“The systems of control established by the policies of content

industries, technology industries and government, and their

implications for technological neutrality, intellectual property, and
the ethics of user innovation in the digital age”

Vivien Lo
#301022133
BUS 338 – Managing Technological Innovation
Instructor: Dr. Jan Kietzmann
Term: Spring 2008
Executive Summary

Technologies are tools that we use to better achieve certain ends that we would otherwise
not be able to achieve naturally. When we design our own tools, we have the freedom to design
into them the forms and functions that we need and would enjoy. However, with the immense
intricacy of information technology, information systems and other electronic devices we use in
our daily lives, our power to decide the functions and attributes we require in a technology
product is no longer in our hands, because although technology itself is neutral, the designers and
owners of the rights to the technology are not. All we are expected to do is to choose those
technologies that best suit our needs, from a selection of technologies that is determined by
industries and the bounds of the law. Despite this, in contemporary times, with the wealth of
knowledge, information, and know-how that is distributed through new media, users have
become empowered with the skills and aptitude needed to manipulate technology to better serve
their ends, and also pursue the ideals proposed by the technological imperative. But, with
complex and profitable technologies, those who own the rights to the design and distribution of
those technologies might see the knowledge users’ manipulation of their goods as unwelcome, or
even threatening to the way they do business. As such, the contemporary stakeholder
environment presents an interesting ethical problem for users, producers, designers, and policy-
makers, and how they must they interact in order to come to some form of agreement about
whether types of user modifications to technology are allowed or not?

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Table of Contents

1) Background/Introduction 4

2) The neutrality of technology and systems 5

3) The Ethics of the Technological Imperative in Pirate Innovation 8

4) Feasible Alternatives and the Future of User Innovations Utilizing Existing IP 12

References 15

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1) Background / Introduction

A common perspective on technology is that it is meant to, and often does, improve the
quality of people’s lives, by affording its users with the means to complete tasks more efficiently
and effortlessly. Technology could also be viewed as an enabler of a user’s desires, by allowing a
user to engage in activities that would not have been possible without the aid of the technology.
Our early human ancestors developed the first known technologies by individually crafting tools
and techniques that helped those individuals gain an edge in survival. As people began to
congregate into communities and societies, the design and diffusion of technology became more
utilitarian, as inventors were no longer the sole users of their technologies, and it became more
important to produce technologies that would add value to the organizations and societies that
they belonged to. Eventually, the development and distribution of technology became a source
of profit for those who claimed to be the originators of innovations, prompting the emergence of
commercial industries driven by technological innovation, and in conjunction the establishment
of legislation and institutions to protect the technology and intellectual capital associated with
innovations from theft. In effect, innovation protection policy and profit seeking created a rift
between the general designations of innovation-owners and innovation-users, and in the societal
structure of the industrial-modern age perhaps this idea made sense, since the ways in which
technology capital was integrated into people’s lives contributed to the establishment of social
controls and allowed contexts of technology usage to be defined. The introduction of new
technologies became less about enabling users’ desires and more about controlling users’ desires
through the functions designed into technological products. However, with time, and the
advancement and ubiquity of computing and telecommunications in particular, the needs, desires,
relationships, abilities, knowledge and demographics of broad groups of individuals became
difficult to delineate and control, and this has had remarkable impact on design and led to the
disintegration once again of distinctions between innovators and users. Unfortunately, there has
not been much of a remarkable impact on amending policy to reflect the changing aptitudes and
expectations of technologically empowered users. On the contrary, new digital copyright
legislations around the world and digital rights management technologies have helped industries to
further limit how technology products and services can be used and modified. This underscores

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an apparent incongruity between the desires of an increasing base of user-innovators and the
desires of profit seeking industries: Many technology consumers have the need and the capability
to customize technology to increase their own satisfaction with technological innovations, but
industries have economic and authoritative interests in controlling how technology is used.
In light of the existence of these conditions, the main question is:
Given that a piece of technology:
• Is important to the user
• Does not completely satisfy the user’s requirements in its current state, or has the capacity
to exceed its current user satisfaction potential
• Is technologically capable of achieving those ends
• Is copyrighted and/or governed in such a way that the modification required to enable the
technology to better satisfy the user is not permitted
• Has no suitable equivalent on the market that would better satisfy the user
And given that the user:
• Has the knowledge, skills and resources to make the necessary modification(s) him/herself,
and
• Is not seeking personal profit from the modification(s) he/she makes,
And given that other users of the technology have expressed the same desires,
Is it ethically acceptable for the user to modify the technology for the greater good of the user
community?
If the answer to that question is “yes”, then,
Should the amendment of the policy and/or parties that control how the technology is used be
mandated, for the benefit of its users?

