May 21, 2006  ·  Lessig

So the recent struggles about network neutrality have led me to recognize something I hadn’t quite seen before. And that something in turn makes more puzzling the debates that have been raised around network neutrality.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

So from this perspective, it is easy to understand those who reject FU and NN (who are they?). And it is easy to understand those who embrace FU and NN. What gets difficult is understanding those who embrace one while rejecting the other — at least when that rejection is articulated in terms of “government regulation.”

For there is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations” — each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

So too are other arguments advanced against NN also available FU. NN opponents say the market will take care of the problem — that people won’t use networks that don’t give them the freedom they want. But the same could be said about copyright — if Madonna’s too restrictive, you could try Lyle Lovett. Some say there’s not a showing of market power with NN sufficient to justify state intervention. But on that standard, could there ever be a justification for FU? Who could possibly have enough culture as to have that amount of market power over culture? And finally, NN opponents say NN would sap the incentives from network owners, and they won’t build fast networks. But again, the same argument is made against FU — that giving up perfect control destroys the incentives of copyright holders. In both cases, the arguments are the same — on the one side, the call for perfect control over a property right; on the other, the demand for some limit in the exercise of a property right.

There’s also a consistency problem of course for those who embrace NN and criticize FU (me, for example). For the reasons I’m critical of FU are exactly the reasons people are fearful of NN. That recognition has helped me understand the nature of the concern about NN. But again, having lived the legal battles over fair use, and watched the regulatory battles over NN(‘s equivalent), I don’t see how anyone can be categorical in embracing FU while rejecting NN.

No doubt, some of those who embrace FU while rejecting NN (or the other way round) do so because the value said to be protected by each is not, in their view, sufficiently strong. That difference wouldn’t raise questions about consistency. It would simply reflect differences in values.

But then let’s hear that debate. Let’s hear people who say competition in applications and content isn’t important. Or that it doesn’t raise issues of free speech. Or whatever other reasons might be advanced to argue that government shouldn’t intervene here. Such arguments would at least be progress in a debate that seems to me so far just stuck in a confusion.

  • Andreas

    > I don�t see how anyone can be categorical in embracing FU while rejecting NN.

    Maybe because they see it like this (just thinking aloud here):

    Copyright: a state-imposed model regulating an originally unregulated matter
    Fair use: a regulation limiting the scope of this state-imposed model
    Network neutrality: a state-imposed model regulating an originally unregulated matter

  • http://www.HowToPrimers.com Kevin Farnham

    Here’s one of my reasons for concern about new regulation to enforce network neutrality: complete distrust of the ability of the current Congress and President to get it right should they attempt to create a regulation that could have enormous impact on the future. Is a botched law better than no law? When the current situation is not dire, and the current legislators are untrustworthy, isn’t maintaining the status quo a somewhat appealing option?

    I’m not a lawyer, and I definitely do not know all the details of either copyright law or the network neutrality debate. But what I read makes it sound like a pivotal decision which, if botched, could result in dire losses for the economy, for innovation, indeed for freedom. Botched attempts to fix something usually just create new conditions where the powerful can legally undertake actions that have precisely the effect that the new regulation was supposed to prevent.

    That’s why, at the moment, I’m one of the inconsistent ones who support FU and oppose the currently proposed NN effort. I don’t trust that it can be implemented in a manner that would achieve the stated objective, given the current set of legislators in Congress. I think we may have more network neutrality today (in practice) than what we might have after what came out of this Congress was digested by the corporate and class action suit lawyers.

  • http://bonobo-conspiracy.ca/ Matthew Skala

    How is there necessarily a consistency problem with embracing one of FU and NN while rejecting the other? If you accept that a limited amount of government regulation of property rights is okay, but not an unlimited amount, then there’s plenty of room for discussing how much regulation is okay or not; and then it’s easy to say that FU is an acceptable amount of government regulation and NN isn’t, or vice versa. It’s true that an extremist can’t accept one without the other, but not too many smart people are extremists anyway.

    (For what it’s worth, I support both – but I have more reservations about supporting NN than about supporting FU.)

  • http://slashhome.org/ Michael Leuchtenburg

    Andreas and Matthew both make good points. I can understand supporting FU and opposing NN as a general opposition to government regulation. FU could be considered to be closer to having no copyright at all. If they are opposed to copyright as a whole, then FU is a step in the right direction, as its a step towards more freedom for the users of content.

  • Jeremy

    Professor,

    The most striking difference between FU and NN is that FU restricts the rights granted to owners of Intellectual Property (more about this in my next point) while NN restricts the rights of owners of physical property.

