Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes

This is a long essay. There is, however, no limit to how long I could have
made it. The subjects covered here are no less enormous than the Net and
its future. Even optimists agree that the Net's future as a free and open
environment for business and culture is facing many threats. We can't begin
to cover them all or cover all the ways we can fight them. I believe,
however, that there is one sure way to fight all of these threats at once,
and without doing it the bad guys will win. That's what this essay is about.

Here's a brief outline of the article. If
you want to go straight to the solution, skip to the third section:

• Scenario I: The Carriers
  Win
• Scenario II: The Public
  Workaround
• Scenario III: Fight with Words and Not Just
  Deeds

Scenario I: The Carriers Win
Be afraid. Be very afraid. --Kevin
Werbach.

Are you ready to see the Net privatized from the bottom to the top? Are
you ready to see the Net's free and open marketplace sucked into a pit
of pipes built and fitted by the phone and cable companies and run
according to rules lobbied by the carrier and content industries?

Do you believe a free and open market should be "Your choice of
walled garden" or "Your choice of silo"? That's what the
big carrier and content companies believe. That's why they're getting
ready to fence off the frontiers.

And we're not
stopping it.

With the purchase
and re-animation of AT&T's remains, the
collection of former Baby Bells called SBC will become the largest communications
company in the US--the
new Ma Bell. Verizon, comprised of
the old GTE plus MCI and the Baby Bells SBC didn't grab, is the new
Pa Bell. That's one side of the battlefield, called The Regulatory
Environment. Across the battlefield from Ma and Pa Bell are the
cable and entertainment giants: Comcast, Cox, TimeWarner and so on. Covering
the battle are the business and tech media, which love a good fight.

The problem is that all of these battling
companies--plus the regulators--hate the Net.

Maybe hate is too strong of a word. The thing is, they're hostile to it,
because they don't get it. Worse, they only get it in one very literal way. See, to the carriers and their
regulators, the Net isn't a
world, a frontier,
a marketplace or a commons. To
them, the Net is a collection of pipes. Their goal is to beat the other
pipe-owners. To do that, they want to sell access and charge for traffic.

There's nothing wrong with being in the bandwidth business, of course. But some
of these big boys want to go farther with it. They don't see themselves
as a public utility selling a pure base-level service, such as water or
electricity (which is what they are, by the way, in respect to the
Net). They see themselves as a source of many additional value-adds,
inside the pipes. They see opportunities to sell solutions to industries
that rely on the Net--especially their natural partner, the
content industry.

They see a problem with freeloaders. On the tall end of the power
curve, those 'loaders are AOL, Google, Microsoft, Yahoo and other large
sources of the container cargo we call "content". Out on the
long tail,
the freeloaders are you and me. The big 'loaders have been getting a free ride for
too long and are going to need to pay. The Information Highway isn't
the freaking interstate. It's a system of private roads that needs to
start charging tolls. As for the small 'loaders, it hardly matters that
they're a boundless source of invention, innovation, vitality and new
business. To the carriers, we're all still just "consumers". And we
always will be.

"Piracy" is a bigger issue to the cargo sources than to the
carriers. To the carriers, "fighting piracy" is a service
offering as well as a lever on regulators to give carriers more control
of the pipes. "You want us to help you fight piracy?",
the transport companies say to the content companies. "Okay,
let's deal." And everybody else's freedoms--to invent, to
innovate, to do business, to take advantage of free markets and to make
free culture--get dealt away.

The carriers have been lobbying Congress for control of the Net since
Bush the Elder was in office. Once they get what they want, they'll put
up the toll booths, the truck scales, the customs checkpoints--all
in a fresh new regulatory environment that formalizes the container cargo
business we call packet transport. This new environment will be built to
benefit the carriers and nobody else. The "consumers"? Oh ya,
sure: they'll benefit too, by having "access" to all the good
things that carriers ship them from content providers. Is there anything
else? No.

Crocodile grins began to grow on the faces of carriers as soon as it
became clear that everything we call "media" eventually would
flow through their pipes. All that stuff we used to call TV, radio,
newspapers and magazines will just be "content" moving through
the transport layer of the pipe system they own and control. Think it's
a cool thing that TV channels are going away? So do the carriers. The
future à lá carte business of media
will depend on one medium alone: the Net. And the Net is going to be theirs.

The Net's genie, which granted all those e-commerce wishes over
the past ten years, won't just get shoved back in the bottle. No,
that genie will be piped and priced by the packet. The owners of
those pipes have a duty to their stockholders to make the most of the
privileged position they've been waiting to claim ever since they got
blind-sided, back in the 80s and 90s. (For an excellent history of how the
European PTTs got snookered by the Net and the Web, see Paul F. Kunz'
Bringing
the World Wide Web to America.) They have assets to leverage, dammit,
and now they can.

Does it matter that countless markets flourish in the wide spaces opened
by agreements and protocols that thrive at the grace of carriage? Or
that those markets are threatened by new limits, protections and costs
imposed at the pipe level?

No.

Thus, the Era of Net Facilitation will end. The choke points are in the
pipes, the permission is coming from the lawmakers and regulators, and
the choking will be done. No more free rides, folks. Time to pay. It's
called creating scarcity and charging for it. The Information Age may
be here, but the Industrial Age is hardly over. In fact, there is no
sign it will ever end.

