Retinal light receptors are unevenly distributed.  In the center of the retina (the fovea), there are mostly cone photoreceptors.  Cones are used mostly for color vision, and don't pick up on dim light.  (This is why you can't see the colors of things in a dim room.)  Rods (for black and white light) are highly concentrated in our peripheral vision, and are very sensitive to dim light.

So you can see dim stars in your peripheral vision that you wouldn't be able to see if you were staring right at them.

The eponymous conference is next Wednesday.

Frequent visitors to this blog know that I got all excited about a complexity class run at MIT by the New England Complex Systems Institute over the winter break.

I just spent spring break (spring break II -- a special year) in Washington, D.C., trying to understand a host of issues all at once.  Likely outcomes of the Grokster case, the telcom re-do debate, patent policy, the application of campaign finance laws to the internet, spyware, and on and on.  Everything was interesting, everything seemed connected, and the people I talked to were wonderful.

But if you really believed in and understood complexity, you'd have to think that it doesn't help to follow any of these quotidian internet policy issues.  News events don't make it possible (usually) to predict which way the world is going to go.  (This can be a very relaxing thought if you get a lot of email.) 

It may be that the best we can do is to look for areas of rigidity and, when we find them, to do our best to shake things up.  Or to work on creating systems that have lives of their own, because they keep referring back to themselves.  I've been struggling to understand Essays on Life Itself, and sometimes I think I have a faint glimmer of understanding about what life is.

At any rate, it was a fine week. 

The new FCC chairman, Kevin Martin, is calling for VoIP services to include 911 service.  What's a VoIP service?  Who's a VoIP provider?  Do online gaming applications count?  Do voice-enabled instant messaging clients count?  What about voice-enabled customer service applications for online commerce sites?  

And, to the extent we're worried about deceptive advertising by services (tricking people into THINKING they've got 911 service that hooks into an actual police station -- this connection to police is, by the way, is a hard thing to do) isn't the FTC in charge of that kind of thing?

There are so many swamps out there.  This one seems enormous.  Even if we can surmount the definitional and jurisdictional high hurdles, if Verizon has trouble providing 911 service to its wireless customers, how are small guys going to accomplish this (without going out of business).  Is the point to run them out of business?

So many questions, so many acronyms, so many lobbyists. 

Today the House Energy and Commerce Committee (Subcommittee on Telecommunications and the Internet) held the third of three hearings about rules for IP-enabled services.

The hearing started an hour later than scheduled, which gave the crowd a heck of a long time to chat.  We chatted.  Exchanged cards.  Prognosticated.  The room grew warmer.

And then, when a few congressmen trickled in, an enormous panel of people got up and said We want Congress to create a huge variety of rules, right now, for all IP-enabled services.  (IP-enabled services are everything you can think of that uses the internet protocol -- web servers, applications, newspaper web sites, the DNS, you name it.) 

The Alliance for Public Technology representative asked for "accessibility solutions" for "IP-enabled technologies."  Two mayors asked for control over public rights of way and local power over video services of all kinds.  A representative of a state Public Utilities Commission asked for rules that would "help the telecom sector recover" and would provide "certainty for investment" (always a request of incumbents).  Another state representative said that the internet was no different from an interstate highway, that new technologies are traps for the unwary, and that states need to be able to set speed limits and other rules.  Someone from the National Governors Association said that phones had become very complicated, and now involved things like the world wide web.

An underlying theme had to do with cable franchise rules -- apparently phone companies are looking for federalized rules that will allow them to provide video without being subject to franchising limitations. 

At one point there were more than ten representatives there, all busily checking their blackberries.  Gradually the congressmen present melted away, until only one was left.  He looked around, and suspended the hearing, hoping that more people would be around later to ask questions.  The crowd swung into chat mode again.

It's clear that there's already a draft bill out there that deals with these many desires.  I have no idea how this will all work out, but I have to say I'm worried -- there seems to be no push whatsoever in the other direction.  No one is saying Do Less.  And all the chatters have clients who want more.

"On Intelligence" is the title of a book by Jeff Hawkins.  Go right over to Amazon and get this book. 

Hawkins demystifies intelligence.  He takes apart the neocortex (schematically, at any rate), and shows us that making pattern analogies is what we do when we think at higher levels.  Any theory of intelligence that could be applied to machines has to take into account the extensive feedback provided by the operation of the many levels of the neocortex and the particular physical architecture of the brain.  Plus time.