    As you know already, IP (for the purposes of discussion, I will only refer to Copyrights) is a statutory monopoly granted by the government to the creator of a work. It is granted because the government wants to encourage that entity to continue producing work in an environment where it is relatively simple to reproduce the work once it has been created. Physical networks, on the other hand, are not simple to recreate. In fact, the value of a network is not in the technology that was used to produce it (in most cases) but on the physical effort and capital that had to go into laying the wires and installing the equipment.

    As an aside, I think that it is actually a bit humorous that the very same people who years ago would argue ad nauseum that Trademarks, Patents, and Copyrights shouldn’t be referred to as Intellectual property or treated as such for the purposes of legislation. These claims were ostensibly because IP isn’t property at all, just a temporary right to sell a good without competition. It’s disingenuous to now eschew that previous argument now that it helps you draw the parallels that you need here.

    Your argument about consumer choice “But the same could be said about copyright – if Madonna’s too restrictive, you could try Lyle Lovett. ” is weak, and I suspect you knew that when you wrote the post. From Econ 101, broadband from provider A is a clear substitute for broadband from provider B. Madonna is not a substitute for Lyle lovett. If Madonna’s records were to increase to $50 apiece, I doubt it would affect Lyle Lovett’s sales (or other record sales as an aggregate, for that matter).

    So, to address your question: It is perfectly reasonable to support FU (as I do), but oppose NN (as I also do). FU is a restriction on statutory monopoly rights of creative property, while NN is a restriction on property rights of real property. (Or, more succinctly put by an earlier poster, FU is a restriction on restriction of rights while NN is simply a restriction of rights.)

    One can certainly also make a value judgement argument. I personally won’t lose any sleep if an artist decides not to record another song because FU is too liberal. Sure, it’s a loss for the world, but it’s an ARTISTIC loss. I won’t be entertained as much. If a company, because of NN regulations, decides not to invest in a new fiber network, everyone loses. The company (and shareholders) lose the potential revenue, consumers lose the promise of better services, and the economy loses because people are not as efficient in their work. This is not just a loss to an isolated and arguably irrelevant section of the economy (music producers), this is a loss to almost every company and consumer that exists.

    Finally, I oppose NN, in the end, for two reasons: because it is a solution in search of a problem and because I don’t trust Congress to get it right. When we actually have clear-cut examples of corporate abuse and a clear market failure to respond, then I will be glad to talk about government intervention. Until then, I think it would be horrible to get a NN bill that looks like the CAN-SPAM Act.

  • http://craphound.com Cory Doctorow

    Hey, Larry — good points. I’d say one large difference between FU and NN is that discovering net-bias is a lot harder than discovering overbroad enforcement of copyright. When a copyright holder asserts control of an area reserved to the public, you know it, because that assertion is necessarily communicated to some user of the copyright (say, in the form of a notice-and-takedown).

    But a biased network could be very hard to detect. I’ve been trying to reach two servers all weekend from my flat in London that are unreachable. A traceroute shows a badly configured route from BT to a transatlantic line. I can reach these hosts by tunneling to my server in Toronto or to the WELL in California, though. Is my ISP being biased, or has someone, somewhere, published a bad route?

    Ultimately, I worry that the way you discover non-neutral ISP behavior would have to be going through the records of that ISP, its server logs, and configuration files. Presumably, this would happen after someone made a convincing complaint to some regulator, who would then come in and take these records away for investigation. In that sense, net-bias is a little like insider trading: a suspicious pattern is used as the basis for a very invasive investigation.

    You’ve written before about how FU is the right to hire a lawyer, and that it is off-limits to most defendants because they can’t afford to litigate to discover whether their use is fair or not. In a process like the one I describe above, the ability to mobilize a regulator to take action strikes me as even more rarified, reserved to incumbents who are good at pushing paper on the Hill, not available to the same spunky startups we’re trying to rescue from the phone companies’ venality.

    I think that the NN regulation skeptics want to hear detail about three things that have not yet been articulated by the NN regulation advocates:

    * What would the regulation prohibit?

    * How would breaches of the regulation be detected?

    * How would the regulation be enforced once a breach was detected?

    Cory

  • http://www.copybites.com Cory Hojka

    Prof. Lessig,

    I find your comparative analysis here interesting, but I’m not sure that I agree. First, the burden of government regulation can weigh differently between the two parties. For example, with fair use the burden of regulation falls on the person claiming a fair use defense, as it is their job to make a persuasive argument in court that their activities are exempted under Section 107. Otherwise, a strong assumption exists for the protection of the copyright holder�s work. Thus, one must consider what advocates are saying in terms of who bears the cost of the regulatory burden. If they perceive fair use as ok, because it primarily imposes costs on those who want to risk arguing for the exception, and they see network neutrality as bad, because the costs of regulation fall on the property owner, that strikes me as pretty consistent ideology.