The carriers are going to lobby for the laws and regulations they need,
and they're going to do the deals they need to do. The new system will
be theirs, not ours. The
NEA principle--Nobody owns it, Everybody can
use it, Anybody can improve it--so familiar to
the Free Software and
Open Source communities will
prove to be a temporary ideal, a geek conceit. Code is not
Law. Culture is not
Free. From the Big Boys'
perspective, code and culture are stuff nobody cares about.

That's us: Nobody.

The new carrier-based Net will work in the same asymmetrical few-to-many,
top-down pyramidal way made familiar by TV, radio, newspapers, books,
magazines and other Industrial Age media now being sucked into Information
Age pipes. Movement still will go from producers to consumers, just like
it always did. Meet the new boss, same as the old boss. Literally.

The deals that matter will be done between tops of pyramids. Hey, it's
easier to do business with the concentrated few than the dispersed many.
The Long
Tail can whip itself into
a frenzy, but all the tech magazines and blogs in the world are no match for
the tails and
teeth
of these old sharks. (Hey, Long Tailer, when's the last time you treated
your erected representatives to private movie screenings, drafted their
legislation, ghosted their committee reports, made a blockbuster movie
or rolled fiber across oceans?)

Google and Yahoo and Amazon and eBay and e-commerce and free software
and open source and blogging and podcasting and all the rest of that
idealistic junk have had their decade in the sun. Hell, throw in Apple
and Microsoft, too. Who cares? Them? Doesn't matter how big they
are. They don't matter. They're late to the game.

We all know the content business got clobbered by this peer-to-peer
crap. But the carriers took a bath by building out the Net's piped
infrastructure. They sank $billions by the dozen into fiber and copper
and routers and trunks, waiting for the day when they'd be in a position
to control the new beast fleshed on the skeleton that
they built.

That Day Has Come.

It came earlier this month, when the November 7, 2005, issue of
BusinessWeek hit the
Web's streets. In that issue are "Rewired and Ready for Combat" and
"At
SBC, It's All About 'Scale and Scope'", which features an interview with Edward Whiteacre,
CEO of SBC. Here's
the gist of it:
How concerned are you about Internet upstarts like Google
(GOOG),
MSN, Vonage,
and others?
How do you think they're going to get to customers? Through a broadband
pipe. Cable companies have them. We have them. Now what they would like
to do is use my pipes free, but I ain't going to let them do that because
we have spent this capital and we have to have a return on it. So there's
going to have to be some mechanism for these people who use these pipes
to pay for the portion they're using. Why should they be allowed to use
my pipes?

The Internet can't be free in that sense, because we and the cable
companies have made an investment and for a Google or Yahoo!
(YHOO) or Vonage or
anybody to expect to use these pipes [for] free is nuts!
What's your approach to regulation? Explain, for example, the
difference between you and Verizon in how you are approaching regulatory
approval for Telco TV [digital-TV service offered by
telecoms].

The cable companies have an agreement with the cities: They pay a
percentage of their revenue for a franchise right to broadcast TV. We
have a franchise in every city we operate in based on providing telephone
service.

Now, all of a sudden, without any additional payment, the cable companies
are putting telephone communication down their pipes and we're putting
TV signals. If you want us to get a franchise agreement for TV, then
let's make the cable companies get a franchise for telephony.

If cable can put telephone down their existing franchise I should be
able to put TV down my franchise. It's kind of a "what's fair is
fair" deal. I think it's just common sense.
What if the regulators don't
agree?
Then there won't be any competition--there will be a cable-TV monopoly.
I know you're a competitive person. Who are your
biggest competitors?

Our big competition in the future is with the cable companies. Verizon's
going to be a player, and certainly I want to compete. And I want our
shareowners to do better than anyone else.

If I were BusinessWeek, I'd ask:
What about the free and open marketplace that has grown on the Net
itself? Do you have any interest in continuing to support that? Or
in lobbying forms of deregulation that foster it? Or are you just
in a holy war with the cable companies inside the same old regulatory
environment you've known since forever?

I'd ask:
If you were to buy, say, Level
3, would you start to filter and restrict content at the
transport level, to extract the profits you want, without regard
for other market consequences? Would Cisco, builder of the
great
Firewall of China, help out?

I'd ask:

Which do you prefer: The regulatory environment where your business
has adapted itself for more than a century, or a completely free and
open marketplace like the rest of us enjoy sitting on top of your
pipes?

Whiteacre's answers, of course, would be less
relevant than the obvious vector of his company's
intentions. For a summary of that, let's return to
Lauren
Weinstein of People for Internet
Responsibility:

Of course, the truth of the matter is that the telcos have been moving
rapidly through massive consolidation--and a range of other tactics--to
create an environment where "competition" will only be a pale
reflection of what we were originally promised, with only a few gigantic
players in control of all telecom resources and policies. Like the robot
cop in Terminator 2 that reformed from blown-apart mercurial
blobs of metal, the "golden age" of telecom competition is
already giving way to empire.

Don't blame BusinessWeek for not asking the important questions
or for missing the Carriers vs. Net story. Biz pubs love to cover
vendor sports. And
there's certainly a big story here.

