If Congress doesn't favor Net Neutrality, what are our options?
Four years ago this month, in July 2002, Lawrence Lessig gave a landmark talk at OSCON called “Free Culture” (see the on-line Resources). In it, he detailed the damage caused to technology and culture by the insane growth of software patents, the limitless enlargement of copyright protection and other absurdities burned into law by clueless congresscritters. And, he chided us for doing nothing about it:
In an interview two days ago, [retiring Congressman J.C.] Watts said, “Here's the problem with Washington: if you are explaining, you are losing.” It's a bumper-sticker culture. People have to get it like that, and if they don't, if it takes three seconds to make them understand, you're off their radar screen. Three seconds to understand, or you lose. This is our problem. Six years after this battle began, we're still explaining. We're still explaining and we are losing. They frame this as a massive battle to stop theft, to protect property. They don't get why re-architecting the network destroys innovation and creativity. They extend copyrights perpetually. They don't get how that in itself is a form of theft. A theft of our common culture. We have failed in getting them to see what the issues here are and that's why we live in this place where a tradition speaks of freedom and their controls take it away.
Now, I've spent two years talking to you. To us. About this. And we've not done anything yet. A lot of energy building sites and blogs and Slashdot stories. [But] nothing yet to change that vision in Washington. Because we hate Washington, right? Who would waste his time in Washington?
But if you don't do something now, this freedom that you built, that you spend your life coding, this freedom will be taken away. Either by those who see you as a threat, who then invoke the system of law we call patents, or by those who take advantage of the extraordinary expansion of control that the law of copyright now gives them over innovation. Either of these two changes through law will produce a world where your freedom has been taken away. And, If You Can't Fight For Your Freedom...You Don't Deserve It.
But you've done nothing.
Ah, but now we have. In 2005, our bumper sticker appeared and became a rallying cry for pro-Net legislation. It's name: Net Neutrality. The idea is that networks should be open and without prejudice about what they carry. In the container cargo system of moving packets that comprises the Net, contents of containers should be of no interest to those who own and operate the various parts of the system.
This week, as I write this (in early April), many pro-Neutrality advocates (including myself) have just finished gathering at David Isenberg's Freedom To Connect (F2C) Conference in Washington, DC (see Resources). And they haven't been alone. The Big Boys missing in action when Larry Lessig gave his talk have been all over the case. Amazon, Google, Yahoo and Microsoft, among others, have been lobbying Congress to protect the Net's neutrality. Vint Cerf, one of the Net's fathers (and now VP and Chief Internet Evangelist at Google) said this in his prepared statement for a Senate commerce committee hearing on Net Neutrality:
Allowing broadband carriers to control what people see and do on-line would fundamentally undermine the principles that have made the Internet such a success. For the foreseeable future, most Americans will face little choice among broadband carriers. Enshrining a rule that permits carriers to discriminate in favor of certain kinds or sources of services would place those carriers in control of on-line activity. Allowing broadband carriers to reserve huge amounts of bandwidth for their own services will not give consumers the broadband Internet our country and economy need. Promoting an open and accessible Internet is critical for consumers.
Google believes that consumers should be able to use the Internet connections that they pay for in the way that they want. This principle—that users pick winners and losers in the Internet marketplace, not carriers—is an architectural and policy choice critical to innovation on-line. Google itself is a product of the Internet. We care passionately about the future of the Net, not just for ourselves, but because of all the other potential Googles out there. Indeed, we are not alone. Our concerns are shared by Internet companies, small businesses, end users and consumer groups across the country. The vibrant ecosystem of innovation that lies at the heart of the Internet creates wealth and opportunity for millions of Americans. That ecosystem—based upon a neutral open network—should be nourished and promoted.
At F2C, Representative Rick Boucher, a Virginia Democrat, said he and Rep. Edward Markey (D-Mass) would introduce an amendment to the Telecom Act rewrite (of the last Act, passed in 1996) that says that “if a telephone company or broadband provider of any kind decides to prioritize any content, then they have to offer that same fast-lane treatment to all content providers without charge.”
This amendment, Boucher explained, would fortify Net Neutrality provisions already in the bill. Those provisions would give the FCC statutory authority to hear disputes relating to the commission's own principles, which include former FCC Chairman Michael Powell's four “Internet Freedoms” (to access content, to use applications, to attach devices and to obtain service plan information), which have since been watered down under current chairman Kevin Martin (see Resources).
