"Many Increasing Returns" is the title of the article I'm working on now.  And I'll talk about it tomorrow at Columbia. 

News: DOC approved ICANN's contract with VeriSign for .com today.

CDT and PFF urged courts not to let FCC have regulatory authority over speech in the internet age.

And here is a holiday carol.

Ofcom just released a report today about global telecommunications developments.  Key findings here.

Unsurprisingly, people are watching less television, spending less time reading newspapers, spending less time listening to radio offline.  Young people do even less of these things.  And Ofcom notes that there is a lot of online advertising.

Ofcom is absorbed with "convergence" -- that word for the future that current incumbents would like to see, when services are available online but neatly divided into labeled "IPTV," "movies" etc. categories.  The data seems to indicate that convergence is already here, without the need for labels -- and the categories aren't always so clear.

And, this just in:

Our 2006 UK Communications Market research on young people in the UK has highlighted the growing role of the internet as an integral part of the social fabric for many young adults today, with the majority using it as a tool for interacting with peers and meeting new people via online communities, often referred to as ‘social networking’.

Aha.

But on a serious note, this:

Next-generation networks (NGNs) will be able to carry the full range of current communications services via data packets, and the nature and timing of NGN deployment will depend partially on the policy decisions regulators make about whether to intervene (and in what manner) in relation to these infrastructure upgrades.

What?  The internet already can carry any packet.  With enough bandwidth installed, any kind of communication can be watched and interacted with enjoyably.  So what's missing that requires an acronym? Why not say we're deploying bandwidth -- why invoke a whole slew of centralized standard-setting exercises? 

Much to ponder, at any rate.

It's been a long day of gathering information about S. Korean and Japanese highspeed internet access policy.  

Culture makes a big difference, as does leadership.  If we here in the U.S. decided it was a priority to provide universal highspeed internet access, and we had someone leading us who understood the economic growth/diversity/access connection, we might make progress.  But our culture doesn't favor technology and education and getting ahead in life to the same extent that Japanese and Korean cultures do.

Factoids:  Japan alone has more fiber subscribers than the total number of highspeed subscribers in 22 of the 30 OECD countries.  Most of these Japanese fiber subscribers are signing up with NTT East/West (they control 64% of the fiber lines), which is serving to reconstitute that company's old monopoly on connectivity -- in the DSL arena, there is fierce competition.

And, boy, are social networking services popular in Japan.

In 1995 South Korea decided that highspeed internet access was important to that country’s economic growth.  They decided to ensure ubiquitous broadband access of 20Mbps by the end of 2006, and backed up the decision with a direct investment of $1.5 billion plus targeted loans and mixed public/private investment encouragement.  Universal highspeed internet access has been a central condition of Korean policy for the last seven years, and the government has carried out a plan of investing $30 billion in this access, through direct government investment and indirect, privately-funded initiatives.

In a recent speech, media mogul Rupert Murdoch decried the state of broadband infrastructure in Australia, and urged the government to get involved in investing in a fast network that would cover “every town in Australia.” He said:

They do it in Japan, they do it in South Korea. We should be able to do it here . .. We are being left behind and we will pay for it.. . When you have broadband - real broadband, not the type they're talking about here - where you get, say, 20Mbps of data into your home, it changes everything. . . Broadband certainly is going to become ubiquitous around the world, and if you don't have it, you're left behind.

Diverse new ideas whose development is made swifter by the advent of the internet and its special characteristics are likely to emerge at a greater pace once highspeed access is widely available in this country.  As Rupert Murdoch has got to understand, participating in this ecology is becoming more important to the economic and cultural success of Americans and the overall economic growth of this country. 

We should tie universal service programs to the principle that funding highspeed access to the internet for all should be a top social priority, to be funded out of general tax revenues. 

[Thanks to David Isenberg for many many useful pointers, including but not limited to the Murdoch speech]

At the moment, federal telecommunications policy seems to have no coherent set of goals.  We have complex and separate regulatory structures covering telephony (wired and wireless), broadcasting, cable television and satellites. Although there is no express delegation by Congress to the FCC to regulate the internet, the FCC sometimes imposes heavy-handed rules (E911 and CALEA for VoIP)  and sometimes claims that its chief goal is to be deregulatory. The various policy aims identified by FCC-watchers are sometimes in conflict. Congress spasmodically takes up indecent speech, gambling, spam, spyware, and privacy, among other online topics – without, it seems, an underlying theory that would help prioritize or rationalize regulation. 

Even without a clear goal, these regulatory actions affect outcomes and create controversies about which economic and social benefits should be preferred or can be attained.  We are stumbling forward, tinkering blindly with the greatest value-creation system we have ever seen.

