We've got a banner.

We've even got pens.

What we don't have -- until later today -- is a web site.  But we will.  Celebrate the internet!  Sept. 22, 2006.

OneWebDay is one day a year when we all - everyone around the physical globe - can celebrate the Web and what it means to us as individuals, organizations, and communities.

As with Earth Day - an inspiration and model for OneWebDay - it’s up to the celebrants to decide how to celebrate. We encourage all celebrations! Collaboration, connection, creativity, freedom.

By the end of the day, the Web should be just a little bit better than it was before, and we’ll be able to see our connection to it more clearly.

OneWebDay is September 22 every year, starting in 2006.

In the 1890 article that launched privacy law in the U.S., Samuel D. Warren and Louis D. Brandeis said:

The possibility of future profits is not a right of property which the law ordinarily recognizes. (in The Right To Privacy, 4 Harv. L. Rev. 193 (1890)).

These authors were trying to persuade their readers of the existence of a general right in individuals to be let alone.  They didn't think this right to be let alone was a property right, because (in part) they didn't believe that the concept of property was broad enough to cover privacy.  For example, if true but private facts were published about a man, and that publication made his life difficult (or ruined him), Warren and Brandeis felt that property law wouldn't necessarily protect him -- because "the possibility of future profits is not a right of property which the law ordinarily recognizes."

We now live in an era in which possessors of things they believe to be their "property" fervently believe that law protects their possibility of future profits.

One example:  the continuing kerfuffle over Google Book Search, in which publishers are horrified that someone else may someday make money from the books the publishers sold in the past.  They fervently believe that they should get a cut of all possible future revenue streams that others create based on these books, and that courts and judges should act immediately to enjoin any activities that might not fit with this model.

Another example:  the historic fight over tiered internet access, in which high-speed access providers are horrified that someone else may someday make money from applications using these networks.  The network builders fervently believe that they should get a cut of the revenue streams that others will create using these high-speed networks, and that the legislature should act immediately to bless their vision of the future.  

What's troubling is how much sympathy both the publishers and the network builders are getting these days.  We should thank them, agree that we stand on the shoulders of giants, and move forward without them.  Using law to protect the possibility of future profits spells doom for innovation in this country.  We don't (usually) protect existing business models with statutes or caselaw.  And we shouldn't, notwithstanding the fervor and lobbying heft that accompany both of these claims to control the future.

"[T]he current generation of email users is communicating much more often than recent generations and possibly more often than any previous generation since people huddled in caves with only conversation to pass the nights away."

Thanks, Pew Internet & American Life Project.  It's nice for the internet to get some good press once in a while.  "Networked individualism" sounds (and is) much better than the stark, cruel "internet addictions" people used to rail about. 

And those huge telecom carriers shouldn't be allowed to get in the way of the human need to communicate online.  They'll never come up with the innovations that we might enjoy using to communicate in ever-more-interesting ways.  A France Telecom executive said yesterday in Silicon Valley that calling the carriers "dinosaurs" was an insult to dinosaurs.  From Washington Internet Daily:

"The big telcos will lose" if history is a guide, [Norman] Lewis said: "We're rearranging the deck chairs on the Titanic."These companies "are shackled by our business models. We are shackled by our legacy systems." They've been organized around the revenue and opportunities in a conventional voice business that produces enormous revenue, he said. "The immediate response" when threatened is "to hold on to what you've got." Fear of cannibalizing mobile business interferes with VoIP efforts, for instance, "so you have a certain amount of paralysis," he said.

It wouldn't be good for the economy or for our insatiable need to keep in touch for the telcos to be in charge of "the internet."

Because the existing internet architecture doesn't guarantee that your packets will necessarily arrive, and because streaming video needs high speeds and some predictability, lots of sites work with middlemen (like Akamai, as in "One Out Of Every Five Global 500 Companies Trusts Akamai").  These middlemen in turn buy up strategic bandwidth from ISPs all over the world.

So the streaming site (say, Fox News) sends its content to a cache.  Akamai takes the content and distributes it to servers that are close to ISPs.  From a user's perspective, all of this is invisible.  He makes his request of Fox, and, unbeknownst to him, he gets (for example) text from Fox and streaming video from a different route (a closer route) coming from an Akamai cache.  Akamai helps Fox create a better user experience. 

This all costs money.  Akamai has to pay for servers and additional ISP connections.

The argument from at least one telephone company in favor of a "tiered internet" is that paying for good service is nothing new.  Fox pays now to make sure that its users are happy.  If, say, a telco starts only prioritizing video packets of its partners, in order to get this value-added service Fox will have to pay for it.  What's the big deal?  Fox and many other sites already do all kinds of things to ensure that their users are happy.  They don't actually rely on the standard end-to-end internet model -- they cache and adjust and pay through the nose.

The key semantic question seems to be:  if services won't or can't pay for the telco special value-added services, are they being degraded? The telco would say "no -- you pay for first class on airplanes, you pay for tolls to enter cities, but those who don't pay aren't harmed."  Their point is that they should be allowed to charge for special services, that Fox and others pay for these kinds of services all the time, and that no one will be hurt by the mere offering of these services.

The risks are greater than just hurt feelings and misunderstandings.  If a telco makes an exclusive deal with any video streamer, then the rest will be second-best.  Maybe not worse off than they are today, but not as zippy as the premium service.  And start-ups may not be able to pay for any of this.  Plus, there may be future start ups that are unrecognizable to us as start ups -- amorphous net thingies without a home or a terrestrial bank account.