    Second, in terms of markets, the application of rules between parties matter. In fair use, the relationship between two parties and the use of the copyrighted work define whether an exception exists. Consequently, we can generally only determine fair use on a case-by-case basis. In network neutrality, it is far more likely that the exceptions to property rules will apply to every one on the network. Thus, one primary economic distinction between fair use and network neutrality rules is the difference, relative to the number of users who end up enjoying the exception, in the size of the carve outs they make in property rights. Hence, someone who advocates fair use and dislikes network neutrality, for example, may be worried that exceptions won�t be applied toward individual circumstances, as the economic costs of providing them to all users may be too high. A similar argument exists on the incentive side, as the number of people exempted will affect what incentives remain for the property right holder.

    I must admit, however, that this distinction becomes more difficult to make once protected works are distributed over networks. Here, the economic consequences of exceptions applied to digital content distribution may be quite similar to those imposed by network neutrality. Nonetheless, that doesn�t mean there may not exist other economic distinctions between the two.

    Regardless, I agree with you that the debate over network neutrality is quite unclear. Personally, I find that part of the problem is that network neutrality always seems defined on an ad hoc basis whenever it�s discussed. This may be a reflection of the interests of the different parties involved, but nonetheless it makes the ongoing discussions extremely difficult to comprehend when it seems like everyone has a significantly different interpretation of network neutrality.

  • three blind mice

    The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others.

    well, professor, it seems to us that viewing fair use as a “state enforced limit on property rights” is the tiny, inverted image one gets from looking through the wrong end of the telescope.

    fair use might also be seen (by peering through the other end of the telescope) as a positive right of trespass very much like sweden’s allemansrätt – the ancient custom of permitting travelers in sparsely populated regions of sweden to pick berries, gather nuts, and temporarily camp on private property as long as the intrusion was temporary and the impact minimal. in swedish, the rule is: “inte störa – inte förstöra” do not disturb, do not destroy. allemansrätt does not dicate to a property owner what he can and cannot do otherwise with his property; it does not permanenty confiscate a portion (or all) of the land for public use; it does not prevent private campgrounds from being built.

    in stark contrast, “network neutrality” very much a prohibits competing business models for IP transport and IP-based applications, restricts public choice, introduces heavy government regulation, and leaves the development of new technologies under the control of the W3C central planners.

  • http://bonobo-conspiracy.ca/ Matthew Skala

    Jeremy’s point on the difference between intellectual property and physical property is a good one. If we accept IP as “property rights” equivalent to physical property rights, then the terrorists have already won. Since IP “rights” are created by convention to serve policy goals, it makes sense that IP rights could be taken or limited to serve those same policy goals.

    Calling it a taking or limitation is only for convenience’s sake; IP isn’t really being taken or limited by FU. It’s only not being extended as far as we could imagine. The default amount of IP is zero. We could discuss copyright terms as well as copyright extent, in the same framework. Physical property rights are different because they seem to have a stronger natural existence, independent of policy goals.

  • Antonin

    I think you’ve got it backwards, actually. It’s not fair use that’s government regulation; copyright itself is. In a world where the government would not interfere in these matters, there would be no such thing as copyright at all; content creators (for lack of a better term) would be free to adopt technical measures to stop copying, but they wouldn’t have any legal recourse.

    Copyright with fair use and copyright without fair use are both government regulation, and – for that matter – they’re the same amount of regulation, too (saying “you cannot legally do this” is regulation just as much as saying “you can legally do this”).

  • http://poptones.f2o.org poptones

    Kevin F makes a great point that I hadn’t even figured into my intial contempt for NN: that any laws the government passes at this point would almost surely be heavily laden with all sorts of special exceptions for those with the money to spend on capitol hill lobbyists.

    My initial dismissal of NN was even simpler: it isn’t needed or productive. If certain carriers want google to pay a bit more for the massive bandwidth used by their streaming sites, then google will have more incentive to install a widely distributed network of proxies in order to minimize those transport charges. Barring that, then google (who has Billions in capital) gets to subsidize a bit of the broadband fees paid by us users, who aren’t generally overflowing with liquid assets.

    I think the proof of the folly of NN is already quite readily available: how many ISPs now offer very low cost service to those users who are running windows or macs? I pay $60 a month for a 3mbps adsl connection – six months ago I couldn’t even get dsl, it wasn’t installed here. I pay $60 because I use linux and wish to remain free to do with my bandwidth as I please – but if I were running windows I could get the same service from the phone company itself for little more than half that price. I pay a few dollars a month more, I get more freedom – the free market is already at work providing me a “neutral network” and, I suspect, will always be. Already my local statewide ISP is talking about reducing fees around the first of the year – it’s THAT competitive. So what problem does NN regulation solve? At best, helping politicos get re-elected with feel-good legislation that is rich with plenty of rotting fruit hidden at the bottom of the barrel. Thanks, but no thanks – I’ll take my chances on a free market.

