I talked last night to a string player in a conductorless orchestra.  He had spent six hours earlier yesterday in rehearsal with the group, and he had had more than enough.  "It's hell," he said.

The idea of a conductorless orchestra is effortlessly cyberian.  Beautiful music, made without anyone in charge!  Through listening and reacting, through feedback and awareness, the net becomes intelligent and produces order for free.  No one has to direct its growth.

But listen to my conversational companion from last night:  "There are these people that just love to hear the sound of their own voices.  They can't even explain what it is they want.  They say, 'More like THIS,' and bend an elbow or something, and no one knows what the heck that means.  The people I respect never say anything.  No one shuts anyone else up.  It's just awful."

He also said that music by committee ends up being bland.  Not all chamber orchestra works can be played without a conductor, so you pick particular things that you think the group can cope with.  And then during rehearsal those things are smoothed and simplified, by necessity, so that they sound coherent.  Without someone at the helm, making demands, no sound can startle.

Scale matters to this story, of course.  A string quartet doesn't need a conductor.  Not even a brass quintet needs a conductor.  But an orchestra -- it needs someone in charge.

I'm not going to draw any grand conclusions here.  Software can do a lot to create order.  It can facilitate as well as constrain.  No one needs to tell the developer what he/she is allowed to do, and the internet doesn't need a conductor.  The synchronous accuracy that makes or breaks an orchestral performance isn't even relevant online.

But the face of my jaded, punchy friend, emerging from six hours of consensus-building, told a story in itself.  He had had more than enough of earnestness, and was longing for a conductor and a drink. 

Reuters reports that the FCC tomorrow will adopt rules for VoIP 911 services.  When will the first lawsuit be filed?

I am not looking for litigation work, but it seems to me that this entire charade is purely political.  The Bells have had enormous trouble implementing 911 for cellphones.  They're still having trouble.  And now we're going to ask VoIP providers (nascent businesses! competing with the Bells!) to do this in 90 days? 120 days?

And we're not going to require the Bells to allow the VoIP guys to access their equipment for these services?  What?

This is crazy.  It's not even clear what the Commission thinks its source of jurisdiction is.  Non common-carrier VoIP service providers surely don't fit under Title II.  And the DC Circuit has clearly told us that Title I isn't the ever-expanding golden purse that the FCC thought it was.  So just what gives the Commission the power to do this?

It has to be that the FCC has become convinced (tell me this isn't the case) that independent VoIP services have to be squelched.  Run out of town.  Diminished so that they can't cause trouble for the big guys.

Luckily, there are many Article III judges who will be available to look hard at this set of issues.  The FCC should find some principles -- fast. 

In John Markoff's wonderful book, "What the Dormouse Said," Doug Engelbart runs across an essay by William James that changes his life.  The essay is entitled "What Makes a Life Significant," and I ran right out online and found it.  It's well worth reading.

James tells us that a significant life is a life lived in the service of ideals -- particularly when those ideals are combined with pluck and will, "dogged endurance and insensibility to danger."  Because we can never know which ideals someone holds dear, without knowing that person well, it is not right to dismiss him or her as a fungible member of a human category.  No life lived for an ideal is insignificant.

The Lloyd Cutler memorial service yesterday was captured by the Post here.  The article is accompanied by a picture of Justice Breyer laughing with AG Gonzales.  They're laughing at a verbal dagger thrown by Sen. Clinton.  It was quite an afternoon.  It was an extremely long afternoon.  Cutler engaged intensely with many many different institutions -- the Metropolitan Opera, Yale, the American Law Institute, the Salzburg Seminar, the Presidency, his law firm, the Supreme Court, his family -- and it was nearly impossible to fit it all in.

What's the ideal that Mr. Cutler lived for?  Louis Cohen captured this in his speech.  His was the very last remembrance, at the very end of the day, after many people had hurried out, drawn by the call of cellphones and dinner engagements.  Lou said that Lloyd solved problems.  He didn't do just what the client said to do (too many lawyers see their jobs this way).  Instead, he found the high road, the right answer, and persuaded everyone else to go along.  He served the US over and over again, solving problems for Republicans and Democrats alike.  He lived a significant life.

The Supreme Court today struck down limitations on wine sales that had been created by states.  Good news for further commerce clause arguments about state spyware laws.

I'm in transit -- Boston yesterday, DC today -- and I'll have something more substantive to say tomorrow.

