PeerFlow

Japan Still Far Ahead of US in Internet Connection Speeds

While the U.S. still hopes to get up to 10Mbps Internet connection speeds by 2012, Japan already has such speeds for cable Internet service almost everywhere. And yes, I mean Internet connections, not just broadband.

But in Japan cable Internet service is of declining popularity, because 30 or 40 Mbps for $50 or $60 per month is not really fast there.

DSL in Japan goes up to 50 Mbps for also around $50-$60/month.

But for actual fast, cheap, Internet connections, people in Japan buy Fiber to the Home (FTTH), which actually costs less and delivers from 100Mbps to 1Gbps.

Meanwhile, back in the U.S.A., EDUCAUSE has proposed 100Mbps national broadband using a funding method that already failed in Texas.

Japan didn't get to 100Mbps by a single government-funded network. It did it by actually enforcing competition among broadband providers. Why did it do this? Because a private entrepreneur, Masayoshi Son, and his company Softbank, pestered the Japanese government until it did so.

Thus it's refreshing that these graphs laying out how far ahead of the U.S. Japan is come from the New America Foundation. Chair? Eric Schmidt, CEO of Google.

Internet, Not Broadband, for National Policy

A national broadband policy is what you get when you put bellheads in charge. Fortunately, Scott Bradner has been on the Internet since the beginning, and explains the difference.

Broadband is not the Internet. Broadband is shorthand for a diverse class of wired and wireless digital transmission technologies. The Internet, in contrast, is a set of public protocols for inter-networking systems that specifies how data packets are structured and processed. Broadband technologies, at their essence, are high-capacity and always-on. The essence of the Internet is (a) that it carries all packets that follow its protocols regardless of what kinds of data the packets carry, (b) that it can interconnect all networks that follow those protocols, and (c) its protocols are defined via well-established public processes.

There’s risk in confusing broadband and Internet. If the National Broadband Plan starts from the premise that the U.S. needs the innovation, increased productivity, new ideas and freedoms of expression that the Internet affords, then the Plan will be shaped around the Internet. If, instead, the Plan is premised on a need for broadband, it fails to address the ARRA’s mandated objectives directly. More importantly, the premise that broadband is the primary goal entertains the remaking of the Internet in ways that could put its benefits at risk. The primary goal of the Plan should be broadband connections to the Internet.

It's a petition. Please sign it.

-jsq

PS:

Therefore, we urge that the FCC’s National Broadband Plan emphasize that broadband connection to the Internet is the primary goal. In addition, we strongly suggest that the Plan incorporate the FCC Internet Policy Statement of 2005 and extend it to (a) include consumer information that meaningfully specifies connection performance and identifies any throttling, filtering, packet inspection, data collection, et cetera, that the provider imposes upon the connection, (b) prohibit discriminatory or preferential treatment of packets based on sender, recipient or packet contents. Finally, we suggest that the Internet is such a critical infrastructure that enforcement of mandated behavior should be accompanied by penalties severe enough to deter those behaviors.

While you're at it, urge the FCC to stop talking about "consumers" and start talking about participants.

Chess End-Game for the Duopoly?

This is rich:

"Now is not the time, nor is this the appropriate proceeding, to engage in a debate about the need for net neutrality obligations," two TWC lawyers warned the FCC on Monday. The discussion should stay strictly focused on broadband deployment, the company insists. "Debates in this proceeding about new net neutrality regulations would only divert attention from these important goals, delaying the distribution of funds while generating considerable contention when the Commission should instead be fostering a spirit of collaboration."

Matthew Lasar, writing in ars technica, makes a familiar point:

And one of them, Comcast, definitely thinks that the agency was way out of line to invoke this statement when sanctioning the company for P2P throttling last year, and has filed legal papers against the FCC in federal court. Expect arguments that the Commission never really properly established the declaration as a set of rules when the trial starts.

Well, yeah, I'd expect to hear arguments like that, because the duopoly's paid shills have been making them ever since the FCC made that toothless declaration of principles.

Yet it seems the Obama administration has taken the initiative to do what the FCC never did:

But the American Recovery and Reinvestment Act of 2009 has hard-wired the FCC's pronouncement into law, at least when it comes to stimulus grantees. The legislation requires of grant recipients "at a minimum, adherence to the principles contained in the Commission’s broadband policy statement." Plus the government must publish, in consultation with the Commission, "the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded."

Still, why is Time Warner picking now to be so intransigent? And why is NCTA claiming FCC can't interpret those principles, because

"Imposing new and untested nondiscrimination or interconnection requirements as a condition of stimulus funding risks injecting contentiousness, uncertainty, and delay into a process that should focus on creating new jobs and new broadband connections as quickly as possible,"

While NCTA and TW are of course themselves injecting contentiousness, uncertainty, and delay into the process.

Hm, so if the current duopoly won't accept these principles, the stimulus money may have to go to other companies. Which could mean the end of the duopoly.

The duopoly is playing chess with death.

Version Tracking for Congress

Stuff that's been old hat for decades in the computing world is fresh and shiny in government. Govtrack.us tracks not only bills, but also voting records and videos of Congress members. And it adds RSS feeds, old hat to most people on the Internet, but radical innovation for legislation! You can now subscribe to every bill, vote, and YouTube video that your Congress critter posts, including many of their floor speeches. Those are especially enlightening, seeing them speak in front of a mostly empty chamber, especially compared with their previous voting and speech records. Govtrack should be useful not only for the public, but for Congress members and their staffers, for example by making it easier for them to read the bill before voting on it.

Maybe using the Internet to shine a little light on Congress can lead to a more open Internet and maybe even a more open society.

Keen on Coughlin on the Internet

I was going to say you have to admire Andrew Keen for finding a contrarian perspective and mining it for all it's worth. But this latest missive from him seems all too desperate.

Can Obama's plan for universal broadband turn the recession into a political nightmare resembling the 1930s? Yes, it can, writes the author of the controversial book, The Cult of the Amateur.

...

Imagine if today’s radically unregulated Internet, with its absence of fact checkers and editorial gatekeepers, had existed back then. Imagine that universal broadband had been available to enable the unemployed to read the latest conspiracy theories about the Great Crash on the blogosphere. Imagine the FDR-baiting, Hitler-loving Father Charles Coughlin, equipped with his “personalized” YouTube channel, able, at a click of a button, to distribute his racist message to the suffering masses. Or imagine a marketing genius like the Nazi chief propagandist Josef Goebbels managing a viral social network of anti-Semites which could coordinate local meet-ups to assault Jews and Communists.

— The Internet Is Bad For You, by Andrew Keen, 19 Dec 2008

Like we don't already have xenophobic propaganda on talk radio, Fox News, Lou Dobbs on CNN, etc. Rush Limbaugh already has his personalized TV show channel, as does Bill O'Reilly. If that's what gatekeepers bring us, bring on the Internet.

With net neutrality, please. As in what Larry Lessig says Obama plans to require:

the terms offered one website or company are no better or worse than those offered anyone else.

That way we can keep free speech on the Internet, even if it doesn't exist on TV or radio. What Keen hates most about the Internet is exactly what is its greatest strength: it is not a broadcast medium. It is a participatory medium, in which everyone can publish and everyone can select what to read or view. For example, I realize that I'm giving Keen's doleful visage a tiny amount of publicity by posting this, but hey, it's better to have weirdly wrongheaded stuff like this out there where everybody can see it and rebut it than having it festering in the darkness.

"I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

—Thomas Jefferson to William C. Jarvis, 1820

On this I'll go with Jefferson rather than Keen.

-jsq

Lessig's Herculean Holiday Present: Reboot the FCC

Here's a good test for the new U.S. Executive: to recognize that steady pragmatism means radical change, starting with the FCC:

The solution here is not tinkering. You can't fix DNA. You have to bury it. President Obama should get Congress to shut down the FCC and similar vestigial regulators, which put stability and special interests above the public good. In their place, Congress should create something we could call the Innovation Environment Protection Agency (iEPA), charged with a simple founding mission: "minimal intervention to maximize innovation." The iEPA's core purpose would be to protect innovation from its two historical enemies—excessive government favors, and excessive private monopoly power.

—Reboot the FCC, We'll stifle the Skypes and YouTubes of the future if we don't demolish the regulators that oversee our digital pipelines. By Lawrence Lessig, Newsweek Web Exclusive, 23 Dec 2008

Lessig gets the connection with his old topic of intellectual property and copyright. Those are monopolies granted by the federal government, and they have been abused by the monopoly holders just like the holders of communication monopolies:

Users Revolted: Net Neutrality to Win

The world has turned upside down:

This column is dedicated to the top managers of American business whose policies and practices helped ensure Barack Obama's victory. The mandate for change that sounded across this country is not limited to our new President and Congress. That bell also tolls for you. Obama's triumph was ignited in part by your failure to understand and respect your own consumers, customers, employees, and end users. The despair that fueled America's yearning for change and hope grew to maturity in your garden.