Great distraction, vendor sports. While we're busy watching phone and
cable giants fight over a closed battlefield that ought to be open,
we miss Net-hostile moves by other parties that result in other lost
freedoms.

Take ICANN, for
instance, where a new .com
Registry Agreement allows Verisign to
raise
the rates for .com names by 7% annually, and
to operate .com in perpetuity, and to "mak[e]
commercial use of, or collect, traffic data regarding domain
names or non-existent domain names", and to reap other
rewards for what few other than Verisign would agree is a good job.
Bret
Faucett summarizes the darkest shadow across the
noir scenario we've already described:

The theme running through all of these is that ICANN and Verisign are
treating the .COM registry as a private resource. It's not. The root
servers and TLD servers are public resources. We should treat them
like that.
Bret has one of the
most eloquent voices in the wilderness of clues the Big Boys would
rather avoid. So does Susan
Crawford, who was just, perhaps miraculously, named to the ICANN
board.

For Bret, Susan and the rest of the restless
natives of this new world, what matters most is
Saving the
Net--keeping it a free and open
marketplace for everybody--while also making sure that carriers
of all kinds can compete and succeed while providing much of the
infrastructure on which that marketplace resides. That means we need to
understand the Net as
more than a bunch of pipes and business on the Net as more than transporting
and selling "content".

This isn't a trivial issue. It's a matter of life and death for the Net
itself. How are we going to fight?

Read on.
Scenario II: The Public Workaround
The deathblow comes from the muni Wi-Fi efforts. It doesn't matter
whether they are viable or not--all they need do is give local
connectivity the moral high ground and represent a grass roots effort
that the legislature not only can't ignore but can embrace. --Bob
Frankston

In ancient telco lingo, "bypass" is
anything that works around the phone system itself.
Susan
Crawford wisely encourages bypassing not only the system but
the whole notion of fixing it with "Network Neutrality"
agreements or legislation. In response to the questions, "What,
if any, version of common carriage rules should govern Internet
communications platforms? More specifically, can some concept of
Network Neutrality be defined and enforced proactively in the form of
prescriptive regulations?", she answers,

I think this is the wrong question. It assumes the limited
world of online access providers we've got, makes them into
"communications platforms," and then suggests we need to make
rules about them. Not very imaginative. I have lost faith
in our ability to write about code in words, and I'm confident that
any attempt at writing down network neutrality will be so qualified,
gutted, eviscerated, and emptied that it will end up being worse
than useless. Besides, I'm sure there are very good reasons to
manage networks, and writing down the difference between management
and incremental control of users' experiences is an impossible
task.

The only way around this issue is to avoid it by encouraging the
development of alternative online access methods, and being careful not
to let the incumbents call them illegal. Let the dinosaurs huddle
together in the snow, controlling and commoditizing to their
hearts' content. We're made of better stuff. It should
be no more illegal to have an open wireless network in your house than
to practice the piano with the windows open. And having an open
wireless network can lead to a community mesh network and a host of
devices that open immediately to others, connecting us to the
world.

If that's not possible, then the second best solution is structural
separation, paying off the carriers for their stranded costs and moving
to open utility platforms. BT seems to think that's a fine idea;
why couldn't it work here?
Muni Wi-Fi is a form of bypass. So are other government-sponsored or
assisted workarounds.

So are the private ones. If Om Malik and Business
2.0 are sniffing the right trail, that's what we'll get from
Google. Here's what Om said on August 25, 2005, in
"Free
Wi-Fi? Get Ready for GoogleNet":

What if Google wanted to give
Wi-Fi
access to everyone in America? And what if it had technology capable
of targeting advertising to a user's precise location? The gatekeeper
of the world's information could become one of the globe's biggest
Internet
providers and one of its most
powerful ad sellers, basically supplanting
telecoms
in one fell swoop. Sounds crazy, but how might Google go about it?

First it would build a national
broadband
network--let's call it the GoogleNet--massive enough to rival
even the country's biggest Internet service providers. Business
2.0 has learned from telecom insiders that Google is already
building such a network, though ostensibly for many reasons. For
the past year, it has quietly been shopping for miles and miles of
"dark", or unused, fiber-optic cable across the country
from wholesalers such as New York's AboveNet. It's also acquiring
superfast connections from Cogent Communications and WilTel, among
others, between East Coast cities including Atlanta, Miami, and New
York. Such large-scale purchases are unprecedented for an Internet
company, but Google's timing is impeccable. The rash of telecom
bankruptcies
has freed up a ton of bargain-priced capacity, which
Google needs as it prepares to unleash a flood of new,
bandwidth-hungry applications. These offerings could
include everything from a digital-video database to on-demand
television
programming.

One contact in a Position to Know tells me that Google's
purpose isn't bypass, but advertising. That's their revenue
model, and if you follow the money--as well as the
company's development and
acquisition vectors--you get
to a place where highly targeted advertising pays for everything. Should
this be a problem? There are damn few large companies taking the Net's
side here. If Google gets to be a major carrier as well as the major
search engine and advertising pump it is today, that sure as hell beats
the alternatives. Especially when Google is fighting the incumbents on
the battlefield we call Congress.