We store sequences, associate them, and test our experiences constantly against these ideals.  When patterns change, we notice.  It's all practice.  When we're steeped in a subject or a world, we can do more and more of this at lower levels, without having to run things all the way up the cortical flagpole. 

So, for example, if you're talking to a first-rate First Amendment lawyer, he's made so many associations across so many years that he can instantly see patterns in facts that you wouldn't see.  He can draw analogies with the greatest of ease.  That's his intelligence -- his pattern manipulation -- working.

Hawkins reminds us that intelligence (like the ability to play an instrument) isn't magical.  It takes practice. 

at p. 168:  "Experts and geniuses have brains that see structure of structure and patterns of patterns beyond what others do.  You can become expert by practice, but there certainly is a genetic component to talent and genius too."

Hawkins suggests that machines could certainly be built that would allow for feedback, sequence storing, and time -- they might end up with very different "senses" than we humans have, but they'd be intelligent.  The book is a challenge to entrepreneurs and techies to build those machines.

In the meantime, I'm thinking of developing a better mental filing system.  If only office supplies for that were easily obtainable.

Under the Copyright Act, copyright owners have the exclusive right to "distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."  17 USC Sec. 106(3).  This exclusive "distribution right" has traditionally been interpreted to cover the right to convey a possessory interest in a tangible copy of the work -- to hand someone a copy of your work. 

The first sale doctrine in sec. 109 provides an important limitation on this very physical distribution right -- once you've handed out a copy of your work to someone else, your distribution control over that copy is exhausted.  As the legislative history of Sec. 103 said, "The copyright owner's rights under section 106(3) [the distribution right] cease with respect to a particular copy or phonorecord once he has parted with ownership of it."  So 106(3) is clearly all about affirmative, intentional distribution of "copies" and "phonorecords" in which works are embodied.

S. 167, the Family Entertainment Copyright Act, passed the Senate in February and the House last week.  Among other things, it amends the criminal provisions of the Copyright Act, stating:

Any person who willfully infringes a copyright shall be punished as provided under section 2319 of Title 18, if the infringement was committed ... by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Notice how "distribution" is being defined as "making available on a computer network accessible to members of the public."  As Fred von Lohmann recently noticed, that's a big change from the traditional exclusive "distribution right" set forth in 17 USC 106(3), which involves handing an existing copy to someone else.  (Indeed, it's hard to see how this new, broad understanding of the "distribution right" -- "making available" -- could possibly be limited by the first sale doctrine.)

The report language for S. 167 says that

Section 103 creates a criminal penalty for the willful distribution of works being prepared for commercial distribution. The Committee  has been made aware of numerous examples of efforts to camcord new movies during their opening days of release followed immediately by either mass duplication and distribution of DVD copies or Internet distribution of the same movie. Although the harm to the distribution of physical or Internet copies of works when legal copies are available has long been established, the Committee notes the larger harm caused by those who distribute copies of works even before they are legally available to the consumer.... Section 103 will ensure that there is a specific penalty for such illegal pre-release activity.

Notice that the word "distribution" is used over and over again.  The report creates the impression that it is well-accepted that "distribution" (and, thus, the exclusive distribution right that goes by the same name) includes "making available on a computer network."

Now, it is true that distribution of a copy or phonorecord can happen electronically.  17 USC 506(a)(2) says this already.  But that's not the same thing as "making available" on a computer network.

It seems our Congressional representatives may have agreed without a great deal of discussion to language ("making available") that will be cited in support of an expanded exclusive "distribution right" -- infringement of which is criminal.  Because "transmission" of an electronic copy is already covered by the distribution right, this may not be a big deal -- it's a small step from "transmission" to "uploading."  And there's an argument that uploading is a material contribution to unlawful reproductions of electronic works by others (another infringing activity).

But this expanded distribution right does give another lever to content owners in negotiations with ISPs.  If an ISP is able to see that some of its subscribers are operating servers or "making available" electronic material to others on a largescale basis, then it may be deemed to know that uploading is happening and (presumptively) infringement of this newly expanded exclusive "distribution" right is occuring.  Content owners can put pressure on the ISP to (1)enforce terms of service that require subscriber compliance with applicable law; (2) require personal information of the subscriber to be made quickly available; and (3) kick off subscribers who are engaging in this activity.  Most troubling of all, ISPs who see uploading by subscribers may be deemed to be contributory or vicarious infringers themselves. 