Harold Feld was at the same meeting with me today, and he's focused on what comes out of all of this prioritizing.  Is the result "the internet"?  In his words, "What the $#@! is the 'Public Internet'"?  This term (another semantic struggle) is being used to refer to the non-prioritized offering of an incumbent.

It's all pretty difficult.  It does seem to me that choosing to pay Akamai to buy cleverly-situated market-price ISP service for you is different than having to pony up to be carried to particular subscribers.  It also seems to me that, yes, services that aren't "prioritized" are necessarily, over time, degraded -- user expectations will change to be satisfied only with the highest speed access.  (I get impatient ordering a sandwich in DC; this has happened to me only since I moved to NY where the deli-guys scare and intimidate you with their alarming speed.)  I'm very worried about the risks to unborn technologies. 

And, as Harold says, the whole "public"/"private" new distinction seems very strange indeed.

Another cut on the "tiered internet" scuffle, this one inspired by Benjamin Reeve's work on the mismatch between "scientific" analysis/processes and information:

We can talk about "property" in a very reductive way.  We can model it economically and make up mappings for it (literally).  Property (atoms) can be reduced and understood as a series of computable relationships.  I own that piece of land; you own the next lot over; we may have certain disputes or agreements, but the whole relationship can be understood as an algorithm or equation.  We can be "scientific" about this relationship, in reductive terms.

Now, because information isn't conserved, because it can amplify and combine in unexpected ways and produce things that are greater than the sum of its parts, applying "property" analogies to it turns out to be extremely difficult.  We can't (reliably) apply reductive understandings to it.  We really aren't very good at understanding why information (like genetic coding, or money issues, or technological interoperability) does what it does when it does.

The new kinds of human activities that may be made possible by truly high-speed internet access are "informational" in nature.  They'll be surprising and amplifying, and they'll evolve unpredictably. 

But the network owners are trying to define everything in terms of property (a very atomic concept), as in "these are our pipes, we should control them."  This just doesn't fit the situation. 

The great risk of acceding to the property way of thinking is that we'll lose the informational opportunities (call it innovation, but it's more than that) that would otherwise be possible.  And we won't even know what we're missing.  So, the graceful thing is to say, "okay, we understand that you believe you own your property, and we respect that, but if we honor your desires too much we'll be frustrating important as-yet-unknown informational events."

Bits are different from atoms.

There's a tremendous swirl of activity about the DOJ Google motion.  Concern over the NSA scandal continues, although the Administration has apparently made it a central initiative of W's second term.  Spin!

What's interesting about this swirl of events is that we're using informational privacy as a proxy for our feelings of concern about the current Administration.  We can't tag them on the Iraq war because there's too much to take in, but we can read FISA and say "aha!," and we can read their request to Google and say "see?"

At the same time, it's alarming to our limited human consciousnesses that neither of these things would ordinarily have come to light.  Only because the NYT finally decided to publish do we know about the NSA scandal, and only because Google fought back do we know about the COPA subpoena.  So part of our (perhaps overheated) concern is our sense of complete lack of control over our environment. 

And it's even worse than we fear.  I'm certain that everything is surveilled these days; that book by Patrick Radden Keefe (Chatter), last year should have let everyone know that the NSA always wants everything.  Maybe using Google as private police is new; maybe it's not.  Maybe MSN and the others were also part of the NSA scandal, but we just don't know. We have no idea how much data about us is interesting to others, and we're scared by that. 

So we talk about legislation as an immediate reaction -- it's an attempt to exert control over our world.

A broad privacy law would have to encompass both offline and online data, and that's an enormous job.  I doubt we'll do well at it.  And the costs of such a one-size-fits-all approach would undoubtedly exceed whatever benefits (in terms of a sense of control over our world) we glean from it.  It will never, ever, cover government use and collection of data.  So we'll just be punishing the private sector.  Let's try to control the little things (like, say, literacy and the recovery of New Orleans) before we try to control flows of information.

Networks (like the internet) that own themselves create new theoretical paths and concerns.  Instead of grappling with hierarchically nested, mechanical bodies of law and inventing institutions that map to physical territories and produce coherent answers to linear questions, networks require us to confront new questions:  in a collectively-owned commons, who governs?

The structure of the open network, with many nodes connected interdependently to many others, suggests that only collective values can govern it effectively.  The existence of a constant pulse of creative activity in an open network, leading to unpredictable yet ordered results that cannot be explained as mere sums of their parts, suggests that particular acts of individuals, even large groups of individuals, may not be as important as they are in non-networked environments. 

Rather, the relationships among those individuals, or among the groups in which they have membership, or among large nodes that serve to draw these individuals together, may be providing the interest and dynamism of the network. The relationship between the notes, rather than the notes themselves, is powerful in open networks. It is these relationships that create value. 

But these relationships are wholly decentralized.  If any individual attempted to stop the network in its tracks and demand an accounting of precisely what value he had contributed, so that he could propertize it and take it home to buy groceries, the network would not be able to respond and would collapse.  Closing the network, making it exclusive, changes it into something that is no longer alive.  