For example, there's an
Internet
regulation bill working its way through the House of
Representatives right now as part of a broad effort to replace the
Telecommunications Act of
1996, which pretty much everybody agrees is in woeful need of an
upgrade. Naturally, lawmakers and the lobbyists who employ them want
more laws, more regulation,
more favoritism. So,
Brett
Glass points out, "like earlier versions, it subjects all ISPs
and VoIP providers to intensive Federal regulation and requires them
to register before providing service. It also preempts state and local
control over rights of way".

Google isn't merely against bills like this, it's opposing them
publicly. Vint
Cerf, Google's Chief Internet Evangelist, sent
an
open letter this past Wednesday to the Energy and Commerce Committee,
speaking out against this bill and others like it. The key paragraphs:

The remarkable social impact and economic success of the Internet is in
many ways directly attributable to the architectural characteristics that
were part of its design. The Internet was designed with no gatekeepers
over new content or services. The Internet is based on a layered,
end-to-end model that allows people at each level of the network to
innovate free of any central control. By placing intelligence at the edges
rather than control in the middle of the network, the Internet has created
a platform for innovation. This has led to an explosion of offerings--from
VOIP to 802.11x wi-fi to blogging--that might never
have evolved had central control of the network been required by design.

My fear is that, as written, this bill would do great damage to the
Internet as we know it. Enshrining a rule that broadly permits network
operators to discriminate in favor of certain kinds of services and
to potentially interfere with others would place broadband operators
in control of online activity. Allowing broadband providers to segment
their IP offerings and reserve huge amounts of bandwidth for their own
services will not give consumers the broadband Internet our country and
economy need. Many people will have little or no choice among broadband
operators for the foreseeable future, implying that such operators will
have the power to exercise a great deal of control over any applications
placed on the network.

As we move to a broadband environment and eliminate century-old non-
discrimination requirements, a lightweight but enforceable neutrality
rule is needed to ensure that the Internet continues to thrive. Telephone
companies cannot tell consumers who they can call; network operators
should not dictate what people can do online.

I am confident that we can build a broadband system that allows users
to decide what websites they want to see and what applications they want
to use--and that also guarantees high quality service and network
security. That network model has and can continue to provide economic
benefits to innovators and consumers--and to the broadband operators
who will reap the rewards for providing access to such a valued network.

We appreciate the efforts in your current draft to create at least a
starting point for net neutrality principles. Google looks forward to
working with you and your staff to draft a bill that will maintain the
revolutionary potential of the broadband Internet.

Significantly, Vint Cerf, often called "The father of the Net",
is the prime author of TCP/IP, the core protocol suite that the Net
itself employs.

Bills such as this one travel through a pro-market Congress on the strength
of "deregulation" claims by carriers, which are made on
television as well as in the halls of Congressional office buildings. As
Lauren Weinstein
reports:

the telephone companies' alliance has again been flooding the
airwaves with "unleash the phone companies" advertising. These
follow their usual line: We see happy consumers using futuristic
communications devices and services and are told that our telecom laws
are only slightly more recent than the invention of plumbing. Allow
for true market-based competition without all of those inconvenient
regulations, the commercials say, and it'll truly be a wonderful world
indeed! And there's not a phone bill in sight!
Of course, the carriers are plainly anti-market and have been for the
duration. Such is the nature of corporate species that have thrived
exclusively in a highly controlled regulatory environment.

Regulatory habitats are by nature anti-market as well, regardless
of the pro-market leanings of their top officials. This is why
regulatory reform itself is inherently nutty. This point was
made
expertly last Wednesday by Susan Crawford:

I want to persuade us that all of this talk about convergence over the
last few years is not true. Stepping away from interpretation of the
1996 Act itself, it seems to me that telephone services are fundamentally
different from the internet, and the notion of carrying particular social
policies over from the telephone world to the internet (without taking
into account what the internet is) is already proving to be hopelessly
wrongheaded, needlessly expensive, and shortsighted.

The question assumes that we need "an effective framework to govern
the internet." There's a lot of law that already applies
online, and I have not seen a demonstration that more new law is
needed--and, in any event, it's not the FCC that is in the best position
to do it. If we're going to depart from the central Section 230
notion that the online world is unfettered by special-purpose federal or
state laws, that should be a conscious choice. Right now, it's all
ad hoc, backwards looking, and unprincipled. And destructive.
E911 and CALEA certainly fit this description, and I have a feeling that
universal service will too when it erupts from the Commission.

We need a sustained national conversation about all this--maybe
we'll end up with this same approach, but I'd like to think not. Why
can't we be both more hopeful and emphatic--take the lead, around
the world--about the approach to the internet that we want?...

What happened to our leadership on internet policy? When did we lose
the ability to walk and slide back into the sea? We experimented and
tugged and pulled and came up with the idea of linking machines together
with a common language, making it possible for humans to interact in
unprecedented ways. Now we're turning those machines back into the
machines we thought we were escaping--telephones, cable systems,
and televisions--using insiders' language so that we can hide what's
going on from the general public. What happened?

