Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes
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.
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.
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:
transport system (pipes)
place (or world)
--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.
... 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.
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.
Doc Searls is Senior Editor of Linux Journal
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