It is clearly time – it is beyond time – for an organizing principle for communications regulation to emerge.  Traditional regulatory silos no longer make sense in this era of digital abundance. Given the advent of smart devices that can avoid interference, spectrum regulation should be substantially loosened over time, and more spectrum opened up for ad hoc uses. Given the abundance of communications available, supporting broadcast content regulation based on a scarcity rationale seems less and less defensible.  Media concentration concerns based on, again, scarcity of megaphones in any given locality seem to defy reality, and strict quota-driven approaches to “diversity” (including must-carry rules for cable systems) are poor proxies for actual encouragement of diversity.  News is coming from all directions and from a multitude of voices.  Telephone regulation is being undermined by the swift advent of online voice services. Aware that explicit authority over the internet is not granted to it in the Telecommunications Act the FCC has moved to assert “ancillary jurisdiction” over everything from devices to online applications.  The unbundling regulations applied to telephony providers in the 1996 Act have been gutted through litigation. Traditional forms of communications modalities – postal mail, the press, entertainment distribution systems, telephony – are gradually melting away because of the emergence of online substitutes.

Given this categorical blurring and increased importance of online communications, whatever organizing principle we seize on for communications regulation should be explicitly calibrated for the internet. 

And given that communications law should be focused on contributing maximum value to society, the key organizing principle for communications law must be to support the emergence of diverse new ideas online – because that is where economic growth for society as a whole will come from. 

This form of diversity support is not the same as the kind of quota-driven artificial “diversity” that has been used to force broadcast content regulation.  Rather, this kind of online diversity stems from allowing the end-to-end, content-neutral, layer-independent functions of the internet to flourish, and allowing human attention to pick and choose from among the bad ideas presented online, enabling good ideas to persist and replicate. 

Think Jane Jacobs diversity.

This principle for future communications regulation – encourage diversity – has immediate practical implications.  The traditional central problem for telecommunications law theorists is the role of the “last mile” or “local loop” connection between an incumbent’s central office and the home of a consumer (or a local business).  With the arrival of high-speed connectivity, this last mile connection is now providing access to a system of human communications that is more capable than any past system of generating the diverse new ideas that will support continued economic growth in this county.  Yet the desires of network providers to control and prioritize access may frustrate this digital engine of diversity.  At the same time, we have not made access to this system of human communications sufficiently universal. 

Universal highspeed access to the internet -- Korea did it by forcing competition through unbundling (including unbundling cable networks!), putting up grant money, funding research, educating huge numbers of users, and making some strategic investments.  That should be our goal here.

Most of the time when I talk about the need to treat internet access like a utility, I get amused smiles.

That's the thing we have to change -- the idea that it's unthinkable (amusing, even) that we could take this increasingly singular but private relationship of people to broadband internet access and make it a public relationship. 

But end-users really don't care whether their provider is a cable company or a telephone company -- they think they're getting the internet.  They're probably not even aware that a private company is providing internet access to them.  And there are even a few people out there in the U.S., despite our best efforts, who don't understand that these private companies have every incentive to prioritize and manipulate their way into showing us "channels" instead of the internet.

This re-framing isn't easy.  We haven't nationalized an industry in a while.  It's not clear that our government would even be particularly good at making fast internet access into a true public priority and resource.

But as all other categories of former media fall away, as telephony, the press, the movie industry, the postal service, and broadcast all become part of an enormous digital pond, it makes less and less sense to treat access to this crucial informational resource like candy-bar sales -- particularly when the market for access isn't itself competitive. 

As I say, all I get is smiles when I say this.  It happened again today, that amused smile.  I hope by a couple of years from now the idea will be getting a different, and more respectful, reception.

Someone recommended a lovely essay to me by James Boyd White: Constituting a Culture of Argument: The Possibilities of American Law (a chapter from a book, When Words Lose Their Meaning).  I'd link to it, but it's not available online.  Try your local library.

Boyd White left English literature for law study, and found the interrelations of the two disciplines interesting and pleasant.  His concern and respect for the law as expressed in this essay is deeply felt, and I wish that engineers who are contemptuous of lawyers would give this chapter a try.

From what I can tell, engineers think that law is something that lawyers manipulate to get something done so that they'll be paid.  So lawyers are tricksters and the law is a tool.  And lawyers, seen this way, are likely to be terrible dinner companions.

James Boyd White tries to explain that law is a collective conversation -- a highly formal one, sure, but a narrative nonetheless:

The law is best regarded not so much as a st of rules and doctrines or as a bureaucratic system or as an instrument for social control but as a culture, for the most part a culture of argument.  It is a way of making a world with a life and a value of its own.  The conversation that it creates is at once its method and its point, and its object is to give to the world it creates the kind of intelligibility that results from the simultaneous recognition of contrasting positions.

. . .[The law] establishes roles and relations and voices, positions from which and audiences to which one may speak, and it gives us as speakers the materials and methods of a discourse.

