July 2, 2003  ·  Lessig

I’m relieved to find myself again in disagreement with Declan. In the simple world that images just two choices — regulation or no regulation — Declan thinks Microsoft is behaving inconsistently. Microsoft has argued (rightly and wrongly, depending upon the case, imho) against various examples of regulation. But Declan is now aghast to discover that Microsoft has been now lobbying to get the FCC to impose a different form of regulation. Oh my gosh! Imagine that!

The problem here is not Microsoft’s. The problem is Declan, and the simple-isms that continue to reign in Declan-thought. No one serious opposes all regulation. No one serious supports all regulation. The only serious debate is whether a particular regulation makes sense.

The particular regulation that Microsoft has endorsed does, in my view, make lots of sense. As Microsoft described in FCC hearings, increasingly, cable companies are beginning to assert the right to decide which applications will run on their cable networks. Microsoft faced this when they tried to deploy Xbox technology. Tim Wu has other examples of this control here.

Declan quotes many who say, hey, no reason to worry. There’s no good evidence that there is any significant discrimination — yet.

But this is the part of this argument that convinces me Declan is spending too much time in Washington, and should go back to his CompSci roots. The issue here is not “regulation vs no regulation”; the issue here is the continued viability of any end-to-end architecture to the Internet.

If in fact networks are allowed to decide which applications and content can run on the network, then “the Internet” is dead. Sure, there will be a network out there — the cable network, or whatever you want to call it — but it will no longer be “the Internet” that Saltzer, Clark and Reed wrote about.

And, more importantly, and completely contrary to the non-thought that now reigns in Washington about this: the very possibility that this is the future of the Internet is having an effect on investment right now.

The point is obvious (save to those who inhale the DC air): Investments in technologies for the Internet are being made today, based upon the expectations about what the Internet will be in 3-5 years. If cable companies are allowed to decide what applications and content gets to run on that network, then the cost of innovation has been increased right now. If everyone with an Xbox technology needs permission to use the Internet, then what everyone should begin to recognize is that only Microsoft — and others with their money and power — will have permission to use the Net.

Maybe that’s ok with Declan and the Cato types. After all, they’re fighting for a principle — “no regulation.” Ah yes. “No regulation.”

What planet do these guys come from?