  • http://www.jzip.org/ adamsj

    I suspect the disconnect you see comes from a naive “do your own thing” libertarianism argument that goes something like this:

    When I use a copyrighted image under fair use, I’m doing my own thing. I’m not hurting or imposing my will on anybody, if they leave me alone. Network neutrality means forcing my will on the network providers, and that’s wrong!

  • Craig

    Jeremy makes a good point. It’s one thing to create a psudo-property and then restrict its use. It’s another thing to regulate how people use their actual physical property, i.e. routers.

    There are relevant arguments in the NN debate between Christopher S. Yoo and Timothy Wu at Legal Affairs Debate Club. (previously linked to by Tim Wu.) I find Wu and Lessig ignoring the argument, “why not wait and see if damage occurs.” (put much better by Yoo at the link)

    Props to Professor Lessig for making bold statements, though, since they tend to foster more interesting debate.

  • three blind mice

    If we accept IP as “property rights” equivalent to physical property rights, then the terrorists have already won.

    you are aware, aren’t you, that the concept of intellectual property as property is a fundamental part of the American constitution?

    you can’t hold an the whole system of IP responsible for the behavior of a few, sick twisted individuals. for if you do, then shouldn’t we blame the whole system of IP? and if the whole system if IP is guilty, then isn’t this an indictment of the US constitution in general?

    we put it to you, Matthew Scala – isn’t this an indictment of the entire American society?

    well, you can do whatever you want to us, but we’re not going to sit here and listen to you badmouth the United States of America.

    gentlemen!

  • schomsko

    Maybe I am to simple. But to me NN looks like this:
    You pay for the amount of bits you send or receive or for the amount of bits per time you are potentially able to send or receive. Without NN senders and receivers will pay more for bits constituting a more desired information than other bits. A bigger piece of the cake for the telcos, wich they will in part invest into the infrastructure. A smaller piece of the cake for the creators and receivers of broadly desired information. And nothing solid to say about a big part of lesser broad desired information. These are the basics. Any imagination beyond these points lead to confusion about possible future effects. But what would Jesus (formerly known as “the only son of god“ aka „the savior“) rhyme?

    Will inventors stop inventing and creators stop creating – if there is no IP?
    Will the telcos stop competing and the fibres loose their heating in the netneutrality?
    When regulation is a problem state lost virginity. Nuff respect to the givers of transparency. Corrupt government always was a matter to see. But without administration were lost in anarchy. No regulation at all is plain stupidity, cause the strong man can rape the she and most are weak in the society.
    Property is property intellectual or not. If you give it for free your closer to god. Property in mind is justified through work. But properties in cables is work of old jerks.
    The spectrum will be ours like Moglen said. Gnu, Suse, Ubuntu, Debian, Redhat. Cables won’t be dug in the ground. Cause we got the machines not just for sound. They can send and receive through digital air. The power of the plug does not just dry hair.
    Come on you telcos! Take a big bite! You will choke and swallow like a nasty old dyke. You will suck some money out of the rich but frankly the internet won’t be your bitch. If you try to suck the bloggers, the hackers and chatters you will see that free spectrum is something that matters. The machines turn against you and loose all their cables. Invention was always about willings and ables.
    And finally theirs something to see in IP wich is necessary – its reality and economy. DRM doesn’t bother me if its free, cause creators haven’t lost virginity to economy unlike their pimps that published paper and TV within their monopoly.
    Creators want your money, thats old and trippin but they won’t restrict you, cause they want you to klick in. I know your not stupid and you see whats happnin, but non interoperability is cause the manufacturers try to cash in. On something thats not theirs like the mafia does in Vegas. But IP is to creators and not to publishers or Japans Segas.
    If creators are free, they will choose spread to have bread. Their only Monopoly is like me being me. Them get if they get. And their right is them right if their work spreads bright. Monopoly is a thingy from a medieval century we shall get rid of thee. Long live the competitionary and the property!

  • Brian

    you are aware, aren’t you, that the concept of intellectual property as property is a fundamental part of the American constitution?

    Huh? The Constitution says that Congress *may* grant *limited* rights to authors and inventors, for the specific purpose of advancing the arts and sciences. It’s quite clear that IP is a creation of government, as opposed to “natural” property rights.

  • http://www.ibd.com Robert Berger

    People are so clueless about how the Telcos are stealing public property and selling it back to us.

