Susan Crawford on net neutrality: “When [telcos and cablecos] say ‘internet’ they mean infrastructure. They mean substrate. They say they built the substrate and now own it. … But when users say ‘internet’ they mean relationships. We forget, because so many machines are involved, that the internet is a social world. Users don’t think about transport–they’re indifferent to the substrate. They care about what they do there. And what they do is create a complex adaptive system unlike any other communications network we’ve ever had before. The unpredictable ecology of the internet could never have been generated by a broadcaster or a newspaper. It’s constantly revising itself in response to the feedback it’s getting from everyone. And its value is almost wholly unrelated to the work carried out by the access valves, the gatekeepers to internet access.” She goes on to liken the current debate over ownership of networks to debates over intellectual property.
This clever distinction of “internets”–a physical on and a social one–articulates the reason why I think that net neutrality in the abstract is a good thing. That is, because I like the unpredictable and innovative results of a neutral net. However, what we have to keep in mind is that the laws being proposed to deal with net neutrality affect the first internet–the physical one that is owned property. Physical property is unlike intellectual property. Intellectual property is a temporary monopoly that exists only to give incentive to develop the store of human knowledge. This is why we can justify limiting intellectual property rights through compulsory licenses or fair use. In contrast, physical property is absolute; there is no fair use of my automobile without my permission–even if your need is great, you are a non-profit, and the result of your use will create great value. Therefore, unlike the case with IP, in the net neutrality debate we cannot simply conduct a balancing test and, if limiting an owners’ property right achieves greater social welfare, then be justified in limiting those physical property rights.
Lawrence Lessig has posted his thoughts on the Copyright Office’s orphan works report. He is largely critical of the report’s conclusions and continues to support the proposed Public Domain Enhancement Act (PDEA), which was based on his ideas. In my recent paper with Bridget Dooling, we show why the PDEA solution is unworkable. But I think it’s worth addressing some of the points Lessig makes in this new response.
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The American Society of Media Photographers is leading a coalition of organizations opposed to orphan works legislation. I never thought there would be much opposition to legislation that aimed to fix the orphan works problem. “Everybody wins if this is properly fixed,” I thought. In retrospect, it was naive of me to think that there is any issue in this town that doesn’t have at least two sides to it. Concentrated benefits, diffused costs, lesson learned.
It looks like the photographers’ lobby fears that legislation like that proposed by the Copyright Office will allow anyone to use copyrighted works as long as they carry out some perfunctory search. It’s not that simple. Courts will have to be convinced that you couldn’t possibly find the owner before they’ll let you off the hook for infringement. ASMP argues that because photos are often published without attribution, people will be able to claim that they are orphan works and use them with impunity. But just because Time magazine prints a photo without a credit doesn’t meant that it’s an orphan. Before anyone can use it without permission they would have to exhaust all reasonable ways to find the owner. Contacting Time magazine should be my first step, and that should result in finding an owner in most cases. If it doesn’t they’re still not off the hook, they must take every reasonable step possible.
ASMP states, “The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn’t have a published credit.” It’s not that clear cut, but even if it were, that’s the beauty of some orphan works proposals, including the one I’ve worked on. Without enacting a new notice formality (that would violate the Berne Convention), it creates a very strong incentive for photographers to include notice on their works and demand that publishers do so as well. Instead of trying to block salutary legislation, photographers should use their lobby to pressure publishers to always give them attribution, which would make everybody’s life easier.
The WSJ reports today that “Large phone companies and telecom-equipment makers are developing plans that would blow up the flat-fee structure for high-speed Internet access and instead charge customers different rates based on how much bandwidth, or Internet capacity, they use.” This makes eminent sense to me and seems to address ISPs’ concerns about who is paying for their networks. That is, instead of charging content providers such as Google or Yahoo!–with whom they have no relationship–for access to their networks, they can charge their customers, with whom they do have a relationship.
Theoretically, Google may not have a choice but to pay up if it wants users of a certain ISP to be able to connect to its site. (Actually, that’s debatable, because I doubt consumers would stand for an ISP that didn’t allow them access to Google.) However, under this new scheme, customers are the ones footing the bill and they in turn do have a choice of ISPs.
Some, including Techdirt, are already arguing that this is a nefarious plan. They argue that content providers could still be extorted: “Google, if you pony up, our users will surf for free–if not, it’s gonna be $50 per megabyte.” Once more I’ll ask: What customer will stand for $50 per MB to access Google?
It has been pointed out that there may not be sufficient competition to give consumers real choice. First, I genuinely curious to know how much competition will be enough? Where I live I have a choice of broadband from two cable companies, the phone company, and possibly pay wi-fi. If the FCC can manage to get its act together, we can expect Wi-Max and other wireless broadband systems. Second, it seems that the alternative to working to foster competition is government regulation. What’s after net neutrality regs? Price regulation for ISPs?
I do agree with Techdirt on one thing. Pay-as-you-go pricing for network access has never worked well. For whatever reason, American consumers hate it. I think they don’t like the uncertainty of it. (Maybe if I click this link or stay on too long I’ll get a huge bill.) So it will be interesting to see how this pans out.
I have co-authored a paper on orphan copyrights that is now out from the Michigan Telecommunications and Technology Law Review. You can get it here (PDF). In the article we define the orphan works problem and show how it interferes with the use of creative works. We also describe the causes and costs of the problem, critique four of the leading proposed solutions, and propose a new and practical solution of our own (basically a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability.) The Copyright Office issued its orphan works report earlier this month, and the solution they recommended is similar to ours. Still, Congress has to act before the problem is solved and we hope our paper will be useful in the debate. We would certainly appreciate any comments you might have.