Millions of Americans heard President-elect Obama painfully recall his sense of frustration, powerlessness, and outrage when his mother's health insurer refused to cover her cancer treatments. Worse still, every one of them knew exactly how he felt. That long-simmering indignation is by now the defining experience of every consumer of health care, mortgages, insurance, travel, and financial services—the list goes on.

Obama's Victory: A Consumer-Citizen Revolt, The election confirms it's time for sober reappraisal and reinvention within the business community. If you don't do it, someone else will, By Shoshana Zuboff

She identifies Apple as one of the few companies that has actually gotten it about how to do business, with its iPod and iTunes. As we've previously seen, this is because Apple gets it that Porter's Five Forces model of competition breaks when open distribution channels are introduced.

It appears that Mark Anderson, Odile Richards, and William Gibson were right: "See-bare-espace... it is everting." Cyberspace just elected a president of the United States. And he knows it.

Obama has been publicly in favor of net neutrality for at least a year. And he has not backed off. He's put Susan Crawford and Kevin Werbach in charge of reviewing the FCC. Now that's cyberspace inverted indeed!

Selling Out Has Its Party: AT&T Fetes Blue Dogs

Glenn Greenwald has video of attendees refusing to say who they were or why they were there or what the party was for:

Amazingly, not a single one of the 25-30 people we tried to interview would speak to us about who they were, how they got invited, what the party's purpose was, why they were attending, etc. One attendee said he was with an "energy company," and the other confessed she was affiliated with a "trade association," but that was the full extent of their willingness to describe themselves or this event. It was as though they knew they're part of a filthy and deeply corrupt process and were ashamed of -- or at least eager to conceal -- their involvement in it. After just a few minutes, the private security teams demanded that we leave, and when we refused and continued to stand in front trying to interview the reticent attendees, the Denver Police forced us to move further and further away until finally we were unable to approach any more of the arriving guests.

— AT&T thanks the Blue Dog Democrats with a lavish party, Glenn Greenwald, Salon, Monday Aug. 25, 2008 11:15 EDT (updated below (with video added) - Update II) Thursday, Aug 28, 2008

The video includes Denver police repeatedly asking accredited press to move away from a public sidewalk.

At another party, an ABC News reporter was arrested while "attempting to take pictures on a public sidewalk of Democratic senators and VIP donors leaving a private meeting at the Brown Palace Hotel."

Parties like this are part of the lobbying revolving door that makes the U.S. look like a banana republic. I'm picking on Democrats, here, but at least 75% of Senate Democrats (including Hillary Clinton and Joe Biden, but not Barack Obama) voted against the recent bad FISA bill. A much higher percentage of Republicans voted for it.

If he were alive today, Robert Burns would say:

'We are bought and sold for telecom gold'
Such a parcel of rogues in a nation!

-jsq

Movie King of the Internet: Bad Idea

Andrew Odlyzko asks what if the duopoly gets its way and completely does away with net neutrality:

But what if they do get their wish, net neutrality is consigned to the dustbin, and they do build their new services, but nobody uses them? If the networks that are built are the ones that are publicly discussed, that is a likely prospect. What service providers publicly promise to do, if they are given complete control of their networks, is to build special facilities for streaming movies. But there are two fatal defects to that promise. One is that movies are unlikely to offer all that much revenue. The other is that delivering movies in real-time streaming mode is the wrong solution, expensive and unnecessary. If service providers are to derive significant revenues and profits by exploiting freedom from net neutrality limitations, they will need to engage in much more intrusive control of traffic than just provision of special channels for streaming movies.

— The delusions of net neutrality, Andrew Odlyzko, School of Mathematics, University of Minnesota Minneapolis, MN 55455, USA odlyzko@umn.edu http://www.dtc.umn.edu/odlyzko Revised version, August 17, 2008

Why is that?

But video, and more generally content (defined as material prepared by professionals for wide distribution, such as movies, music, newscasts, and so on), is not king, and has never been king. While content has frequently dominated in terms of volume of traffic, connectivity has almost universally been valued much more highly and brought much higher revenues. Movies cannot be counted on to bring in anywhere near as much in revenues as voice services do today.

The Internet isn't about Sarnoff's Law (broadcast content like TV, radio, and newspapers) or even about Metcalfe's Law (1-n connectivity, like telephone or VoIP): it's about Reed's law, 2n-n connectivity, such as blogs, P2P, and facebook). That's my interpretation; Odlyzko probably wouldn't agree.

Anyway, that video content such as movies is king is one of the primary delusions Odlyzko addresses in this paper. The other is that movies need to be streamed in realtime. It is mysterious why people continue to believe that in the face of the massive evidence BitTorrent and other P2P services that deliver big content in chunks faster than realtime. I can only attribute this second delusion to a bellhead mindset that still thinks in terms of telephone, which was realtime because nobody knew any other way to do it back in the analog-copper-wire-connection day.

As Odlyzko sums it up:

The general conclusion is that the story presented by service providers, that they need to block net neutrality in order to be able to afford to construct special features in their networks for streaming movies, is simply not credible. If lack of net neutrality requirements is to be exploited, it will have to be done through other, much more intrusive means.

So why let the duopoly force a policy on everyone else that won't even work to the advantage of the duopoly?

One way to get net neutrality would be to let the duopoly have its way, and wait for it to implode. However, given that for streaming video to have any chance of succeeding, the duopoly would have to clamp down on everything else to eliminate any competition, I shudder to think what this would mean. The Internet as a source of real news and opinion would go away. Given that the vestigial traditional news media in the U.S. (TV, radio, newspapers) provide so little news, there's a very good chance that most people in the U.S. wouldn't even know how bad they had it as the country sped its slide into parochialism and irrelevance. How many people even know now that the U.S. has slid from #1 to #23 or whatever the latest number is in broadband uptake? If the duopoly is given its head, even fewer would know.

If we let King Kong Telco and T Rex Cableco battle it out to be Movie King of the Internet, where does that leave poor Fay Wray Public?

FCC, FTC, Congress, executive, and courts, not to mention the public, should all read Odlyzko's paper, and should all refuse the duopoly's demand for special privileges that won't even produce profits for the duopoly. Then all of above should legislate, enforce, and maintain net neutrality so we will all profit and benefit. Yes, even the duopoly can win with this.

-jsq

Kevin Martin's Bottle: Weak Ruling Against Comcast Guarantees Court Challenges

The FCC recently ruled that Comcast has to stop throttling P2P. On the surface, that's a good thing. That Kevin Martin wanted it makes me wonder.

For once I agree with a net neutrality opponent:

By instituting this weird, weak, and barely legal regulation, Kevin Martin will get ‘net neutrality regulation bottled up in the courts for - what - the next five years?

— Game, Set, and Match: Martin! by Jim Harper, Technology Liberation Front, 6 Aug 2008

Harper goes on to predict that meanwhile real competition could develop. And pigs could fly, but that's not the point.

This is the point:

The paragraph prior to the provocative line suggesting regulation of universities contains this sentence: “Allowing some Internet service providers to manage P2P traffic - much less to engage in complete blocking of P2P traffic - while prohibiting others from doing so would be arbitrary and capricious.” This is an administrative-law term of art - “arbitrary and capricious.” The use of it tells us that NCTA or Comcast will challenge the FCC’s decision to regulate only one provider of Internet access without regulating all similarly situated.

But Comcast is under a different regulatory regime!, says Harold and the others. Not in an enforcement of this “broad policy statement” thing-y. The FCC is claming free rein to regulate - not authority based firmly in statute - and if it can throw that rein over cable ISPs, it can throw that rein over universities, over Starbucks, and over the open wi-fi node in Harold’s house.

Now, given the free rein that the FCC is asserting, there is a darn good argument that it’s arbitrary (and “capricious”) to regulate only cable ISPs or commercial ISPs in this way. The FCC has to regulate the whole damn Internet this way if it’s going to regulate Comcast.

This is not just theoretical. Fox News recently refused to pay an FCC-imposed fine, saying it was "arbitrary and capricious". Fox cited a previous case in which a federal court slapped down the FCC for fining a show for swearing, saying it was "arbitrary and capricious".

All that plus if a court rules the FCC's recent decision is "arbitrary and capricious", that will be used as a precedent to require universities to regulate content on their networks in favor of big copyright holders, as elements in Congress have been trying to do for about a year now.