2) The Neutrality of Technology and Systems

It is obvious that different technologies are designed to do particular things, and thus have
their own limited sets of functions designed into them. Because of this fact, it can be said that,

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“particular tools (technologies) unavoidably select, amplify and reduce aspects of experience in
various ways” (Ihde, 1979). The term “unavoidably” implies that technology is amoral, is
“’neutral’ or ‘value-free’ (neither good or [sic] bad in itself) and that what counts is not the
technology but the way in which we choose to use it” (Chandler, 1995). However, can it not
also be said that the way in which the designers of the technology, and the owners of the design
of the technology, choose for us to use it also counts in our experience with the technology? In
the case of the actual design of certain technologies, the selection, amplification, and reduction of
aspects of the user experience is probably avoidable, and in fact deliberate, as is often the case with
proprietary technologies. For instance, different varieties of frequent flyer miles can only be used
to redeem specific rewards from specific airlines, and cameras that can use interchangeable lenses
are often designed to only work with the their own camera brand’s lenses. To cite a single
manufacturer as a blatant and repeating perpetrator of deliberate proprietary design, Apple’s
Macintosh operating system was designed to be only used with Apple hardware, even though
now that Apple has switched to using Intel-based CPUs in their computer hardware, it is
technologically feasible to achieve interoperability between Mac OS and non-Apple computer
systems (Berka, 2007). As well, Apple is notorious for using unusually sized and proprietary jacks
and connectors with their hardware, as with their past ADB system of keyboards and mice, and
recently with the iPhone’s recessed headphone jack. One could understand how users’
experience with the aforementioned technologies could be detrimentally affected by their
inherent design, and that the designers had no intention of rendering those technologies
“neutral”. The prevalent practice of vendor lock-in and proprietary technology echoes the
findings of Oostveen and van den Besselaar (2004), who pointed out that "...we know from
technology studies that technology is not neutral, as it is characterized by design specific
affordances and embodies specific scripts, through which the designers consciously or
unconsciously try to configure users."
The issue of technological neutrality has always afflicted technology, but has become
much more prominent with the development and diffusion of computing, information, and
network communication technologies in the late 20th and 21st centuries. This trend is caused by
several factors, the early main cause being the imposition of Large Technical Systems such as the
various networking layers that constitute the backbone of the Internet. In their study, Oostveen

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and van den Besselaar concluded, “LTSs are infrastructures, and face difficult issues of
standardization,” (2004) which of course is a complication that must be addressed during the
integration of many disparate communications and information systems resources such as that
which occurred during the development of the Internet. As open and autonomous as LTS’s like
the Internet are designed to be, it is inevitable that “…large technical systems embody political
ideas and ideologies” (Oostveen & van den Besselaar, 2004). In the case of the Internet and the
World Wide Web in the western world, political ideologies that have been carried over from the
past include rights to free speech and general democracy, but also the preexisting innovation
protection systems of copyrights, patents, trademarks and trade secrecy (Wallach, 1981). These
methods generally work effectively for traditional, physical innovations, and have a bias towards
corporations due to their capability to afford the substantial costs involved in obtaining such
protection, as underscored by Wallach’s observation that “...the Patent Office still uses 19th
century methods to process claims. This is one reason corporate legal departments stand a better
chance of successfully patenting an innovation than does an individual” (1981). This undermines
the newly technologically empowered postindustrial knowledge workers’ capabilities and desires
to create and diffuse technological innovations using new “free” media of the web, and the
openly democratic, laissez-faire conception and culture of the Internet community at large, and
Grove (2001) also recognizes this discordance by firmly stating, “Legislation poses greater
restrictions on the very freedom on which the Net was founded”. The relevance of all of these
matters on the past, present, and future of user innovation in the face of crippled or restrictive
technologies and systems is summed up perfectly by Graham Button of Xerox Corporation who
posited:
“[The question] 'Do users get what they want?' ...has been occasioned by, amongst
other considerations, moral, ethical and political positions having to do with the
perceived lack of fit between systems and the requirements of those who use them,
and the degree of control or power that a user on, for example, a distributed
system has over their own activities and the information they use or generate”
(1993).
To avoid putting all of the blame on the systems and how they are designed and controlled, from
an industry perspective, perhaps another important reason why users do not always end up getting

