A Look Back at Lessig and Lemley

by on December 12, 2007 · 0 comments

Way back in 2000, Larry Lessig and Mark Lemley wrote The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era. It’s interesting because it underscores how rapidly the broadband debate has evolved in this decade. At the time Lemley and Lessig were writing, the big issue was whether cable companies would be required to unbundle their cable Internet service the same way phone companies were required to unbundle their DSL service. Since then, of course, the FCC has no only declined to unbundle cable lines, but has abandoned unbundling of DSL lines as well.

Lessig and Lemley were on the other side of this issue, warning that allowing cable companies to offer only integrated cable Internet service threatened to undermine the end-to-end principle of the Internet:

The consequence of this bundling will be that there will be no effective competition among ISPs serving residential broadband cable. The range of services available to broadband cable users will be determined by the “captive” ISPs owned by each local cable company. These captive ISPs will control the kind of use that customers might make of their broadband access. They will determine whether, for example, full length streaming video is permitted (it is presently not); they will determine whether customers might resell broadband services (as they presently may not); it will determine whether broadband customers might become providers of web content (as they presently may

The third has clearly happened, although it’s not clear to me that that’s a great loss, since third-party web hosting is an extremely competitive market. There’s no obvious reason for people to run servers out of their homes and some good reasons for them not to. The second has happened in theory, but not really in practice. I have a wireless access point connected to my cable modem despite the fact that my terms of service most likely requires that I only connect a single computer. Charter hasn’t given me a hard time about it. So what your ISP requires in theory and what they enforce in practice can be very different questions.

The first issue—allowing streaming video—is the most interesting, and the most problematic. L&L thought that an ISP is able to “determine whether, for example, full length streaming video is permitted,” but this isn’t obvious at all. The Internet is designed in a way that doesn’t give an ISP any straightforward way to identify which bits are “full length streaming video” and which are not. And as recent developments with BitTorrent have demonstrated, determined users can typically bypass even determined efforts by ISPs to block disfavored types of traffic. It doesn’t appear to have occurred to L&L that control of a pipe may not necessarily translate to effective control over what types of information is transmitted over the pipe:

Traditional cable providers might well view [competition from online video] as a long term threat to its business model, and they may not want to change to face that competitive threat. By gaining control over the network architecture, however, cable providers are in a position to affect the development of the architecture so as to minimize the threat of broadband to their own video market. For example, a broadband cable provider that has control over the ISPs its customers use might be expected to restrict customers’ access to streaming video from competitive content sources, in order to preserve its market of traditional cable video. AT&T has announced just such a policy. When asked whether users of the AT&T/MediaOne network would be permitted to stream video from competing providers across their network, Internet Services President Daniel Somers is reported to have said that AT&T didn’t spend $56 billion to get into the cable business “to have the blood sucked out of our vein.”

There are shades here of Ed Whitacre’s 2005 statement to the same effect. Yet the reality has been quite different. For whatever reason, no cable company I know of has made any serious attempt to block YouTube, iTunes video, or other online video services. A few ISPs have complained about Joost, but their complaints have focused on the large amount of total bandwidth consumed, not the competitive threat the content posed.

Of course, YouTube isn’t yet much of a competitive threat to the cable industry’s core pay-television product, because the content tends to be shorter and have inferior prodction values. It’s possible that as online video matures, we’ll see cable companies starting to block online video. But at the very least, these threats seem no more imminent today than they did when L&L were writing seven years ago. The threats to innovation posed by vertically-integrated ISPs remain almost entirely hypothetical.

The paper also contains hints that the trends have been in the opposite of the direction L&L feared. They note, for example, that in 2000, @Home limited “the amount of video its consumers can downstream, limits total upstream traffic, precludes running a server of any sort, and prevents the use of corporate LANs over a cable connection.” It’s not clear if those restrictions were ever seriously enforced, but they have certainly been relaxed over the last seven years. Streaming video is far more common than it was seven years ago, and restrictions on corporate LANs have receded. To be sure, there has continued to be a lot of friction between users pushing the envelope and ISPs trying to limit how their networks are used. But the ISPs have been perpetually on the defensive, scrambling to find new ways to enforce limits as users spread information about how to circumvent the old ones.

For the most part, Lessig and Lemley’s fears circa 2000 didn’t pan out, and I think there are good reasons to be equally optimistic about the future evolution of the Internet in the absence of network neutrality regulations.

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