So law is a conversation that allows us to find meaning, or talk about meaning, in the world.  It's very self-consciously rhetorical, actually -- we lawyers always talk about how we should talk, who has the right to talk in a given context, what forms of argument are acceptable, how to constitute community and government and authority.  Yes, truth may be contingent, and that's very annoying to the engineers -- but that is how we make something out of nothing, a government out of people, without killing one another. 

The Declaration of Independence is seen by James Boyd White as an inspirational text, something written to recreate in the hearts of all who read it the same feeling of a grand motive based on a sense of common identity.  It's a lawyerly text too -- it's an argument as well as a declaration.

So lawyers try to articulate basic commitments all the time, and judges often write highly rhetorical and symbolic opinions.  We're all working on a conversation, and many points of view need (and deserve) to be aired as part of this conversation.  It's supposed to be an open system, the law -- more like music or English literature than it is unlike these humane pursuits.

It's fine to be cynical, and to dislike the niceties of lawyers, and it's also too often true that you get the law you pay for.  But I do wish that the engineers weren't quite so dismissive of the lawyers.  They're not all bad.

There's a large report out from the United Nations Conference on Trade and Development this month on the relationship between development and information technologies.  In skimming it this evening, I noticed an emphasis on the importance of government policy in enforcing competition or promoting broadband uptake.  The idea is that broadband policy is closely linked to economic growth:

Corporate analysts estimate that broadband could contribute hundreds of billions of dollars a year to the GDP of developed countries in the next few years, and liken it to water and electricity as “the next great utility” (Whisler and Saksena, 2003).

(from p.45).  The work of growth theorists reveals that choices made by government to stimulate the production of new ideas can have an significant effect on economic growth.  Compared to a country with restraints on idea-generation diversity, a country supporting free trade in ideas should tend to have a greater amount of resources devoted to idea-generation and thus a higher rate of economic growth.  At the level of the country’s economy as a whole, increasing returns should be the result.  The state of a country's telecommunications infrastructure has strong effects on economic growth -- and the fact that our public infrastructure is under the control of such a concentrated duopoly of access providers (none of whom is interested in providing open, unprioritized internet access) should be a cause for great governmental concern.

Better growth policy could have implications for the standard of living of all Americans that are so enormous that they are hard to understand.  For example, if the rate of economic growth over the next 45 years or so were to increase by 0.5% per year, it could fix all of the budget difficulties associated with the aging of the boomer generation, with a lot left over. 

I'm at the tail end of that generation, so I'm anxious to get this fixed. We won't be stimulating the production of new ideas by having telcos/cablecos in charge of innovation.

OneWebDay 2007 is ten months away.  We've set up a wiki page for planning purposes on the OneWebDay.org site.  I've got some people creating a great composite zippy video from the 2006 materials, and that will be released online before the end of the year.  The video will explain what OneWebDay is all about and will prompt lots of participation.  But the wiki help on planning would be great.

Another wiki page, this one about ICANN meeting improvement is here on the ICANNwiki.  If you have any interest in ICANN, please edit and comment.  There will be a public session at the next ICANN meeting about all this (in São Paulo on Wednesday, 6 December, at 15:00 São Paulo time, which is UTC -3, audio feed, webcasting and transcription of the workshop will be available), and the more public feedback there is beforehand the better.  Plus there's a questionnaire here.  Wiki, questionnaire, email comments -- whatever -- please get involved if you're interested.

And the question:  I'm part of a conference on personal ultrabroadband on Dec. 1 (announcement here).  Before the conference, I would like to talk to someone who knows all about public policy in South Korea on broadband.  I've been poking around online but an actual conversation would be wonderful.

Thanks for the help.

Great article here about the future of the internet -- in South Korea.  Everyone's a netizen.  Everyone has cheap broadband.  Nine out of ten 20-something Koreans are part of Cyworld.  Online activists helped elect the President, and the President gives his first interview to OhMyNews.

South Korea made the decision ten years ago to invest in high-speed (competitive) internet access and subsidize cheap PCs -- as a result, they have just about the highest broadband penetration in the world.  Not only has the dream come true, but economic growth comes attached.

Meanwhile, someone sent me a Wall Street Journal Europe article about VCs carving up an Irish telephone company to treat transport like a utility.  The big guys can watch the model and then think about selling their own networks to raise some cash. 

Ireland is a model proving ground to attempt a split, says Robert Topfer, head of corporate finance at Babcock & Brown. Because Ireland has a relatively small population of about four million spread out over the island, it would be too expensive for any competitor to build a network reaching all the homes and offices, leaving Eircom with a monopoly. The company must share the network by leasing access to competitors and others such as Internet providers, but the system for doing that is clumsy and loses money and is a headache for regulators.

"We share, but we share begrudgingly," Mr. Topfer says. The answer, he says, is to hive off the network and regulate it like a utility. For the regulator, such an outcome would be "nirvana," he adds.

