I’m always entertained by the talk among the Twitterati — especially those who seem to permanently reside in the #NetNeutrality and #FCC hashtags — about how the Internet’s “openness” is at risk, and that steps must be taken to preserve it.  Regulatory regimes are often birthed by myths, and this one is no different.  Contrary to what the regulation-happy worry-warts suggest, the Internet has never been more “open” than it is today. After all, as Geert Lovink reminded us in his 2008 critique of Jonathan Zittrain’s thinking about the decline of online openness:

[In] [t]he first decades[,] the Internet was a closed world, only accessible to (Western) academics and the U.S. military. In order to access the Internet one had to be an academic computer scientist or a physicist. Until the early nineties it was not possible for ordinary citizens, artists, business[es] or activists, in the USA or elsewhere, to obtain an email address and make use of the rudimentary UNIX-based applications. … It was a network of networks—but still a closed one.

And even though it will probably make the folks at Free Press and Public Knowledge have an aneurysm, it’s abundantly clear what shook-up this sleepy, closed model: commercialization.  That’s right, those evil folks who had the audacity to want to make a dollar online were the ones who brought us the “open” Internet we know and love today! 

Ironically, it was only because the so-called “walled garden” providers of that era — AOL and CompuServe, for example — came along that many average folk were even able to experience and enjoy this strange new world called the Internet. “The fact that millions of Americans for the first time experienced the Internet through services like AOL (and continue to do so) is a reality that Zittrain simply overlooks,” notes Lovink.

It’s true, of course, that services like AOL and CompuServe held our hands to some extent and gave many new Netizens a guided tour of cyberspace. Thus, many would push back against the suggestion that those companies actually helped promote “openness.”  Regardless, that’s all ancient history now because the walls around those particular gardens came crashing down after users became more comfortable navigating the Internet on their own. As a result, CompuServe faded from the scene and AOL lost all 25 million of its $20/month-paying subscribers as they were overtaken by the search and social networking paradigms they never saw coming.

But commercialization promoted openness in a more profound way with the rise of online commerce and the need to expand markets for goods and services, attract audiences, and grow advertising budgets. “Closed” business models just haven’t had much luck online.  Businesses of all flavors aren’t going to make more money online by “blocking” or foreclosing opportunities.

So, getting back to Net neutrality.. should we trust the claims of those who say the FCC will give us a more “open” Internet through a top-down regulatory regime?  I’ll let the brilliant Jack Shafer of Slate answer that question:

So the basic question here is who will set the Internet’s priorities, the government or the providers. That I have an innate distrust for government should surprise no regular readers. Traditionally, the state censors and marginalizes voices while private businesses tend to remain tolerant. Even at the height of the rebellions of the 1960s and early 1970s, political radicals and social radicals could always find printers to publish their most sordid, seditious, and sensational material. But that’s only because there was no FCC control over who could own and operate a printing press, no control over what prices they could charge for their services, and no state commandment that they had to accept any print job. The only times the FCC has spurred debate and commentary have been when it has stepped out of the way.

The FCC’s track record of encouraging innovation or “openness” has just not been a pretty one. Regulatory capture is one culprit here, obviously, but even when the agency’s heart is in the right spot, bureaucratic bungling usually derails the best of intentions with mounds of red tape and years of legal wrangling.

Again, the good news is that almost all signs point in the direction of things growing even more open over time — so long, that is, as the FCC doesn’t screw things up.

[ p.s. I will have much more to say about my views on “openness” and Net optimism in a chapter for Berin Szoka’s terrific upcoming book, The Next Digital Decade.  I built my chapter around this Concurring Opinions debate I had with Jonathan Zittrain earlier this year.]

My Romanian space lawyer (and improbably-named) friend Virgiliu Pop has made the front page of Space.com today in a great interview with leading space journalist Leonard David about his new book Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership.  Virgil slams the “Common Heritage of Mankind” socialism behind the 1979 Moon Treaty, which was killed in the U.S. Senate by the free-market space movement, which later gave birth to the Space Frontier Foundation (which I chair).

Virgil once famously claimed ownership of the sun to demonstrate the absurdity of serious assertions made by a number of charlatans to ownership of lunar territory (Dennis Hope) or the entire Eros asteroid (Greg Nemitz).  Virgil’s point was “to show how ridiculous a property rights system in outer space would be if it were to be based solely on claim unsubstantiated by any actual possession.”

I’m looking forward to reading Virgil’s book–and to writing a proper review.  For now, I’ll just say that I think Virgil and I see eye-to-eye on three key premises (something of a rarity among space lawyers on the ultra-contentious issue of property rights):

1. The Outer Space Treaty of 1967 prohibits nations from appropriating territory in space and also prohibits individuals from asserting any territorial claims (generally accepted) except to a narrowly-limited area under actual use (not accepted by all space lawyers).
2. The Outer Space Treaty, properly understood, does not bar claims to ownership of movable objects such as extracted resources or even (if they can be moved in a meaningful way) entire asteroids or comets.
3. Securing such property rights is essential to the economic development of space.