Glad you asked, Susan. I have the answer.
Scenario III: Fight with Words and Not Just
Deeds
All due credit to the EFF, Creative Commons and every other
organization in the pro-Net alliance, but there isn't much hope of changing
hearts and minds as long as we think and talk in the transport language
of the telcos, cablecos and "content" producers. When we do
that, we lose. Case in point: Eldred
vs. Ashcroft. Larry
Lessig and other good
guys fought the good fight on Eldred and lost when
the Supremes sided 7-2 with Ashcroft. In January, 2003, I
suggested
that one reason the good guys lost was, literally, linguistic:

I've been trying to collect my thoughts about the
Eldred decision. At this point I think
there are several contexts that need to be explored.

One is legal--constitutional, really.
Larry and the
lawbloggers
(sounds like a good name for a band) are all over that one.

Another is political. The Sony Bono Act was a
political creation in the first place, and the Supreme Court
decision in its favor was a political victory for Hollywood
(yes, print publishers had some interest in it, but the
story
plays as a Hollywood victory, complete with quotes from Jack Valenti
and Hillary Rosen).

The third is metaphorical. 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. Here's how Richard Bennett puts it:

The issue here isn't enumeration, or the ability of Congress to pass
laws of national scope regarding copyright; the copyright power is clearly
enumerated in the Constitution. The issue, at least for the conservative
justices who sided with the majority, is more likely the protection of
property rights. In order to argue against that, Lessig would have had
to argue for a communal property right that was put at odds with the
individual property right of the copyright holder, and even that would
be thin skating at best. So the Supremes did the only possible thing
with respect to property rights and the clearly enumerated power the
Constitution gives Congress to protect copyright.

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. And
understandings are framed by conceptual metaphors. We use them all the
time without being the least bit aware of it. We talk about
time in terms of money (save,
waste, spend, gain, lose) and life
in terms of travel (arrive, depart, speed up, slow down, get
stuck), without realizing that we're speaking about one thing in terms
of something quite different. As the cognitive linguists will tell you,
this is not a bad thing. In fact, it's very much the way our minds work.

But if we want to change minds, we need to pay attention to exactly
these kinds of details.

"The Commons" and "the public domain" might be
legitimate concepts with deep and relevant histories, but they're too
arcane to most of us. Eric
Raymond has told me more than once that the Commons Thing kinda rubs
him the wrong way. Communist and
Commonist are just a little
too close for comfort. Too social. Not private enough. He didn't say he
was against it, but he did say it was a stretch. (Maybe he'll come in here
and correct me or enlarge on his point.) For many other libertarians,
however, the stretch goes too far. Same goes for conservatives who
subscribe to the same metaphorical system in respect to property.

So the work we have cut out for us isn't just legal and political. It's
conceptual. Until we find a way to win that one, we'll keep losing in
Congress as well as the courts.

Helpful reading on a similar (and to some degree related) case:
Metaphor, Morality, and
Politics, Or, Why Conservatives Have Left Liberals In the Dust, by
George
Lakoff.

Larry
Lessig replied:

Doc has a brilliant and absolutely correct
diagnosis
at the American Open Technology Consortium website 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 fundamentally
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.

Our problem is, as Doc rightly points out, that we have so far failed
to make it clear to the world who the radicals in this debate are.

The radicals in Larry's proximal debate are copyright extremists of the
Sonny
Bono school, which favors extension of copyright to "forever less
one day". In this debate the radicals are the carriers. We
need to fight them, just as Larry and crew need to fight the copyright
extremists: by re-framing the subject.

To start we acknowledge the necessity of the transport metaphor; but
also its insufficiency.

Of course, at its base level the Net is a system of pipes and packets. But
it's not only packets, or "content" or
anything for that matter). Understanding the Net only in transport terms is like
understanding civilization in terms of electrical service or human beings
only in terms of atoms and molecules. We miss the larger context.

That context is best understood as a place. When we speak
of the Net as a "place" or a "space" or a
"world" or a "commons" or a "market" with
"locations" and "addresses" and "sites"
that we "build", we are framing the Net as a
place.

Most significantly, the Net is a marketplace. In fact, the Net
is the largest, most open, most free and most productive marketplace the
world has ever known. The fact that it's not physical doesn't make it
one bit less real. In fact, the virtuality of the Net is what makes it
stretch to worldwide dimensions while remaining local to every desktop,
every point-of-sale device, every ATM machine. It is in this world-wide
marketplace that free people, free enterprise, free cultures and free
societies are just beginning to flourish. It is here that democratic
governance is finally connected, efficiently, to the governed.

It is on and not just
through--prepositions are key here--the Net that governments
will not only derive their just powers from the
consent
of the governed but benefit directly from citizen involvement
as well.

As a place, the Net has always been independent of the carriage
on which it relies, which is one reason it also encourages and rewards
independence. The independence of the Net and its inhabitants is precisely
what accounts for countless new businesses and improved old ones.

The architecture of the Net's world is End-to-End (See
"End
to End Arguments in System Design" by J.H. Saltzer,
D.P. Reed and D.D. Clark). In
"The Rise of the Stupid
Network", which he wrote for the benefit of his employer while he was still
at AT&T, David Isenberg says
"The Internet breaks the telephone company model by passing control
to the end user. It does this by taking the underlying network details
out of the picture." In "World of
Ends", David Weinberger and I added:
The Internet is Stupid.
The telephone system, which is not the Internet (at least not yet),
is damn smart. It knows who's calling whom, where they're located,
whether it's a voice or data call, how far the call reaches, how much
the call costs, etc. And it provides services that only a phone network
cares about: call waiting, caller ID, *69 and lots of other stuff that
phone companies like to sell.