The content industry would like to put ISPs in this uncomfortable position, and the language of S. 167 will be helpful. It's not clear what can be done about this -- except to continually remind ourselves that the distribution right in 106(3) has not been expressly amended.  Loose language about distribution in section 506 of Title 17 (the section amended by the Family Entertainment Copyright Act) doesn't change what section 106 of that same title means.

There's a new (or, perhaps, revived?) journal at Harvard called Unbound.  It calls itself a journal of the legal left.  I've read several of the articles in the initial issue, and it seems to be searching for new ideas and critical theories.  And there are some reflections by law students about what it's like to be changed by law school.

University of Washington professor David Levy has been working on "Information, Silence, and Sanctuary."  He's worried about the future of contemplative scholarship in the digital age.

Participatory Culture will release in June an open source Bittorrent-based player for internet TV that will allow users to subscribe to channels, will allow organizations to provide new sources of channels to their fans with no bandwidth costs, and will generally make large media organizations' plans for IPTV difficult.

So -- more information, more law journals, and more sanctuaries.  A good week.

On Monday, May 2, at the beautiful NYC Bar Assn building (42 W. 44th) at 6pm, I'm moderating a panel discussion about P2P policy.

The panelists will be:

Sarah Deutsch, Associate General Counsel, Verizon

Adam Eisgrau, General Counsel, P2P United

Sonia Katyal, Fordham Law School

Steve Marks, General Counsel, RIAA

Don Verrilli, Jenner & Block, who argued the Grokster case in front of the Supreme Court.

The format will be two-minute "elevator speeches" from each panelist, and then a debate (who has patience for canned presentations?).  Send me suggestions for questions you'd like to have asked.  And if you're in New York, please come.  It's free.   

There is no DVD called "The Art of the Viola." (Insert viola jokes here.)  But there is one called "The Art of the Violin," and watching it is heartbreaking.  This is not news (the DVD came out five years ago), and there is nothing to link to here -- this is about sound and memory.

There's footage of Elman, Kreisler, Ysaye, Thibaud, Milstein, Heifetz, Stern, and Menuhin, as well as others.  And there are stories of prodigies who died too young and whose names are unfamiliar to us.  Itzhak Perlman and Hilary Hahn comment on the clips, Perlman evoking over and over again with narrowed eyes and thumb-pressed-against-finger fine gestures what the sound of these players meant to him.  Hahn is (still is -- and she's a blogger) completely American and straightforward. 

Both Perlman and Hahn talk about sound and character -- a lot.  Everything is varied and intentional for these players.  Heifetz made other violinists want to give up, with his composed demeanor, impeccable left hand, and fast-sweeping bow.  Menuhin was the most natural player anyone had ever seen, and there are wonderful clips of him as a pre-teenager in San Francisco.  Kreisler stands on the deck of an ocean liner, legendary and craggy.  Milstein fiddled and experimented, never stopping, like a watchmaker, looking for the perfect fingering that would make everything clear.

The key thing, the thing to remember, is that each of these guys sounded entirely just like himself.  You could tell who was playing without hearing the name.  Like paintstrokes or tricks of words, each one of these violinists had a musical personality that was instantly identifiable to the people who listened.

I remember seeing Menuhin give a master class on the Bach Chaconne.  As he was playing, he stopped and bowed.  He said, "I bow because this moment is the center of this great work."  And then he slowly took up his violin again and played, sounding only like himself.

From India, this message:

Even in a developed country, where the monopoly profits of the domestic IP rights holders are recycled through the economy and so benefit the public in varying degrees, there is continuing debate on the equity and fairness of such protection, with some even questioning its claimed social benefits. Given the total absence of any mandatory cross-border resource transfers or welfare payments, and the absence of any significant domestic recycling of the monopoly profits of foreign IP rights holders, the case for strong IP protection in developing countries is without any economic basis. Harmonization of IP laws across countries with asymmetric distribution of IP assets is, clearly, intended to serve the interest of rent seekers in developed countries rather than that of the public in developing countries.

And this:

The message of the Development Agenda is clear: no longer are developing countries prepared to accept this approach, or continuation of the status quo.

In other news, the European equivalent of the MPAA is suggesting that ISPs agree to immediately forward subscriber personal information (with no right to object) where infringement is suspected; filter/block download sites; and prohibit their subscribers from operating servers.

