March 17, 2003  ·  Lessig

Tim Wu has a nice paper about “network neutrality.” The basic idea is familiar: the original end-to-end internet is increasingly under threat as network providers develop technologies to discriminate among network users. For many years, this fear of discrimination led many to support “open access” campaigns � requiring providers to permit competitors to use their lines. Competition would, the argument went, weaken the incentives for certain forms of discrimination.
“Open access” has worked extremely well in Japan (where you can get 100 mbs for $50 a month), but it didn�t work well here. Tim�s proposal is for a different form of regulation aimed at neutrality. I recommend it strongly, and would be eager to see any feedback.

March 16, 2003  ·  Lessig

I saw John Edwards speak yesterday at a small party thrown by a friend. He was extraordinary. It was just a simple stump speech — a bit long, and a bit rambling. But it was moving in a way I have never before seen in a politician.

No doubt the stage for this candidate is set to be moving: son of a mill-worker, first kid to go to college, from a small town (800 people), a life before the Senate persuading juries about injustices. (The anti-Bush in every bit of his personal history.) And no doubt every candidate speaks of “ideals and principles” and about how he or she sees them to be the source of truth.

But there was something different in this candidate this time. There was nothing crafted or rhetorical: it was simple and direct. And yet he seemed to ache when talking about the things he thought wrong. He spoke of the hatred that bad diplomacy is building around the world, and the crowd was pin-drop-silent as he reminded them of growing up as a nation thought the hero of the world. He spoke of civil rights — an easy topic in San Francisco — but he described speaking of civil rights, and his support for affirmative action, in town halls in North Carolina. And most importantly, he has a knack for understanding how to confront hard questions directly: Someone asked him whether he would go into Iraq without a second resolution, and he understood that here in San Francisco, peace capital of the Americas, the “correct” answer is “no”. But he looked straight into the eyes of the questioner and said he would: he believed Bush had totally fumbled the lead up to this war, and he was sickened by how much we had lost in the build up to this war, but he believed the Iraqi president had to go.

He was asked what were the three top issues, and, almost bored with the question, he rattled of the two top issues that his advisors had fed him (no doubt as fed to them by the polls). But much more interesting were the themes that seemed to move his passion. Top among these was the “think about all we have have lost” theme. Again and again he came back to this idea, each time more moving. He described the battle over federal judges; the battle over the Clean Air Act; the budget and tax cuts; the loss of respect and authority in the world. This was a group primed to believe that the Bush administration had been a disaster. But Edwards did something in that small group I can’t yet understand. He made that group feel what we had before simply believed.

I’ve spent too many years believing that “ideals and principles” were the province of courts, and that politicians were hopeless. At least the first half of that was silly. And while I know I am in rebound mode just now, I still can’t help but think that this candidate is something different. If his advisors let him speak like this generally, if he resists their constant efforts to focus him on the bland and safe, then this candidate will make this race seem very different.

One note of blog relevance: He spent a long time talking about the failure of the press to make the differences and subtleties of positions clear. Everything for the press was black and white; there was no effort to convey the positions in between. Here is one clear role for weblogs in this election: to fill out the detail. A second might be even more important: who was a candidate talking to; and what did he say that he knew they didn’t want to hear. Edwards says he talks about affirmative action and civil rights in town hall meetings in North Carolina. I believe him, but it would be great to read that in this space. I saw him support war — ultimately, and with important qualifications, and with strong criticism of the cowboy president — in an audience that disagreed. That is a measure of something good in a man who could well prove to be great.

March 14, 2003  ·  Lessig

CIO Insight posted a piece by me about spectrum yesterday, and it was quickly slashdotted. But they posted a side-bar, not the piece. The actual piece is now up. The piece they posted tries to explain how to understand a “wireless commons.”

March 14, 2003  ·  Lessig

There’s a new piece by Eli Noam posted (for free for 2 weeks) at the FT about spectrum policy. This follows the brilliant and much discussed piece by David Weinberger on Salon explaining David Reed’s views about “interference.”