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what they want out of technology is because of the ever increasing complexity of user identities
and needs in a postmodern information society that stresses the limitlessness of possibilities and
choice, and in contrast the limits of rationality and prescribed order. In such an environment,
how could industry be expected to develop innovation solutions that satisfy a broad swath of
users? One recently espoused innovation methodology involves “[starting] with an existing
product and its characteristics rather than with customers and their unmet needs” (Goldenberg,
Horowitz, Levav & Mazursky, 2003). Button’s more pessimistic outlook on this trend is that
“...some studies seem to suggest that every effort is made to fit the user to the system, rather than
the system to the user, even dupe the user" (1993). In the midst of such a schism, the logical
consequence is that “…users frequently make the systems that do not match their practices work
within the everyday contingencies of their work; people develop ad hoc ways of using systems to
'empower themselves'” (Button, 1993), and this may or may not involve users making
modifications to existing systems and technologies that may or may not be permissible under
existing rules and regulations.

3) The Ethics of the Technological Imperative in Pirate Innovation

The basic premise of what is known as the technological imperative is a doctrine that
“…because a particular technology means that we can do something (it is technically possible)
then this action either ought to (as a moral imperative), must (as an operational requirement) or
inevitably will (in time) be taken” (Ozbekhan, 1968). This concept can be applied to physical and
digital technologies alike, especially in those instances where the core components of the
technology can be readily accessed, analyzed and reconfigured. A commonly cited example of
this from history is that although the Chinese inventors of gunpowder chose not to develop the
gun, once the West had access to gunpowder, the gun was eventually developed. The fact that
humans designed the atomic bomb on the basis that it was possible and considered a scientific and
technological pursuit is also a testament to the pertinence of the technological imperative in
innovation. These developments could imply that, as much as intended use and function are

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encoded into the design affordances of technologies, “…at the same time, users may appropriate
the new technologies in various and unexpected manners, and in these processes of diffusion, the
emerging socio-technical systems may change" (Oostveen & van den Besselaar, 2004). Such is
the main process associated with pirate innovation, innovation that is achieved by procedures, or
produce results that are considered prohibited by law or regulation. A ubiquitous occurrence of
what is generally considered pirate innovation by technology users is the sharing of copyrighted
digital media files over the Internet. According to Lievrouw (2006), "an ongoing cycle of
capture, co-optation, subversion and reconfiguration of information resources, media content, and
systems characterizes media culture today, pitting the more-concentrated mainstream 'center'
against diffuse but increasingly interactive and participatory 'edges'". Those situated on the
interactive and participatory fringe include those who embrace Internet technology as a means of
diffusing useful information, digital resources, and community over the network in a benevolent
way, and those who participate in engineering innovations to render such dissemination possible.
Pirate innovators are also situated on the participatory fringe, but their interests lie less in
promoting dialogue and community, but more in upsetting the status quo established by the
mainstream center, and “…fighting against the oppressive powers that control the electronic
frontiers” (Mollick, 2005). In the case of digital media piracy over the first peer-to-peer
networks, the pioneers of the practice recognized the inherent opportunities that existed in the
ability to copy the content from physical media such as CDs, DVDs, print, etc. to their
computers’ hard drives, the ability to encode that media content into smaller, lossy compressed
data files, and the ability to transfer those files to other computers via the Internet. In doing so,
whether they were aware or not, they were undermining “…the carefully constructed business
models that manufacturers use to justify their closed architectures” (Mollick, 2005). Instead,
driven by utility, curiosity, or perhaps subconsciously by the technological imperative acting as
“the lure of pushing toward the greatest feat of technical performance or complexity which is
currently available” (Pacey, 1983), these users “…innovate within the manufacturers' systems,
bypassing both legal and technical safeguards" (Mollick, 2005). As evidenced by Lievrouw,
"traditional media industries, meanwhile, worried that the 'frontier' of the World Wide Web
would grow to compete with television, radio, and theatrical movies for audiences' time and
attention. The potentially limitless reproduction and circulation of information online threatened