All of this is happening at WIPO.  The MPAA wants mandatory vigilanteeism, and is pushing for ISPs to serve as judge and jury and prosecutor.  Meanwhile, India is fed up with overreaching assertions of content protection.  Brazil, now a center of open source enthusiasm, has had enough. 

On the developing countries front, WIPO has agreed to hold more (and more open) meetings.  It's going to be a long slog on the ISP liability front.  We need an India to speak its mind on ISP liability.  If only the US had the vision to take the lead.

Someone recently told me that techies could not care less about blogs.  Blogs do seem awfully early in development -- primitive.

But while we're still swiming in the primordial soup, Jeff Jarvis points us to some great lists of blogs. 

I'm an enormous fan of pervasive, free, open wireless broadband access.  Last week's news about Philadelphia's move towards city-provided broadband (including wireless access in public places, and access at up to 60 mph) was gripping.

But this message, posted to Dave Farber's Interesting People listserv, deserves attention.

You need a computer to access broadband.  Communities need libraries.  Streets need to be fixed.  Is broadband access a luxury that already-comfortable people -- people who own laptops -- are getting? 

Or is the pervasive presence of broadband something that will improve economic lives to such a degree -- at comparatively little cost -- that cities should invest right now in providing it?  (This was the point made by a follow-up message posted to the Farber list.)

I realize that this issue has been kicked around extensively, and that many people I respect decided long ago that municipal broadband should be a priority.  We are worried (perhaps incorrectly) that the US lags far behind other countries in broadband rollout, and we're looking for ways to encourage the growth of broadband penetration. 

But as each city approaches this problem, it must sometimes be a struggle to decide that already-thin resources should be dedicated to helping people with laptops. 

CFP just ended in Seattle.  That's a real conference, and I wish I could have been there. 

There are other, more mysterious conferences out there.  Every once in a while, I get messages about conferences in exotic places with weirdly long acronymic titles.  I'm told that all I have to do is submit something (anything!) for the crowd to read, and we'll all have plenty of free time together in the exotic place.  The people involved have unrecognizable affiliations and sometimes give only a country of origin.

Not too long ago, a group of MIT graduate students decided to fight back and submit a randomly generated paper to one of these conferences.  It was accepted.  Later, the students' glee at the idiocy of the situation prompted the organizer of the conference to rescind his invitation.

I'm sure this would be an impossible prank to pull on a law school symposium.

From the WSJ's Kevin Delaney:

In six of the past 14 months, Yahoo's news site has drawn more unique visitors than any rival, displacing longtime news leader CNN.com, according to research firm Nielsen/NetRatings. Yahoo has agreements to display or link to content from about 100 news organizations, from USA Today to French news service Agence France Presse. Users can search through about 7,000 additional online news sources that Yahoo catalogs for information. Yahoo's rise comes as some traditional news organizations rethink their online strategies. Some that have offered free content are now considering charging for some items. "Is Yahoo a threat to the business model of traditional news organizations? Yeah," says Paul Grabowicz, director of the New Media program at the University of California, Berkeley Graduate School of Journalism. "But it's not a threat that's going to go away. And if it's not Yahoo, it's somebody else."

I wish I could give you a link to the WSJ story, but it's only for subscribers.  And the only part of the NYT that I can link to with confidence is the front page -- everything else may disappear in a couple of weeks, behind archival and subscription bars.  (I am exaggerating for emphasis.)

The suggestion I heard tonight is that mainstream newspapers need to show their strengths by breaking (and following up on) great stories that require great reporting and great investments of time and money.  We haven't had a Watergate recently.  Even 9/11 turned out not to be mainstream media's finest hour.

Would that do it?  Would doing a great job on a difficult, sustained story prove the worth of great newspapers?  Or have craigslist and grassroots journalism and aggregation services reached people in a way that a single magnificent newspaper cannot?

I love it when the Times arrives in the morning.  There's an audible series of thumps -- all four apartments on my floor take the Times.  I don't know what the future holds; I'd be sorry for that thump to start sounding like nostalgia -- like the sound of a calliope, or a church bell, or a train whistle.

I couldn't be in Argentina last week, but I've been trying to catch up on what happened there.  From this far-away perspective, it looks as if there has been some constructive progress on ICANN's strategic plan -- initially, at least, in the form of discussing processes that will both tie ICANN's budget more tightly to its narrow mission and make the plan itself the product of real consultation.  (This transcript from a public session just before the group soccer game caught my eye.)