The Internet, on the other hand, is stupid. On purpose. Its designers
made sure the biggest, most inclusive network of them all was dumb as
a box of rocks.

The Internet doesn't know lots of things a smart network like the phone
system knows: Identities, permissions, priorities, etc. The Internet
only knows one thing: this bunch of bits needs to move from one end of
the Net to another.

There are technical reasons why stupidity is a good design. Stupid is
sturdy. If a router fails, packets route around it, meaning that the
Net stays up. Thanks to its stupidity, the Net welcomes new devices and
people, so it grows quickly and in all directions. It's also easy for
architects to incorporate Net access into all kinds of smart devices--camcorders,
telephones, sprinkler systems--that live at the Net's ends.

That's because the most important reason Stupid is Good has less to do
with technology and everything to do with value...

Adding value to the Internet Lowers its
Value.

Sounds screwy, but it's true. If you optimize a network for one type of
application, you de-optimize it for others. For example, if you let the
network give priority to voice or video data on the grounds that they
need to arrive faster, you are telling other applications that they will
have to wait. And as soon as you do that, you have turned the Net from
something simple for everybody into something complicated for just one
purpose. It isn't the Internet anymore.

All the Internet's value grows on its
edges.
If the Internet were a smart network, its designers would have anticipated
the importance of a good search engine and would have built searching
into the network itself. But because its designers were smart, they made
the Net too stupid for that. So searching is a service that can be built
at one of the million ends of the Internet. Because people can offer
any services they want from their end, search engines have competed,
which means choice for users and astounding innovation.

Search engines are just an example. Because all the Internet does is
throw bits from one end to another, innovators can build whatever they
can imagine, counting on the Internet to move data for them. You don't
have to get permission from the Internet's owner or systems administrator
or the Vice President of Service Prioritization. You have an idea? Do
it. And every time you do, the value of the Internet goes up.

The Internet has created a free market for
innovation. That's the key to the Internet's value.

The term "world of ends" was inspired by
Craig Burton's characterization
of the Net's "stupid" end-to-end architecture as a
three-dimensional zero. "In fact," he says, "there's
no other way to visualize a place comprised of nothing but ends, all
zero distance from each other, where all the intelligence is on the
outside". He adds, "It's important to remember that zero is
the value here. You can't get in the middle of this world and say 'This
zero isn't valuable enough. I'm going to improve it.' That would be like
jumping in the middle of the Earth and saying 'I'm going to improve on
this gravity business'."

While the Net's nature is a world-wide place, the
Web's nature is a world-wide publishing
system. The Web
was invented by Tim
Berners-Lee, a scientist who wanted a simple way documents could
be published and read, anywhere in the world, without restriction
by physical location or underlying transport system. That's
why it has hypertext protocols, "languages" and
"formatting" standards. It's also why we "write",
"author" and "mark up" "documents" called
"pages" and "files" which we "post", "publish" or "put up" so others can
"index", "catalog" and "browse" them.

To sum up, the Net has all these natures:

1. transport system (pipes)
2. place (or world)
3. publishing system

--and others as well. But those aren't at war with one another,
and that's what matters most.

Right now #1 is at war with #2 and #3, and that war isn't happening only
in the media and in congressional hearing rooms. It's happening in our
own heads. When we talk about "delivering content to consumers
through the Net", rather than "selling products to customers
on the Net", we take sides with #1 against #2. We unconsciously
agree that the Net is just a piping system. We literally
devolve:
our lungs turn to gills, our legs turn into flippers, and we waddle
back into the sea--where we are eaten by sharks.

What I'm talking about here isn't "just semantics" or trivial in
any other way. It's fundamental, especially to lawmaking and regulation.

For example, if we describe speech
and publishing, that stuff the
First
Amendment protects as "content", then the
rights granted to speech become subordinate to regulations governing
carriage. Look into the metaphors used by the Supreme Court in
its decision
in favor of the National Cable & Telecommunications Association,
et. al., in that group's suit against Brand X. Internet Services,
et. al.:

The Communications Act of 1934, as amended by the Telecommunications
Act of 1996, defines two categories of entities relevant
here. "Information service" providers--those
"offering"; a capability for [processing] information via
telecommunications, 47 U.S.C. § 153(20)--are subject
to mandatory regulation by the Federal Communications Commission as
common carriers under Title II of the Act. Conversely, telecommunications
carriers--i.e., those "offering" telecommunications for a
fee directly to the public "regardless of the facilities used,"
§153(46)--are not subject to mandatory Title II regulation. These
two classifications originated in the late 1970's, as the
Commission developed rules to regulate data-processing services offered
over telephone wires. Regulated "telecommunications service"
under the 1996 Act is the analog to "basic service" under the
prior regime, the Computer II rules. Those rules defined such service as a
"pure" or "transparent" transmission capability over a
communications path enabling the consumer to transmit an ordinary-language
message to another point without computer processing or storage of the
information, such as via a telephone or a facsimile. Under the 1996 Act,
"[i]nformation service" is the analog to "enhanced"
service, defined by the Computer II rules as computer-processing
applications that act on the subscriber's information, such as voice
and data storage services, as well as "protocol conversion,"
i.e., the ability to communicate between networks that employ different
data-transmission formats.