Yesterday the New York Times had an editorial about network neutrality. They employed a great analogy: “When someone calls your home, the telephone company puts through the call without regard to who is calling. In the same way, Internet service providers let Web sites operated by eBay, CNN or any other company send information to you on an equal footing.” They conclude, however, that Congress should enact net neutrality legislation to ensure that “equal footing.”
Here’s what I want to know: Given competition, how many consumers would stand for a phone company that didn’t put through everyone that called them unless the caller paid extra? The key here is competition. The NYT seems to understand this because it says that “Most Americans have little or no choice of broadband I.S.P.’s, so they would have few options if those providers shifted away from neutrality.” That’s debatable. But even if it weren’t, wouldn’t seeking more competition be the ultimate solution?
Jerry Ellig and I have been working on a study of cable franchising for the Mercatus Center that looks at the cost of franchising to consumers and what the FCC, Congress, and the states can and should do about it. Yesterday we released the bulk of it as a comment to the FCC’s franchising proceeding and as testimony to the Senate Commerce Committee, which will hold a hearing on the issue tomorrow. So if you’d like a sneak peek at the full study, check out our FCC comment as well as our Congressional testimony (PDF), which has legislative recommendations that aren’t in the comment. Our main conclusions:
- Cable franchising costs consumers over $10 billion annually in higher prices and forgone benefits. By constraining competition, local video franchising imposes significant costs on two groups of consumers. Current cable subscribers pay higher prices than they would pay if there were competition, and potential customers forego cable TV service because they believe it is too expensive at current prices.
- The FCC has the authority to preempt local franchising authority practices that act as barriers to entry and should do so.
- An even better solution would be for Congress or the states to get rid of franchising altogether or streamline it as Texas has done.
I’m still trying to wrap my head around all the intricacies of the net neutrality debate. The latest twist is a report that Verizon plans to reserve 80% of the capacity of its network for its video service. This has prompted some to argue that Verizon is skewing the Net.
Leading Net companies say that Verizon’s actions could keep some rivals off the road. As consumers try to search Google, buy books on Amazon.com, or watch videos on Yahoo!, they’ll all be trying to squeeze into the leftover lanes on Verizon’s network. On Feb. 7 the Net companies plan to take their complaints about Verizon’s plans to the Senate during a hearing on telecom reform. “The Bells have designed a broadband system that squeezes out the public Internet in favor of services or content they want to provide,” says Paul Misener, vice-president for global policy at Amazon.com.
But I don’t see how Google or Amazon have a right to tell Verizon how it should allocate the capacity of its network–and certainly not by running to the Senate. This is a different issue than Verizon trying to charge those companies for access to their customers. It would seem that this is a matter of internal allocation of a company’s resources. If customers aren’t happy with the speeds they’re getting because 80% of the bandwidth is tied up in video, they can always switch providers–to the cable companies and hopefully to wireless providers some day. That’s why we need deregulation to ensure competition, not regulation of what firms can do with their own pipes.
P.S. Does anyone know what FCC filing the report is referring to?
Leander Kahney of Wired News writes in his Mac column today that Bill Gates is a saint because he gives away his money to charities while Steve jobs is the devil because he keeps his money and his opinions to himself. Here’s a sampling:
It’s Gates who’s making a dent in the universe, and Jobs who’s taking on the role of single-minded capitalist, seemingly oblivious to the broader needs of society.
Gates is giving away his fortune with the same gusto he spent acquiring it, throwing billions of dollars at solving global health problems. He has also spoken out on major policy issues, for example, by opposing proposals to cut back the inheritance tax.
In contrast, Jobs does not appear on any charitable contribution lists of note. And Jobs has said nary a word on behalf of important social issues, reserving his talents of persuasion for selling Apple products. …
On the evidence, [Jobs is] nothing more than a greedy capitalist who’s amassed an obscene fortune. It’s shameful. In almost every way, Gates is much more deserving of Jobs’ rock star exaltation.
I see. It’s shameful to make lots of money, even when it is a representation of the amazing value you’ve created in the world. It’s shameful that Jobs isn’t taking the lead of Barbara Steisand, Harry Belafonte, or any one of the other famous people who deign it necessary to regale us with their (usually ignorant) thoughts on public policy. Jobs just stick to what he knows, making incredible computers and consumer electronics. For shame!
I think it’s great Gates wants to share his wealth. It’s his, and I say more power to him. I have a real problem, however, when Gates (supporting the death tax) and Kahney (writing dribble) try to tell other people what to do with their own money. I’m glad Jobs focuses on doing what he does best, I just wish Kahney would do the same and stick to writing about technology.
There’s a great conversation going on over at Marginal Revolution about net neutrality. As a card carrying free-marketeer I feel I’m expected to support Verizon, AT&T and the rest when they demand payment for use of their pipes. But I haven’t made up my mind yet. While net neutrality looks like forced access redux, I think it’s actually a much more complicated issue.
I am skeptical of regulation or legislation to enforce neutrality; preemptive regulation hardly ever works out they way it is intended. However, as Tyler Cowen points out, tiering the internet would change the nature of online content:
The beauty of the status quo is that web sites compete on the basis of consumer surplus alone. The bandwidth costs end up as a fixed charge on net access as a whole; I suspect this hits many inelastic demanders, a’la the Ramsey rules for optimal taxation. Admittedly it may be a bad deal for the poor who cannot afford to connect, but the overall arrangement enhances the long-run “competition of ideas” feature of the net.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.