The November 2004 version of the plan seemed to drop from the sky, fully baked and ambitious and polished and ready to go, without any consultation.  The redline [pdf] released before the Mar del Plata meeting seems to be a genuine draft.  So far, no one has commented on it in the public forum that ICANN has created, but we're still early in the process.

Cautious optimism.  If ICANN (when strenuously pushed by people who are paying attention) can reconsider its strategic plan, maybe it can reconsider its approach to consensus.  

A Pew Internet Project report [pdf] suggests that email usage is not dying in a sea of spam, as some feared it would.  Yes, we're still getting spam -- in fact, we may be getting more all the time.  But we don't mind as much as we did a year ago.

Maybe we've made our peace with spam.  We sigh, we delete, we move on. 

I'm a fan of the Staples "easy button" ad campaign.  Want to learn how to deal with spam or spyware?  Easy!  Find a vendor who can help you -- the same way that Staples can help you with office supplies.

Want to get only the stuff you're looking for, and avoid phishing and pornography?  Easy!  Just get used to using the internet, and you'll be fine. Learn some commonsense good practices, and you'll have a fine online experience. 

I know, this is too simplistic.  But I found the Pew report very cheering. 

What's the intersection between takings jurisprudence and the current fights over regulation of online access?  The answer may be "none," but the issue is worth exploring.

A little background.  The Fifth Amendment allows property to be taken for "public use" as long as "just compensation" is paid to the owner.  Regulations (like zoning rules) aren't usually viewed as "takings" unless they meet some or all of the following requirements:

1. they have an unduly harsh impact on an owner

2.  they are not substantially related to a legitimate public purpose

3. they interfere with reasonable investment-backed expectations

4. they amount to a permanent physical occupation, or

5.  they deprive the owner of any reasonable economic use of his/her property.

If we said that all regulations were takings even if all they did was diminish the value of private property, our government would be stuck with paying everyone compensation for everything.  So it's quite difficult to claim successfully that any particular regulation amounts to a taking.

Let's say that an ISP went into business assuming that their connections to the internet were not subject to FCC regulation.  Then the FCC adopts a rule saying, for example, that no P2P connections may be permitted by any ISP.  Or that no ISP may block any ports for business reasons.  Or that all ISPs have to allow third party CALEA service providers access to their networks.

Is there any possibility of a legitimate takings claim based on any of these regulations?  It's not clear that any one internet user or ISP has a property interest in its online connection from which they could exclude everyone else.  But if you could show a cognizable property right that was constrained by these new regulations, would any of these rules amount to a compensable taking?

How about the blocking of ports?  If an ISP wanted to deny access to particular online services (for its own legitimate business reasons), could that ISP claim that rules prohibiting it from doing so amounted to a wholesale interference with its investment-backed expectations?  FCC can't say that allowing the ISP to act without constraint creates a public nuisance -- something noxious and harmful.  FCC might say that constraining the ISP from proceeding to block any ports will confer benefits on the public at large -- but the ISP could respond that it was trying to protect its investment, and its actions were both legal and essential.  (This argument of the ISP's likely would not be persuasive under current caselaw.)

Is there a claim that some ISP-related rules might amount to "exactions" that prohibit development unless an owner meets certain conditions?  Exactions are demands made by cities -- property owners have to comply in order to obtain a government permit to build on their land. 

Now, ISPs don't (yet) need licenses to do business.  But if the FCC takes the position that ISPs do need to be licensed in some way, rules the Commission adopts may amount to takings if they're substantially unrelated to the original reason for the permitting regime.  So, for example, rules barring P2P services, or requiring different flavors of filtering, or furthering other "social policy" goals that aren't related to the reasons for ISP permits might amount to takings.

Takings claims seem quite unlikely at this point, I agree.  But if the Commission goes beyond requiring a framework for competition, and indulges in detailed rulemakings about the provision of online access, some providers (and even some end-users) may begin to think that their property is being unfairly taken away.

I went to a wonderful string quartet concert tonight (the Brentano).  They played Op. 132, and the slow movement was particularly beautiful.

Stanley Sadie, editor of the New Grove, died last month.  His obituary (just the beginning):

Stanley Sadie, a musicologist, writer and editor whose prodigious output included editing the last two editions of the titanic and authoritative New Grove Dictionary of Music and Musicians, died on Monday at his home in Cossington, England. He was 74.

