Saving the Net

At the same time that media
concentration restrictions are being removed, such that three
companies will own everything, so too are neutrality restrictions
for the network being eliminated, so that those same three
companies--who also will control broadband access--are totally free
to architect broadband however they wish. "The Internet that is to
be the savior is a dying breed. The end-to-end architecture that
gave us its power will, in effect, be inverted. And so the games
networks play to benefit their own will bleed to this space
too."And then Dr. Pangloss says, "but what about
spectrum. Won't unlicensed spectrum guarantee our freedom?" And it
is true: Here at least there was some hope from this FCC. But the
latest from DC is that a tiny chunk of new unlicensed spectrum will
be released. And then after that, no more. Spectrum too will be
sold--to the same companies, no doubt.So then, Dr. Pangloss: "When the content layer, the
logical layer, and the physical layer are all effectively owned by
a handful of companies, free of any requirements of neutrality or
openness, what will you ask then?"--"But
Where's the Internet?" by
Lawrence
Lessig, MediaCon."I think that I could turn and live with the
animals... Not one of them is demented with the mania of owning
things." --Walt WhitmanWho Owns What?That's the fundamental question, and it's going to get more
fundamental as we roll toward the next presidential election here
in the US. Much is at stake, including Linux and its natural
habitat: the Net. Both have been extraordinarily good for business.
Its perceived "threat" to Microsoft and the dot-com crash are both
red herrings. Take away Linux and the Net, and both technology and
the economy would be a whole lot worse.Both the Net and Linux were created, grew and flourished
almost entirely outside the regulatory sphere. They are, in a
literal sense, what free markets have done with their
freedoms.Yet, there are some who do not care. Unfortunately, they're
driving the conversation right now. Hollywood has lawmakers and
news organizations convinced that file sharing is "piracy" and
"theft". Apple, Intel and Microsoft are quietly doing their deals
with the Hollywood devil, crippling (or contemplating the crippling
of) PC functionalities, to protect the intellectual property of
"content producers".As I write this, SCO claims to own whatever remains of
AT&T's original UNIX. They're suing IBM and spreading FUD by
the trainload all over Linux, which they claim is derivative. I'm
getting e-mails from technologists at big companies telling me that
Linux use is now a Big Issue for their corporate legal departments.
I also heard recently from a former Novell employee who says Novell
intentionally held onto their UNIX patents (acquired from AT&T)
so SCO wouldn't have full claims to "owning" whatever it was that
Novell sold them (after buying UNIX, renamed UnixWare, from
AT&T).And I'm hearing from people who insist that Linux is not
exactly ownerless, either. "Linux is a registered Trademark of
Linus Torvalds" appears on 268,000 Web documents, Google tells me.
In at least one sense, these folks say, Linus owns Linux. That
means it is, in a limited sense, proprietary.The Internet has been blessedly free of regulation for most
of its short life. But the companies that provide most Internet
service--telcos and cable companies--are highly regulated. They are
creatures that live in a regulatory environment that bears little
resemblance to a real marketplace. As natives of regulatory
habitats, they see nothing but Good Sense in regulating the Net.
After all, any regulation will help assert their ownership over the
sections of the Net they control and legitimize the limitations
they place on what their customers can do with, and on, the
Net.These companies have deep alliances with the big "content":
industries (in the case of cable, they are one and the same) that
want to see control extended beyond the Net, into the devices that
connect to the Net, including PCs, which have also been blessedly
free from regulation. Intellectual property protections have been
built into consumer electronics devices for a long time. These guys
see no reason why PCs, as a breed of consumer electronic device,
shouldn't be subject to the same restrictions, in the form of
digital rights management (DRM), run by content providers and
burned into hardware at the factory. In fact, they're counting on
the anti-circumvention provisions of the Digital Millennium
Copyright Act (DMCA) to prevent any hacks around those DRM systems.
Once those cripples (for which there is zero demand on the
customers' side) are in place, you can count on Dell, HP and
Gateway PCs and laptops that are much less ready to run
Linux.Two oddly allied mentalities provide intellectual air cover
for these threats to the marketplace. One is the extreme comfort
certain industries feel inside their regulatory environments. The
other is the high regard political conservatives hold for
successful enterprises. Combine the two, and you get conservatives
eagerly rewarding companies whose primary achievements consist of
successful long-term adaptation to highly regulated
environments.That's what's happened with broadcasting and telecom.There are barely more than 100 channels apiece on the AM and
FM bands. No region can allow more than a couple dozen local
signals at most or the signals step on each other--which they do
anyway, as the FCC has generally relaxed interference protections
over the years to allow more stations on the air. The carrying
capacities of satellites and cable systems also limit the number of
available channels. If you want to operate a new station of any
kind on licensed broadcast spectrum, your chances of finding an
opening are approximately zero. It's a closed club.There's also a problem with conceiving broadcast
service--especially the commercial variety--as a "marketplace." Its
customers and consumers are different populations. The customers of
commercial broadcasting are advertisers, not viewers and listeners.