I think net neutrality advocates underestimate Kevin Martin at their (and our) peril.

-jsq

Boehner's Latest Crying Jag

Boo hoo:

At least one lawmaker is already crying foul over Friday's expected Federal Communications Commission's censure of Comcast for faking internet traffic to limit its customers' peer-to-peer file sharing.

Republican minority leader Rep. John Boehner said the FCC would be "essentially regulating the internet."

— Lawmaker Cries Foul Ahead of FCC Net-Neutrality Decision, By David Kravets, ThreatLevel, July 31, 2008 | 7:02:45 PM

This is rather like crying foul because courts regulate contracts. I wonder how the free market would operate without them? The Internet free market in applications and services wouldn't operate very well without net neutrality.

I don't recall Boehner crying foul when Congress voted to regulate the Internet to require ISPs to hand over every bit (every email, phone call, web page, video, etc.) to the NSA and to legalize them having already done it when it was illegal. No free market talk from him then. Guess he didn't think the Fourth Amendment was worth crying over, unlike Anna Nicole Smith.

And back in 1995, it was the duopoly ISPs demanding regulation from the FCC, because they wanted to squelch VoIP.

Now they want to squelch everybody else's P2P and especially online video, except what they get a cut of. They think they can get away with it if the FCC stays out of the way, so now they are against regulation.

Their principles flip-flop kind of like Boehner's, don't they? Bunch of cry babies.

-jsq

Rogers Hijacks Google Subdomains for Yahoo Ads

This is pretty blatant:

Rogers, a huge cable internet provider in Canada, has decided to hijack all unregistered domains, and replace them with Yahoo! advertisements. This means Rogers users who type in a domain that doesn't exist, are now getting Yahoo ads instead of the normal "not found" error.

Interestingly, Rogers also decided to do this with subdomains. So for example, example.google.com now takes you to the following advertising:

— Rogers Hijacks Domain Name System, Puts Yahoo! Ads on Google's Subdomains, John, Blamcast, 20 July 2008

The author points out that this essentially the same thing Verisign did in 2003 until they stopped due to massive backlash.

-jsq

Comcast: P2P Stifling Fail! Says FCC Chair

Maybe attacking Kevin Martin's vanity is the way to get net neutrality, or at least that seems to have backfired on Comcast:

Remember how Comcast this week told us that 1) the FCC's "Internet policy statement" (PDF) had no legal force and 2) that the agency might not have the authority to enact such rules even if it wanted to? Those theories will soon be put to the test, as Republican FCC Chairman Kevin Martin now says he wants to rule against Comcast in the dispute over the company's P2P upload throttling. Score one huge, precedent-setting win for net neutrality backers.

Martin stands up for "principles"

Martin broke the news Thursday evening by way of the Associated Press, telling them that "the Commission has adopted a set of principles that protects consumers' access to the Internet. We found that Comcast's actions in this instance violated our principles."

— Comcast loses: FCC head slams company's P2P filtering, By Nate Anderson, ars technica, | Published: July 11, 2008 - 01:30AM CT

Oh, wait:

The decision could be an historic one, but not for its actual effect on Comcast. The cable company has already announced plans to transition away from the current throttling regime to something that looks more at overall bandwidth use rather than particular applications. Trials in Pennsylvania are currently underway on the new system, set to be deployed by year's end. Martin's order would therefore not require the company to do anything new, but it would have to provide more detail about past and future practices.

Lots of sound and fury signifying...?

I'd say it's a bit too early to say Scott Cleland was wrong when he said enforcement of the FCC's net neutrality principles was "preposterous".

-jsq

Senate: Get Out of Jail Free, Telcos and Administration!

Yes, I know, the FISA bill just passed by the Senate doesn't preclude criminal liability. But Bush can, by pardoning for any and all crimes committed, just like Ford did for Nixon; the man who commuted Scooter Libby's sentence won't balk at that. And the bill does do away with civil liability, so the telcos never have to pay for illegal warrantless blanket wiretapping, and the criminal evidence against the politicians that hired it is hidden.

But, to be Chicago kind of candid, whatcha gonna do about it?

Today, the freshman senator from Illinois voted in favor of the FISA bill that provides retroactive legal protection to cooperating telecom companies that helped the feds eavesdrop on overseas calls. Up until a few weeks ago -- let's see, that would be shortly after the last primaries settled the Democratic nomination and terminated what's-her-name's once frontrunning campaign -- Obama adamantly opposed the bill. "Unequivocally" was the word his people used.

— Nomination in hand, Obama stiffs the Dem left on FISA vote, Andrew Malcolm, L.A. Times, 9 July 2008

When did the U.S. lurch so far to the right that jetissoning the Fourth Amendment is considered running to the center?

The "compromise" the bill was supposed to represent is nonexistent;

Patrick Henry Was Unreasonable, Too: Fight FISA "Compromise" on the Fourth of July!

On the Fourth of July, who wants to legalize their government spying on them, their children, their parents, and their neighbors, without even a warrant? Listening to every phone call; reading every text message, IM, email, and facebook poke; watching every video you post or view? This is what we expect from Hugo Chavez, from Fidel Castro, or from the old Soviet Union. Yet that is just what the United States Senate is proposing to do, after the House already passed it.

After fighting and winning a war at long odds against the greatest empire on earth, at the demand of the people, the Founders of U.S. added a Bill of Rights to the Constitution, the fourth of ten of which is:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

—Fourth Amendment, U.S. Constitution, effective 15 Dec 1791

That is what the Congress proposes to give away next week, by saying telcos like AT&T and Verizon can spy on you as long as they have a note from the president saying it's OK.

The Internet provides us tools to bring the Senators to their senses.

To quote a fighter against that same world-spanning empire, Mohandas K. Gandhi:

L.A. Times to cut 250 Jobs: Less Free Press; More Need for a Free Internet

There's good news and there's bad news:

The Los Angeles Times on Wednesday announced plans to cut 250 positions across the company, including 150 positions in editorial, in a new effort to bring expenses into line with declining revenue. In a further cost-cutting step, the newspaper will reduce the number of pages it publishes each week by 15%.

"You all know the paradox we find ourselves in," Times Editor Russ Stanton said in a memo to the staff. "Thanks to the Internet, we have more readers for our great journalism than at any time in our history. But also thanks to the Internet, our advertisers have more choices, and we have less money."

— Los Angeles Times to cut 250 jobs, including 150 from news staff, By Michael A. Hiltzik, Los Angeles Times Staff Writer, July 3, 2008

One reason for these cuts is the housing downturn in California: fewer real estate ads. But there are deeper reasons:

Announcements of hundreds of reductions were issued only last week by dailies in Boston, San Jose, Detroit and elsewhere. Among Tribune newspapers, the Baltimore Sun said it would cut about 100 positions by early August and the Hartford Courant announced plans to cut about 50 newsroom positions. The New York Times and the Washington Post both instituted layoffs or buyouts to reduce their staffs this year.

Besides the changes in the newspaper industry, Tribune carries the burden of about $1 billion in annual payments on its debt, much of which it took on to finance the $8.2-billion buyout.

Sure, it's happening everywhere. But the L.A. Times is one of the best sources of journalism around. Why did somebody find it worthwhile to buy it out just to load it up with debt and force layoffs?

Whether this newspaper was targetted or not, the handwriting is on the wall for fishwraps. They'll either adapt to the Internet or die. I suspect many of them will die. That means we'll lose many of our traditional sources of real reporting. Fortunately, some new sources are arising, such as Talking Points Memo, which bit into the Justice Department scandals and hung on like a bulldog. Yet blogs like that thus far have a tiny fraction of the resources of big newspapers like the L.A. Times, the New York Times, and the Washington Post. There's going to be a time of unsettlement of the fishwrap plains while the new shops in cyberspace put down roots into the old country.

And we won't have ready access to either the remaining existing newspapers worldwide or to the new online sources of reporting unless we have a free Internet. Yet another reason that net neutrality is important.

Yet another reason not to let the telcos get away with retroactive immunity. Remember, the telcos currently paying off Congress are the same companies that want to squelch net neutrality. If they can get away with handing over every bit to the NSA yesterday, why would they stop at squelching your P2P today?

-jsq

Amnesty Foes 2.0: SenatorObama-PleaseVoteAgainstFISA

I've been waiting for this to hit the bigtime, and it has, it's been slashdotted:

ya really notes a blog posting up at Wired reporting that foes of the Telecom Amnesty Bill have mounted a campaign on Barack Obama's own website. Though the group was created only days ago, on June 25, it has grown to be the fifth largest among 7,000 such groups, just short of Women for Obama. Although it is widely known that Obama changed his stance from opposing telecom immunity to supporting it, many have not given up hope of getting him to switch once again.