The BrandX transcript is worth reading, even though it's heavy sledding for the non-telecom-literate. To the extent the Court's intentions can be gleaned from its questioning pattern, the FCC surely lost this argument.  The Justices jumped all over the petitioners (TW and the DOJ), and let the respondent offer a calm tutorial -- barely interrupted by a question.  The Commission's logic: 

1. Phone companies have always been common carriers.  Cable companies have not.

2.  Phone companies have to provide separate pure transmission services ("telecommunications services").  Cable companies do not.

3.  Because of 1 and 2, cable companies offering transmission to the internet plus email ("enhanced service") over cable modems shouldn't be regulated as common carriers.

4.  Besides, it would be the wrong thing to do to impose interconnection/nondiscrimination obligations on cable modem service, and maybe we won't attach those obligations to naked DSL service (although, right now, we do).

The Commission's argument has to stem from the premise that the internet itself is an "information service" -- some kind of giant data processor -- and providing access to it is also an information service.  TW's lawyer, Paul Cappuccio, said that accessing a web site is different from making a phone call: 

[Accessing a site] is not simply sending bits over a line and having those bits not changed and not interfered with.  When you retrieve something from a server, you have to take it in form it is on the server, you have to then put it through the transmission system, and you have to reconvert it back into what you want to see.  It's an interactive process that is more than just sending information.

What? The browser does conversion, sure, but what's the cable operator doing? It's providing access -- transmission -- to a network.  So are ISPs.  So is everyone in the chain. 

So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue.  Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice.  As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate.  We'll turn it into a public utility.  And we'll leave everything above that alone. We did this with energy -- we can do it with online access.  Sure, there will be a few takings cases -- but that will be entertaining (and lucrative) for everyone.

It seems to me that the 1980 FCC proceedings (that talked about computers owned by common carriers doing data-processing) did not have the internet in mind.  But everyone involved in the telecom rewrite discussion -- cable companies, Commission, phone companies -- believe that there's nothing particularly special about the internet.  "Oh, we talked about that 25 years ago," they say. 

The internet is not a data-processor, and it isn't under the FCC's jurisdiction, and IP-enabled services are not (or should not be) "information services."  It's time to take this all apart.

Norbert Weiner famously hiked for hours.  And swam, belly up, with a lit cigar in his mouth.

Albert Einstein took a violin with him everywhere he went, and played every day.

Here's an Einstein reminiscence:

I sometimes ask myself, how did it come that I was the one to develop the Theory of Relativity?  The reason, I think, is that a normal adult never stops to think about problems of space and time.  These are things which he has thought of as a child.  But my intellectual development was retarded, as a result of which I began to wonder about space and time only when I had already grown up.  Naturally, I could go deeper into the problem than a child....

Three things:  First, Judge Marilyn Hall Patel is a confident, no-nonsense person.  Just look at the bold way she dashed off the date on this order [short pdf], issued yesterday.  She knows what she's talking about.

In this order, she makes short work of the absurd suggestion that one of the statutory exclusive rights of a copyright holder -- the "distribution" right -- was somehow amended by the ART Act to include the right to "make available" electronically.  We knew this argument was going to be made, and it's nice to see it being knocked down so handily: "If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so."

(Thanks to Fred von Lohmann.)

Second, it looks like we're heading swiftly into deep broadcast flag legislative territory.  Drafts are being circulated now that would ratify the November 2003 order and give the Commission the authority to "adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks."  Does this include the authority to (attempt to) close the analog hole?

Third, I've been diving into telecom lore.  It feels as if this is going to be a transformative mental experience -- similar to what happens to you after your first year of law school.  Before:  a wifty music major (did you see this week's New Yorker cover?).  After:  a canny, jaded, argumentative employed person.  If you need a good reference/introduction to telecom policy, Jon Neuchterlein and Phil Weiser have put out a well-crafted book on the subject (highly recommended).

The Times today ran a delightful story on the front page about a sudden surge in successful lottery-number-picking that made the Power Ball authorities worry.  It turned out, on investigation, that more than 100 people had played a number that they had read on a fortune cookie message.  The cookie number turned out to be very very close to the winning number -- close enough to entitle the cookie-readers to a cumulative payout of almost $19 million.

Investigators visited dozens of Chinese restaurants, takeouts and buffets. Then they called fortune cookie distributors and learned that many different brands of fortune cookies come from the same Long Island City factory, which is owned by Wonton Food and churns out four million a day.