In the Declaratory Ruling under review, the Commission classified
broadband cable modem service as an "information service" but
not a "telecommunications service" under the 1996 Act, so that
it is not subject to mandatory Title II common-carrier regulation. The
Commission relied heavily on its Universal Service Report, which earlier
classified "non-facilities-based" ISPs--those that do not
own the transmission facilities they use to connect the end user to the
Internet--solely as information-service providers. Because Internet
access is a capability for manipulating and storing information, the
Commission concluded, it was an "information service." However,
the integrated nature of such access and the high-speed wire used to
provide it led the Commission to conclude that cable companies providing
it are not "telecommunications service" providers. Adopting
the Universal Service Report's reasoning, the Commission held that cable
companies offering broadband Internet access, like non-facilities-based
ISPs, do not offer the end user telecommunications service, but merely
use telecommunications to provide end users with cable modem service.

Disregard for now the opacity of the prose and even the complete
absence of the place and
publishing metaphors that define
the Net and the Web. Just look at the time scale involved. There
are a series of regulatory regimes here, beginning with the
Telecommunications
Act of 1934. Today we operate under the
Telecommunications Act of
1996. Reforms of that act are likely to remain law for a long time.

Meanwhile, we have
Section
1464 (Broadcasting Obscene Language) in
CHAPTER
71 - OBSCENITY in
PART
I - CRIMES of
TITLE
18 - CRIMES AND CRIMINAL PROCEDURE of the
United
States Code, which forced the FCC to rationalize
stomping all over the First Amendment. Look at the headings under
Chapter
71, and you'll find that most of the sections (including 1464)
begin with transportational verbs: Mailing,
Importation, Broadcasting,
Distribution, Transfer.

Thanks to the transport metaphor, the
FCC
can punish
forms of speech it calls "obscene", "profane"
or "indecent" and explain it in a document
titled "content.html". The same victory of pipes
over place accounts for this tortured entry in its
Obscenity, Indecency
& Profanity FAQ:

The First Amendment to the U.S. Constitution and Section 326 of the
Communications Act prohibit the FCC from censoring broadcasters. The FCC
does not, therefore, monitor particular programs or particular
performers, but rather enforces the prohibition on obscenity, indecency
and profanity in response to complaints.

Thanks to the transport metaphor, even relatively pro-market and
pro-Net regulators, such as former FCC Chairman Michael Powell,
speak
about "consumers" having "rights" to "access"
and "attach" to "connections" about which they should
have "choices". In fact, the whole case for "protecting
consumers" from bad content and its sources is framed in terms
that reify the Net as a system of pipes.

One reason transport trumps
place is that business itself is
largely, though not entirely, conceived in shipping terms. The "value
chain" is a transportational notion. We speak of "loading"
goods into "channels" for "distribution" to
"end users" or "consumers". We even talk about
"delivering" services.

On the other hand, we have understood markets as
places since
marketplaces were the only kinds of markets we had. The metaphors
that come naturally to Wall Street are helpful here. When we speak of
"bulls", "bears" and "invisible hands",
we assume those beings operate in an place-like environment. When we
say markets have feelings--"excitement", "fear",
"anticipation", "reaction"--we assume
those happen in an environment (that is, a place) as well. Even
"Wall Street" is ontologically locational. It is a
real place that serves, by what cognitive linguistics call
metonymy,
for the whole stock market, which we also conceive of as a place.

Experience counts. Humans are physical beings. All of us who use the Net
experience it as a place. Prepositions are revealing. We go
on the Net, not through it.

In
Metaphors
We Live By,
George
Lakoff and Mark Johnson write:

... even where there is no natural physical boundary... we impose
boundaries--marking off territory so that it has an inside and
a bounding surface... There are few human instincts more basic than
territoriality.

We who know and understand the territorial nature of the Net need to
appeal to the same territorial sense in those we hope to win over with
our arguments.

Advocating and saving the Net is not a partisan issue. Lawmakers and
regulators aren't screwing up the Net because they're "Friends
of Bush" or "Friends of Hollywood" or liberals or
conservatives. They're doing it because one way of framing the Net--as a
transport system for content--is
winning over another way of framing the Net--as a place
where markets and business and
culture and governance can
all thrive. Otherwise helpful documents, including Ernest Partridge's
"After
the Internet" fail because they blame "Bush-friendly conservative
corporations" and appeal only to one political constituency, in
this case, progressives. Freedom, independence, the sovereignty of
the individual, private rights and open frontiers are a few among many
values shared by progressives and conservatives. All are better supported,
in obvious ways, by the Net as a place rather than
as a transport system.

This is especially true of the Net as a place where free and open markets
thrive. This is the Net that we built, where we
have sites and locations and
domains.

