way too far.

“In financial terms, 12 million euros a year and 60 officers, it’s an expensive way to send a million e-mails.... As part of budgetary efforts, I will ask that funding of Hadopi is greatly reduced.”

Furthermore, she noted that kicking people offline seems "a disproportionate sanction," with little evidence that it supports "the end goal." What's that goal? To increase legal access. As we've noted in the past, while Hadopi tried to declare success, the data shows no increase in sales, which certainly suggests a failure.

What happens next will be worth watching. Some suspect that the government won't actually kill off Hadopi, because it's dependent on support from the local entertainment industry. But that may be the least of its concerns. If France actually scales back or scraps Hadopi, expect the legacy US entertainment industry to go absolutely crazy, followed by "diplomatic pressure" from the US, and ridiculous claims that France "doesn't respect" culture and the like. We've seen it before in places like Spain, Sweden, Canada and Israel when those countries put in place copyright regimes that the legacy players didn't like, and it wouldn't be surprising to see the same thing happen in France.

As the Authors Guild and Google fight for summary judgment in the case over the legality of its book scanning, the authors have asked for $750 per book. As I write this, their actual filing is not available yet, though I imagine it will be soon and I'll add it here. On the face of it, $750 per book is insanity. I doubt anyone at all thinks that $750 per book scanned is a "reasonable" number. However, in some ways, the Authors Guild is probably thinking that it's being generous in suggesting such a deal. After all, $750 is the minimum statutory damage amount for infringement. Thus, it can rationalize this as saying it's actually asking for the minimum under the law, when it could seek as much as $150,000 per work.

But, really, all this is doing is highlighting the insanity of statutory damages in copyright law, which have no connection to reality. Even at this "low end" of the scale, the amounts would clearly make it cost prohibitive for Google to scan any more books, and that would be a shame.

In fact, on its side of the legal fight, Google is arguing that the authors have completely failed to prove any harm, while making the argument that the scanning project is fair use. Basically, Google points out that it's creating an index of everything in the books, not acting as a substitute for the books. Thus, the purpose serves to make useful information more widely available (which likely can increase the demand for the books, by helping users find new books). Not surprisingly, I find the arguments in favor of fair use compelling (and have been saying so for many years -- so much so that I was disappointed when Google first tried to settle this case, rather than standing behind its fair use claims).

While, in the end, it's likely that the case will depend on the fair use ruling, it should also be seen as a case that highlights the insanity of statutory licenses in copyright law. There is no doubt that Google's book search is a useful tool that helps expand access to knowledge. The idea that such a thing could only be created with an additional $750 per book scanned being sent back to the copyright holder, seems ridiculous -- but it's a factor of a broken copyright system that has such out of touch and out of proportion statutory damages.

Update: Of course, just about the time we posted this, the news came out that Gibson has decided to settle, though it still mainstains it did nothing wrong. It got off by having to pay $350,000 and by forfeiting the confiscated wood, which it notes is much less onerous than fighting this through. So this story is now done, but the original post below still highlights the ridiculous situations that Gibson was put in, and which many others could easily end up in.

It's been close to a year since the Justice Department raided Gibson Guitars for using "illegal wood" on the fingerboards. You'd think something like "illegal wood" wouldn't require the use of the term "raid," or the services of 30 agents with guns and bulletproof vests, but hey, welcome to America. The raid was authorized under the Lacey Act, an act whose original use was to curb poaching of illegal species, but soon spread (as these things do) to cover the importing other wildlife and plants.

The fun thing about the law is that staying in compliance requires knowing not only the particular details of over 200 other countries' laws, but also a bit of mind-reading in order to suss out how the federal government will interpret each one of these laws. Put it all together and you've got Gibson's situation, which is detailed in a post for the Wall Street Journal (gated) but also helpfully detailed at Cato's new National Police Misconduct Reporting Project. The first indication that this raid was a complete abortion of justice is the fact that the wood Gibson used had made it into the country without being seized:

The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC's rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Custom allowed the shipment to pass through America's border and to our factories.

Having made it through the safeguards that were set up to stop illegal imports, one would think that the material was cleared for use. But this sort of clear thinking fails to take into account that every law is somehow still open to multiple interpretations:

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren't finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

Seizure laws are incredibly popular with everyone from large government agencies to small town police departments and having 4,000 federal criminal offenses on the books makes it very simple for law enforcers to find inadvertent or unwitting criminals and inflict damage on them through seizures and imprisonment. Any avenue that looks as if it may provide agencies like this with more power and control is generally explored to its fullest.

This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this “overcriminalization.” I call it a job killer.

Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.

That is exactly where the system is now. Criminal intent is no longer factored in to the equation. The old chestnut, "Ignorance of the law is no excuse," is actually a completely valid excuse. 4,000 federal criminal offenses on the books means that heavier sentences and fines are levied against criminals who in the past would have been subject to less harsh civil and/or local judgments. Add to that 40,000 new state laws introduced in 2012 alone, and you've got the perfect recipe for government overreach and thousands of chances to be hauled into court to attempt to prove a negative.

Cato's Tim Lynch pointed out the absurdity of the current situation during an address to the House Subcommittee on Crime, Terrorism and Homeland Security:

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse." That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."

It is absurd and unjust for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws — but it should also shield unwary Americans from all of the laws and regulations as well.