The telephone companies claim that they own “the network,” because they built it.  But ”the internet,” as it is understood by the public, is owned by no one.  Indeed, the internet arguably owns itself and has value of its own that is entirely independent of the identity of its access valves.  This value is being captured daily by the “owners” of the internet—everyone.  Over the last ten years, a wholly decentralized and global investment of time, money, and gifts created the internet, without any need for specific incentives provided by government (after the initial U.S. development projects had run their course).

So the internet is not only unowned, but it also has a liveliness and liberty of its own that is highly beneficial to mankind and requires protection.  The role of government should be to prohibit any form of ownership (or other action) that unreasonably interferes with the openness of and access to and responsible use of this commons by the collective group. 

We can start from the premise that there is a strong public interest (evidenced by Bush Administration as well as Clinton Administration comments) in having high-speed, unfettered internet access be available as widely as possible. We can graciously accept that there is a general public interest in protecting property and compensating property owners.  But we can regard access to the commons of the self-owned internet as a more important public interest than protecting the private property of the telecom companies.

He won't mind if it's a couple of days late, because it's been 300 years:  Happy birthday, Benjamin Franklin. 

Franklin would have loved the internet.  (He has his own search engine.)

Today's convulsions would have troubled him:  fishing expeditions for data (a) (DOJ from Google/MSN/Yahoo!, with only Google speaking up in response); fishing expeditions for data (b) (the NSA scandal); telcos seeking protection money for transmitting bits not their own (the two-tiered internet); new attempts to squelch legal speech (son of COPA on its way); bad broadband stats (forget that 2007 deadline).... As a man who was enthusiastic about communicating (in books, in letters, in pamphlets, at parties) he would have been worried that we were getting in our own way.

Franklin started out a monarchist, but the world's foremost amateur became an impassioned revolutionary near the end of his life.  He was unafraid to speak up publicly.  Faced with these issues, he would have formed volunteer brigades to take them on. 

I'm looking for comments so that I can understand the arguments about auctions better.

Concerns are often expressed about auctioning off new gTLDs -- strong concerns -- because of worries about what will be auctioned and what process will be followed to get to the point of auctioning.

Same concerns with lotteries (which I suppose would be like auctions except without a money element).

I know that the OECD made a proposal favoring auctions here and Profs. Milton Mueller and Lee McKnight made a proposal here.  CircleID ran some articles here.  Are there other materials on one side or another of this specific issue?  What are the best arguments in this area?

Thanks for comments.

Al Gore made a fine speech today about the risks of broad executive power.  It's not long, and worth reading. 

The speech isn't solely about the NSA wiretapping legal crisis (although it certainly covers that issue carefully).  It's more an indictment of the entire idea of unconstrained Presidential discretion.  

We seem to live in a time of "inherent" and unquestioned powers, a time when "you're either with us or against us," when every conversation is a litmus test of loyalty.  The K Street Project is just one symptom of this problem; there are so many others that are far more serious.  As Dean Koh said (and he's quoted by Gore), "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."  Perhaps this President won't go that far, but the next one might -- that's Gore's point.

Gore even got in a plug for the internet, as his very last word of concern:

It is particularly important that the freedom of the Internet be protected against either the encroachment of government or the efforts at control by large media conglomerates. The future of our democracy depends on it.

Back in 1994, Gore said this:

A nascent GII [Global Information Infrastructure] already exists. What we seek is a superior GII, one that has higher capacity, is fully interactive, faster, and more versatile. One that is less expensive to use than existing systems, and more accessible to all the people of the world. But our goal is not merely technological advancement – more bandwidth, faster switching, more powerful processing capability, and greater compression and storage capacity. We view technology not as an end in itself but as the means through which the GII can realize its potential to improve the well-being of all people on this planet.

Some good speeches.

Back in November 2005, Reps. Barton and Upton floated a telecom bill that appeared to have nice language in it about network neutrality. 

But it also would have allowed providers of high-speed (fiber optic) broadband video services to offer “enhanced quality of service to subscribers through the [network provider’s] utilization of network and routing management or customized hardware.”   

“Broadband video services,” were in turn defined as those services “delivered directly to subscribers over facilities the service provider owns and controls.” 

Now, this may sound perfectly rational:  we built the high-speed network, we can use it to provide enhanced services for subscribers.  And, indeed, the draft legislation goes on to provide that broadband video services “may not block or unreasonably impair or interfere with . . the use of any lawful content, application, or service provided over the Internet.”  

But it has finally become clear to me that the telephone companies are planning to ensure that subscribers never see “the Internet” at all over these high-speed connections.  Instead, subscribers will see the “broadband video” offerings of the network owner, to which particular paying web sites and paying VoIP services have been added.  They’ll be able to access “information derived from the Internet,”  in the words of the bill, but not the internet itself.  Only those willing to pay for slower access speeds (and perhaps willing to pay more for these slower speeds than for the high-speed access) will be seeing “the Internet.”

“We built it, and so we own it, and we won’t block access to the internet,” the telcos say.  But this is rhetorical legerdemain.  “We built it,” means “We built high-speed access.”  “We own it,” means “We own our high-speed access fiber networks.”  “We won’t block access to the internet,” means “This high-speed network will let you see information derived from the Internet from partners who have paid us.  It isn’t purporting to carry ‘the internet,’ and so we aren’t blocking access to ‘the internet.’  If you want ‘the internet,’ go buy another, slower service, from us or someone else.”