It is also important to describe what the Net is and how it works
from the standpoint of technology itself: specifically those that create
and enlarge the Net and its services. So we're talking here not just
about HTTP and HTML but also XML and RSS. These reify the Net as a place
where people and organizations speak and publish and produce and govern
and build businesses and perform services. These are made possible,
we should make clear, by the end-to-end nature of the Net and by the
even-endedness of every participant.

We should avoid getting trapped by arguments about peer-to-peer sharing
that drop us into the mud-pit of Hollywood's "piracy" fears
and residual disdain by conservative lawmakers (still the majority) for
anything that smacks of Communism. Unfortunately, that means we should
also avoid talking about the Net as a "commons" except with
those who understand the concept.

We need to make clear that the Public Domain is the market's underlying
geology--a place akin to the ownerless bulk of the Earth--rather than a
public preserve in the midst of private holdings. This won't be easy, but
it can be done.

We need to stress the fact that the primary "end" in the Net's
end-to-end architecture is the individual. The Net's success
is due far more to the freedoms enjoyed by individuals than to the
advantages enjoyed by large companies whose existence predates the Net.

We need to remind policy makers that the Net's biggest success stories--Amazon,
Google, eBay and Yahoo--are the stories of Bezos, Page, Brin, Omidyar, Yang and Filo.

We need to make clear that the Net is the best public place ever created
for private enterprise, and that the success of the Net owes infinitely
more to personal initiative than to the mesh of pipes in the ground
beneath it.

We need to show how the Net has its own nature, and that this nature
is too
dynamic--too
original, too wild and free, too self-creating and self-correcting--for
new lawmaking to comprehend, much less control.

We need to stress how the pipe-centric view of the world is responsible
for the crippled and asymmetrical "consumer" service the
carriers call "broadband". By restricting upstream use of the
Net and biasing service to downstream "content delivery",
the carriers have effectively outlawed personal and small business
enterprise on the Net. This is one area where the carriers have been
persistently clueless and hostile to the Net since the beginning,
and we need to call them on it. (Required reading: John Perry Barlow's
Death
From Above, written in March 1995.)

I could go on, but I'd rather leave that up to the rest of you.

These are ideas, of course. I present them forcefully because I believe
we--the technical community--are being called to fight for
a world we made and continue to make. And one which is under grave threat.

That threat appears in many forms, all of which are easy to blame and
attack. But all those forms are expressions of a simple concept: that
the Net is, above all, a system of pipes. Those pipes are in fact below,
not above. They support a World of Ends, but they don't define it.

Unless we let them.

A few final words about deeds. Right now we face a number of deadlines
on anti-Net legislation being lobbied through Congress by what David
Berlind calls "Tellywood", with help from the carriers. He
explains the
situation expertly:

So, in November 2003,
the FCC
instated a rule that, as of July 1, 2005,
required
all television receivers to include the anti-piracy technology.
But prior to that day of reckoning, saying the FCC didn't
have the authority to make such a rule,
a federal court
struck the mandate down on May 6. But the ruling wasn't
a complete victory because it also said that Congress could pass
a law to the same effect. So then, Congress got into the act
(literally and figuratively). In June 2005, on the heels of the
federal court's decision, Tellywood's lobbies looked to revive the
mandate by getting the Senate to sneak an amendment into a largely
unrelated spending bill (Gee, deja vu. Certain Massachusetts'
Congresspeople are looking to screw the OpenDocument Format with
the same
unrelated-bill-ammendment technique). But the "fair
rights lobby" [sic] raised a stink and the
Senate
Appropriations Committee thankfully punted. Then,
in September, 20 members of Congress who were clearly looking
out for the fair use rights of the people they represent (not)
called for a reinstatement of the broadcast
flag mandate. Earlier this month however,
some members of the U.S. House of Representatives
remained
unconvinced that such broadcast
flag legislation wouldn't marginalize fair use rights.

As if it isn't bad enough that certain Congresspeople are looking
to stifle fair use rights with broadcast flag related legislation,
the Recording Industry Association of America (RIAA) and the Motion
Picture Association of America (MPAA) are pushing two other fair-use
rights limiting bills on Congress.

David goes on to talk about how
the
RIAA helped author the
HD
Radio Content Act of 2005, which would prevent you from recording
anything off the digital signals slated to replace the analog ones still
on radios today. He adds:

As if the HD Radio Content Protection Act of 2005 doesn't
tighten the noose enough, there's also the Analog Content
Security Preservation Act of 2005. A
November
3, 2005-dated draft of the proposed legislation is available from
the Electronic Frontier Foundation. The idea behind this
legislation, which has the backing of the MPAA, is to make it illegal
for consumer device manufacturers not to plug the infamous
analog hole (another hole in the leaky dam).

The list goes on. Read
it. Then contact your Congresspeople. Tell them to keep the Net
open and free and to vote against any legislation meant to protect any
industry from "threats" they see coming from a new world they
refuse to understand.

And, as the end of the year approaches, be sure to send your tax-deductible
contributions to the EFF,
Creative Commons and
other organizations working with you to save the Net.

Doc Searls is Senior Editor of Linux Journal, for
which he writes the Linux for Suits column. He also presides over
Doc Searls' IT Garage,
which is published by SSC, the publisher of Linux
Journal.