"That's ours," said Derrick Wong, of Wonton Food, when shown a picture of a winner's cookie slip. "That's very nice, 110 people won the lottery from the numbers."

Last night I was the happy recipient of a remarkable fortune-cookie future-life prediction -- undoubtedly from Wonton Food.

On the "A" side, it says:  There is a prospect of a thrilling time ahead for you.

On the "B" side, it says:  [try to] Speak Chinese:  I am a lawyer.

See?  Being a lawyer isn't so bad after all.  It could even be thrilling.

[numbers to play:  40  41  13  2  22]

Does anyone care that the customer agreements for Verizon's and Comcast's broadband services say You Can't Run a Server? (and We Reserve the Right To Change Any and Every Aspect of Your Online Access and This Agreement Without Notice?)

I know that internet users don't necessarily want freedom of action.  Heck, the internet looks dark and dangerous to many people.  But in light of the Markoff and Waldrop books I exclaimed over earlier this week, I'm feeling bolder.  How can the provision of online access be so easily constrained?  There isn't a whisper of a mainstream media murmur about this. 

Maybe it doesn't matter -- maybe running a server is something that only extremists would do.  But don't we want to defend the (lawful) actions of extremists? 

And if these limitations stem from bandwidth worries, why aren't there concerns about the absence of significant players who can both provide symmetric broadband access and support the freedom to run servers?  Why not have cheap "no server" broadband available to most of us, and slightly more expensive "you can run a server" broadband available for other (ordinary, non-enterprise) people? 

And how about those easily-amendable subscriber agreements?  The argument must be that Verizon-SBC/Comcast-TW have no incentive to make their customers angry -- so they'll be reasonable and we needn't worry.

But I'm worried anyway.

++++++ 

Verizon 3.6(E):  If you subscribe to Broadband Service. . .You may not use the Broadband Service to host any type of server personal or commercial in nature.

Comcast 5(b):  Without limiting the generality of the foregoing, the Service is for personal and non-commercial use only and you agree not to use the Service for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, "web hosting" or other similar applications, for any business enterprise, or as an end-point on a non-Comcast local area network or wide area network.

(by the way, how can Comcast ensure that no subscriber runs a "business enterprise"?  I'll bet lots of people do business using Comcast broadband.)

The TVWatch launch was last week, and it went extremely well - lots of press coverage.

TV Watch released a national poll which shows that the public clearly prefers parental responsibility to government control.  By a staggering eight to one ratio, respondents believe that “more parental involvement” is a better solution to keeping kids from seeing adult content than “increase [d] government control.” 

I am very proud to be associated with TVWatch.  Jeff Jarvis has shown us that a few people armed with fax machines can get the FCC to fine programs (hugely) for minor infractions of outdated rules.  This is a completely irrational state of affairs that deeply threatens free speech.  No Amendment is more embattled than the First these days.  The disease of indecency attacks is likely to spread unless we do something.  Go, TVWatch!

I remember coming back with Mr. Cutler from some mysterious Washington meeting.  It was lunchtime on a sunny day in the fall, and he was supposed to address the entering associate class in the boardroom.   We were walking along the front of the M street building - he was carrying a soft, supple (and thin) leather case, and I was lugging a big briefcase filled with binders and notepads and other paraphernalia.  I said something mild about the new associates, and he gave me his gimlet glance and said, gravel-voiced, "Are there any stars [in the associate class]?"  I don't remember what I said in return.

There are thousands of people who knew Lloyd Cutler far better than I did, and their stories are far more legitimate.  Mine are all about glancing interactions towards the end of his life.

The most sustained memories I have of him come from a week five years ago this summer.  Because someone more famous had suddenly become unavailable, he invited me to give a talk on The Future of the Internet in a castle in Salzburg.  This was a session of the Salzburg Seminar.  Mr. Cutler (I called him Lloyd to his face, but it took an effort) was in his element.  He gravely invited me for a pre-Seminar drink next to the lake, and it was immediately clear that this meeting was actually for fun -- there was very little planning to be done, and we just admired the castle (the Schloss Leopoldskron, used for exteriors in the Sound of Music) in the sunshine.  He took us and the other faculty members to the opera twice (Tristan, with seats in the second row, and Cosi Fan Tutte) and to dinner at the Goldener Hirsch, and we had formal meetings in the gorgeous castle rooms.  Music meant a great deal to him.  His favorite opera was Don Giovanni. 

