Saving the Net

by Doc Searls

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 Whitman

Who 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 Resources, 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.


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