In a nutshell, in the Bells' minds refusing to provide access to the public internet via their high-speed networks is completely compatible with network neutrality.  Sure, they'll be neutral -- when it comes to slower, 2001-era speeds that (eventually) no one will want.

Phooey.

In early 2001, after the French court had issued its interim order mandating that Yahoo! take reasonable measures to disable access by people located in France to particular material on yahoo.com, and after Yahoo! had challenged the enforceability of that order in a U.S. district court, Yahoo! took a prudent business step:  It announced a change in its policies. 

It said that Yahoo! users would no longer be allowed "to offer or trade in items that are associated with or could be used to
promote or glorify groups that are known principally for hateful and violent positions directed at others based on race or
similar factors." 

Yahoo! has always maintained that this change in policy was unrelated to the issuance of the French orders.  It was about to start charging a fee for auctions, and it didn't want to be making money (even indirectly) from sales of these kinds of materials.

Now the Ninth Circuit has finally ruled [warning: 99-page pdf] on the Yahoo! matter, and a majority of judges have taken what they view to be a prudent step:  They don't want to issue an advisory opinion.  To the extent that Yahoo!'s early 2001 change in policy brought Yahoo! into rough compliance with the French orders, it is unclear (according to the 9th circuit) how much of a dispute remains.  They don't think this case meets the requirements of "prudential ripeness."  Courts don't want to get involved with abstract cases.

Because enough judges on the 9th Circuit thought that the case wasn't ripe (three judges) and thought that the district court didn't have jurisdiction over the plaintiffs in the French case (three judges), Yahoo!'s suit has been dismissed (six judges) -- even though eight judges thought the district court did have jurisdiction over the French actors.  There is a veritable riot of opinions on the personal jurisdiction question.  (You would enjoy law school.)

It all boils down to this statement in the majority opinion:

First Amendment issues arising out of international Internet use are new, important and difficult. We should not rush to
decide such issues based on an inadequate, incomplete or unclear record. We should proceed carefully, with awareness
of the limitations of our judicial competence, in this undeveloped area of the law.

(Somewhat bizarrely, the majority finds BOTH that personal jurisdiction was proper over the French actors, AND that the case was sufficiently alive to be considered ripe, but goes off on "prudential ripeness" to avoid deciding this delicate international issue.)

The dissent strongly disagrees, saying that the French orders cannot be enforced in the US because they violate the First Amendment, and that it is important that we be clear about a country's ability to enforce an order outside its borders:

[T]he question we face in this federal lawsuit is whether our own country’s fundamental constitutional guarantee of freedom of speech protects Yahoo! (and, derivatively, at least its users in the United States) against some or all of the restraints the French defendants have deliberately imposed upon it within the United States.

That's the question that the Ninth Circuit has now prudently refused to reach.

I have sympathy for both the court and Yahoo! here.  Yahoo! is certainly operating under the cloud of an order that would be (or should be) unenforceable in the United States.  At the same time, the tangled web of opinions in this case makes clear that the Ninth Circuit was deeply unsure as to whether it should act at all.  And a very political question was in front of the court.

It would have been cleaner if Yahoo! had never changed its policies in 2001.  Its self-restraint on this point is similar to the court's self-restraint.  Neither wanted to go out on a limb in a way that might undermine its institutional legitimacy.  As a result, a very important question has gone unanswered. 

I just participated (yesterday) in my first conference call as an ICANN board member. 

It's clear to me that the Board members are all dedicated, trying to do the right thing, and struggling mightily with a host of imponderables.  (One of the imponderables was the phone connection -- it's hard to get a call going all around the world without hurricane sounds in the background.)

We didn't get to all of the items on the agenda, which was disappointing.  The discussion was very thoughtful and careful, but we had a hard stop at the end of the time period -- two hours -- and couldn't reach everything, including some of the most important issues now before the Board.

A lot happens on email between calls, but email has severe limitations when it comes to actually making a decision and moving on.  So the calls are vital.

What I'd like to do for the next few days on this blog is get input on the new gTLD issues.  Here's the background:  the Generic Names Supporting Organization within ICANN is working on a "policy development" process for new TLDs.  The terms of reference are here, and the Supporting Organization has called for people to send it papers (here) by the end of this month.

This is a vital set of issues, and one that is central to ICANN's agreement with the Department of Commerce (which calls for ICANN to “[d]efine and implement a predictable strategy for selecting new TLDs using straightforward, transparent, and objective procedures that preserve the stability of the Internet").  

My personal question, one asked not on behalf of anyone else (and of course you are welcome to reject the question) is whether there is strongly-held opposition to the following points:

We could change the process to one of "accreditation" rather than "approval."  It would be more straightforward to require technical capacity and escrow and financial standing (minimal requirements). 

All applications could be subject to a "quick look" for objections based on real semantic harm to established interests.  How would that test be formulated?  Is it possible to have an "accreditation" process that also has an element of checking for harm to others (and what harm would be relevant)?

I hope for comments.

Let's say Congress decided that it would make sense for highspeed (truly highspeed -- at least 45 Mbps both up and down, not 200 Kbps) access to the internet to be considered a public utility.  (Public utilities are subject to rate control.  Their earnings are established by a public commission.) 