Telecom Amnesty Foes On the Move, Posted by kdawson, slashdot, on Tuesday July 01, @08:02AM from the one-week-and-counting dept.

And today the group has more than 9,000 members and is #2 among all MyBO groups.

It's everywhere else, too, Time, WSJ, Wired, Huffington Post, TPM, DailyKos, MyDD, OpenLeft, digg, reddit, and of course facebook. Read all about it on the wiki.

(Yes, I'm a member of the group, since about the second day, and here's what I think about the issue.)

This group is a goldmine of information about which telecoms gave what money to whom.

The most significant part to me is that people are using a candidate's own organizing tools to attempt to organize the candidate. Not stopping there, either, attempting to organize allies for the candidate. Obama claims to be people-powered. Let him say that while other politicians follow money from lobbyists, he listens to the people who give him money, who are the people, and when they said think again he did, and discovered the bogus House FISA "compromise" bill is no such thing, and now he's against it. We'll see.

-jsq

Online Everyone: The Internet for Everyone, a new public/private coalition

Google's Vint Cerf, ZIPcar's Robin Chase, FCC's Adelstein: Internet for Everyone, a public/private coalition for getting everyone online:

It's Google's involvement in the deal that makes the new coalition something to keep an eye on. The company has expanded its Washington DC lobbying group significantly in the past few years.

"When you have a public interest community up against a massive industrial sector like the cable and telco companies, you're going to likely fail because of the corrupted political system where money buys influence," said Silver. "However, if you can align the public interest with major industrial sectors that also have an increasing influence in Washington, then you have something formidable, then you actually can beat the cable and phone cartel, and this is going to how its going to play out."

— Net Neutrality Advocates Call For Fast, Universal Access To The Net, By Sarah Lai Stirland, Wired, June 24, 2008,

Access, choice, openness, innovation: yes, those are the points (plus speed), without being weighed down by the albatross of the clunky "net neutrality" malnym.

-jsq

PS: Free Press: if you're going to put a video up front, pick a fluent public speaker such as Robin Chase or Jonathan Zittrain to show first, eh? "Collective hallucination," yes!

Banana Republic, DC: Telecom Lobbying Revolving Door

Greenwald notes that AT&T spends more in three months for lobbying than EFF's entire budget for a year. Then he spells out how the lobbying revolving door works, and concludes:

The "two sides" referenced there means the House Democratic leadership and the telecoms. Congressional leaders are "negotiating" with the telecoms -- the defendants in pending lawsuits -- regarding the best way for immunizing them from liability for their lawbreaking, no doubt with the help of the former Democratic members and staffers now being paid by the telecoms to speak to their former bosses and colleagues about what they should do. To describe the process is to illustrate its oozing, banana-republic-like corruption, but that's generally how our laws are written.

None of this is particularly new, but it's still remarkable to be able to document it in such grotesque detail and see how transparent it all is. In one sense, it's just extraordinary how seamlessly and relentlessly the wheels of this dirty process churn. But in another sense, it's perhaps even more remarkable -- given the forces lined up behind telecom amnesty -- that those who have been working against it, with far fewer resources and relying largely on a series of disruptive tactics and ongoing efforts to mobilize citizen anger, have been able to stop it so far.

— How telecoms are attempting to buy amnesty from Congress, Glenn Greenwald, Salon.com, Saturday May 24, 2008 06:48 EDT

Remember, AT&T and the other telcos and cablecos are the same companies that want to nuke net neutrality in the name of competition and progress; two other flags they behind, just like the banana republic flag of national security.

-jsq

ATCA Again: Duopoly Against VoIP Long Before Video

Back in 1995, an organization calling itself AMERICA'S CARRIERS TELECOMMUNICATION ASSOCIATION ("ACTA"), petitioned the FCC to regulate Voice over IP (VoIP) services. The gist of the matter was:

Permitting long distance service to be given away is not in the public interest.

In other words, if the telcos couldn't make money off of it, nobody should.

A usually reliable source says:

The ACTA petition was the first time that the FCC confronted VoIP as a policy issue. The FCC, however, never acted on the ACTA petition, and ACTA, the moving party, no longer exists. The question presented by the ACTA petition was whether the FCC had regulatory authority to regulate VoIP Internet software used by individuals to do telephony with each other, with no service provider in the middle.

— VoIP: ACTA Petition, Cybertelecom

It's interesting that the same telcos that now rail against regulation were happy to try to use it back in 1995 when it suit their purposes.

So ATCA failed to control VoIP via FCC regulation. But they can use volume charging to eliminate both VoIP and video they don't provide themselves.

The duopoly's claims of a few people using too much traffic are a smokescreen. The real issue is control: they want to control what passes through "their" networks so they can profit by as much of it as possible. I have no objection to telcos and cablecos making a profit. I do object to them squelching everybody else to do so. On the Internet you can connect any two tin cans, unless the duopoly can cut your string.

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Byte Charging Rears Its Ugly Head

Here it is again:

Some people use the Internet simply to check e-mail and look up phone numbers. Others are online all day, downloading big video and music files.

For years, both kinds of Web surfers have paid the same price for access. But now three of the country’s largest Internet service providers are threatening to clamp down on their most active subscribers by placing monthly limits on their online activity.

— Charging by the Byte to Curb Internet Traffic, By BRIAN STELTER, New York Times, Published: June 15, 2008

The article names Time Warner, Comcast, and AT&T as the three prospective byte chargers.

I can remember when all the European PTTs charged by the byte. That held the Internet in Europe back by at least four years. The article rightly points out byte charging would interfere with all sorts of business plans. It would also inhibit political speech.

Isn't it lovely when the duopoly that controls U.S. Internet access considers participation a leak that needs to be fixed?

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Speeches: McCain and Obama, TV and the Internet

Al Gore's home office. (Time Magazine)

John McCain's speech in Kenner 3 June 2008 got truncated by the news media when they switched to Obama's speech that same night. The versions on YouTube reflect that problem, since they were made from TV. They also suffer from TV network labeling and chyrons chatting about the opposition.

Barack Obama's speech that same night has network logos and chyrons, but at least it is complete. However, when Al Gore endorsed Obama on 17 June, the networks all cut away immediately after Gore finished talking, because only the endorsement was news, and they weren't interested in what the candidate himself might have to say. But Gore sent out email to supporters earlier that day, and numerous blogs posted it (Huffington Post, DailyKos, Washington Post, etc.). And Obama's campaign streamed the whole event live, so nobody had to watch network logos, chyrons, commercials, or talking heads, and they could see all of both speeches. Although, oddly, neither the Gore nor the Obama speech seems to be on YouTube yet.

Political campaigns can use the Internet to bypass the traditional media.

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An Integral Part: the Internet intertwined with everything else

This is what the Internet is best at:

My blog is an integral part of my life, and I'm neither ashamed of it, nor do I think my online friendships are lesser than physical friendships. And they become physical friendships, a lot of times. I travel all over the place, and whenever there's anybody in the area I try to meet up with them. I owe almost everything going on in my life right now to blogging and the Internet, and that's fine with me. The Internet does nothing so well as social networking. The other day, I realized I was living with someone I had met on LiveJournal, spreading jam I had gotten from a friend I met on LiveJournal, and having breakfast at a table I had bought on Craigslist — everything I was doing that day had to do with this glittering network of people I had found through the Internet. The blog doesn't really interfere with my writing because it comes from a completely different side of the brain. I do feel guilty when I get too busy and haven't posted, but I would never stop doing it. It's an integral part of the way I market my books and interact with my audience.

— Catherynne M. Valente: Playing in the Garden, Locus, May 2008

Valente writes fiction, yet many companies can attest to the same kind of intertwining of the Internet with everything else they do.

And there was not a word in there about wanting the Internet turned into cable TV.

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Vigilantes Against BitTorrent? Revision3 Taken Down by SYN Floods

Revision3 uses BitTorrent to distribute legal Internet television. It turns out using BitTorrent may be enough to subject a company to crippling online attack.

On the internet, computers say hi with a special type of packet, called “SYN”. A conversation between devices typically requires just one short SYN packet exchange, before moving on to larger messages containing real data. And most of the traffic cops on the internet – routers, firewalls and load balancers – are designed to mostly handle those larger messages. So a flood of SYN packets, just like a room full of hyperactive screaming toddlers, can cause all sorts of problems.

...

