Wi-Fi. Ellie Rennie

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Histories of Wi-Fi circulate widely in scholarly texts, popular science, and technology journalism. The stories of where Wi-Fi came from and why it has become so successful diverge along familiar planes of cleavage, producing different protagonists and chronologies. A few examples: in Wired magazine, we find Chris Anderson’s celebrations of Wi-Fi’s ‘revolutionaries’, the great disruptors of telecommunications and internet access (Anderson, 2003). The big story here is not just Wi-Fi, but the whole idea of ‘open spectrum’, a de-privatization of spectrum licensing to allow a comprehensive development of digital radio technologies. Here, the ‘radical pioneers’ are American technology activists, entrepreneurs, ‘bandwidth pirates’, and engineers, but the story also celebrates the role of political and government leaders. In contrast, the community networking field displaces the narrative centre from Silicon Valley to remote communities and dense urban spaces. Alex Hills’s Wi-Fi and the Bad Boys of Radio (2011) is a case in point: the protagonists are not the bad boys (these are the unpredictable radio waves) but technologists with a public vocation. In The Economist, we find another perspective again, a recognition of the institutional and technical complexity of the history, with a strong emphasis on the facilitating role of government. In this context, the decision of the US Federal Communications Commission (FCC) in 1985 to allow unlicensed use of the 900 MHz, 2.4 GHz, and 5.8 GHz bands of the radiofrequency spectrum is the vital foundational initiative. The visionary work of FCC engineer Michael Marcus is especially notable.

At the formal level of institutions, history also matters, but it is documented in different ways and in different contexts. Wi-Fi’s key technical components and their lines of descent are carefully registered and adjudicated through the exacting work of IEEE’s standard-setting committees, a key element in the association’s broader formalizing and standardizing role in the technology industries. IEEE’s standard setting is designed to establish grounds of consensus among key industry players to promote interoperability and reliability, and to reduce product development timelines and costs. IEEE decision-making is itself highly structured and closely aligned to World Trade Organization regulations. It produces open standards but not open-source or free-to-use technologies. Notwithstanding the fact that Wi-Fi makes use of unlicensed parts of the spectrum, the IEEE standards include many technical features that do need to be licensed by device manufacturers. The commitment of the participating patent owners is only to license these on fair, reasonable, and non-discriminatory terms. IEEE standards committee deliberations, decisions, and supporting material are all carefully organized and recorded in considerable detail.

      A different kind of retrospective accounting occurs through legal institutions. Conflicting versions of Wi-Fi’s history have been litigated extensively, producing a substantial archive of testimonial and documentary evidence. Many parties now claim to have ‘invented Wi-Fi’ or made other decisive contributions to it. The rich and detailed collection of essays edited by Wolter Lemstra, Vic Hayes, and John Groenewegen (2011) on the ‘innovation journey’ of Wi-Fi concentrates on the development of WaveLAN. The book is authoritative, pluralistic, and wide-ranging, but it makes no mention of the CSIRO research referred to earlier, which has been celebrated in Australia as the ‘invention’ of Wi-Fi. The omission may not be surprising, given that recognition for CSIRO’s contribution – some smart signal processing to address the ‘multipath’ problem (signals bouncing off walls) – was hard-fought and remains contentious. CSIRO received substantial royalties for the patents concerned only after more than a decade of litigation in US East Texas courts. The dispute was framed as a struggle between two entirely different versions of Wi-Fi history. The US tech website Ars Technica covered the settlement of the case in a state of disbelief:

Why is the history of such an invention in dispute? The premier world engineering institution, the IEEE, created a working group for the evolving 802.11 wireless standard in 1990, a full three years before CSIRO filed for its key wireless patent. The group voted repeatedly on which way to go forward and produced heaps of records, but CSIRO didn’t even participate in the 802.11 committee. The group published the first 802.11 standard in 1997 and CSIRO came forward years after the fact. …

      A ubiquitous technology that exists because of standards – because of widespread cooperation, essentially – has been re-cast as a story of [a] noble group of hero-inventors, ahead of their time, overcoming the non-believers in court. (Mullin, 2012a)

      Ars Technica was particularly concerned by the representation of the CSIRO work in Australia, with the organization listing the Wi-Fi research as its single most important discovery, and the team receiving a number of important prizes and awards. CSIRO’s patent features in A History of Intellectual Property in Fifty Objects (Healy, 2019), a recent survey of significant innovations and their legal destinies. Here Terry Healy presents precisely the narrative of heroic invention which Ars Technica complains about: brilliant researchers pursuing an independent path. Their legal victory, so the story goes, is a victory for ‘research’, and for a small group of outsiders, remembering that the original work was done by radio astronomers, rather than electrical engineers. Disparaged by a self-interested club of US tech companies, these scientists in an obscure antipodean government science organization nonetheless made a significant contribution.

The merits of this case aside (and the matter was settled, so no judgment was made), it is notable that, in fact, very little of the Ars Technica argument is inconsistent with CSIRO’s position, which was not that their scientists had invented Wi-Fi, but that their innovations had substantially improved it, making it fast enough to substitute for wired ethernet networks and therefore (the argument went) to become as successful as it did. Nor does patent law require proof of copying or piratical intent: infringement simply involves unlicensed use of the protected invention.

      The Ars Technica position is that it is unconscionable that a very substantial interest in the technology could be assigned to a non-participant in the IEEE process. There is a strong pragmatic point at stake here about the strategies the IEEE deploys for the social organization of innovation. The standardization process was in essence a consensus-building approach, and there can be little doubt that the successful achievement of consensus – after many years, in the case of 802.11 – was critically important to the later success of Wi-Fi. But these processes, no matter how exacting, are never entirely inclusive, and cannot preclude contestation in the legal domain over ownership and control. While the IEEE managed the formative process, it could not control the consequences.

If the contested claims at the heart of the CSIRO patent dispute are understood as arguments about history, they are likely to be incommensurable rather than finally resolvable. The answer to the Ars Technica question – why is the history in dispute? – lies in the fact that Wi-Fi encompasses many histories, and it does so because of its distributed character. Wi-Fi is not like our smartphones; this is not a platform owned by any single entity or controlled by anyone. (Even CSIRO’s patents are now expired.) It is not – so far at least – like 5G, which now figures in global economic and political rivalries. Huawei is banned from providing 5G equipment in the United States and some other Western countries, but no such prohibition applies to its activities in the Wi-Fi domain (including telecommunications). Wi-Fi has avoided a strong association with any government, despite the contributions of public bodies and public policy to its emergence. For these reasons, there is more at stake in disputes such as the CSIRO case than just patent royalties. They remind us how important wireless communication is to the objective of a more mobile and inclusive internet. They remind us that wireless communication need not be framed as national technology strategizing. They remind us that the internet can be substantially built around basic, low-cost hardware, and commonly agreed standards available to everyone.

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