Such a decision would clearly advance a legitimate government interest.  Indeed, the current Administration has said that broadband access for all is a crucial government policy.  Congress would be saying that beachfront property should allow reasonable access to the ocean -- the self-owned commons -- and there are some nice beachfront cases that Congress could rely on here.

Now, the companies that have built fiber networks in the U.S. would quickly claim that such a Congressional action would constitute a "taking," because they wouldn't be able to charge premium rates for each service an end user wanted.

Our government can regulate private property, as long as it does so for public purposes, and as long as it acts reasonably/fairly/justly.  But there are limits in the Fifth Amendment on what the government can do.  That Amendment says that private property can't be taken without just compensation. 

A unconstitutional "taking" can happen when the government physically appropriates private property or deprives its owner of all beneficial or economically productive use of it.  That wouldn't be happening here.  The Baby Bells would still be running these access points, presumably, and making some market rate for doing so.  Indeed, they could use this access to sell their own content services to customers. 

In the absence of this kind of categorical action, which is unquestionably a "taking," you have to analyze the economic impact of the government step to see whether compensation is required.  The Baby Bells would have a strong argument that their reasonable "investment-backed expectations" had been stymied by Congress. 

But there would be a very strong response that they have plenty of money to keep going (a fair return!), and that they'll be able to raise investment money based on their other businesses (including their competing IPTV business).  Mere economic impact isn't enough to make something a taking, and the Bells can't have expected that they'd be allowed to monetize all this access.  No explicit government guarantee was ever provided along these lines.

Without doubt, the Baby Bells will say that a "fair market" price doesn't capture their immense investments in fiber.  They'll also claim that they're being denied the opportunity to make an enormous amount of money, and that anything short of that enormous amount of money makes any regulation an unconstitutional taking.

The Baby Bells might even claim that providing highspeed access in a regulated fashion is going to be such an unprofitable business that they'll have to stop providing this access.  This would be their death threat:  allow us to reap all the profits we can, or we'll rip out the fiber and leave the U.S. in the dark ages.  But existing case law establishes that they can be forced to continue to run this unprofitable arm of their business, as long as they are profitable businesses as a whole (including phone services, equipment sales, etc.)

So, if they stayed in business, in the now-regulated highspeed access business, they might have to operate that business at a loss.  That's the way it goes. No taking has happened, according to a long line of cases. 

If they said they had to go out of business as a whole, or if for some reason Congress decided to simply convey the highspeed access business to someone else to prevent it from being abandoned, the Baby Bells wouldn't get all possible future profits.  They'd get whatever a willing buyer would pay for the networks they had built -- their salvage value.  This would be litigated for years, but in the end there would be a number.

So -- if we regulated access, it probably wouldn't be a taking.  If it was a taking, we could pay them back.

Maybe we should take it. 

This morning I took a cab from Georgetown to Union Station in DC.  It struck me as we went through the streets just how tranquil a place Washington is.  There was almost no one on the sidewalks.  There are more and more gleaming enormous post-modern apartment complexes on wide clean empty streets, with no one around.  The cab driver laughed; yes, he said, it's very very calm.  It was a beautiful cold sunny morning, and Union Station was just glowing, with the big wreaths and bows still up on its columns.

This evening I took a walk up Fifth Avenue, and around 23rd street I fell in with a guy who apparently walks up and down Manhattan as a hobby.  "Are you on a short walk or a long walk?" he asked.  He was full of information about the buildings we passed and the things you could find on sidewalks if you looked closely enough.  He had come from Greenpoint (Brooklyn) and was on his way to the Upper East Side. 

We walked along for quite a while.  "I hate it when people don't know how to walk," he grumbled when some loitering tourists got in his way.

I'm very fond of both places.

Yochai Benkler gave a great talk tonight in DC.  He's talking about his new book, The Wealth of Networks, coming out at the end of March from the Yale Press.

The book is going to have a big impact.  It focuses on the shared, gift economy that the internet makes possible -- it's a big idea, this new way of working.  Benkler sees clearly how our world has changed out of recognition, and how embracing this shared, collective way of life may have an enormous effect on our future.

If we're allowed to continue working this way, that is.  Enormous incumbent industries are clearly disturbed by what happens on this network of networks, and are doing their best to fight back.

There are a couple of reasons why we have national parks and access to the seashore.  Some things are so much the gifts of nature that they should be reserved for everyone.  And some things (like the sea, and like the internet) are so important to each of us that keeping them freely available makes us a group of citizens rather than slaves.

In an 1824 case, someone claimed that he privately owned oyster fisheries under some navigable waters in New Jersey, and that the ownership of these things had come down to him through a royal grant made before the Revolution.

Chief Justice Taney (who hung on for an awfully long time and later decided the Dred Scott case) disagreed.  Listen to this:  "When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government."

Taney was saying that the people were sovereign, and that they had given this common ownership of the oyster beds over to their government to run for them, as a kind of public trust.

Now -- the internet wasn't created by nature; it's an agreement between machines made possible by the designers of that agreement (or protocol).  But it is a great gift, and it is very important to being a citizen, and for these reasons it is owned by all for common use.  It's a commons, like the Boston Common.  And no sovereign ever showed up to which the people who "own" the internet (that is, everyone) surrendered their ownership.

But sovereigns (governments) still have a duty, and it's a very old one.  It's in Roman law, and Greek law, and early English law -- it's the duty to protect access to the seashore, which is the place where people can access the sea.  A very important common resource.