That’s what happened to us. Another device on the internet flooded one of our servers with an overdose of SYN packets, and it shut down – bringing the rest of Revision3 with it. In webspeak it’s called a Denial of Service attack – aka DoS – and it happens when one machine overwhelms another with too many packets, or messages, too quickly. The receiving machine attempts to deal with all that traffic, but in the end just gives up.

...

A bit of address translation, and we’d discovered our nemesis. But instead of some shadowy underground criminal syndicate, the packets were coming from right in our home state of California. In fact, we traced the vast majority of those packets to a public company called Artistdirect (ARTD.OB). Once we were able to get their internet provider on the line, they verified that yes, indeed, that internet address belonged to a subsidiary of Artist Direct, called MediaDefender.

— Inside the Attack that Crippled Revision3, by Jim Louderback in Polemics, on May 29th, 2008 at 07:49 am

The plot thickens from there. Well worth reading. I bet the legal proceedings will be even more interesting.

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T-Mobile Lobbying: $700K in Q1 2008

T-Mobile hasn't made the news like AT&T, Comcast, and Cox for violating net neutrality, but has nonetheless been busy lobbying behind the scenes:

WASHINGTON - Telecommunications carrier T-Mobile USA Inc. spent nearly $700,000 in the first quarter to lobby on spectrum matters and other issues, according to a disclosure report.

T-Mobile, which is owned by German telecommunications company Deutsche Telekom AG (nyse: DT - news - people ), also lobbied the federal government on legislation involving wireless taxes, privacy and various consumer protection issues.

The company, the nation's fourth largest cellular carrier, also lobbied lawmakers on the issue of "Net neutrality," or the principle that all Web traffic be treated equally. Some Internet providers want to charge content providers extra to get their Web sites to load faster. Lawmakers have proposed legislation to make Net neutrality the law of the land.

— T-Mobile spent $700,000 lobbying in first quarter, Associated Press, 05.30.08, 5:26 PM ET

The T-Mobile lobbyist pictured is Michelle Persaud, former Democratic staff council for the House Judiciary Committee.

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Not for Sale: Canadian Internet

Net neutrality has become a political issue in Canada, where a small and very polite rally occurred in Ottawa the other day.

p2pnet news | Freedom:- Today is the day Canadians are gathering in Ottawa to tell the federal government what they think about Net Neutrality and bandwidth throttling.

Bell Canada was suffering under the delusion it could choke down accounts paid for by some of its customers, wrongly claiming they’re responsible for bandwidth congestion.

— Canadians rally for Net Neutrality, P2Pnet news, 27 May 2008

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Payola for the Duopoly

ISP meddling with net neutrality could unite indy musicians and record labels against the duopoly:

For the music business, the failure of net neutrality presents several big problems. Musicians are at the vanguard of digital distribution of music files, video files, and other space-gobbling content. Traffic throttling will almost certainly result in placing severe limitations on the amount and kind of content musicians can put out there — and it’s pretty likely that musicians will then be forced into partnering with businesses that have fewer limits and greater access, no doubt for a fee, to get their gear online. Another issue is that, as covered recently in this column, we are seeing a whole new universe of music-related business models, and we need to see some predictability in terms of licensing methods and how artists and copyright owners get paid. One of the most compelling proposals is that P2P music sharing should be rendered commercially viable and copyright-legal by the imposition of a blanket license that would be paid at the gate (i,e., through the ISPs). Institutionalized throttling would take this plan out at the knees.

Another problem is that record labels, distributors and retail chains who are already in desperate jeopardy can’t compete with ISPs and cellular providers who, having launched their own music stores, have all the incentive in the world to steer music consumers to their own services rather than open the pipe for folks to shop elsewhere.

— Net Neutrality, By Allison Outhit, Need to Know, June 2008

This observation comes from Canada, where current attempts by some to pass legislation similar to the U.S. Digital Millenium Copyright Act (DMCA) has suddenly gotten noticed as a path to something music lovers have seen before:

McKie is referring to proposed changes modelled on the American Digital Millennium Copyright Act (DMCA), which call for a much heavier-handed approach to interpreting what kind of content uses are protected by copyright. At the same time a Canadian DMCA would accord “safe harbour” status to service providers to shelter them from a potential onslaught of copyright litigation provided they act quickly to block infringing and illegal actions on their networks. A Canadian DMCA could impact net neutrality by putting police power in the hands of the networks, while providing ISPs with strong incentives to prefer privately-negotiated content distribution deals over the chaos of user-generated traffic. The bottom line is that musicians have come to rely on the net as their number one go-to distribution and marketing tool. The net got that way by being neutral to all comers. Whether you were a platinum seller on Universal, or a couple of unknown basement-dwellers, your video had an equal chance of going viral. Without net neutrality, all the good pipe will get eaten up by whoever has the power to make the deal. Which sounds a lot like the payola days all over again.

Yep, that's what we'll get if we don't have net neutrality: payola for the duopoly.

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Porter's Five Forces and Net Neutrality: What If Distribution Channels are Open?

Here's a take on why telcos so adamantly oppose net neutrality:

The eager and almost rabid application of Porter's "Five Forces" (Supplier Power, Customer Power, Threat of New Entrants, Threat of Substitute Products, Industry Rivalry) to technology products and services has bred an entire generation of MBAs in marketing positions dedicated to developing and maintaining closed systems and closed hardware platforms. This is particularly egregious in the case of business models that are effectively based on distribution channels. In conventional analysis there is nothing wrong with making your living on distribution channels. Remember, that in 1979, when Porter developed the Five Forces framework, distribution channels were highly expensive to create and maintain and, owing to these costs, constructing them effectively presented a significant barrier to entry. Your product didn't even have to be particularly good, because the threat of substitutes was reduced via the difficulty and expense of the competition actually getting those substitutes (however good they might be) to your customers. Suppliers, if they wanted access to your customer base as a proxy to sell their raw materials, had to go through you. New entrants had to build an entirely new distribution channel. Customers were stuck. You owned the market. But you had to guard this distribution channel carefully. And you had to make sure you hadn't forgotten something simple and critical. That's not part of a conventional Porter analysis. But why would it be? Conventional distribution channels are quite physical, antique and boring.

— The Five Forces/Circles of Hell, a Private Equity Professional, Going Private, 27 April 2008

The article goes on to detail how Blockbuster used the old Porter model of closed distribution channels and Netflix used an existing open distribution channel: the U.S. Postal Service.

To spell out the telco connection:

Positive Externalities: What Yoo Ignores

It turns out Prof. Chris Yoo has been rebutted by legal scholars before:

Our article directly replies to a series of articles published by Professor Christopher Yoo on this topic. Yoo's scholarship has been very influential in shaping one side of the debate. Yoo has mounted a sophisticated economic attack on network neutrality, drawing from economic theories pertaining to congestion, club goods, public goods, vertical integration, industrial organization, and other economic subdisciplines. Yet he draws selectively.

For example, his discussion of congestion and club goods is partial in that he ignores the set of congestible club goods that are most comparable to the Internet - public infrastructure. Yoo focuses on the negative externalities generated by users (i.e., congestion) but barely considers the positive externalities generated by users (he simply assumes that they are best internalized by network owners). Yoo appeals to vertical integration theory to support his trumpeting of 'network diversity' as the clarion call for the Internet, but he myopically focuses on the teaching of the Chicago School of economics and fails to consider adequately the extensive post-Chicago School literature. And so on.

In our article, we explain the critical flaws in Yoo's arguments and present a series of important arguments that he and most other opponents of network neutrality regulation ignore.

— Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo, BRETT M. FRISCHMANN, Loyola University of Chicago - Law School; Fordham University - School of Law, BARBARA VAN SCHEWICK, Stanford Law School, Jurimetrics, Vol. 47, 2007, Stanford Public Law Working Paper No. 1014691, Stanford Law and Economics Olin Working Paper No. 351

Hm, "positive externalities generated by users" as in participation and ad hoc content creation.

The authors also address David P. Reed's point that competition is not the holy grail of networking:

By focusing only on the market for last-mile broadband networks, Yoo not only neglects the importance of unfettered application-level innovation for realizing economic growth and the role of a nondiscriminatory access regime in fostering the production of a wide range of public and nonmarket goods. His argument also neglects other ways to solve the problem of broadband deployment that would not impede competition and innovation in complementary markets.

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Fair Trade: Fixing Antitrust for the Internet

So suppose for the moment that net neutrality is an antitrust issue. Does this bill fix antitrust law enough to deal with it?

Federal lawmakers have introduced yet another network neutrality bill, but this time with a focus on fair trade issues.

This week, U.S. Rep. John Conyers, who chairs the House Judiciary Committee, has introduced legislation that addresses the issue by labeling it an antitrust matter. Conyers' H.R. 5994 would ban discriminatory network management practices by amending the Clayton Act.