In fact, commercial broadcasting mostly is an advertising business.
The "content" it distributes is merely bait; the goods sold are the
ears and eyeballs of "consumers". That means commercial
broadcasting's real marketplace is Madison Avenue, not radio and TV
dials. As a consumer of commercial broadcast programming, your
direct influence is zero because that's exactly what you pay.
(Paying for cable or satellite service doesn't count, because that
payment is for access, not for the content itself.)The notable exceptions are "premium" channels like HBO and
public broadcasting. The reason why programming on both is
relatively higher in quality is a simple one: there's little or no
split in their markets between customers and consumers. As a viewer
or listener, you get what you pay for.All of which is why this talk about the "media marketplace"
is highly screwed up. Relaxing broadcast property ownership rules,
in the absence of making larger chunks of available spectrum for
everybody, is hardly deregulation. It is a highly selective change
in existing regulation that opens opportunities only to the most
successful players in a completely closed marketplace.This is all fine if you don't care about television and
radio. But what if you care about the Net and Linux? What does
broadcast deregulation have to do with those?Plenty. The local ISPs that pioneered Net delivery were born
under a transient regulatory protection that largely has been
sacrificed to give regulatory advantage to cable and telecom
industries. Ironically, both industries are in deep trouble, mostly
because they have no idea how to deal with the Internet. The Net
wasn't born inside their regulated environments, yet they find
themselves obliged to carry it anyway because customers want
it.The Net's problem, from telco and cable industries'
perspective, is it was born without a business model. Its standards
and protocols imagine no coercive regime to require payment--no
metering, no service levels, no charges for levels of bandwidth.
Worse, it was designed as an end-to-end system, where all the power
to create, distribute and consume are located at the ends of the
system and not in the middle. In the
words of David Eisenberg
the Internet's innards purposefully were kept "stupid". All the
intelligence properly belonged at the ends. As a pure end-to-end
system, the Net also was made to be symmetrical. It wasn't supposed
to be like TV, with fat content flowing in only one
direction.The Net's end-to-end nature is so severely anathema to cable
and telco companies that they have done everything they can to make
the Net as controlled and asymmetrical as possible. They want the
Net to be more like television, and to a significant degree,
they've succeeded. Most DSL and cable broadband customers take it
for granted that downstream speeds are faster than upstream speeds,
that they can't operate servers out of their houses and that the
only e-mail addresses they can use are ones that end with the name
of their telephone or cable company.And why not? These companies "own" the Net, don't they? Well,
no, they don't. They only "provide" it--critical difference.The gradual destruction of the Net is getting political
protection by two strong conservative value systems. One values
success, and the other values property. Let's look at success
first.Liberals often are flummoxed by the way conservatives seem to
love big business (including, of course, big media). Yet the reason
is simple: they love winners, literally. They like to reward
strength and achievement. They hate rewarding weakness for the same
reason a parent hates rewarding kids' poor grades. This, more than
anything else, is what makes conservatives so radically different
from liberals. It's why favorite liberal buzzwords like "fairness"
and "opportunity" are fingernails on the chalkboards of
conservative minds. To conservatives, those words are code-talk for
punishing the strong and rewarding the weak.As George Lakoff explained in Moral Politics: What
Conservatives Know that Liberals Don't (University of
Chicago, 1995), conservatives consider strength a "moral value".
Strong is good. Weak is bad.In street basketball there's a rule called "make it, take
it". If you score a basket, you get to keep the ball.
Three-on-three basketball works the same way. So do volleyball and
other sports with rules that favor achievement over
fairness.Relaxing media ownership rules is all about "make it, take
it". Clear Channel and Viacom have made it. Why not let them take
more? It's simply the marketplace at work, right? Again, only in a
highly regulated context.We can't change conservative value systems. But we can change
the emphasis on what we conserve and why. That's why we need to
figure a way around the Property Problem too.We met that problem head-on and lost, with
Eldred v. Ashcroft, a case
that challenged the
Sonny
Bono Copyright Term Extension Act. Eldred made it to the
Supreme Court last year, shepherded from start to finish by
Lawrence
Lessig, Stanford law professor, author, constitutional
scholar and former clerk for archconservative Supreme Court Justice
Antonin Scalia.