    There would be no telcos without goverments giving or selling public rights of way to the telcos. There would be no telcos to build fiber and overcharge us if they hadn’t been able to accumulate capital from their days (and ongoing life) as a regulated monopoly with a guaranteed rate of return based on their investment (and thus the gold plated infrastructure of the Bell Network).

    So to say that the Telcos “own” the infrastructure and should be able to do whatever they want with it is bogus.

    They have stolen the rights of way from citizens and the core infrastructure and capital from the ratepayers.

    So there should be no tears for telcos and they should be barred from being both in the bit transport and content businesses. It should be one or the other and not both. They are given public rights and ratepayer capital so they must be willing to be regulated for the good of the citizens and ratepayers. Otherwise they should get out of the business and let the municipalities be the local transport, proper “pipe” only businesses be inter-regional common carriers and a vibrant open access based competitive market for content.

  • http://www.nudeybot.net Nudecybot

    Great point Larry I think it can be useful to talk about these issues in the same breath. Both issues involve attempts to control how certain kinds of information are used and communicated.

    I do think markets will punish those who go too far in restricting fair use or in controlling our specific (legal) internet usage, whether the government and the courts and IP law in particular establish reasonable boundaries or not. My concern lies with the destabilizing force of transition. I think balanced legislation could make the difference between reasonably controllable phase change and revolutionary change. And I think we are seeing all the signs of enormous pressure on an established power network which is maladaptive in a new environment which was created by new disruptive technologies for creators, communicators and consumers of information based products.

    To Cory D. – the problem of monitoring networks is not as intractable as perhaps thought – I have several ideas on how this could be approached. I actually find it much scarier if I had to try and monitor the violation of fair use. But I am a network guy so I am highly biased – at some point network folks realized they COULD reliably start to apply prioritization policies to network traffic, and naturally with the commoditization of the first three layers of the network stack – copper, ethernet, and IP – how else could they boost profits but started pushing “application aware network devices” which operate at higher levels of the network stack. Enterprises (may) need them. The internet doesn’t.

    Keep application networking on the edge of the internet. Otherwise it will transform from “the internet” to “the intranets.” A new internet will likely arise in circumvention of them.

    More on my trackback from http://www.infreemation.net

  • Thomas Lord

    I think the FU and NN debates are related in a second way, less apparent on the surface of the formulation of those debates at the moment. It also relates to the DRM debate:

    Is the net a communications network? Or is it a technology for reproducing and distributing digitized commodities?

    From the latter point of view, the net is just the natural evolution of the printing press, creating a variety of interesting alliances. Shortly-behind anti-NN, should it succeed, we’ll no doubt see DRM-embedded-in-net.

    Regards
    -t

  • http://bennett.com/blog Richard Bennett

    It’s hard to debate NN because nobody knows what it means. One theory bans all forms of packet-level discrimination and another simply bans deep packet inspection. There’s also an intermediate theory that says packet-based prioritization is only OK if all packets that ask for high priority are automatically given it, but that’s a non-starter from an engineering perspective as the whole point of priorities is to maintain a short queue for some traffic on the egress from a congested router.

    If NN were applied to supermarkets, there would be no quick check line and every trip to the store would end in a hellish wait in the kind of checkout line they have at Costco. I don’t know what this has to do with fair use exceptions to copyright law, you may as well be comparing NN to gay marriage.

    That’s actually a close fit. NN says the fathers of the Internet wrote a Code of Conduct into its design, and any departure from it brings us perilously close to Satan. The Christian Coalition is in favor of NN regulation for this very reason.

    But let’s play along. Assuming the RFCs for TCP and IP are the Internet’s constitution, are we allowed to amend them without running the risk of bring the Apocalypse down on our heads? Recall that the US Constitution had to be amended to abolish slavery and to allow women to vote.

    Supposing the deal we’re facing now is like this: the Internet, as originally designed by Vint Cerf and the merry elves at USC, discriminates against real-time application just as the Constitution used to discriminate against women and slaves. We’re now at a point where the balance of traffic on Internet could shift from downloads and web pages to real-time voice and video. Wouldn’t it be reasonable to amend the rules such that these new packets are treated reasonably? Bear in mind that TCP can’t really be used for Voice.

    That’s the better analogy.

  • Jim Powers

    As best as I can tell reading through the posts there seems to be two camps opposed to NN:

    Camp 1: The FUD camp. NN is ill-defined, and any definition given by lawmakers could produce “bad” (read: undesirable) outcomes. I can certainly understand this concern.

    Camp 2: Any definition of NN is “wrong” on principle: the government is imposing some sort of unjustified regulation on property. Owners of this property are entitled to use this property in any way they see fit to realize a profit. This argument is disingenuous and not uniformly true within members of this camp.