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their traditional control over content production and gatekeeping" (2006). Instead of embracing
and capitalizing on the new socio-technical environment of interactivity and participation driven
by file-sharing technologies and tech-savvy consumers early on, traditional media industries opted
to go in an opposite direction by enlisting the use of digital rights management technologies to
further limit what paying customers are allowed to do with the products they purchase, and
criminalizing those they suspected of being frequent (but casual) file sharers. "Recasting
themselves as 'content industries', [traditional media companies] sought to re-establish the familiar
'pipeline' model of mass media production, distribution, and sales in the new technological
environment" (Lievrouw, 2006). Even so, the main objective of DRM was not to take down the
most offensive media pirates, the ones who leak promotional or unauthorized content into the
public or the ones who try to profit off the sale of pirated media, or even just prevent copyright
infringement, but rather “…to change consumer expectations about what they are entitled to do
with digital content" (Samuelson, 2003). In implementing copy protection technology, content
industries neglected their customers’ right to create legal backup copies of purchased content
using their computers. To support DRM, the U.S. Congress passed the Digital Millenium
Copyright Act “…in order to outlaw certain acts of circumvention and technologies designed to
circumvent technical measures used to protect copyrighted works. Since then, however, digital
file sharing of copyrighted content is still prevalent since DRM is generally easy for tech-savvy
users to bypass, and it is the paying customers who continue to be bothered and alienated by
intrusive and crippled products. By resisting to cater to the desires of technologically empowered
users and relentlessly adhering to old business models that have been rendered obsolete in light of
new distribution technologies, traditional media industries run the risk of stagnating their business.
As Daniel Chandler suggests, “…technological developments, once under way, are unstoppable:
their 'progress' is inevitable, unavoidable and irreversible” (1995). By resisting change, traditional
media industries are merely attempting to avoid the inevitable.
On the other hand, a recent disallowance of alleged pirate innovation involved a
technology’s required change or update by the manufacturer. Creative Labs, a manufacturer of
sound cards for PC motherboards, has long received complaints that many of their recent (but not
newest) sound cards are not compatible with the Windows Vista operating system. Creative had
originally suggested that new technologies in the operating system prevented the OS’

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compatibility with the older sound cards, and persuaded customers to upgrade to the newest
Creative sound cards if they were planning to switch to the Vista OS. However, an enterprising
member of the official Creative forums called Daniel_K managed to modify Creative’s official
sound card drivers to allow the old sound cards to work with Windows Vista, and distributed the
modified drivers through the Creative forums. On March 28th, 2008, Phil O’Shaughnessy,
Creative’s Vice President of Corporate Communications, made a denigrating post on the forums
directed to Daniel_K. Of particular note are the following excerpts from the post, in which he
says:
"The difference in this case is that we own the rights to the materials that you are
distributing. By enabling our technology and IP to run on sound cards for which
it was not originally offered or intended, you are in effect, stealing our goods."

"If we choose to develop and provide host-based processing features with certain
sound cards and not others, that is a business decision that only we have the right
to make."

"To be clear, we are asking you to respect our legal rights in this matter and cease
all further unauthorized distribution of our technology and IP."
(O’Shaughnessy, P., March 28, 2008)

With these statements, O’Shaughnessy essentially made it clear that a) Creative Labs regards what
Daniel_K did as an intellectual property theft, b) Creative Labs deliberately misled consumers to
think that the older sound cards and Vista were not compatible, but in fact, as a business decision,
Creative purposefully crippled the sound cards by not doing an official driver update, and c)
Creative has no intention of ever allowing interoperability between the older sound cards and
Vista and assumes their legal right to engage in such business practices. As a result, Creative has
recently suffered major public backlash from the blogosphere and computer-related online
communities, because it is apparent that all the hacker aimed to do was to fix a crippled product
and satisfy a pressing need of many other users who wanted to use Vista without having to spend
money to upgrade their sound cards. Creative’s hardball business tactics and their suppression of a

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useful user innovation are factors that would undoubtedly decrease customer loyalty and business.
Furthermore, according to Grove (2001), “ACM’s U.S. Public Policy Committee (USACM) and
other leaders in the computing community [have] cautioned law-makers that broadly
criminalizing the manufacture and use of any technology that could circumvent a copyright
protection measure would provide a chilling effect on U.S. Scientific and Research enterprise,
particularly in encryption and security research”. User innovation in that particular sector is
crucial to the continued integrity and relevance of encryption algorithms and their competitive
position in the world market, since the effective design of security products involves intentional
hacking and reverse engineering. ACM concluded legislation that broadly criminalizing
innovative uses of technology “…has the potential to limit the freedom to publish research,
imposing a cost on the academic community, scientific discourse, and society in general” (Grove,
2001).