Oral
arguments were heard in October. On January 15, 2003, the
justices struck down the challenge by a vote of 7-2. Justice
Ginsberg wrote the
majority
opinion. Justices
Stevens
and
Breyer
wrote dissents.A loud hubbub followed. Somewhere in the midst of all that, I
did
my
own thinking out loud on the
American Open Technology
Consortium (AOTC) site, suggesting the reasons for Eldred's
failure had more to do with language than with politics and
law:I believe Hollywood won because they have
successfully repositioned copyright as a property issue. In other
words, they successfully urged the world to understand copyright in
terms of property. Copyright = property may not be accurate in a
strict legal sense, but it still makes common sense, even to the
Supreme Court...
Watch the language. While the
one
side talks about "licenses" with verbs like copy,
distribute, play, share and perform, the
other
side
talks
about "rights" with verbs like own, protect, safeguard, protect,
secure, authorize, buy, sell, infringe, pirate, infringe and steal.
This isn't just a battle of words. It's a battle of
understandings.To my surprise, Professor Lessig found my idea convincing. In
Doc's
Diagnosis, Lessig wrote:Doc has a brilliant and absolutely correct
diagnosis at the American Open
Technology Consortium web site about how we lost in Eldred.
Copyright is understood to be a form of simple property. The battle
in Eldred thus sounded like a battle for and against property. On
such a simple scale, it was clear how the majority of the Court
would vote. Not because they are conservative, but because they are
Americans. We have a (generally sensible) pro-property bias in this
culture that makes it extremely hard for people to think critically
about the most complicated form of property out there--what most
call "intellectual property." To question property of any form
makes you a communist. Yet this is precisely our problem: To make
it clear that we are pro-copyright without being extremists either
way.
So deep is this confusion that even a smart, and
traditionally leftist, social commentator like Edward Rothstein
makes the same fundamental mistake in
a
piece published Saturday. He describes the movement, of
which I am part, as "countercultural," "radical," and
anti-corporate. Now no doubt there are some for whom those terms
are true descriptors. But I for one would be ecstatic if we could
just have the same copyright law that existed under Richard
Nixon...How to change the debate is the hardest thing. But rather
than philosophy, perspective and pragmatics seems the best way.
Build a public domain (which
Creative Commons
will help to do), and show people and companies how the public
domain helps them. Indeed, of all the companies out there, this is
the one point Disney should certainly understand: Now that they
have won the Eldred case, they should be racing to embrace the
Eldred Act. No company has depended more upon the public domain.
The Eldred Act would give them much more to build upon.I agree about perspective and pragmatics, and I think
Creative Commons is a brilliant institution that will change the
game in the long run. But, I still think we lose in the short run
as long as copyright (and, for that matter, patents) are perceived
as simple property. Our challenge is to change that.So, how do we out-simple "simple"? It helps to revisit our
original concepts of property -- concepts conservatives can espouse
and promote.Duhaime's Law
Dictionary defines property this way:Property is commonly thought of as a thing which
belongs to someone and over which a person has total control. But,
legally, it is more properly defined as "a collection of legal
rights over a thing". These rights are usually total and fully
enforceable by the state or the owner against others. It has been
said that "property and law were born and die together. Before laws
were made there was no property. Take away laws and property
ceases." Before laws were written and enforced, property had no
relevance. Possession was all that mattered. There are many
classifications of property, the most common being between real
property or immovable property (real estate, such as land or
buildings) and "chattel", or movable property (things which are not
attached to the land such as a bicycle, a car or a hammer) and
between public (property belonging to everybody or to the state)
and private property.In National Review,
John
Bloom puts the same idea this way:Whoever turned "copy right" into one word had to
be a lawyer. We don't say "freespeechright" or "gunright" or
"assemblyright" or "religionright."
As a result, 99 percent of the public thinks that a copyright
is some kind of formal legal document. They think you have to go
get it, or protect it, or defend it, or preserve it, or buy it, or
hire a lawyer to make sure you have it.On the contrary, it's simply a right, like all our other
rights, and it goes like this: Whoever creates something that has
never been created before has the exclusive right to copy
it.It's not the person who registers it with the Library of
Congress. It's the person who does it first.