Here's an English legal scholar writing a long time ago:

By natural law these are common to all:  running water, air, the sea, and the shores of the sea, as though accessories of the sea.  No one therefore is forbidden access to the seashore, provided he keeps away from houses and buildings [built there.]

It's fine to build a house on the seashore, or a wharf jutting into a lake, as long as you don't keep people from navigating that ocean or lake.  And, by the way, you can certainly have a privately owned thing on/in the sea, like a ship or a self-owned whale.  But access to the sea has to be available.  States cannot sell that off or otherwise dedicate it to private uses.  And no matter how elaborately funded and decorated a beachfront property is, it can't stop people from walking on the beach below high tide.

So -- it's fine to build special services and make them available online.  But broadband access companies that cover the waterfront (literally -- are interfering with our navigation online) should be confronted with the power of the state to protect entry into this self-owned commons, the internet.  And the state may not abdicate its duty to take on this battle.

I'd be at CES.  But I'm already having trouble doing a good job with my first life, and my second life is being completely ignored.

I just watched a few minutes of Bill Gates's keynote.  It felt a little too "Kitchen of Tomorrow," but maybe MSN knows what they're doing and people will want surroundscreens on their desks.  And it would be kind of fun to drag your colleagues (virtually, anyway) into meetings.  I'm not so sure about the Play Table.  It feels like a very closed system. 

A comment on scobleizer:

Gates speaks at CES. Attendees doze off. Gates stops speaking, attendees leave to look at cool stuff not made by Microsoft.

Video is big!  Presence is big, big, big!

Thank goodness for engadget, gizmodo, and gear live.

When will there be a good ebook reader?  The arguments about Google Book Search seem to be driven by publishers' fears that a useful reader is just around the corner and they won't be able to keep their books from being read by it. 

Maybe next year.

I'm back from wherever I was, and I'm glad to see that the recent Wikipedia bashing (danah boyd had a great post on this) has been answered in the New York Times today by George Johnson. 

Johnson is responding to a recent Nature article that claimed that there were an average of four errors per Wikipedia article (using a sample of 42 articles, and asking experts to assess them) and three errors per Brittanica article.  He goes carefully through representative "errors" and find that they're not clearly errors much of the time.  And then he sums up, delightfully:

Whatever their shortcomings, neither encyclopedia appears to be as error-prone as one might have inferred from Nature, and if Britannica has an edge in accuracy, Wikipedia seems bound to catch up.

The idea that perfection can be achieved solely through deliberate effort and centralized control has been given the lie in biology with the success of Darwin and in economics with the failure of Marx.

It seems natural that over time, thousands, then millions of inexpert Wikipedians - even with an occasional saboteur in their midst - can produce a better product than a far smaller number of isolated experts ever could.

Meanwhile the competition has some catching up to do. While Wikipedia includes a good, balanced article on the history of Britannica, Britannica has not a word to say about Wikipedia, as it rapidly becomes one of the most significant phenomena on the Net

Great stuff. 

This debate underscores, yet again, the importance of thinking of networks differently.  We have this idea that there are only two ways to do anything -- either you create and sustain artificial monopolies so that people will have incentives to create (that's the copyright story), or you open the doors so that competition will emerge (that's the market story).  But here, in Wikipedia, we have something not driven by market competition (as we usually understand it) or enhanced by artificial property incentives. 

Wikipedia, like so many other beloved online resources, is a group-"owned" and created thing.  The group has no boundaries except shared interests in particular pages.  It's doing very well.

We don't have to constantly choose between security and freedom -- we have a third way to do things, and this way  involves shared values and collective activities.  Only networks that allow groups to form and people to post things can make this new form of governance and action possible.

Now that we have this network, this self-governed resource, it's very apparent that it is a pre-existing ecosystem (like the ocean) that no one can claim to own except the constantly-changing group that created it.  This makes cable/telcos into nothing but owners of beachfront property. 

In the US, you're not allowed to block people from walking across your beach near the waterline.  It's winter here in NY, so I'll post this picture as a reminder.

When I was away from NY last year, sitting in a hotel room halfway around the world, I found myself checking Gothamist.  It has a certain flavor.  Here's a recent entry:  The Most Inconvenient Commute Contest.

My commute, between my bedroom and my living room, was not all that bad during the transit strike.  There was a shoe in the way at one point, but I made it through.  That's because I'm just writing papers and grading exams; I don't have to leave home.

But these have been tough days for millions of other people.  BlogNYC.net is selling commemorative t-shirts:

There are many many pictures of the transit strike atmosphere.  Newyorkology has many useful strike-related posts (sample). It took people hours and hours to get home. NYCMetblogs is full of stories.

The big story has got to be, though, that lots of people stayed home and huddled around their broadband connections.  Or maybe I'm just feeling slightly guilty for having avoided the entire thing. 

Not to be tendentious, but it really does seem that we're lurching from one crisis of leadership to another here in the U.S.  And none of them, for whatever reason, are sticking -- so we go on lurching.

What went wrong?

I'm reading a biography of Lincoln by Doris Kearns Goodwin called Team of Rivals: The Political Genius of Abraham Lincoln.  Lincoln managed to travel some very difficult political roads in his life, and I thought the book might be helpful in understanding political dirty pool -- surely 19th-century dirty pool was just as dirty (maybe dirtier) than 21st-century dirty pool is. 