He gave the same piece of advice to many people:  "Never have lunch with another lawyer."  He did not, let us say, possess the common touch, although he could certainly be charming when he wanted to be.  He never, ever, missed the forest for the trees -- he saw straight to the pragmatic heart of every issue.  He was a great lawyer.

Mitchell Waldrop's "The Dream Machine" and John Markoff's "What the Dormouse Said" are both enormously exciting books about the origins of personal computing.  Both describe in loving detail the lives of people who believed in the transformative power of interactive human-driven electronic environments.  (And Markoff unforgettably connects countercultural mid-Peninsula 1960s life to to the development of graphical interfaces.)

We need to do some succession planning -- or maybe just some succession PR.  The people described by Waldrop and Markoff were fearless and open to suggestion; they had enormous imaginations; and they didn't care what anyone thought about what they were doing.  Now people talk about the internet as either (1) utterly predictable and boring, or (2) full of danger and darkness.  Both of these rather smug approaches to electronic interaction lack imagination.  And they point towards a constrained electronic future.

This isn't a plea to return to the past.  Instead, it's a reminder that sometimes it's a good idea to just do things.  Go ahead -- today -- and build something useful and imaginative.  People will write about you later. 

Today's broadcast flag ruling [pdf] from the DC Circuit has significant implications for the future of internet regulation in this country.  As I've argued (plug for law review article -- why not download the article?), and as the court today found, the Federal Communications Commission does not have power to make rules about products and services that don't fall under its existing statutory authority over telecommunications companies, broadcasters, and cable companies.

The specific context for the flag ruling is the Commission's assertion of dominion over devices that are capable of receiving digital television signals -- a broad range of consumer electronics devices and PCs. The Commission adopted a rule back in late 2003 that would have required all of these devices, and the devices that interoperate with them, to recognize a marking scheme aimed at protecting particular content from widespread transmission over the internet.  The FCC felt it had to do this in order to "fulfill its responsibility of implementing the transition to digital television."

The DC Circuit (in a unanimous opinion) found that the Commission didn't have power from Congress to make rules about what devices do with content once that content has been received.  It also said that the court didn't need to defer to the FCC's statements about its jurisdiction because this delegation from Congress had not occurred.

The court reasoned that Congress has given the FCC power over entities engaged in "communication by wire or radio."  Making consumer electronics devices and computers recognize a particular marking scheme after they've received an electronic transmission (but when they aren't "communicating" in any way) is beyond those powers.

Although the DC Circuit didn't have to reach this question, my view is that when the FCC starts making rules about a VoIP application that doesn't terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn't traditionally made rules about, it will be acting beyond the powers given it by Congress.  This means we will have to have a sustained national conversation about the scope of the FCC's authority over the internet before the Commission can act.

From what I've been hearing, it's going to take several years for any rewrite of the Communications Act to happen.  In the meantime, today's opinion signals that the FCC should act with self-restraint.

There was a small flurry of messages today among cyberprofs about how students see the internet today.  The consensus seems to be that it's harder for young people to understand John Perry Barlow's Declaration or the notion that spam is a big problem.  But virtual property issues are all the rage.  Online access is just like electricity to this generation.

Internet exceptionalism makes sense to me, but not because of the "we can't be regulated" argument.  Electronic interaction augments what humans are particularly good at -- associating, talking, remembering, getting things done -- and makes visible what is often invisible offline.  It's a revelatory medium.  Ten years from now, we'll see this more clearly.  I don't think it's right to be curmudgeonly about the internet now ("harumph, no big deal, just a speeded up telephone network"), and I'll bet that our successors will understand much better than we do what impact it has had on life.

In Pattern Recognition, an absorbing William Gibson novel, the protagonist believes that when she travels a long distance it takes a while for her soul to catch up.  Jet lag, for her, is just a matter of the soul wandering above the Atlantic in the slipstream.

I spent the day (a long day) in DC watching seven panels of people (including one that had me on it) prognosticate about the future of communications.  I'm back in NY, but my soul is somewhere in Philadelphia, confused. 

Today focused on the same old deep conflict, but now I think I understand it better.  There are at least two sides to it.

First, the people who are used to owning and controlling networks see the internet as just another network.  They're used to networks competing, and they're looking forward to lumping "value propositions" and "user experiences" together for their subscribers.  They're investing hugely in their proprietary networks.  They're not used to "networks of networks."  There are only two actors in this category:  Comcast/TW and SBC/Verizon.  A duopoly.  Through the good graces of this duopoly, Americans are able to get online.