So the money guys see the advantage in separation. 

As I've mentioned in the past, the EU telecommunications regulator keeps talking about separation and suggesting that taking this step would help the competitive picture all over Europe.

There are good ideas all over the place outside the borders of the U.S. -- all we need now is bravery, and we'll be able to catch up.  I hope.

Today the Supreme Court of California issued its much-looked-for decision [warning, pdf] in Barrett v. Rosenthal.  Unlike that kooky dicta-ridden Craigslist case from last week, this one falls right in line with Zeran and lets online service providers (and users!) breathe a sigh of relief.

It's based on some strange facts.  Rosenthal, the defendant, forwarded an allegedly defamatory article written by someone else to a newsgroup.  The statute, 47 USC 230(c)(1), says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  But the "user" part hadn't come up before in litigation.

Who's a "user"?  The court decides that a user is -- a user.  Anyone using an interactive computer service.  So by forwarding or posting the article, Rosenthal was a user.  She shouldn't be treated as the information content provider and held liable for its content, because she didn't write the article.

The strongest and most useful part of the opinion squelches the argument that "distributor" liability was somehow left untouched by Section 230.  If this argument had prevailed, "publishers" would be immunized from defamation liability, but "distributors" would be on the hook if they "knew or had reason to know" that there was some potentially defamatory material on their servers. 

Nonsense, the court says.  This would be terrible for interactive computer services -- an impossible burden -- because every time they received notice of something potentially defamatory (had "had reason to know" such a thing) they'd have to make a judgment about it and decide whether or not to continue the publication.  Far too many bits flying around for that to make sense.

My favorite section of the opinion is the part pointing out that the legislative history of the Dot Kids Implementation and Efficiency Act, 47 USC 941, includes specific language making clear that registrars and registries with responsibility for .kids.us are "interactive computer services" for the purposes of Section 230.  The committee report prepared in connection with the Act says that Zeran etc. was correctly decided.  Bravo.

If telcos are having trouble attracting investment from capital markets because no one's sure they'll do well in the long run, structural separation may make sense -- even to them.   Just a few regulatory shifts and some bravery stand between us and a more competitive and choice-filled world of communications.  And with separation and competition may come economic growth as well.

Nice pointer from EuroTelcoblog in this direction -- thanks to James Enck and his reportage.

Someone must have told me years ago that extended warranties on equipment are a bad idea. So I never get them. Nor do I ever get frequent buyer cards. Life is too short for me to remember the details about the warranty. And I know myself well enough to be able to predict that I'll never have the buyer card with me at just the right moment.

I was told tonight that businesses like Best Buy make high profit percentages on extended warranty sales. Consumer electronics are becoming a commodity, so the real money is in service contracts that (with any luck) won't get used.  (Consumer Reports story here.)

Extended warranties are a mysterious business.  There's no requirement that the manufacturer actually service its own material, so there may be one giant warranty-servicing company out there (right? one Beatrice Foods of warranty services) doing all the work. And making, one hopes for their sake, a lot of money.

Things with moving parts break, and the long tail must have a warranty equivalent.  Thinking about this has led me to Warranty Week, an online magazine for "warranty management professionals."  The extended warranty guys are apparently irritated at their bad reputation, noting that no one says negative things about basic manufacturers' warranties.

This seems like a market that, like the travel industry and the bookselling industry, is ripe for creative disruption online. If consumers really understood what warranties they were getting, and were able to manage them in aggregated places, we'd be better off.  Right now, it's hard to compare extended warranties, there's a huge variety of consumer electronics being bought and sold, and manufacturers' warranties are getting shorter and shorter. Time for a big, detailed, extended warranty marketplace to emerge.

I know it isn't even Thanksgiving yet, but I had some moments of thought about next term today.

I'd like to have every person in both of my classes next term (cyberlaw and communications law) posting reactions to the reading/answers to questions/suggested new questions online in some comfortable wiki-place.  This worked well in my seminar last year, and it was great to see the students reacting to things their classmates posted.  (I've said this before -- I knew the class was going well when they started arranging for cyberlaw-seminar drinks after school using the wiki.)  The Paul Romer online problem-set approach doesn't fit law school perfectly, but the lecturing-plus-exam approach isn't the best either. 

So, not for the first or last time, here's a request:  if you've got suggestions for online tools or techniques that have worked well for you, as a student or teacher, please let me know.

There's a fascinating decision [warning: enormous pdf] out of a federal district court in Chicago about craiglist's liability for fair housing act claims.  Spoiler:  craigslist is not liable for what posters say in their advertisements for roommates ("Christian single straight female needed").  I think the court gets to the right result, but the opinion contains some dicta (language not essential to the holding) that isn't helpful.