4) Feasible Alternatives and the Future of User Innovations Utilizing Existing IP

“Politically, the debate over DRM restrictions is shaping up as a confrontation between

incumbents versus innovators,” and if obstacles persist between user-innovators and industry,
“…continued innovation in software and digital computing could be sacrificed.” (Grove, 2001).
It might just have to be accepted that there is probably not an alternative that would fully satisfy
both sides, as there is no such thing as a “technological utopia”. Even so, it is important for
industry and users to try to understand what each other is trying to do with technological
platforms, and find some common ground at which a new technology or system could meet the
goals of both the incumbents and the (user-)innovators. In order to do this, the established
industries should first of all be open to change, and secondly be able to scan the market for
potentially disruptive technologies that might become popular among customers. The industries
should then try to find attributes or aspects of the new technology that can be exploited to
improve their current businesses and also the level of satisfaction of customers, because it should
be critical for any industry to maintain a base of customers that is loyal and responsive. With the

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design of technology and systems in particular, it would be beneficial and less problematic to
comply to design standards and try to avoid unnecessary proprietary components. This is
reflected in Tsilas’ (2007) comment that “Locking in specific technology mandates locks out
innovation. Rather, [government and policy-makers] should develop policies that are neutral with
respect to competing technologies and business/licensing models and that allow for choice of either
(or all) based on reasonable, objective criteria”. It is paramount for industries and corporations to
clearly define their ethical bounds and not engage in business practices that are beyond those
bounds or that their customers might consider evil and threatening. Moreover, corporations and
industries should not immediately regard a user innovation that incorporates copyrighted
intellectual property as a threat to business, because ultimately customers are either loyal or
apathetic and it is unlikely that a particular user innovation is aimed to do harm to a business. If it
does harm business, then that simply means the firm or industry has a flaw or shortcoming that
can then be identified, addressed, and perhaps even converted to an advantage. Mollick (2005)
affirms that opportunities can be found in unsolicited modification of proprietary technologies in
his assertion that “Underground innovation, no matter how seriously it is taken, is a hobby. This
has some advantages over a traditional corporate approach to innovation, where risk and reward
must be carefully balanced.” Dialogue between the industry, policy-makers and users, is also
essential in order to foster trust and a common perspective, and some notion of community.
With the advent of the Web and dynamic and interactive online communities, geographic,
demographic, and hierarchical differences between users, designers, managers and policy-makers
are greatly diminished, and this should help in the facilitation of consensus and shared values.
Oostveen & van den Besselaar (2004) go a step further by questioning, "If technology is not
neutral and a product of human action in a social context, can we use [participatory design] to
democratize the development of the [information communication technologies] in the
information society?" Button (1993) seems to think so, in saying that "...by participating with the
users in the design of a system, technology can be better designed to support the users' work and
to give them more control over their work".
In contemporary society, what remains constant in the design of technology is that,
"...innovation itself is becoming ever-more heterogeneous, fragmented, and unruly, and few if
any companies today can hold all of the pieces of even their own product technology in their

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own hands" (Tsilas, 2007). It is increasingly difficult for any individual user to accept that an
information technology product one paid for and has in his/her possession cannot be used in all
the ways that it technically supports, or that two pieces of information technology that are
supposed to be able to work with each other, in fact cannot. It is hard to grasp the concept that
we can buy a technology product but not own all of the rights to it, such as the right to modify it,
or the right to copy it. Technological innovation is inherently social because the users, designers,
and the intellectual property owners all have influence over its design and function and are
stakeholders of the technology. What is crucial is the balance of influence between those parties
over the design of technology. Regarding this balance, Grove (2001) supposes "If the future of
digital computing is shaped by content industries and technology companies without input from
all computing stakeholders, the unintended consequences may threaten the progress of science,
economic growth, and the overall security of our infrastructure”. By making designs of
technologies and systems more open to modification and reinterpretation, the balance of power
over the use experience could be better placed in the hands of the users so that they have the
prerogative to create a greater sense of enjoyment from their technology products.

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