    I guess that I fall in the non-interesting camp of being for FU and for NN (of course, my support of NN requires a definition that I would agree with). Now the caveats and opportunities:

    My support of something that could be called NN applies to the “thing” we call the Internet. We are all consumers of the resources of this “Internet thing”. Generally speaking we all pay for it directly (via our ISP accounts, as an example) and indirectly (buying products and services from entities that also use the Internet). And I would say that the general expectation of all of these consumers of the Internet resource is that they expect a level playing field. Or at least as level a playing field as can be achieved. Now, I’m not saying that there aren’t players who have advantages because they have built-up their infrastructure to utilize the Internet to deliver their content faster and more reliably. But once the data (packets) are in the fabric of the Internet they are all treated more-or-less the same (a simplification, I know, but the principle should be clear). This means that the quantity, rate, and flow of traffic is defined at the “edges” of the Internet, and not it’s interior. This general attitude towards the packets in the fabric of the Internet is something that has been shown to be something that consumers want and are willing to pay for.

    Camp 2 members would say that this view of NN is fine so long as the government does not mandate it to be this way through regulation. To that I say, I’m sorry, but I think you’re off the mark here. I think that the continued existence of an interconnected network (a.k.a. the Internet) where traffic is routed by rules that are not deliberately discriminatory is wholly worthwhile, and should be maintained, even if regulation is required to maintain it. To that you might counter that such regulation is causing undo financial harm because the network providers are being forced to not realize the maximum profit of their infrastructure. My rebuttal to this is is that you are theorizing on this profit for there are no guarantees of its existence. To that you might say: but the property owners should be allowed to experiment to find if such a profit can be realized. My counter would be: sure, but you can’t play with the packets on the Internet. If you think that you are on to something that is killer money-maker then develop, I don’t know, uber-wacko-DSL where the modems have two DSL-like connections, one carrying regular Internet traffic and one carrying your premium service that’s going to make you rich, so you think.

    The fact that various players got involved in the whole Internet network thing where the general, unspoken, principle was an equal-playing-field for all, was their choice, and there were and are customers who want this. To now propose that you want to reserve the right to tune packet delivery rules to extort a maximum profit from this infrastructure, after the fact, is something that simply cannot be tolerated. Again the Camp 2 folks are going to say that market forces will a) determine if it is indeed true that it cannot be tolerated and b) if it cannot be tolerated market forces will supply the pressure to re-establish the status quo. Again, I respond by simply stating that a) if you want to experiment, do it o-o-b (out of band), use your infrastructure to deliver packets over another non-invasive path. If you’re on to something great! b) I, personally, am not interested in riding out the chaos of the various experiments that the Internet network providers are going to force on us, I find the Internet pretty good as it is.

    In the end, perhaps it really is the simple-mindedness of the Internet network providers (usually referred to as “the telcos”) that leads them to the conclusion that they cannot profit off of simply providing great network throughput. Perhaps these folks are in the wrong business and need to sell the current business to those who can find ways to do just that.

    On the larger issue of trying to think about NN in FU terms, I think it is a stretch. Granted, there are analogs, but there are enough differences in the details to discount the superficial similarity of these issues.

  • http://bennett.com/blog Richard Bennett

    Thanks to the House Judiciary Committee, we now know what “net neutrality” really means, as they went to the trouble of defining it for us, to wit: “If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service.”

    So we see, net neutrality means there can only be one service level on any broadband network, ever. All other definitions of net neutrality are obsolete, so if you support the concept on the basis of some other definition, forget it. This is what the net neutrality law actually says.

    Nobody in their right mind could possibly support it, regardless of how they feel about Fair Use, Gay Marriage, or Al Gore’s movie. It’s simply insane.

  • http://poptones.f2o.org poptones

    If you think that you are on to something that is killer money-maker then develop, I don’t know, uber-wacko-DSL where the modems have two DSL-like connections, one carrying regular Internet traffic and one carrying your premium service that’s going to make you rich, so you think.

    And that’s exactly what we have: I have a DSL modem for which I paid a whole 70 bucks, and I am free to choose any ISP that plays by any rules I see fit. If I want to go with an ISP that filters out for me any naughty packets I am free to do so; if I want to use windows and play by bellsouth’s rules I cna do that; I choose to pay a small premium for an ISP that leaves the responsibility for my own freedom up TO ME.