Second, the people who are used to interactive computing as a way of life can't imagine that anyone will show up and constrain their access.  Impossible to contemplate.  So impossible, in fact, that many large companies whose business plans depend on access to the internet don't put a lot of energy into the policy game in Washington. 

Both sides assume that their respective worldviews are indisputably accurate.  The cable/telco world is squabbling over the applicability of cable franchise rules to telcos.  The online world is squabbling over content issues and the liability of intermediaries.  Both worlds are closed, acronym-ridden, clubby places. 

It's time to get the access question straight, and it won't be easy -- particularly given the lobbying muscle of the incumbents.  I'll start to work when my soul gets in from Philadelphia.  It's been quite a day. 

There's a story from France quickly making the rounds:  A French court has said copy protection applied to DVDs is illegal, both for "privacy" (?) reasons and for consumer protection (inadequate disclosure) reasons.

The US content industry often cites the success of DVDs as evidence that consumers don't expect to make their own copies of this format -- and don't seem to care that they can't.  The DVD closed-circle, chain-of-licenses story is told over and over again in this country.  "See?" the industry says, "People just want to be entertained."

But in France, Germany, and Spain (three reasonable countries), people do apparently expect to be able to make private copies of things they take home with them -- and the law supports this understanding.  If this decision takes hold (and I can only imagine the resources being devoted right now to make sure that it is deep-sixed and tagged as downright un-European by some more captive law-making body), and is joined with some other European precedents on the consumer-unfriendliness of DRM, it might just cause a little wrinkle of change. 

But I have to say I'm not sanguine about this.  I'm sure there are treaties being whipped up that will enshrine DRM as a human right ("consumers require choices of content; such choices can only be made available if adequate legal controls are in place; private copying is in derogation of the Rights of Man" -- something like that), and those French people wanting to make copies for maman will be sent meekly back to the store to buy again. 

It really is war out there.  I just moderated a panel at the NY Bar Assn on P2P. 

RIAA:  Copyright law is about control.  Other Guys: Copyright law is about encouraging innovation.

RIAA:  Copyright infringement is immoral and is destroying small songwriters.  Other Guys:  The content industries should embrace online business models.

I had to be a very active moderator, so I couldn't take notes.  All I could do was write words in the margin of my pages -- words like "democracy," and "respect," and "infringement machine."  I didn't have to actually yell at any point, but it was close.

Yikes.

The audience had a lot of questions too.  The questions seemed to be coming from people who weren't very sympathetic to the record labels.  But, again, I couldn't take notes -- I was too busy keeping the panelists from jumping down the questioners' throats.

I can report that before things got really rhetorical Don Verrilli clearly said that he's proposing a Sony test that's narrower than the Aimster proportionality test (he'd protect a "business that is substantially unrelated to infringement").  He's also very sure that there is a great deal of evidence in the record about Grokster's bad behavior -- planning their business based on infringement, that kind of thing.

Adam Eisgrau responded to Verrilli on both these points, saying that Don's test would cast a pall on innovation, and that all of this "evidence" was under seal.  Adam also pointed to the DiMA brief [pdf] and asked whether the RIAA would agree to the very reasonable test proposed there (they did not respond).  Sonia Katyal made some very strong points about the risks to creativity posed by a fee-for-transaction approach to content, and the dangers of getting rid of fair use.

After the final bell, we all retired to our various corners and then went out into the rainy night.

So it turns out that Jane Jacobs was Le Corbusier's girlfriend, and he was brilliant but didn't pay enough attention to her, so when Robert Moses wanted to enshrine Le Corbusier's principles in a highway cutting across lower Manhattan unhappy Jane gathered a group of activists and brought Moses down.  There was a trial that was decided by a feat of physical strength, with Moses and Jacobs having a tug-of-war with Le Corbusier's body -- Moses's team shouting "Get things done!" and Jacobs's team yelling "Emergence theory!"

It's a musical (sort of) about urban planning ("single use zoning!"), with a lot of smoke effects and some earnest dialogue.  Jane Jacobs yells about the human need for sidewalks and neighborhoods (and organically-growing cities), and Robert Moses shouts about the purity and rightness of clean, wide highways (and a master plan).

We're not quite ready for a musical about the internet, but soon, soon -- we just need a few more songs.