The judge finds that 47 U.S.C. 230 shields craigslist from liability under the Fair Housing Act (look at section (c)), which bars everyone from taking the following steps:

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

The advertisements posted by craigslist users may violate this statute, but craigslist is an Interactive Computer Service under Section 230:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Starting with the Fourth Circuit's 1997 Zeran decision (described here), an enormous number of courts have found that Section 230 provides immunity from claims under federal law (except, generally, intellectual property claims) to online service providers of all kinds.  The Zeran court noted that making entities or people who don't originate online material liable for it would have staggering effects:

It would be impossible for service providers to screen each of their millions of postings for possible problems.  Faced with potential liability for each message republished by their services, interactive service providers might choose to severely limit the number and type of messages posted.  Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

Many companies have relied on Section 230 and the cases construing this statute to assure their investors that they won't be liable for claims that have to do with third party content.

The craigslist opinion (from a lower court, not an appellate court, but noting dicta in a 7th circuit opinion) in dicta disagrees with the traditional Zeran reading of Section 230 in a couple of crucial respects.  First, the court asserts that sites/services are protected by the statute only for claims that would treat them like a "professional" publisher -- like someone who edits and chooses what to post.  Claims that have to do with the site's role in simply making available the material are not barred, in this court's view.

That's strange, because the universe of claims that have as one of their elements a fingerpointing assertion that "you are an editor" is small.  (Indeed, the fair housing claim in this case is one of the few.  Plus defamation.)  This reading of Section 230 narrows its immunity function substantially.

Second, the craigslist court opines that if a site actually alters material that is then made available (and the altered material sparks a legal claim), then the site shouldn't be immune under Section 230.  This is a big deal, because mere editing and selection so far hasn't been enough to make the site liable as an "information content provider".  The court hastens to note that the alterations would have to be part of the challenged material, but this really muddies the waters.

The important takeaway here is that this new decision asserts that the immunity function of Section 230 is limited to claims that specifically include "publishing" as an element.  There aren't many claims like that.  Now, it may not really matter, because the court does use the statute to protect craigslist.  This is all dicta.

I think Congress intended Section 230 to do much more work than this court's crabbed reading would suggest.  The Preamble suggests as much:

(b) Policy
      It is the policy of the United States -
        (1) to promote the continued development of the Internet and
      other interactive computer services and other interactive media;
        (2) to preserve the vibrant and competitive free market that
      presently exists for the Internet and other interactive computer
      services, unfettered by Federal or State regulation;

If the goal was just to shield sites from defamation and fair housing act claims, we wouldn't have needed that preamble.  The deal struck in Section 230 was to provide broad immunity, and the term "publisher" didn't just mean editing -- it meant not holding the site liable to the extent it made material from third parties available.  

This case isn't the last word or even (arguably) an important word on online liability.  Zeran is still the circuit court opinion that courts will defer to, and the 7th Circuit doubt is dicta; yesterday's opinion came from a lower court within the 7th Circuit and its narrow reading is itself dicta.  But if another federal appellate court reads Section 230 differently than the Fourth Circuit did in Zeran, and if the Supreme Court decides that this circuit split is worthy of attention, then we may someday get an opinion from them about this that will give different guidance.

[Updated to make the "dicta" point a few more times]

Things I heard yesterday at CDT (this isn't an attempt to capture the thrust of the conversation, just to note some interesting assertions that I want to follow up on):

1. that the U.S. Post office attempted twice to claim that they had exclusive rights to deliver "mail" and that they should be in control of email.  Looking for details.

2. that it would cost less to deploy fiber to everyone in America than to buy a new car every 15 years for each household.

3. that it would a good idea to require all ISPs reaching certain benchmarks (size of pipe, number of points of presence) not to depeer, and that in general it would be a good idea to abolish ISPs' ability to depeer based on asymmetry of traffic.

4. that companies offering everyone tiers of connectivity actually provide all subscribers with the highest tier, but charge the group asking for it specifically ("I want the highest level of bandwidth!") more.

5. that all of the most subtle prioritizing techniques are possible, but no one knows whether they'll actually be used.  And we can't tell whether they're being used now or not.

More generally, it seems clearer to me all the time that all the claims to exclusivity and specialness made by particular communications modalities don't fit reality.  ("We're cable and we own our pipes.")  I don't understand how the user will tell the difference.  It will just be a broadband connection to a sea of digital data, organized by entrepreneurs and groups into meaningful patterns with which we'll want to interact.

I'm still in motion (today in New Haven) and looking forward to getting back to NYC this afternoon. TMobile isn't letting my mail go out of this Starbucks. The cellular story is the worst part of this whole picture.

Yesterday I moderated a panel at Cardozo as part of a conference called Patenting People.  The discussion was about whether there should be new laws (more Congressional oversight?), new institutions (bring back the Office of Technology Assessment!), or new global convergence about whether to issue "morally controversial" patents.  ("Other countries ban reproductive stem cell patents, why not us?")