The bill, labeled the Internet Freedom and Nondiscrimination Act, would require carriers to promote competition and allow people to use any device they want to on the carriers' networks. The bill makes exceptions for emergencies, criminal investigations, parental controls, marketing, and improvements to quality of service.

Under the Detroit Democrat's proposed legislation, ISPs could give preference to certain types of data, but they must give the preference regardless of the data source. It would ban ISPs from discriminating based on content, applications, or services.

— Lawmakers Eye Net Neutrality As Anti-Trust Issue, The Internet Freedom and Nondiscrimination Act would require carriers to promot e competition and allow people to use any device they want to on the carriers' networks. By K.C. Jones, InformationWeek, May 9, 2008 05:42 PM

And does this fix the problems Google and Ebay complain about?

Meanwhile, a cosponsor sums it up:

U.S. Rep. Zoe Lofgren, D-Calif., has co-sponsored the legislation.

"Recent events have shown that net neutrality is more than a hypothetical concern. We need a meaningful remedy to prevent those who control the infrastructure of the Internet from controlling the content on the Internet," Lofgren said. "This legislation will help guarantee that the innovative spirit of the Internet is not trampled."

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Critics, it's Time to Stop the Quibbling: Broadband in Other Countries

Ars technica sums it up:

One of the ironies of the current broadband situation in the US is that staunch free marketeers defend the status quo even though the result of their views has been duopoly and high prices. Meanwhile, other countries (including those with a reputation in some quarters for "socialism") have taken aggressive steps to create a robust, competitive, consumer-friendly marketplace with the help of regulation and national investment.

Critics, it's time to stop the quibbling: the data collection practices that show the US dropping year-over-year in all sorts of broadband metrics from uptake to price per megabit might not prove solid enough to trust with your life, but we're out of good reasons to doubt their general meaning.

— Broadband: other countries do it better, but how? By Nate Anderson, ars technica, Published: May 11, 2008 - 07:37PM CT

That post includes a table of papers and reports on per-country broadband rankings with corresponding U.S. rankings, from 11 to 24.

Then it gets to lack of political leadership:

Despite the repeated claims of the current administration that our "broadb and policy" is working, the US act ually has no broadband policy and no aggressive and inspiring goals (t hink "moon shot"). The EDUCAUSE model suggests investing $100 billion (a third comes from the feds, a third from the states, and a third from compan ies) to roll out fiber to every home in the country. Whether the particular pro posal has merit or not, it at least has the great virtue of being an ambitious policy that recognizes the broad economic and social benefits from fast broadba nd. 

Here's hoping that the next president, whoever he (or, possibly, she) is, g ives us something more effective—and inspiring—than this. It's telling that the current administration's official page on the President's tech p olicy hasn't had a new speech or press release added since... 2004.

$100 billion may sound like a lot, but the federal government alone spends that much a year on the unnecessary Iraq war. The U.S. needs better priorities.

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Sensing History: Yoo Re Cherry

Dave Farber posted a response by Chris Yoo to Barb Cherry's post about myths and historical errors. Here's Chris's reponse in full. To me, it seems that he is conceding that she's right about the history, that antitrust says nothing about ISP competition, and that a few ISPs control most of the Internet in the U.S. But read it for yourself:

From: Christopher S. Yoo [mailto:csyoo@law.upenn.edu]

I don't pretend to be an expert on the history of common carriage regulation. Barbara has spent far more time thinking about this than I have, so I always appreciate hearing her reactions and learn from reading her work. That said, here are a few thoughts.

It is true that common carriage long predates both the Granger Movement and the Interstate Commerce Act of 1887. That said, one of the central problems is that the historic justifications for common carriage have not aged very well. Often times the common carriage obligations were regarded as a quid pro quo for a government grant of some economic privilege. Other times they were justified because the industry was "affected with a public interest," a concept that is usually traced to the landmark Supreme Court case Munn v. Illinois (1876). The Supreme Court struggled to imbue that standard with content (along with a number of early treatises trying to make sense of the concept) and would ultimately abandon it as analytically empty in Nebbia v. New York (1934). Legal scholars, such as Thomas Nachbar and James Speta in addition to Barbara, have attempted to recover lessons from this era. I have never spoken to Barbara about this in particular, but both Tom and Jim have noted the difficulty in extracting any useful lessons from the history.

The rest after the jump.

Myths and Historical Errors: Cherry Re Yoo

Dr. Barbara Cherry sent me a response to Dr. Chris Yoo's "novel" opinion of her antitrust theory. Dave Farber posted Barb's comments on his Interesting People list, although without her postscript with the pointer to her articles and book. Farber appended a response from Chris, which I'll post separately.

From: "Cherry, Barbara" <cherryb at indiana.edu>
Date: Fri, 9 May 2008 18:28:04 -0400
Subject: Re: Prof. Yoo responds for Prof. Farber

John,

Christopher Yoo's response unfortunately contains several historical analytical errors that I've repeatedly discussed in my writings. It is unlikely that he actually read my TPRC paper to which you provided a link in our blog, as he would have readily discovered some of them.

Perhaps the fundamental problem is that many economists and legal scholars commenting on the network neutrality debate DO NOT understand the history of common carriage. Under the common law, common carriage obligations were TORT obligations imposed on carriers (in their relationship with customers) simply by virtue of their status of engaging in the business. In other words, the obligations are STATUS-BASED and unrelated to the industry's market structure. Attributing the imposition of common carriage obligations to natural monopoly is a MYTH, unfortunately so often erroneously repeated in the secondary literature that it is believed to be true.

The rest after the jump.

Social Welfare: Reed Asks Yoo

David P. Reed asks a question and Christopher S. Yoo responds on Farber's Interesting People list. I'm posting both in full here, with my thoughts at the end; basically, law isn't a science, and anecdotes can turn into legal cases; some have already regarding net neutrality.

From: David P. Reed [dpreed@reed.com]
Sent: Saturday, May 10, 2008 11:50 AM
To: David Farber
Cc: ip
Subject: Re: [IP] re-distribution of op-ed on Net Neutrality -- a reaction and a reply from one of the authors

I read through the long comment by Chris Yoo below, and as a non-lawyer interested in policy, I ask the following simple question:

Is there a well-regarded (one might ask for scientifically reasoned) argument that antitrust law as currently interpreted and practiced has a substantial impact measured in some currency like $ on social welfare?

Otherwise this entire argument is about nothing more than vaporware proceeding from a faith that competition (however loosely defined) creates social welfare best. AFAIK, this is largely an article of faith, just as the "End of History" was a grand article of faith posited by many of the same people as "truth".

It is just not fair to imply that the core of "today's settled antitrust law" carries even the level of weight as Darwin's Theory of Evolution. There have been no replicable studies of its practice.

Law professors and lawyers who don't challenge its truthiness squarely are merely behaving as dogmatic mandarins always do - asserting authority of professional status, rather than rigor of reasoning, experiment, or argument.

I say this not as FOX News or Hillary Clinton would call an elitist, but as a person who genuinely is unconvinced by magical faith in authorities.

That's Reed's question. Yoo's response, and my thoughts, after the jump.

Novel Point of View: Dr. Chris Yoo's Opinion of Dr. Barbara Cherry's Antitrust Opinion

I previously posted a pointer to Barbara Cherry's examination of antitrust history in response to Dave Farber's posting of an op-ed against net neutrality. Dave responds:

( INDEED I AM NOT A LAWYER AND SO I ASKED PROF. YOO, ON THE FACULTY OF PENN LAW AND ONE OF THE AUTHORS OF THE EDITORIAL, TO REPLY TO THIS NOT -- IN PARTICULAR PROF. CHERRY'S COMMENTS. DAVE FARBER)

— re-distribution of op-ed on Net Neutrality -- a reaction and a reply from one of the authors, David Farber, Interesting People, Fri, 9 May 2008 15:23:10 -0400

Here's Prof. Yoo's response:

From: "Christopher S. Yoo" <csyoo@law.upenn.edu>
Date: May 9, 2008 2:51:40 PM EDT
To: "David Farber" <dave@farber.net>
Cc: "Faulhaber, Gerald" <faulhabe@wharton.upenn.edu>

Dave Farber forwarded me a recent e-mail asking for a lawyer's reaction to Barbara Cherry's recent presentation and paper questioning whether antitrust law can protect against the harms envisioned by network neutrality proponents. As the only lawyer among the co-authors of the op-ed that Dave, Michael Katz, Gerry Faulhaber, and I worked up for the Washington Post, I am happy to offer a few thoughts. (Those interested in a different take on the relationship between network neutrality and antitrust law may want to look here: http://ssrn.com/abstract=992837.)

