BOB GARFIELD: This is On the Media. I'm Bob Garfield. KG Dogfighting is an app for Android phones, available for purchase in the official Android Market online, that allows users to, quote, “feed, water, train and fight your virtual dog against the dogs of other players.” Needless to say, it’s controversial. Various animal rights organizations, a group of Los Angeles police officers, even convicted dog fighter Michael Vick have all asked Google, which makes the Android operating system, to ban the game.

But Android’s content policy gives its customers the freedom to choose, more so than, say, Apple, where you won't find KG Dogfighting or anything like it in its App Store. Apple maintains much tighter control over what you can download to your iPhone, too much control, says Harvard Internet Law Professor Jonathan Zittrain.

JONATHAN ZITTRAIN: It’s not as if I think the republic is going to crumble because Apple chooses to deny an app like a dog fighting simulation, or before that it was a baby shaker app. I mean, for every particular computing [LAUGHS] platform it'll be about a nanosecond before somebody comes up with something highly tasteless, objectionable and offensive to do with it.

But the reason that there’s a bigger point to it is that this is very new. For 30 years the idea was you get the computer from the company and then it’s up to you what you want to run on it, as the customer. And when you get into a world where, once you have the device, the vendor keeps an ongoing role in what code you will run on it, that starts to create a very unusual ecosystem.

BOB GARFIELD: However, when you buy an iPhone or an iPad, you certainly do so knowing that you haven't bought into a Wild West environment. Why shouldn't Apple run its business any way it sees fit?

JONATHAN ZITTRAIN: What I see around the corner is the potential for there to come to be an expectation that there is going to be an intermediate vendor that the government or others who are aggrieved can go to, to change code and content, either looking forward or retroactively. And that does start to be a problem.

An example that is almost better than textbook, where George Orwell’s 1984 was sold through the Kindle. You could buy it and have it on your Kindle. And Amazon, to its consternation, discovered that the rights had not been properly cleared for this and that it was being sold without the right permissions.

In their panic, they went into each and every [LAUGHS] Kindle and deleted 1984 from the Kindles that had it. It’s Orwellian [LAUGHING], literally. It’s like you don't have 1984. You never had 1984. [LAUGHS] There’s no such book as 1984.

Now, in 2010, when that happened, that is, I think, an amusing anecdote because if you wanted to read 1984 you go to the library, you go to the bookseller, you go to the airport, there’s going to be a copy. You fast forward five or ten years and it’s not so clear there will be alternatives. And that kind of hyper-regulability in the longer term is what I worry about.

BOB GARFIELD: Objection, Your Honor, on the grounds of quantum leap to conclusions. [LAUGHS]

[ZITTRAIN LAUGHS]]

Neither Amazon, Kindle nor Apple are the government. They're not censoring anything. They're just acting as gatekeepers. They're upholding their own standards of appropriateness, much in the way that The Washington Post upholds its own standards of appropriateness in the content that it prints, in the way that Wal-Mart chooses not to sell pornography, even though it’s perfectly legal to do so. They're gatekeepers and they're watching the gate. Don't we need more of that?

JONATHAN ZITTRAIN: To the extent that we can make the provision of mobile phone services very portable, so if you don't like one you can switch to another very easily, then my worries attenuate a little bit. But there are, I think, some fears that, one, it is kind of hard to switch sometimes. You get bought into one platform, particularly as it starts to connect to lots of other functions.

If you want to play your iTunes library of songs that you've purchased, you might have to have an iTunes-compatible device sort of thing. It’s ditto for eBooks. If you have your Kindle book library, that’s it. You can leave the Kindle but you’re leaving all your books behind.

And there is, I think, the very real and ongoing prospect that these gated communities set up for their own reasons, and even for consumer benefit, by private parties are very easily conscripted by regulators in ways that can surprise us.

And I would not like to see a world in which, because somebody alleges copyright infringement or defamation or obscenity, that the work in question can so readily be retroactively pulled from all the shelves of the digital libraries.

BOB GARFIELD: As competition materializes, won't the freedom of choice essentially solve the problems you’re fearing before they ever even occur?

JONATHAN ZITTRAIN: Well, one certainly hopes. That would be great. But the story of technology in the mass marketplace is often one of standardization and consolidation. I mean, right now on the World Wide Web - the initial configuration was one of lots and lots of servers and websites. Now we start to see clustering and huddling under cloud computing providers so that one provider ends up having a lot of power over a lot of sites and, even against its own wishes, being asked by a government to exercise that power over a lot of sites.

So the market doesn't always solve it. It’s powerful, and it can, but especially when what we care about is marginalized content, marginalized code, stuff that maybe the public isn't clamoring for but could prove to be transformative – I, I recall an earlier incident in which there had been an application for the iPhone looking to the next presidential election and the end of President George W. Bush’s term. And it was simply a countdown, and it had a kind of caricature of the President, and it said, “Counting down to the end of an error.”

And Apple rejected the app. And the guy reported that he wrote to Steve Jobs and said, come on, this is harmless fun. And Steve Jobs wrote him back and said, look, my personal leanings are roughly Democratic, but this is going to be offensive to half my customers. What’s the point?

I look at the early days of Wikipedia and I gotta say it was hard to see what the point was. You look at Twitter, and I – there are people still wondering what the point is.

To have to persuade a gatekeeper that there’s a point and that those entities are worth having their stuff exposed to consumers who might want it, that is gratuitously adding a layer of review to an ecosystem that for 30 years has succeeded so brilliantly without having one.

BOB GARFIELD: One quick follow-up question.

JONATHAN ZITTRAIN: Yeah.

BOB GARFIELD: You don't fight dogs, do you?

JONATHAN ZITTRAIN: [LAUGHS] I have a dog from the shelter, and you won't find me with the dog-fighting app. But as Voltaire is supposed to have said, but I think never did, I will go on the radio for the general policy preference that there ought to be an open platform without too much gatekeeping so that stuff can happen.

BOB GARFIELD: [LAUGHING] Fair enough. Just checking your moral purity. Jonathan, as always -

JONATHAN ZITTRAIN: [LAUGHS]

BOB GARFIELD: - a great pleasure.

JONATHAN ZITTRAIN: Of course.

BOB GARFIELD: Jonathan Zittrain is a professor of Internet law at Harvard and co-director of the Berkman Center for Internet and Society.