Gibson Guitars had every reason to presume the wood it was using was perfectly legal. The company had taken great care to stay within the confines of the laws as it understood them. Instead of being given the benefit of a doubt when the issue of legality arose (and after the wood had already cleared Customs), the company was raided as though it were cranking out black market explosives rather than ordinary, harmless guitars. Gibson always has the option to sue but the odds of getting this case to be heard, much less winning it, are low. Even with higher odds, the time and expense would far outweigh the losses sustained by Gibson at the hand of the federal government.

This leaves companies like Gibson in the unenviable position of putting even more time and money into compliance, rather than innovation, expansion or outside investments. In today's economy, the private sector really can't afford another "job killer," especially one they have to pay for out of their own pockets.

As more and more artists and entertainers come to understand that the old gatekeepers of culture are finding themselves without any gates to keep, the opportunities continue to expand. Such is the story of Zach Anner, a comedian who briefly had a show on Oprah's OWN network. Anner was born with cerebral palsy and uses a wheelchair to get around. His show, which involved him traveling around the country experiencing different locations and interacting with people, won an OWN network contest largely due to the Reddit community's votes. Where the story used to end was in the show's cancellation after only six episodes.

But that's not how it works anymore. Good News has the story of Anner's using the same Reddit community that voted for him the first time around to resurrect his show for release on YouTube.

 

What's more, Anner is going in hard connecting with his fans. The show's tagline is "Do you have an Internet? Then you can be part of it!" 

"Anner and Reddit co-founder Alexis Ohanian developed a plan to use the site to make Riding Shotgun a much more participatory endeavor than other shows. Last month, Reddit users helped Anner select the cities the series will visit. Now Anner’s using his official Subreddit to collect ideas of what to do in each city. He’s even using Reddit to crowdfund gas for the road."

The end result is Riding Shotgun will continue to be made and his fans will get to be directly involved and invested. So, we have an example of the old gatekeepers failing to keep a show available, while a new model for the business of a television show is succeeding. We'll have to see how this works out long term, but it's heartening when the internet helps culture win out in the end.

A couple of years ago, we highlighted a story that asked the question, "What if Microsoft Had To Approve Every App On Windows?" At the time, this was a purely hypothetical experiment to highlight some of the weaknesses inherent in a closed platform such as the iPhone. Little did we know at the time, such a scenario might be coming to pass. Microsoft has been talking up its latest operating system, Windows 8, for a while now trying to drum up excitement for its bold new look and direction. Yet, some game developers are taking a step back and looking at the broader direction Windows seems to be going here.

Gabe Newell is one of those developers. In an interview at the Casual Connect conference, he questioned the move to a more closed ecosystem for Windows 8.

In order for innovation to happen, a bunch of things that aren’t happening on closed platforms need to occur. Valve wouldn’t exist today without the PC, or Epic, or Zynga, or Google. They all wouldn’t have existed without the openness of the platform. There’s a strong tempation to close the platform, because they look at what they can accomplish when they limit the competitors’ access to the platform, and they say ‘That’s really exciting.’

We are looking at the platform and saying, ‘We’ve been a free rider, and we’ve been able to benefit from everything that went into PCs and the Internet, and we have to continue to figure out how there will be open platforms.’

Here Gabe states that many game companies, not just Valve, would not be in existence were it not for the openness of Windows in the past. Now that this openness is threatened, his company is looking at alternative operating systems. This is one of the drivers behind Valve's recent push toward Linux compatibility.

The big problem that is holding back Linux is games. People don’t realize how critical games are in driving consumer purchasing behavior.

We want to make it as easy as possible for the 2,500 games on Steam to run on Linux as well. It’s a hedging strategy. I think Windows 8 is a catastrophe for everyone in the PC space. I think we’ll lose some of the top-tier PC/OEMs, who will exit the market. I think margins will be destroyed for a bunch of people. If that’s true, then it will be good to have alternatives to hedge against that eventuality.

If you think about it, he is right. Take a look at the original marketplace for iPhone applications. When the iPhone App Store was released, it was a closed platform. If you weren't approved by Apple you couldn't release your app or game on it. Even with the presence of web apps and alternative app distribution through jailbreaking, the system remains essentially closed for the majority of iPhone users who are not aware of or don't want to go through the trouble of using these alternative distribution channels. Can you imagine what the overall impact would be for something as widely adopted as Windows? Going back to that hypothetical question posted above, would Microsoft have approved Steam for release knowing it would compete directly with its own Games For Windows Live service?

Since Gabe raised this point, a couple of other developers have echoed his sentiment. In a tweet responding to Gabe's "catastrophe" comment, Blizzard's Rob Pardo stated, "not awesome for Blizzard either." Rob later clarified the statement by tweeting, "Yeah... more trying to say that if everything comes to pass that Gabe said it wouldn't be very good for us either."

Next during a Reddit AMA, Notch responded to a question about the future of indie game development with the following:

I hope we can keep a lot of open and free platforms around. If Microsoft decides to lock down Windows 8, it would be very very bad for Indie games and competition in general.

If we can keep open platforms around, there's going to be a lot of very interesting games in ten years, mixed in with the huge AAA games that we all love.

So not only is having a viable open platform ideal for large game companies such as Valve, but also the budding developers such as what Notch once was. If Windows were to close off in the same way that Apple has closed off the iPhone, many developers of not just games but other software may not be able to survive on the platform. Just as Valve is looking at moving to other platforms, those developers will follow suit. As more developers of games and software shift from Windows to other platforms, their users will potentially shift was well.

It will certainly be interesting to see where Microsoft takes Windows 8 in this regard. Is it willing to take a path so diametrically opposed to its own history and the growing desire of the public for more open platforms? As independent artists and developers continue producing and distributing their work outside gated pathways, can such a change be a viable business option?