Mr. Sadie had spent three weeks at a hospital in London, but was intent on returning home in time for the first concert in a music series that he and his wife run in a church near their home. The concert, on Sunday evening, was an all-Beethoven program performed by the Chilingirian String Quartet. Mr. Sadie was able to stay for the first half, but felt unwell and went home to bed. At the conclusion of the performance, the quartet went to Mr. Sadie's house, set up quietly in his bedroom, and performed the slow movement of Beethoven's Quartet No. 16 in F (Op. 135) as he drifted in and out of sleep.

He died the next day.

What does it mean when the vast majority of people subject to a law don't agree with it?  "[O]ne of the philosopher kings of Internet law" (an epithet bestowed by the Times in an article today), said this more gracefully on Thursday night:

 "What does it say about our democracy when ordinary behavior is deemed criminal?" Lessig asked.

Same question for internet gambling.  The US has largely prevailed in a trade dispute with Antigua, in which Antigua claimed that US interpretation of its laws to bar internet gambling amounted to an illegal restraint on trade. The US claims that these laws are "necessary to protect public morals."

But the US makes online gambling work.  Half the money bet online ($7.4 billion in 2004, according to the Times today) comes from US bettors.  This is an enormous amount of criminal behavior going on in US homes.

If it's so wrong, why do so many people do it?  And if it's not wrong, why do we prohibit it?  I'm sure there are complicated reasons for this -- something about powerful lobbies for horseracing and offline gambling casinos ensuring that the online versions of these things are illegal. 

But such dissonance can't be good for democracy.

It's conference time in the law school calendar, so just a short post today:  So many people seem to want someone to be in charge.

Hans Klein and Milton Mueller suggest that ICANN be overseen by an international body -- and that ITU and ICANN compete with each other in managing registries.

Jon Zittrain suggests (at today's excellent Fordham conference [[pdf] organized by Joel Reidenberg -- sorry, no link to JZ's presentation, but you really should have seen it -- Jon was terrific) that that an international body be in charge of security for the internet.

Meanwhile, EFF suggests how to blog anonymously.  Just in case the people who are in charge of you don't want you to say anything provocative.

In-boxes overflowed today with screeds and rants (and other messages) about ssrn.com's tournament rankings of law professors and schools. 

We must have more important things to do than discuss this.  Obviously there's data out there about what gets read on this particular service.  Clearly that makes ratings possible.  So?

We can't control this, it's not worth gaming, and it's just one of many indicators of online intellectual life.  There are plenty of offline indicators that aren't captured by these ratings.  I realize I'm just adding to the number of screeds and rants about this, but the emails keep crashing in, thumping against the shore of my limited (see last entry) attention, and I felt the need to voice my incredulity.

Meanwhile, in other (non)news, I hear that some people at the ICANN meeting in Argentina are waking up to the fact that the process for the strategic plan was severely flawed.  What about the substance?  Is anyone talking about the drastically-changed contracts ICANN is demanding from new registries?  Bret - send word!

I have a confession to make:  I cannot both listen attentively to a speaker and participate in a chat channel.  I tried doing it again for the nth time at Freedom To Connect, and by the end of the day I felt gray and woozy and surrounded by stimuli that I was failing adequately to comprehend. 

It's a very familiar feeling at this point -- it's like information jetlag.  You have a vague memory of many things being said in inner and outer voices, but you can't pull it together and remember it, and hours have passed by.  It's like a day of eating only slice upon slice of pie.  It's fun, but you don't feel great when it's over.

This is a weakness, I know.  So many people seem so strongly capable of doing both.  They can chat feverishly, be funny and critical, and listen well.  I am not one of these superhumans.  I like plane flights, when I can read slowly and take notes -- paying attention to every word.

Bloggers sometimes draw lines in the sand.  Larry says he'll never publish in a law review again (unless they change their license terms).  He's great at writing books, so that's not such a difficult line to draw.  I could at this point say "I will never chat at conferences," but the fact is that it's an addictive practice.  It is simply so much fun to feel that you're talking to the people around you instead of being talked at by the person in the front of the room.

But I have to confess that my attention is limited. 

During David Isenberg's terrific conference earlier this week, I promised during the chat session that I'd post my remarks online.  So here they are. 

