Lessig and Lemley also introduce an argument that seems to me to be fundamentally in tension with their broader end-to-end thesis:

One should not think of ISPs as providing a fixed and immutable set of services. Right now ISPs typically provide customer support, as well as an IP address that channels the customer’s data. Competition among ISPs focuses on access speed, as well as some competition for content. AOL, for example, is both an access provider and content provider. Mindspring, on the other hand, simply provides access. In the future, however, ISPs are potential vertical competitors to access providers who could provide competitive packages of content, or differently optimized caching servers, or different mixes of customer support, or advanced Internet services. This ISP competition would provide a constant pressure on access providers to optimize access.

I don’t agree with this, and indeed, I don’t think Lessig himself agrees with this any longer, although that may be a consequence of today’s less-competitive ISP marketplace. But it seems to me that the end-to-end principle does imply that we should “think of ISPs as providing a fixed and immutable set of services”: namely, moving bits from point A to point B without doing much else. While there’s nothing intrinsically wrong with an ISP offering other services besides that, the division of labor would seem to suggest that it’s generally going to work better for ISPs to offer basic service and third parties to provide caching, content, or “advanced Internet services.”

And indeed, that’s what has happened. Akamai, for example, was in its infancy when L&L were writing their paper. In the last seven years the company has thrived, despite the trend toward vertically integrated residential ISPs. By the same token, ISPs still provide their customers with email and web services, but it’s become far more common for users to bring their own email access and find third parties (including Flickr, Blogger, and YouTube) to host their web content. Even DNS, long considered core functionality of an ISP, is increasingly being offered by third parties.

Most dramatically, with AOL’s transition to being just another web portal, the business model of ISP-as-content-provider has completely collapsed. Hardly anyone now believes that it makes sense for your ISP to be a major provider of Internet content. ISPs should be competing on the basis of their ability to bring the cornucopia of content already on the web to you as efficiently as possible, not on their ability to provide an inevitably meager quantity of exclusive content on top of basic Internet access.

This probably wasn’t as obvious in 2000 as it is today. I haven’t seen Lessig or Lemley specifically address the point, but given Lessig’s enthusiastic embrace of network neutrality regulation (which is based on the implicit premise that ISPs shouldn’t be more than a “dumb pipe”), I would bet he’d concede that value-added ISPs aren’t as promising a concept as they appeared a decade ago.

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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.

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