Barbara's work is based on a theory advanced by Neil Averitt and Robert Lande that would place consumer choice at the center of antitrust policy. As Averitt and Lande explicitly recognize, their theory would represent a fairly significant break (they would call it a paradigm shift) away from current antitrust law, which focuses on maximizing economic (and particularly consumer) welfare.

Interestingly, antitrust law once was quite friendly toward the consumer choice perspective that Barbara favors. (I review these developments in vol. 94 of the Georgetown Law Journal at pages 1885-87, http://ssrn.com/abstract=825669.) Early cases like FTC v. Brown Shoe (1966) and Times-Picayune Publishing v. United States (1953) invalidated exclusive dealing and tying contracts (which are among the types of antitrust practices most similar to network nonneutrality) because they infringed on unfettered consumer choice.

The rest of Dr. Yoo's response after the jump, and my response in a following post.

Freedom v. Market Mythology

Here's a question that answers itself:

...what is it about individual freedom that "conservatives" like the Spectator and Armey don't like?

To be fair, the debate is larger than the Spectator and Armey. Most congressional Republicans oppose the idea of giving consumers freedom on the Internet. They take shelter in their anti-government, anti-regulation rhetoric, preferring to allow Internet freedom to apply to the corporations which own the networks connecting the Internet to consumers, rather than to consumers themselves. There could, of course, be a larger discussion about the meaning of "conservative" and Republican, and whether the two are synonymous.

(To be fairer still, it's not only Republicans. Many a Democrat also speaks out against Internet freedom. They don't have the fig-leaf of misbegotten ideology to hide behind, as they largely back worthwhile government action in many other areas. They are simply servants of corporate and/or union interests. The question applies equally: What about freedom don't they like?)

— Why The 'Right' Gets Net Neutrality Wrong, Art Brodsky, HuffingtonPost, Posted May 5, 2008 | 10:21 AM (EST)

The clue is "servants of corporate ... interests". (Unions occasionally get into this act; corporations much more frequently.) And it's not simple greed for corporate lobbyist money or kickbacks or the revolving door: many politicians and people really believe the "free market" will solve all problems. That's the origin of the doctrine of "market failure" that has pervaded all U.S. federal departments and agencies. Nevermind that when it's a major airline or automobile manufacturer or, even worse, a financial institution such as Citibank, these same people support all sorts of governmental market manipulations and bailouts. We're talking mythology here, kind of like the "rational actor" myth of economics.

Brodsky digs into the misconceptions behind this myth:

[Peter] Suderman's analysis: "In fact, not only were all of these companies [eBay and Google] born in an era with no mandated net neutrality, it's utterly unclear that a lack of neutrality would've impeded them in any way whatsoever."

That is not how it happened. This is how it happened:

Anti-Trust Still Not Appropriate for Net Neutrality

I admire Dave Farber; he's done a lot for computing and the Internet. But sometimes I can't agree with him:

Antitrust law generally takes a case-by-case approach under which private parties or public agencies can challenge business practices and the courts require proof of harm to competition before declaring a practice illegal. This is a sound approach that has served our economy well.

— Hold Off On Net Neutrality, By David Farber and Michael Katz, Interesting People, Friday, January 19, 2007; A19,

In an op-ed he's recently reposted on his Interesting People list, he's recommending antitrust instead of legislation to deal with net neutrality. So far as I know, Farber is no lawyer. In this case, I tend to go more by lawyers who have actually studied the problem, for example Prof. Barbara Cherry, who used to work for the FCC and has examined the history of common, statutory and administrative law in the U.S., as well as the way Internet provision has been wrenched out of one legal regime into another by the FCC, and how the FCC has also stripped broadband of its common carriage status. Those who say that we shouldn't regulate because we don't know what will happen and anti-trust will catch problems if they occur are not taking into account that anti-trust doesn't automatically apply to or address problems in the new legal regime into which broadband has been thrust.

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Sitcoms as Gin, or, Looking for the Mouse

Clay Shirky explains why sitcoms serve the same function as gin did in industrial revolution Britain:

Transcript.

This is why traditional media fear the Internet. They have been supplying the gin to keep us all intoxicated instead of doing anything participatory or useful with our leisure time. The Internet (and gaming, and computers in general) provides ways of interacting and participating at every scale from local to global that have never existed before. And people are starting to use them.

Think about that the next time somebody equates "screen time" for television and the Internet.

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Murdoch Wants Another NYC Newspaper

Rupert Murdoch AP Photograph

Four months after Rupert Murdoch bought the Wall Street Journal, the editor quit. Murdoch already owns the New York Post. Now he wants to buy Newsday. Nevermind that such a purchase would be illegal. The good money is on Kevin Martin's FCC letting it happen anyway. After all, if he doesn't need a law to enforce, what's to stop him not enforcing the laws he's already got?

Despite having had no success at preventative or forensic oversight of the FCC, Congress is going to give it another go:

However, the looser ownership rules the FCC passed in December - over an outcry from many interest groups - has stirred criticism from many in Congress, suggesting that Murdoch's Newsday bid faces the first stirrings of a backlash.

The commerce committee in the Senate yesterday approved a "resolution of disapproval" measure that would overturn the new ownership rules, creating more of a hurdle for Murdoch.

Senator Byron Dorgan, the measure's leading sponsor, said: "We really do literally have five or six major corporations in this country that determine for the most part what Americans see, hear and read every day. I don't think that's healthy for our country."

Dorgan is backed by 25 senators, including Democratic presidential candidates Hillary Clinton and Barack Obama, and is confident it will pass the Senate. A similar bill has been proposed in the House.

— Murdoch's Newsday bid faces hurdle, Elana Schor, guardian.co.uk, Friday April 25 2008

We'll see if the Senate or Democrats have a spine this time.

Meanwhile, the entire mainstream press, except the New York Times, ignores that the president of the United States admits he personally authorized war crimes. Except for ABC, which broke the story, but then couldn't be bothered to mention it during a "debate" it hosted between the remaining Democratic presidential candidates.

If every other major paper in NYC (and 3 out of the top 10 in the U.S.) is controled by Murdoch, how long before the NYTimes falls prey, too? With net neutrality we can still know about stories like this. Without it?

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Hamlet in DC: To Legislate or Not to Legislate, That is the Question

The U.S. Senate takes up net neutrality again, to legislate or not to legislate:

At a Senate Commerce Committee hearing entitled "The Future of the Internet" on Tuesday, Democratic politicians argued for passage of a law designed to prohibit broadband operators from creating a "fast lane" for certain Internet content and applications. Their stance drew familiar criticism from the cable industry, their Republican counterparts, and FCC Chairman Kevin Martin, who said there's no demonstrated need for new rules, at this point.

— Net neutrality battle returns to the U.S. Senate, by Anne Broache, C|Net News.com, 22 April 2008

Some of the senators seemed to think the Comcast debacle indicated there was need for legislation:

"To whatever degree people were alleging that this was a solution in search of a problem, it has found its problem," said Sen. John Kerry (D-Mass.). "We have an obligation to try and guarantee that the same freedom and the same creativity that was able to bring us to where we are today continues, going forward."

Kerry is one of the backers of a bill called the Internet Freedom Preservation Act, chiefly sponsored by North Dakota Democrat Byron Dorgan and Maine Republican Olympia Snowe, which resurfaced at the beginning of 2007 but has gotten little attention since. A similar measure failed in a divided Commerce Committee and in the House of Representatives nearly two years ago.

Unsurprisingly, Martin says he doesn't need a law to enforce, because he can make it up as he goes along:

NFL v. Comcast: Expect this on the Internet

This is what we can expect to see on the Internet if the duopoly is left to its own devices:

NFL Network is filing a complaint with the Federal Communications Commission against cable TV giant Comcast in the latest legal wrangling between the two.

The network announced Thursday it had served Comcast with the required 10-day notice of its intent to file a complaint. NFL Network is accusing the nation's largest cable operator of discriminatory and anticompetitive treatment in violation of the Cable Act of 1992.

The two sides have been feuding over Comcast's decision to place NFL Network on a premium sports tier that customers must pay extra to receive. NFL Network sued Comcast in October 2006 over the move.

— NFL Network filing complaint with FCC against Comcast AP, 17 April 2008

The NFL Channel and the Amazon Channel. Whatever the duopoly thinks it can milk for extra revenue by putting it on a premium channel, that's what they'll do.

Defenders of the duopoly may claim they're doing it to protect copyright, but note that in this case the content provider doesn't even want it.