    What you are endorsing is NOT what you claim; what you are endorsing is no one can sell “the internet” unless they play by legislative code on how those packets are routed – well sorry champ, that’s just the foot in the door. Once you have law that says congress sets the rules of the internet, what’s to stop them from clamping down on any isps doing other things they don’t like? And how to enforce it? If congress can set the rules for packet switching, what happens when the DOJ decides to play on the sheeple’s braindead and ignorant resentment of “public nuisance” sites like Myspace, or the bazillion porn sites? They can set the rules for google and yahoo and the other megasites with Billions to blow on lobbyists, they can set the rules for everything else, too.

    I like my freedom just where it is: my own hands. If that’s too much responsibility for you Bellsouth and the various religious focused ISPs will be glad to take responsibility for you – they’ll even charge you less for the priviledge of steering you clear of the “bad sites” and protecting you from your own weaknesses. I, however, have no desire to be forced to play by the rules you decide, nor especially to subsidize such tyranny with my own labor and tax dollars.

    All you’re endorsing is step one on the road to the great firewall of amerikka.

  • Jim Powers

    And that’s exactly what we have: I have a DSL modem for which I paid a whole 70 bucks, and I am free to choose any ISP that plays by any rules I see fit. If I want to go with an ISP that filters out for me any naughty packets I am free to do so; if I want to use windows and play by bellsouth’s rules I cna do that; I choose to pay a small premium for an ISP that leaves the responsibility for my own freedom up TO ME.

    Agreed, but I cannot, as well as you cannot choose just any old ISP with DSL; cable is the same. But your point is taken. If/when DSL and dial-up are on par with one another then choose away. Investigating the number of DSL providers in my area I have a pretty limited choice, and cable is simply out of the question because I host servers and my DSL provider is cool with that but the local cable monopoly isn’t.

    What you are endorsing is NOT what you claim

    I admit that it is probably not. Since I cannot control the thing being endorsed [Congress' idea of NN].

    what you are endorsing is no one can sell “the internet” unless they play by legislative code on how those packets are routed – well sorry champ, that’s just the foot in the door. Once you have law that says congress sets the rules of the internet, what’s to stop them from clamping down on any isps doing other things they don’t like? And how to enforce it? If congress can set the rules for packet switching, what happens when the DOJ decides to play on the sheeple’s braindead and ignorant resentment of “public nuisance” sites like Myspace, or the bazillion porn sites? They can set the rules for google and yahoo and the other megasites with Billions to blow on lobbyists, they can set the rules for everything else, too.

    True enough. Independently I decided to see if I could work out some sort of meaningful “definition” of what NN could be, certainly one that is compatible with existing business practices as embodied by SLAs and I couldn’t. Therefore, I rescind my previous statement of support for NN as the idea is inherently unworkable.

    I like my freedom just where it is: my own hands. If that’s too much responsibility for you Bellsouth and the various religious focused ISPs will be glad to take responsibility for you – they’ll even charge you less for the priviledge of steering you clear of the “bad sites” and protecting you from your own weaknesses. I, however, have no desire to be forced to play by the rules you decide, nor especially to subsidize such tyranny with my own labor and tax dollars.

    Same here.

    All you’re endorsing is step one on the road to the great firewall of amerikka.

    Not any more.

  • http://bennett.com/blog Richard Bennett

    This is the kind of “neutrality” I can support: As the universe of applications has grown, the original conception of IP neutrality has dated: for IP was only neutral among data applications. Internet networks tend to favor, as a class, applications insensitive to latency (delay) or jitter (signal distortion). Consider that it doesn�t matter whether an email arrives now or a few milliseconds later. But it certainly matters for applications that want to carry voice or video. In a universe of applications, that includes both latency-sensitive and insensitive applications, it is difficult to regard the IP suite as truly neutral as among all applications.

    This point is closely linked to questions of structural separation. The technical reason IP favors data applications is that it lacks any universal mechanism to offer a quality of service (QoS) guarantee. It doesn�t insist that data arrive at any time or place. Instead, IP generally adopts a �best-effort� approach: it says, deliver the packets as fast as you can, which over a typical end-to-end connection may range from a basic 56K connection at the ends, to the precisely timed gigabits of bandwidth available on backbone SONET links. IP doesn�t care: it runs over everything. But as a consequence, it implicitly disfavors applications that do care. – Tim Wu, Network Neutrality, Broadband Discrimination in Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2005.

    Two concepts have become confused: neutrality in the sense of the absence of a network bias toward or away from a particular class of services, such as real-time, and neutrality in the sense of the absence of a network operator bias toward or against any one supplier of a particular service. We should reserve the term “network neutrality” for the first, and use “service-priovider neutrality” for the second, but the terms have become so polluted by politics that neither one is useful any more.