Here are a few choice excerpts from Virgil’s new book on the big picture of property rights in space:

Outer space needs to be spared the painful experience of the former Eastern Block. Despite the noble ideals of equity and care for the have-nots, the CHM paradigm has more faults than merits. A refutation of the Common Heritage principle does not mean, however, that the developing world will, or should, be left behind in the space era. China, India and Brazil are living proofs that a developing country can, through its own effort, join the spacefaring club. Instead of freeloading on the efforts of the older spacefarers, the have-nots should pool their meagre financial resources into a common space agency or into regional ones, and proceed at exploiting the riches of outer space for themselves. The rallying cry of Marxism – “Proletarians of all countries, unite; you have nothing to lose but your chains” should evolve into “Countries of the world unite – you have nothing to lose but the chains of gravity”. The skies are open. “

…

The frontier paradigm has proven its worth on our planet, and it most likely will do so in the extraterrestrial realms. Homesteading is likely to transform the lunar desert in the same manner as it transformed the 19th Century United States. Space is indeed a new frontier calling for individualism rather than collectivism, and its challenges need to be addressed with a legal regime favourable to property rights. Such a regime is seen by many authors as not only useful, but also as the only means of opening the extraterrestrial realms to settlement, given the reluctance of most industrialists to invest money in an endeavour without having the security that they will enjoy the benefits. It may also occur that a minority of investors, with a bigger tolerance to risk, would adopt an anarcho-capitalist approach and “cross the Alleghenies” without backing from a sovereign State.

Given the abundance of extraterrestrial resources, it would be nonsensical to forbid their private appropriation. Securing property rights would be a small price to pay, and more beneficial to humankind, compared to the alternative of keeping the extraterrestrial realms undeveloped. The practical arguments against the Frontier paradigm may have merit, but the issues raised can be tackled. The ideological arguments, nonetheless, are emotional rather than rational.

Whereas the frontier paradigm is outlawed in the current incarnation of the international law of outer space, law is a dynamic phenomenon and it may evolve towards a regime supportive of property rights in outer space. A shift from the res publica approach may be in the cards, given the official support of the Aldridge commission for property rights. Until this shift happens, the non-appropriation principle remains nonetheless the lex lata in the extraterrestrial realms.

As TLF readers may know, I took over in July as Chairman of the Board of the Space Frontier Foundation.  As I explained in my recent interview on The Space Show, SFF has been the leading citizens’ advocacy group for space commercialization since 1988.  Dedicated to promoting Princeton physicist Gerard O’Neill‘s vision of space settlement, as described in his 1976 masterpiece The High Frontier, the Foundation has always argued that “space is a place, not a program.”

We sent out the following press release on October 28, calling for a major transformation of the U.S. government’s space program by which the U.S. government would buy commercial transportation to the International Space Station.  We’ll have more to say about this in the coming weeks.

Space Frontier Foundation Finds Funding Source for COTS-D

The Space Frontier Foundation today called upon Presidential candidates Barack Obama and John McCain to invest the $2 billion in new funds they have promised to NASA for reducing the “Gap” in U.S. human spaceflight (after the Space Shuttle is retired in 2010) to spur innovation and competition in America.

Foundation Chairman Berin Szoka said “It’s time that our national leaders give American entrepreneurs a shot at closing this gap. Let’s take the two billion dollars in the candidates’ plans and fund up to five winners of COTS-D.”

The NASA Authorization Act of 2008, recently signed into law by the President, directs NASA to “issue a notice of intent [by mid-April 2009] … to enter into a funded, competitively awarded Space Act Agreement with two or more commercial entities’ for transporting humans to the ISS”-the “Capability D” of NASA’s Commercial Orbital Transportation Services program (or COTS-D for short). But that directive is not yet funded.

Szoka continued, “Let’s have an American competition in space – to create good jobs, fuel innovation, and close the gap more quickly. With private funds matching government’s investment, we can dramatically leverage the $2 billion to produce breakthroughs in a new American industry – commercial orbital human spaceflight.”

By investing in several different approaches, the government will win no matter who wins this new race, and also benefit from the resulting price competition.

Many American companies, including Boeing, PlanetSpace, SpaceDev, SpaceX, and t/Space have each previously submitted credible COTS-D proposals to NASA. Each of these firms has reached the semi-finals of one of the previous NASA COTS competitions. Increasing funding for COTS by $2 billion would allow NASA to fund all five of these promising companies’ proposals with COTS agreements, and in so doing, build redundancy into the human spaceflight capability available to NASA and other customers.

“It’s popular in Washington to use ‘The Gap’ to cynically justify continued funding of an expensive jobs program,” concluded the Foundation’s co-founder, Bob Werb. “We’re using ‘The Gap’ to advocate a policy that will bridge a gap that matters much more: the chasm between a dying government Human spaceflight monopoly and an emerging, free and competitive marketplace that can open the space frontier to everyone.”