Given how much trouble we have supporting basic science of all kinds, the benefits of encouraging disclosure of new inventions through the patent system seem to me to far outweigh the burdens.  And how will we ever know, beforehand, how a particular invention will be used?  So I'm fully in the "more science, more invention" camp.  But reasonable minds differ on this question, and we had a good session.

Then I tried to get to DC.  It was raining heavily; I barely made it to the train station, and then it took almost five hours for the train to crawl to Union Station.  When the train finally ground to a halt, the doors didn't open, and when they did there was a very long line for cabs outside the station.  It wasn't a very scientific, rational, or progressive trip.  But I'm here now, until this afternoon's train back through the greyness and damp towards New York.  Today is all Network Neutrality, all day. 

Yesterday I spoke at PLI's 2006 Communications Law program, an annual event that Jim Goodale has been running for 30 years or more.  Many traditional mindsets were on florid display:

Goodale is worried that online advertising is destroying newspapers, and can't believe that keyword-based advertising is legal. 

Bob Joffe of Cravath, representing cable companies, says there's been plenty of innovation in the form of additional cable channels.  And he's not even pretending that cable companies won't monetize their broadband networks.  Of course they will!  They own them!  (No more of this "it wouldn't be in our best interest to discriminate" stuff.)  Joffe was particularly skilled at the "there's no problem, no need to regulate" argument.

Dick Wiley of Wiley Rein, representing most incumbents, but particularly telcos, says that telcos are anxious to get into video and that that will represent online innovation.  He's claiming that the AT&T/BellSouth merger is being inappropriately held up by network neutrality proponents. 

In response, Gigi Sohn of Public Knowledge actively took on Joffe and Wiley -- this seems to be an annual sparring match, during which Wiley begins every sentence with "Well, Gigi, as you well know..."

There was a large, well-dressed, and middle-aged crowd in attendance.  Many suits and ties; not so many junior lawyers, as far as I could tell.  After the panel, we all went out to lunch in a very convivial fashion.  I'm glad Goodale invited me, and I had a fine time.

It was an odd morning.  These categories (cable, broadcasting, telephony, mainstream news) seem to be drifting farther and farther away from reality.  Everything is converging at this point.  But yet well-meaning people keep getting together to talk through these regulatory categories in a serious fashion, in ballrooms with pitchers of water and white tablecloths and microphones.  No laptops in evidence.

Very odd.   

I have four big projects right now -- being a researcher, being an ICANN director, making sure that OneWebDay has a life of its own, and being a violist.

The viola project is the easiest of the four, because it's the thing I've been doing the longest.  This hasn't always been true.  I remember when I first tried to play all four open strings on the violin (one at a time, up and down).  Very very hard -- right hand holding tight to the bow, right thumb locked underneath the bottom part of the bow stick (hard to explain without a picture), feeling of pain in my left shoulder and neck. I remember that when I first started the pads of the fingers on my left hand stung with pain; the topmost string was like a razor.  No wonder so many kids quit after a year or so.

I didn't know quitting was an option. So I kept going, and now when I don't play my hands don't feel as useful and the pads on the tips of my left fingers start to ache.  I switched to the viola when I was a junior in college because I thought I'd get a better job that way.  I've never looked back, and the few times I've played the violin since then I've sounded like a trombone player.

I did get a better job eventually, but as a lawyer and not a violist. About six years after I graduated from law school I started practicing every day again, not the three or four hours a day I'd done in college (not the smartest thing to do in college, by the way), but a solid hour.  I'm not sorry that I took the route I did.  Musicians don't get treated very well in America (except for a lucky few), and lawyers, amazingly, get paid just for thinking, writing, and talking.  What's so hard about that?  I remember the first day of my first job after I dropped out of music school. I couldn't believe that they would pay me for sitting in an air-conditioned office and keeping track of pieces of paper. It seemed like a game, a lark, a scam.

Now playing seems like a gift, a lucky thing I get to do that I've done all my life.

I remember a feeling of great happiness the day after Clinton was first elected President.  It was a beautiful fall day in Washington, and I truly believed that the world had changed.  I even remember walking out of the building I lived in (the remarkable and much-missed Kennedy-Warren, where I and everyone I knew at the time went to an inaugural ball for Clinton)

have to pause for a picture of the K-W lobby

and thinking on that bright fall day, "Boy, this is great! Just imagine what his election will mean for gay rights in America!" 

And, of course, within a month or so we had Don't Ask, Don't Tell and it was all a disaster and there was much disappointment ahead on scores of issues.

So I'm trying not to get too excited about all the Democrats running things on Capitol Hill right now.  I know that things may not work out. On the net neutrality front, the punditry is that there won't be a big telecom bill for a long time because the Bells have gotten the video franchise rules they wanted from the states.  Some people think net neutrality isn't really a standalone issue, so it can't fill up an entire bill on its own.