Noam has been in the middle of the debate between the spectrum-as-property types and the spectrum-as-commons types for a long time. As his piece concludes, “spectrum should be free to access but not free of charge.” The reason is an assumption that is at the core of his and the spectrum-as-property school of thought: “Eventually, any resource whose utili[z]ation is of value, yet whose use is without a charge, will be over-utili[z]ed.”

The more I hear these property and quasi-property types talk, the more I believe that this is the core assumption that needs to be attacked. There are two possible lines of attack, both, in my view, true, but only one which is useful.

The true and not useful line argues that new spectrum technologies will eliminate scarcity. Maybe, but that argument will not convince anyone but those closest to the technology (if them). Instead, the better line, I believe, is to grant the assumption that “eventually” this resource could be “over-utilized,” but then ask: when?

For what is most striking about this debate is that at the same time the property types argue that property is necessary, they are also arguing that at present there is no spectrum scarcity. (More accurately, they argue that the actual amount of spectrum that is used is tiny, and that any scarcity is solely a function of stupid allocation decisions by the government). But if there is no scarcity, then why we should build an immensely complicated system for pricing and charging for spectrum? Especially why, when we are in a time when the resource, if set free in a commons, could be “shared” through technology without any constraint. Perhaps someday there will be a need to propertize some spectrum. But just because that’s true someday does not mean it is true today.

Two examples to make the point:

(1) Oxygen in the atmosphere is a resource “whose utilization is of value” and at the moment, humans get to use it “without a charge.” Yet even though it may “eventually” be “over-utilized,” no one would argue that we should auction off the oxygen rights now, or charge user fees for breathing just now, simply because “eventually” the use of oxygen may well become “over-utilized.”

(2) The Internet when born was a resource “whose utilization is of value” and yet which did not include protocols that required that people using it be “charged.” Instead, the network simple facilitated coordination without worrying about a price. Economists criticized that from the start, but it would have been a terrible mistake for designers of the internet to listen to the economists and wait for a functioning pricing system before they deployed the network. Instead, the better solution was to begin with the simpler technology (tcp/ip) and layer on more complicated protocols (like a pricing protocol) as they become necessary.

Here again, we should be following the meta-lesson of the end-to-end network: simple network, smart applications. Open the spectrum to free use with minimal protocol regulation, and let’s see whether and when we need to add long-distance charges to the air.

For other resources, check out the web page on our Spectrum Conference, which will have the video from the conference soon, but does have a great paper by Yochai Benkler as well as a great set of links about the spectrum debate.

March 13, 2003  ·  Lessig

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: “You might be interested in one of the editorials on page 28.” On page 27-28, Steve Forbes endorses the idea of the Eldred Act. More good news about progress on that front soon, but I am proud to count Mr. Forbes as someone who gets it. Now if we could only find an equivalently prominent Democrat.

March 12, 2003  ·  Lessig

Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin’s post is: “the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play.”

Agreed. And as I’m the least qualified person to comment on the matter (as I’m the most biased person who has a view on the matter), my efforts are devoted to the future, not this past. My claim was not “foul play” or, as others have said, “corruption.” It was instead the sort of criticism that one can only make of an institution one respects: consistency. The obligations of consistency about principle across cases extend at least to those justices who believe in the principle. They don’t extend to justices who have dissented from the principle. Thus the burden or justifying and distinguishing Lopez falls on those who signed the Lopez/Morrison opinions. The other four (three of whom wrote the opinions in this case) are not, in my view, bound by that principle to say anything.

The point is not that a distinction couldn’t be drawn. The point is that they didn’t draw it. And the point is not that the Court must respond to every argument an advocate makes. But when two federal judges frame their dissent on the basis of a principle that also frames the petition upon which cert was granted, a certain decency would suggest something more than silence.

But I leave it to others to resolve the ethics of judicial principle as they apply to this case. There is lots of work to do that will matter much more.

March 11, 2003  ·  Lessig

So as the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought the conference was “in Orlando.” But Orlando has apparently morphed into Disney World, and so when yesterday the Court refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug.

With that decision, a self-imposed silence about these things ends too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that “the silent five” were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge.

So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity.

This stage is now over. I apologize for the silence. More hopeful stuff soon.