====

A right to connect, or freedom to connect, signals that we need permission -- rights only operate against someone who has the ability to say no.  Freedom of speech, all of that -- all operates against the government.  A digital bill of rights assumes that someone has the power to cut those rights off. 

We're here to affirm that we don't need permission.  We are more threatened by ourselves and our willingness to look to government for permission than by anything else. 

The reality of the internet simply does not depend on the FCC, and the internet's health doesn't depend on the telecom act of 2006.  We should thank the FCC for allowing competing modems, for which we're really very grateful, and slap a big gold star on their forehead -- and move on.  Freeing carriage -- net neutrality rules -- and regulating media ownership don't go together. 

It seems to me, in fact, that regulating media ownership is inconsistent with insisting on freeing carriage.  And dinosaurs need to clump together to avoid the cold winds of change -- so consolidation may protect them while not harming us.  All commercial regulation leads to the risk that government will be pushed by industries of various kinds to do their bidding.

We should not be sad.  In fact, things are going rather well, without intelligent design.

As humans, we have this need for control and for planning -- we say "there can't be innovation without planning"; content lawyers say "what kind of innovation do we want to to foster?"  All monopolists cry out for easily predictable regulation.  But we can't reduce the future of connection to a science; we can't plan.

We're used to the world of scientific reductionism.  We like dealing with subsystems.  Look at all the panels we're having today and tomorrow -- attempting to parse the problem of connection in some intelligible way

It's our challenge to change the way we think, and to look constantly for context rather than subsystems.  We also need to recognize that atoms are different from bits.

It is important to understand that in our dealings with bits we're no longer just seeking to be protected against the state.  We're not looking for "freedom from."  Instead, we're into a brand new set of questions about what new forms of organizations (and organizing) both lead to good results for people and have lives of their own.

Now, that's not to say that atoms don't matter.  They do, and hierarchies are needed to deal with them.  We need people to be put in jail when they kill others.  We need real property law so that people don't shed blood over the length of their gardens.

But a larger and larger percentage of what matters assumes the existence of that atoms layer.

We need to tell our government:  you're in charge of atoms -- you need to deal with food and chemicals and health care. But you are not in charge of our minds and our culture.

This separation plays out in very interesting ways in the connection debate.  Connection involves both atoms and bits.  There is certainly a role for government in ensuring connection.  They need to ensure competition at that physical layer.

But the question for this conference is:  What is the most minimal amount of involvement of government needed to allow our free bits lives to continue?  At what level in the protocol stack are top down rules necessary to allow complexity -- self-organizing, interesting systems, novel and changing and evolving -- to emerge?  Allowing this emergence will provide us with our own freedom to connect.

And a second question -- what inner demons are we as a world people confronting that may get in the way of connection?

Let's deal with the second question first.

Inner Demon One:

We are showing an alarming tendency to think that it's okay to have government design software and devices -- which is the same as designing thought -- for us.  Our fears about spam and spyware and pornography are feeding into the longheld plans of three great industries:  content (don't let unauthorized transmissions occur), telecom (don't let computing devices attach to the internet), and law enforcement (don't let applications unknown to us and not easily tappable by us be used online).  We're writing legislation and rules that would require notices and agreements and all kinds of other requirements to be present before a new application or an interesting bit could even reach us. 

This is particularly true in the spyware debate, which could set a precedent for all kinds of software design mandates that may be requested in the future.

The content guys' yearning for control has been made particularly clear in the Grokster case, in which they're looking for design mandates for software. 

Telecom, for its part, sees a business model in returning to the smart network:  Let's make all end user devices nonprogrammable. No one can connect to the Internet on a machine that creates code. Or, at the least, they're pushing for telco policies (like support for universal service, like CALEA, like lots of other things) to be moved over to the IP realm.

Law enforcement also is looking for control:  let's require, as a condition of online access, that you be certified as adequately secure.  Let's require, as a condition of allowing an application to be used online, that it be adequately tappable by us.  We're in charge.

All three of these industries are hellbent on clinging to their archaic business models and dwindling earnings no matter what.  And we're letting them.  This very strong threat lies within ourselves.

Inner Demon Two: 

We also have an alarming tendency to want to have government involved to require particular filters (or to require the absence of filters).

The issue of filters has come up in recent years before the supreme court, both in CIPA and COPA.  The ACLU was right in the library filtering case and right in the COPA case.  Mandatory, government-imposed filters are a bad idea, because they cut off lawful adult access to lawful material.  Voluntary, client-side filters are a better idea.  And the best idea of all is to make a wide variety of better, more flexible tools -- including filters -- available to people using the internet, so that we can all voluntarily manage our own online lives along whatever lines we care about.