But there is an angle that might work.  Democrats should be, if they think about it, the party of long-range social planning.  They should be the party that worries about investment in fundamentals that will support society into the future.  Education! Stem cell research! National parks! Basic science of all kinds! And -- universal access to broadband.

If Congress takes a hard look at the state of universal service today they'll be horrified.  Graft, bloat, corruption -- paying for services that haven't been provided, paying more to more recipients by raising assessments, funding old stagnant service providers. . . lots of material here for dramatic camera-covered hearings.  Lots of good Perry Mason moments. And, at the end, we'll have to decide that what the US should really be funding is broadband access, not access to traditional telephone services.

Traditional voice telephone services are quickly being taken over by much less expensive internet services, so it makes little sense to continue funding the former as a national policy matter.  Improved broadband connectivity has been a national priority for some time (did you know we were supposed to get there by 2007? just a few weeks to go!), and it would make sense to implement this important goal more coherently as a matter of universal service policy.  The goal of universal service, after all, is to make communications technologies available to every citizen, and the relevant technology at the moment is broadband access.

The question of who should pay for universal service has dogged the policy discussion for years.  Finding a common fund method for paying for universal service seems essential.  Although difficult as a matter of political priorities,  it may be more appropriate to fund these universal service programs through general tax revenue rather than through imposing fees on nascent VoIP services. 

And once we start paying for broadband as a nation, we'll want to make sure that it's being provided on an open, neutral basis.  Why? Because that's essential to the overall economic growth of this country.

We have begun to understand that the growth in social wealth per capita over the last millennia is deeply related to the increase in the diversity of new nonrival ideas that has occurred over the same time. Specialization, or new ideas, and the increasing returns that come with specialization, is the key to rising output.  In the words of my new hero Paul Romer, “Economic growth arises from the discovery of new recipes [ideas] and the transformation of things from low to high-value configurations.”   Even small increases in economic growth can lead to dramatic effects on the standard of living of human beings.

An open internet is a world of new ideas. New ideas lead to economic growth.  If we pay for broadband access as a matter of social policy (and we should) we need to make sure that access is neutral.

But, again, trying to stay calm here.

This is my 765th post, and you'd think I'd know what I was doing by now.  But I don't.  I usually do these posts at the end of the day, and as part of my routine I delete all the zillions of trackback spam that's attached itself to this account. 

I keep deleting legitimate trackbacks. I've wiped out, recently, about six months' worth of legitimate trackbacks, trackbacks that I cherished.  Because they were mixed into a nest of spam I've blindly deleted them as part of a big batch delete -- I delete 50 at a time, and it takes quite a while.

I'm really sorry. I'll try not to do it again.  As penance, here is a drawing that you can use to make fun of me.

Network operators will often say, "If there was a business case for symmetrical bandwidth, we'd have it. But there isn't, so we're not offering it."

I finally understand what the problem is.  It's convergence.

From the telco/cable point of view, convergence means having the power to provide triple/quadruple-plays on their own platform.  Translated:  they want to be able to charge different amounts for IPTV, VoIP, and internet data services that are carefully controlled and presented to users.  That's convergence, and it's coming soon -- or just as soon as we provide them with the proper incentives (power to charge) that will encourage them to build out their broadband networks.

For the rest of us, convergence is already here.  There has been a 153% increase in VoIP subscribers in 2006 over 2005, with almost seven million subscribers in the U.S.  According to The New York Times, the U.S. newspaper industry “appears to be in a free fall.” (have you seen www.crowdsourcing.com yet?)  The advertising revenue on which offline broadcasters depend (up to $70 billion a year)  is threatened by the online advertising market, which is growing quickly.  So broadcasters are hedging their bets by making deals with YouTube. (Verizon has recently announced that it is in talks with YouTube to bring YouTube videos to its cellphone and broadband subscribers (signaling that those videos will not be available to those subscribers unless Verizon agrees to let them cross its networks)).  Independent film-makers of all sizes and varieties (from Jib Jab to someone in her living room) are doing well online.  As media is digitized for broadcast, it becomes available for online display, download, morphing, and transmittal.  Online video is malleable, convivial, topical, and extremely popular (in the memorable words of Andy Oram here).

But the network providers want their kind of convergence, and that kind requires artificial scarcity.  Including artificial scarcity of symmetrical bandwidth. 

So -- from their perspective, there's no business case.  Makes perfect sense.

In summary, the research draws the following conclusion: for a developing economy, investment in telecommunications is more productive than any other kind of investment — roads, electricity, or even education.

Report is here.