-jsq

ISPs Escalate Ignoring FCC

Fox started the trend of ignoring the FCC when it does something they don't like. Now the duopoly has gotten up to the same trick:

Comcast, AT&T, Time Warner Cable, and cable research company CableLabs were all invited to participate several weeks ago, but declined, Martin said. The commission again reached out to Comcast after the announcement this week that it would develop a P2P bill of rights with Pando Networks, but they again sent their regrets, he said.

— ISPs Give FCC Cold Shoulder at Internet Hearing, by Chloe Albanesius, PCMag.com, 04.17.08

You may recall at the previous hearing, at Harvard, FCC chair Kevin Martin couldn't hear the difference between participant and consumer, while Comcast hired shills off the street to take up seats so people with things to say couldn't. Now the duopoly is painting the FCC as unduly critical of themselves, and the press is going along with that, including the hometown Silicon Valley newspaper, the San Jose Mercury News, which should know better:

Abyss: What You Won't Hear Without the Internet

Tim Robbins, famous actor, writer, director, and producer, was invited by the National Association of Broadcasters to give a talk. Then they turned off all the cameras. But they forgot to tell the audience to turn off their voice recorders:

Now some of you are concerned with that unrelenting pesky competition. You know, the new technologies; the Internets and satellite radio and television. The problem is there are too many people in this country that take the notion of creativity and invention too damn seriously. Just when one technology is centralized, conglomerated, monopolized, along come new technologies and delivery systems to threaten the good work born of deregulation. Just when we were getting close to a national playlist for our music, satellite technology is threatening to provide music that people actually want to hear. Just when we were close to a national news media, providing a general consensus on what the truth is, along comes the Internets that allow its users a choice on the kinds of news it watches. And the You Tube. My God we’ve got to stop them. Recently when we were about to enjoy our great national pastime of ‘tearing apart a presidential candidate with relentless repetition of ugly things his friend said’, You Tube provided the candidates reasoned response and millions watched and responded positively.

Well you here at NAB have the power to stop this dangerous technology. The question is, how? I respectfully suggest that you do what others have done when facing the competition of new technologies. Get compromising information on your enemy and expose them in a sex scandal. Or call them a racist, or better yet a traitor. That not only undermines your competitor, but provides the public with fantastic entertainment.

— The Power and Responsibility of our Nation’s Broadcasters, By Tim Robbins, The following is my opening keynote speech for the National Association of Broadcasters Show in Las Vegas, which I delivered Monday night. 14 April 2008

He had a fine time lampooning that the news media do all the time. And then he got serious:

Novelty Used Against Net Neutrality by Duopoly

A musician warns us about novelty being used to subvert participation, and comes up with a clever analogy:

We hate when things are taken from us (so we rage at censorship), but we also love to get new things. And the providers are chomping at the bit to offer them to us: new high-bandwidth treats like superfast high-definition video and quick movie downloads. They can make it sound great: newer, bigger, faster, better! But the new fast lanes they propose will be theirs to control and exploit and sell access to, without the level playing field that common carriage built into today’s network.

They won’t be blocking anything per se — we’ll never know what we’re not getting — they’ll just be leapfrogging today’s technology with a new, higher-bandwidth network where they get to be the gatekeepers and toll collectors. The superlative new video on offer will be available from (surprise, surprise) them, or companies who’ve paid them for the privilege of access to their customers. If this model sounds familiar, that’s because it is. It’s how cable TV operates.

— Beware the New New Thing, By DAMIAN KULASH Jr., Op-Ed Contributor, New York Times, Published: April 5, 2008

Yep, and the cablecos and telcos have not been shy about saying that's what they want to do.

Here's the new analogy:

Game on: ECA for net neutrality

Good news:

Gamers are, by nature, a more web-savvy lot than the average Internet consumer. As a result, complicated-sounding concepts like "Net Neutrality" tend to be a pretty easy sell to those individuals whose primary means of entertainment is heavily dependent on fast and unfettered Internet access.

Yesterday the Entertainment Consumers' Association unveiled another new venture into the realm of gamer activism. Following on the success of political action programs such as the Video Game Voters Network, the ECA is hoping to apply a similar formula to the complicated issue of Net Neutrality. The new initiative is called Gamers for Net Neutrality, and its purpose is to provide gamers with the tools necessary to fight the encroaching threat of a micro-monetized and heavily controlled online space.

— ECA Launches Gamers for Net Neutrality, New initiative empowers gamers to help keep online traffic regulation-free. By Mark Whiting, 1up.com, 04/02/2008

This is what it will take to win. We need the FCC to enforce net neutrality. And that will only happen when there's an administration that will make it do so. And that will only happen if the people vote it in. We need more ISP competitors. And that will only happen as customers demand it. This is the path to net neutrality and Internet freedom.

-jsq

PS:

"The Revolution was effected before the war commenced.
The Revolution was in the minds and hearts of the people...
This radical change in the principles, opinions, sentiments,
and affections of the people was the real American Revolution."

— John Adams, 1818

Popular: Bell Canada Throttling Story in Canada's Biggest Newspaper

This article was for a bit the most popular on thestar.com, the online edition of Canada's largest newspaper, and is still number 5 on most emailed as I type:

The Toronto Star has learned that John Sweeney, Bell's senior vice-president of carrier services, sent a letter to the independent ISPs last Friday acknowledging that Bell has implemented bandwidth management from 4:30 p.m. to 2 a.m. for its wholesale customers. Sweeney admitted that peer-to-peer applications will not work as fast during this period, but argued that "a majority of end users will experience an increased level of satisfaction."

While much of the initial commentary has focused on the implications for consumer rights, that discussion misses the more important aspect of this story, namely that Bell's plans undermine the Internet's competitive landscape by raising three concerns.

— Bell throttles its Internet competitors, Michael Geist, The Star, Apr 01, 2008 04:30 AM

It seems Bell Canada has handed net neutrality advocates proof of their concerns , and that the public is watching. This article isn't some emotional scare piece, either.

Lemmings: What Bell Canada Thinks of Journalists

Heh:

Bell Canada Associate Director of Media Relations Jason Laszlo made a real boner move, boasting on Facebook of his ability to snow journalists with his network management bafflegab, referring to journalists as “lemmings” in a recent status update. [DIGG] Clearly a super-fun guy in real life (note colourful hat and armband tattoo), he further demonstrated the Bell Media Relations department’s apparent unfamiliarity with modern web tools by leaving his Facebook profile wide-open to the public to see. Oops. [UPDATE: Profile is closed now.]

— Bell Canada hands Net Neutrality advocates a gift! Mark Kuznicki, remarkk! 29 March 2008

The blogger goes on to list half a dozen net neutrality developments, all positive.

-jsq

Revisionism by PRI

This is amusing:

The attempt to force network neutrality on wireless carriers will result in disaster and is based on faulty assumptions, including one that there ever was neutrality on the Internet, according to a newly released analysis from the Pacific Research Institute (PRI).

— Researcher Rebukes Wireless 'Net Neutrality' Advocates, NewsBreak, Telecomweb - USA, 26 March 2008

Well, I guess that waves away all the well-documented steps the FCC took to strip away common carrier status from each facet of Internet provision

You have to register to read the rest at Telecomweb, but PRI has more, including this rather amusing claim:

Big picture: Net Neutrality vs. Social Control by Big Media

Most net neutrality discussions get bogged down in details. This video draws the big picture from the beginnings of the Internet, backwards to the "consolidation" of earlier forms of media such as the printing press and radio, to what the duopoly is trying to do to the Internet.

Do we want the Internet to go the way of newspapers, radio, and TV, and even the postal service, with 90+% of content provided by half a dozen big corporations and only op-eds and heavily selected and edited letters permitted from the great unwashed? Hey, they've got that in China, and there most of the population believes that Tibetans are barbarian recipients of superior Chinese culture, so Chinese troops are totally justified in squashing any ungrateful opposition. We could return to depending on the traditional media in the U.S.; after all, they only helped lie us into a war of choice in Iraq, costing $2 billion a week that we could be using to deal with education, health care, and preserving the natural world. Or we can fight for Internet freedom.

-jsq

Where the Recipient is Going to Be: Any E-Mail, File Transfer, or Web Search

People are surprised to learn this?

In the end, it turns out it's all about the emails.

— Spying Fight about Emails, Not Phone Calls, DOJ Reveals, By Ryan Singel ThreatLevel, Wired, March 04, 2008 | 4:47:36 PMCategories: NSA

The blogger goes on to point out that almost all of the recent fearmongering, which has been about telephone calls, is just plain wrong. Duh! Half the fearmongers don't understand what they're talking about (e.g.,