During the conference, however, it became clear that, although most of those present agreed that Net Neutrality is a Good Thing to have, there was little agreement about the wisdom of burning it into law. I was one of those whose advocacy of Net Neutrality is tempered by misgivings about burning it into law (see Resources for a link to my article on the LJ Web site). That's what I said on stage at the show (during a two-person panel with Cluetrain co-author David Weinberger). Another who took the same general position was Michael Powell, who spoke the next day. I recorded some of what Powell said. Here's an excerpt:
First...there is a very shallow current understanding of tech. If you go give a quiz about the seven layers of the Internet—good luck. So, be careful of inviting the legislative process when they have a very bad understanding of the technical underpinnings. Because the secondary consequences of their errors can be enormous.
Number two: be careful. You live by the sword, you die by the sword. I'm a big believer in subversion or jujitsu when it comes to this stuff. Which is: let the weight of inertia be on your side. Which [means] I would rather try constantly to position my industry where I succeed if government does nothing, versus positioning it in a way where I need them to do something or I'm dead. Because, if you're in a position where you desperately need to do something or you're dead, start ordering your coffin and digging the plot....
And the other thing is, do you believe in a snapshot of time, you can trust the government—who, by the way, will have a vague definition because they don't get it well enough? If this community doesn't understand it, as I heard...I can tell you right now, very few people in Washington do. This means you're going to get a potentially very ambiguous, subject to massive variations in interpretation, pile of law.
Now, personalities change, political power changes, congressmen come and go, and presidents change. You're living with something that's a perpetual cycle of interpretation. And, by the way, it's always easier to get a law on the books than ever to get it off again. If it goes on, be prepared that it's there for 15 to 20 years. And the other thing is, government has a way of turning on people. Ask Bill Gates. It may be about networks today, but those same principles can be used against innovative business models and applications in other contexts. And, I submit to you they would be. It might have to do with the interoperability of your new product with somebody else's product. It might have to do with servers and caching. Someone will think it's a good idea to apply the same basic principles to the other side of the community.
Third, and lastly for the moment, I would say, be careful because you're playing their game. Regulatory battles are an art form, and these guys are the maestros. It's always a little like Br'er Rabbit. “Oh, woe is me. Throw me on the briar patch and don't regu—oh, regulate me.” Uch. The average one of these incumbents, whether a cable or a phone company, have 40 lawyers in Washington dedicated to this work. Resources. Ability. One hundred years of skill. I'm not criticizing, only stating a reality. And, then I meet entrepreneurs who have 12 guys and can't afford a legal cost center to do research. Then, let me add the judicial process. Every decision you get from the Congress and the FCC will spend the next three and a half to four years in court.
The next day, Boucher and Markey's amendment was shot down, on partisan lines, 23–8.
Of course, that was just one fight among many. But it also suggests that our only options are what Powell calls “subversion or jujitsu”.
The biggest form of subversion may be what the Free Software and Open Source movements have been doing from the beginning: producing, rather than just consuming. Powerful things happen when the demand side supplies itself. That's what gave us the GNU tools, Linux, the LAMP stack and the Net itself. And, what thousands of geeks did with code, millions of consumers can do with media.
In the next several years, we'll see the supply side of the media market change radically. The ability to produce top-quality audio has been around for a while. But video will be the big difference-maker. Will premium deals between giant carriers and giant content producers even matter when the biggest source of content for everybody on the Net will be each other?
New businesses and business models will emerge then. These will need to be cage-free—ones that evolve to thrive in the Net's wide-open natural habitat.
For guidance in that direction, here's Lessig again, from the same “Free Culture” speech:
Build a world of transparent creativity—that's your job, this weird exception in the 21st century of an industry devoted to transparent creativity, the free sharing of knowledge. It was not a choice in 1790; it was nature in 1790. You are rebuilding nature. This is what you do. You build a common base that other people can build upon....This is your enterprise. Create like it's 1790. That's your way of being. And you remind the rest of the world of what it was like when creativity and innovation were a process where people added to common knowledge. In this battle between a proprietary structure and a free structure, you show the value of the free.
Two hundred sixteen years later, our job is still putting revolution to work.
Resources for this article: /article/9012.