  • Jim Powers

    Richard, good point, but I don’t think it is workable. In a “closed environment” where you can control the various elements (number and type of nodes, QoS assignment, etc.) then full tweakability is available and certain performance guarantees may be possible. In the Internet I don’t think that there is enough “headroom” to play this situation out reliably. Take a simple example: most SLAs with network providers say “no” to using hot-potato routing. The idea being that the reason for using a certain network provider is because ther network has such-and-such capabilities. But at the peering points the SLAs can break down and the peers are not in the same liability bind as the network provider. Now, of course each network provider tries (or we assume that they try) to work out issues with peers wo try to come as close to the QoS that their various SLAs promice, but there are no guarantees.

    In the end it would appear that we all (content providers, content consumers, and network providers) will just need to muddle our way to something that is workable for most cases. The alternative is the possibility of enshrining something into law that is simply unworkable, even it is well intentioned.

  • http://poptones.f2o.org poptones

    Look: one of the sites I operate is a free image hosting site. I’m a startup on that myself, and one of my main selling points is to try to be as liberal as possible withe allowable content – meaning, for example, if you want to put up an erotic blog and don’t have the resources yet to buy your own hosted account, you can put the images on my site and, until the point your site gains a certain level of popularity that it is costing me more than x each month in usage, the service is absolutely gratis. And if your site continues to gain momentum and you don’t want to screw with changing things, you can buy for a very modest fee, and increase in allowable monthly traffic.

    It seems pretty obvious to me this is exactly what the telcos are wanting to do with, say, google and yahoo video – to make the fat services pay them each month for the added traffic they create. You may think the fat services are already doing that now – they pay x dollars each month for peering and why should they have to pay twice? But what you may not know is that they – unlike me, and unlike the people my small startup serves – do NOT pay for the “gigabytes” they use each month: all they pay for is the peering, for example to connect their megabadass cluster proxy to this peering point in Arlington or San Francisco. After that it doesn’t matter if they spew a trillion bytes a day or ten, they pay the same fee.

    Making the companies that contribute the largest amount of traffic to the internet – or the companies that need the highest qos and priortity in packet switching – gives them added incentive to, like google, build out their own networks that can operate in parallel with the others. That may not mean laying fiber, because that’s expensive and there are right of way issuesd and other stuff they may not want to screw with. So maybe they instead put more distributed caches across the country at smaller and smaller peering points giving even greater granularity of service, and then use the “standard quality” service to distribute to all those proxies. Either way the end result is the same: more fat content is removed from the major long haul routes, freeing up more of the existing pipes for the “little guys,” and the telcos still make more money because, ultimately, they control the majority of the peering hub connections.

    Yahoo and google and the CC are against this for the same reason: to protect their bottom line. They don’t want to invest in the networks and they don’t want to pay others to invest in the networks – it’s like google joining my site and demanding I provide them flat rate bandwidth to help host their images – or better still, the CC comes demanding I provide flat rate video hosting for all their 700 club shows. What’s fair about that?

  • http://bennett.com/blog Richard Bennett

    Jim Powers, this is not an intractable problem or even a hard one to solve from an engineering or a business perspective. All it takes to provide end-to-end QoS across the Internet is QoS in the peering arrangements and SLAs. We already have the mechanisms to aggregate flows with a common QoS requirement, so instead of one SLA you have 3, one for each QoS level. QoS in DiffServ isn’t a hard guarantee in any case, it’s simply an attempt to reduce the latency and jitter of those streams that are sensitive to it. Every damn WiFi chip in the known universe can do it, and it’s not that much harder to do in a router ASIC.

    Really.

    Poptunes is telling the truth here.

  • Jim Powers

    Richard and poptones. I don’t think there is a disagreement here, so, I’m not entirely clear what is being explained at the moment. If it is an attempt to convince me that end-to-end QoS is achievable in all circumstances, I think you can answer that for yourselves (No, with an if… or Yes, with a but… ;-) ). If you’re trying to explain how Google et al. go about beefing up their delivery systems you don’t need to, at least not for me.

    As I said I don’t see what “neutral” means, especially given SLAs. As poptones already pointed out you can set up an SLA to fine-tune your QoS with your provider any way you see fit. This seems to be not “neutral” (I’m not even sure what a “neutral” position is in this case anyway) from the get go. It certainly doesn’t seem like something I would want to see go away. And if you’re transporting “big packages”, again, as poptones already stated, then it would appear that your costs should be proportional to your “weight”.

    Perhaps I’m not getting something, but I think we are in agreement.

  • http://mpegurl.blog.de Heikor

    I dont see how FU and NN are related. FU is status naturalis, a limit of copyright, not a right to fair use. NN is not status naturalis, it is a “must internet” sotosay. As much as I like the net as it is, I can understand those, who want to make google or whoever, bandwidth should be a good starter, pay.

    But would it work?

    H.