Just the act of creation makes the right kick in.Unlike other rights, though, this one is transferable. You
can sell your copyright, license your copyright, or give your
copyright away. What's most often done is that you let a big
company--say, a book publisher--use the copyright for a specific
period of time, in return for money, and at the end of that period
the right reverts back to you.One other difference: This is a right with a specific
term.The Founding Fathers wanted that term to be 14 years, with an
additional 14 years if the author [was] still alive. After 28
years, they figured you'd had your chance to exploit your creation,
and now it belonged to the nation at large. That way we would never
end up with a system of hereditary privilege, similar to the
printers guilds of Renaissance England, who tied up rights to dead
authors and tightly controlled what could or could not be printed
and who could or could not use literary material.In America, land of free ideas as well as free people, this
would never happen, they said.Well, it's happened. It's happened because for years now
Congress has allowed it to happen. We now have an exact replica of
the medieval Stationers' Company, which controlled the English
copyrights, only its names today are Disney, Bertelsmann, and AOL
Time Warner. The big media companies, holding the copyrights of
dead authors, have said, in effect, that Jefferson, Madison, and
Hamilton were wrong and that we should go back to the aristocratic
system of hereditary ownership, granting copyrights in perpetuity.
To effect this result, they've liberally greased the palms of
Congressmen in the form of campaign contributions--and it's
worked...National Review is a conservative
magazine. John Bloom is a conservative columnist. This is
significant.What will it take to revitalize this understanding of
property and to cause outrage against the damage done to it by
Congress?I think we need a galvanizing issue. I suggest Saving the
Net. To do that, we need to treat the Net as two things:

1. a public domain, and therefore
2. a natural habitat for markets

In other words, we need to see the Net as a marketplace that
has done enormous good, is under extreme threat and needs to be
saved.The Internet has proven to be a fine marketplace for all
kinds of stuff. Look up any product on a search engine, and you'll
see free markets at work all over the place, with power growing on
both the supply and the demand sides o every category you can
name.Markets flourish on the Net or with the help of the Net
because the Net is free. That's free as in beer, speech, liberty
and enterprise. That freedom is guaranteed by the end-to-end nature
of the Net, and the NEA principles it engenders: "Nobody owns it,
Everybody can use it and Anybody can improve it."This may sound a bit like communism to conservative
sensibilities, unless it is made clear that the Net belongs to that
class of things (gravity, the core of the Earth, the stars,
atmosphere, ideas) that cannot be owned and even thinking about
owning it is ludicrous.Now, to the elections. Look at the two big political parties;
both have existed largely as funding mechanisms. For proof, ask
yourself, "When was the last time I went to a party meeting?"
Whatever other functions they serve, the parties are fundamentally
about The Money.At least until the Net came along.As I write this, Democratic candidate Howard Dean just
gathered his party's largest campaign fund for the most recent
quarter. The mainstream press has acknowledged that most of this
money came from fund-raising on the Internet. But they avoid
visiting a fact that should be deeply troubling to every candidate
running (and then governing) for money rather than for voters:
Dean's lead is owed to a huge number of small donations, not to a
small number of large special interests. If he's being bought, it's
by his voters. This is a New Thing. It's also been made possible by
the Net.I am not endorsing Howard Dean here (for the record, I'm a
registered independent who mostly has voted Libertarian in recent
state and federal elections). But I am endorsing a new kind of
politics based on the presence in the world of a free marketplace
for ideas as well as for products and services. We get to protect
that free marketplace by exercising our freedom to use it.Saving the Net and the NEA goods that thrive on the Net
should be a paramount concern for technologists everywhere. Those
goods include Linux and every idea that's good enough to grow when
it passes from one brain to another, gaining value along the
way.Our work is cut out for us. Let's do it.Additional ResourcesEldred.cc, the
plaintiff's site.Lawrence
Lessig's site and
weblog."After
the Copyright Smackdown: What's Next?" on Salon."John
Bloom's Right and Wrong" (an excellent piece in
National Review) and the
Slashdot
thread that followed."Copyright
and the Constitution", in the Chicago
Tribune."A
Fine Balance" and
"A
Radical Rethink" in The
Economist."Mickey
Mouse in Chains" in the Sacramento
Bee."Copyright
Gets Sweeter for Big Business", in the Toronto
Star."Voluntarily
Limiting Copyright Terms", on
Kuro5hin."Embrace
File Sharing or Die", on Salon.Lawmeme,
Copyfight,
GrepLaw and
Bag & Baggage
also have provided piles of coverage and many links to more sources
of wisdom (B&B's list of law weblogs is comprehensive).Doc Searls is Senior Editor
of Linux Journal.

email: doc@ssc.com