Here's a paragraph that struck me yesterday:

It was a country for young men. "We find ourselves," the twenty-eight-year-old Lincoln told the Young Men's Lyceum of Springfield, "in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate." The founding fathers had crafted a government more favorable to liberty "than any of which the history of former times tells us."  Now it was up to their children to preserve and expand the great experiment.

Great experiment?  Peaceful possession? And, the big one:  a government more favorable to liberty than any other in history?

What went wrong?

One of the big problems with the enormously problematic E911 Order [warning: very large and very strange pdf file] is that it required VoIP providers to hook into the legacy E911 system controlled by the Baby Bells without mandating that the Bells allow the VoIP guys to connect.

This was a tailor-made holdup situation for what was already an enormous holdup.  (Remember that it took the wireless industry more than ten years to figure out how to work with the legacy E911 world, but the FCC only gave the VoIP companies a few months.)  The Bells had full authority to give the appearance of being helpful while slowly dragging their feet and pushing the VoIP providers (their competitors) closer and closer to a deadline that (initially at least) was supposed to trigger mass cut-offs of VoIP customers for whom E911 service wasn't available.

Diabolical, right?.

Well, the scheme is even worse than that.  The Bells are required to let local competitors (the people who know the acronyms call them CLECs) connect.  CLECs can, therefore, provide VoIP guys with the access to the E911 system that they need to avoid being subject to enforcement actions by the FCC.  

So this paragraph in a recent Drew Clark column caught my eye:

‘That [selling retail access to VoIP providers to selective routers] is probably a business opportunity for many of the carriers that are out there,’ [FCC Chairman] Martin said . . . ‘I have continued to believe that the competitive carriers are going to play an important role and many of our rules and regulations should be viewed as actually an opportunity for people.’

What?  Let's get this straight.  This means that the FCC is not only pushing for VoIP providers to be obligated to go through the legacy system—a solution that is bad enough in itself—but further ensuring that they must work with middlemen to do so. (If the Commission had wanted to open the legacy hardware to the VoIP people, the FCC could have done that.)  And, to boot, FCC is propping up the middleman-market as an “opportunity” for their familiar regulated entities, telephone companies.

I'm pretty cynical about the entire E911 debacle, but this is breathtaking.

Let's go for BPL and hand it over to FERC.  Soon.

(like the acronyms?)

If you are looking around for places to park your tax-deductible contributions, I want to recommend two to you:  Public Knowledge and Greenwood.

They don't compete with one another, so they can't be miffed about being included in the same post.

Public Knowledge had some great victories this year, and has more battles ahead.  They won their case about the broadcast flag, they're fighting tech mandates on the Hill, and they're digging into a host of telecom issues.  You can go here to donate to them.

Greenwood is a music camp in western Massachusetts that is dedicated to teaching kids about chamber music.  It's a generous, kind place and you'd like anyone who ever went there (this is not a plug -- I didn't go there).  You can go here to donate to them.

I can't really pretend to tie these two things together.  But these are tough times for telecom policy and chamber music and both causes should be supported.

In the ICANN context, it seems to me that we could benefit in many ways by having between-meeting discussions, asynchronously, using visual tools that incorporate text. 

We might be able to come to decisions -- something that is almost impossible to do in an email stream.

We might be able to continue communicating, rather than letting things sit for three months while we gather our strength for the next eight-day meeting.

We might be able to get quick input from people other than those who are able physically to attend meetings.

And, finally, we might make more visible ICANN's policy processes -- something that is needed.

I received a few email messages after my last post about this subject, but I'm looking for more.  Send word if you've worked with an online application that seems to facilitate this kind of work and is easy to use.  And is free (or inexpensive).

Particularly in an era in which our own President doesn't seem to care much about what laws say, it seems important that at least the people drafting the laws -- senators and representatives -- have a pretty good fix on what they're writing down.

So I want someone to call both Mr. Sensenbrenner and Mr. Conyers and ask them to explain how the Analog Hole bill (introduced late yesterday - 35 page PDF) works.

I bet they won't be able to do it.  Oh, maybe they'll say something about "protecting digital content in a terrifying time," but they probably won't be able to go farther down the rhetorical ladder.

It's not an easy bill to parse.  It looks as if two marking schemes, CGMS-A and VEIL, are going to be required to be acknowledged and adhered to through all analog-digital conversions of video.  That's just my guess.  The bill will probably affect an enormous variety of devices that have analog inputs.

Now, the existence of analog inputs has been heavily relied on in Hollywood's discussion of why the broadcast flag was such a dandy idea -- "plenty of room for fair use!  you've got all of those analog outs that we're leaving alone!" -- so if these things disappear that has to affect the fair use balance.  The bill appears to carve out private copying of broadcast television, but that's not very clear, and even that will presumably disappear as DTV is phased in.

More to the point, this bill has the appearance of a snarling, heavily-detailed technical mandate.  It even has a Table W at the back, where the marking system is (impenetrably, to me) tied to a particular approved device response. 

I await the responses of Messrs. Sensenbrenner and Conyers.  Surely the proponents of such a technical bill will be able to explain it to us.

There's an article [requires registration, sorry] by Hiawatha Bray in the Boston Globe from a couple of days ago making the rounds.  It reports on yet another assault by incumbent telecom providers on the open internet.  We need to leave these dinosaurs in the dust.