A problem with the current debate about spam, spyware, and viruses is that it assumes that national or international laws -- mandating filtering and labeling -- are the right way to fix online problems.  But the COPA Court had the right answer:  User empowerment.  Users should have the ability to choose with whom they will communicate, by using a wide variety of flexible tools.  

In my view, this same "filter" issue is coming up in the debate over requiring all ISPs to open ports to Vonage.  The power to require that a filter be removed carries with it the power to require additional filters.  Be careful about asking for help with filters.  They get in the way of the freedom to connect.

Running to the government to ask for filters to be taken off implies that they have the power to ask for filters (of various kinds, for various purposes) to be installed.  If we're free, and I think that we are, then we shouldn't ask for help but should find other routes to do what we want to do.

A third inner demon -- related to the first two -- is our need for certainty and security.  Security is driving many of the threats to connection.  We're worried and we long for someone to be in charge of what seems to be a central resource.  It's like water and air to us, the internet, and we're willing to allow government in to shield it.  We're worried about attacks -- and so we might be willing to allow law enforcement to require permission before letting an application online. 

Just three inner demons for today -- that's enough -- desire to allow control over software, for certain purposes we think will avoid badness, desire to allow control over filters, desire for security. 

To be consistent, to really assert that we have connection without permission, we'll need as a global people to overcome all of those demons.

So back to the first question:  at what level should government intervene to keep the atoms in place that allow the complexity of bits to emerge?  For me, that's the question for this conference. 

It's clear that we need antitrust law, because adequate competition is a predicate for a lot of this.  But it's not at all clear that we need a specialized internet commission of any kind.  It's not at all clear that we need an IP statute -- even a very short one.  Because any bit can be overwhelmed by another, blocking bit, it's not clear that we need the government to protect us.  We can protect ourselves.  Bits don't kill people.

As Robert Rosen said, "Any question becomes unanswerable if we do not permit ourselves a universe large enough to deal with the question."  We may be trying to solve problems in too limited a discourse.  Rather than setting up some date for a cut over to new forms of regulation, it's better to work towards a future whereby all this regulation becomes irrelevant. 

How do we do this?  Perhaps we'll find some answers today and tomorrow.   

The hope should be that market and technological realities will overcome what's left of this regulatory apparatus, rendering most of this regulation beside the point..  So you won't need to game the system -- the regulators -- taking advantage of regulatory arbitrage, or spend years litigating.  You'll be free.

Public Knowledge and the ALA and others have put together a very strong response [warning -- large pdf] in the broadcast flag case.  You want standing?  They have standing.  EFF members would like to slice and morph video and make it available on their blogs.  Distance teachers would like to have their distant students see distant visual material.  Parents need help with their MythTVs.  And if the broadcast flag goes into effect, they'll all be stopped in their tracks.

Given the DC Circuit's strong hints that they'll find standing if it's described in concrete detail, I'm hopeful we'll get a good decision from them.  In fact, this may be something of a rocky few months for the FCC's understanding of its own jurisdiction -- it's not clear that the Supreme Court is going to defer to the Commission's statements in the Brand X case, and the flag seems to be waving goodbye.

But that's the small story.  The big story is the fight for the future of the internet.  Will it matter what national legislators do?  Or will open networks, mesh wireless connections, and ubiquitous easy-to-use applications mean that we can ignore what they say?

Berkeley's spyware conference is today.  There are so many calls for "transparency" across so many online domains today -- tell us exactly what you're about to do to us, tell us the limitations and demands of your software, tell us what our future will be if we allow your code to execute inside our device, tell us whether a service we might like to use in the future will be blocked by the services we are about to use from you.  Tell us so that we can control our electronic destinies ourselves.

Someday this will sound so primitive to us.  We cannot possibly understand or anticipate all the intertwining consequences of each step we take.  Any EULA that would explain enough to be useful for us would take many minutes to read -- and we won't take that time.  Any set of symbols that we choose to show what software does will be hopelessly impoverished. 

That doesn't mean that we'll be without recourse -- but we'll just have to move it up a level.  Instead of trying to learn and understand everything ourselves, we'll ask networks to learn and understand for us.  It may be that, someday, joining one of these networks will be like joining a new country.