Here's their plan: to provide tiered access to online services.  "Regular" internet access would be pokey; "premium" access would be fast enough to allow for a good video experience; and no competing services would be allowed on the "premium internet."  Of course, the "premium" whatever -- let's just go ahead and call it a "channel," because this is just a dumb broadcast model plunked onto online life, borrowed from the mobile phone world -- would not be the internet.  There would be no place for start-ups who couldn't afford to pay their way in; consumer choice would be sharply limited; and walled gardens would be the order of the day.

BellSouth says this:

''When costs are being driven into an equation, they have to be recovered somewhere," said Bill Smith, chief technology officer of BellSouth. ''Why do fundamental business economics not apply to the Internet?"  

BellSouth and the others say they won't be able to provide high-speed access unless they can be confident they can monetize their networks -- and avoid competition for their video and voice services.

They wouldn't be able to do this if we had more choices for broadband access.  These companies are able to act like monopolists -- raising prices for what should be commodity services -- because they don't have competition.  That's why the first move has to be to find alternative routes online. 

The hard question is:  how unhappy will Americans be with comfortable, broadcast-style, fully-packaged-and-protected highspeed access?  Maybe not unhappy enough to revolt.

Meanwhile, Chairman Martin plans to take yet another legacy disaster, the Universal Service Fund, and have it siphon off funds from online applications.  It's unclear how this will work, but recently proposed legislation would levy fees on any use of IP addresses.

According to the CNET story,

The mammoth fund--$4.7 billion was distributed during the first nine months of this year--has been beset by charges of mismanagement and fraud during its seven-year history.

So:  Graft, fraud, taxes, slowed services, and walled-garden control.  Someone on Capitol Hill needs to remember that the internet came to be the economic engine that it is because we restrained ourselves from acting this way.  America should be leading the world in its enlightened approach to the internet -- instead, we seem to be falling farther and farther behind.

I spent part this evening as part of a panel talking about Google Book Search. 

The publishers take the view that any effect on any prospective market they might want to enter into fatally undermines a finding of fair use.  The logical outgrowth of this position is that because there are innumerable possible markets out there, mass uses of any kind can't possibly be fair -- to the publishers, scale matters enormously.

Translated:  Google makes a complete scanned copy of books.  That copy isn't made available to anyone else (other than the libraries with which Google has arrangements, and their uses are in turn sharply limited.)  That reproduction is fair use, in my view, and doesn't require permission from the publishers.

Why?  Because it's an essential step towards the transformative "snippet" view -- can't get there without making a copy.  And even though it's a complete copy, that doesn't mean the use isn't fair (see the "multiple copies for classroom use" part of Sec. 107).  And the existence of this reproduction doesn't undermine sales of the book.  In fact, the snippet view may actually lead to many more sales.

Well, that doesn't satisfy the people who have sued Google.  They point to the fourth factor in Sec. 107, and say, "Google's possession of this copy is having an effect on the POTENTIAL MARKET for the work.  Google is working itself into a position to be the world's bookstore for e-books.  We won't be able to create our own market along those lines, and so our potential revenues are being undermined."  Q.E.D.

The world is sufficiently unpredictable that anything could happen, right?  So fair uses that threaten any possible secondary market can't exist, according to the publishers.  In effect, they'd like to use copyright law to protect against network effects and first-mover advantages that they can't personally monetize.

I very much hope that Google won't settle this case.  We need these issues decided.

In the US, we are dangerously close to requiring indecency limitations on cable channels -- next will come calls to similarly regulate satellite, and eventually online streaming video, all in the name of maintaining a level regulatory playing field.  All of this is probably unconstitutional, according to the Congressional Research Service. 

(Recent joke:  Kevin Martin is so conservative that he wants to take the "F" out of "FCC".) 

In Europe, the Television Sans Frontieres initiative continues to steam along, with a new draft directive coming out from the Commission by the end of 2005.  Draft language from July 2005 read::

Member States shall take appropriate measures to ensure that audiovisual content services are not distributed in such a way that might seriously impair the physical, mental or moral development of minors.

In respect of non-linear audiovisual content services [e.g., streaming online video requested by users] Member States are encouraged to put in place systems of co-regulation or self-regulation as well [as] systems of filtering, age verification, labelling and classification of content.

It's not clear to me what the plan is for the end-of-December legislative draft, but I will wager that some restrictions on online video pronounced in the name of protecting children will be included ("in order to protect the public and to avoid the distortions of competition," in the words of a French official).  Mandated standards will likely be set by government, to be implemented by industry.

Migrating a Television Sans Frontieres-like regime (which includes rights of reply, advertising restrictions, and other elements as well as "protecting children") onto cable-satellite-internet in the US might have seemed unthinkable ten years ago.  But times have changed.

Many members of Congress think that pornography on the internet has to be regulated, and mere unconstitutionality probably isn't a good enough reason for them not to pass such laws.  And the FCC seems ready to break some kneecaps (= block some deals) in order to reach similar ends.

So here's what we need:  an idealistic, persuasive, charismatic, well-informed mogul of the First Amendment.  Someone who isn't conflicted by client representations or business interests.  Someone who can talk to the whole country about the importance of the free flow of speech online and off.  Someone who can lead.

Send word if you spot this person on the street or in a meeting.

James Enck does it here using this tool.

via Eurotelcoblog