None of this is to downplay the developing world’s need for clean water, public health initiatives, and access to medical care, but if there is one area where capital investment provides outsized returns for individuals and nations, it is mobile telecom. And telecom is one area where developing nations can easily attract outside capital investment with regulatory policies that favor open access and competition. Best of all, mobile handsets work without a permanent electricity supply, people can use them without learning to read or write, and technology advances continuously drive down costs.

There was a segment about Art Tatum on the radio this morning.  He scared all the pianists who heard him, he was so good.  Tatum sometimes played for twelve hours at a stretch, amazing everyone with the complexity of what he could do with a song -- you can people chuckle and sigh on some recordings he made in the middle of the night.

Minds like complexity.  A mind doesn't even know it's a mind until it can tell differences, and there's nothing like music to bring differences to minds. 

[P]eople tend to prefer increasingly complex, information-laden music as they grow older and their listening skills improve.  The reverse case, where listeners go from preferring complex to simple music, is virtually unknown. (Music, the Brain, and Ectasy, by Robert Jourdain)

Music momentarily makes the brain of a Parkinsonian work again, knitting together all the jagged edges.  It's a remarkable and moving sight.  Music makes all of our minds work in ways they ordinarily can't.  I'm on this music kick today because I've been working on a beautiful Brahms sonata that has defeated me in the past, and feeling as if it just might work out this time -- 23 years after the last time. 

So if someone (say, someone from the mobile phone industry) tells you that minds just want things to be simple, think of listening to Art Tatum.  Minds enjoy a good challenge.

I met a Bulgarian lawyer last week who told me that Bulgarian laws and regulations weren't available online for free.  In the week in between, I've heard from another Bulgarian who told me that there is a great deal of legal material in Bulgaria available online.  There seemed to be a tussle about the facts, so I decided to wait until things were clearer before blogging about this subject.

It turns out that the first person was right in saying that there wasn't a single place you could go online to see Bulgarian laws and regulations.  This is a problem for the rule of law - if you don't know what the law is, you can't decide how to order your life and business.  You run the risk of arbitrary responses to whatever you do.  Pretty fundamental for a civil society.

Now, via Beth Noveck, comes the announcement that a search engine in China plans to provide just this kind of comprehensive online legal resource for China: Baidu Plans Free Law Search Service.  (I use Findlaw here in the US -- there's also the wonderful Legal Information Institute at Cornell.)

Just having the materials online doesn't necessarily solve the rule of law issue.  If whoever interprets the law has the arbitrary, hidden power to ignore what the legislature or a judge has said, you're still living in an essentially lawless place.  Technology can't fix that problem, but it can illuminate it.

Paul Romer is the economist who noticed that economic growth kept increasing, and decided to find out why.  His 1990 paper, "Endogenous Technological Change," had an enormous impact.  ('reason' interview here -- very worth reading.) 

Romer's New Growth Theory work rigorously shows that new ideas trigger economic growth.  The 'reason' article summarizes a Romer paper from 2000 called "Should the Government Subsidize Supply or Demand in the Market for Scientists and Engineers?"  (Answer:  the government should subsidize supply.)  Tiny increases in growth rate will raise standards of living for enormous numbers of people, so we should try to do the best we can to encourage economic growth -- that means encouraging new ideas -- that means educating people to be scientists and engineers.  (Note: Romer avoided law school.)

Well, I was already an enormous fan of Paul Romer's.  I've just re-read a wonderful intellectual history of new growth theory by David Warsh that ended with a cheerful description of Romer's departure from standard academic life and entry into the creation of digitized teaching tools for economics students.  Great stuff.  But it gets even better:

Romer has a blog.

Gordon Cook pointed recently to INEC, an International Network of E-Communities led by the Dutch ministry of economic affairs and the city of Stockholm.  It's a group that shares best practices for community-led broadband initiatives.  They're having a meeting in Stockholm next week.

INEC has drafted up a very succinct statement of broadband principles -- a Declaration on Open Networks.  It's well worth embracing.  Some key language calling for the separation of transport and content:

Open, operator-neutral networks are believed to be the best way to ensure societal needs are met today and in the future.

It belongs to the core responsibility of government to ensure the development, evolvement, maintenance and functioning of communication infrastructures thus simultaneously ensuring the fairest possible market conditions for any service provider to freely compete over the infrastructure.

[I]nfrastructures should be able to carry symmetric ‘broadband’ connectivity which allows for symmetric high resolution video communications as well as other high grade symmetric data exchange

Broadband, by today’s standards, is understood to cover bandwidths of 100 megabit per second on a symmetric basis – and more.

And the call to action:

The signatories call on all public and private stakeholders to embrace the principles outlined in this declaration and to pursue investments and forge the appropriate conditions as for all to enjoy the social and economic benefits that flow from the impacts of open telecommunication infrastructures.

They're agnostic as to how this infrastructure gets created or run --

An open broadband infrastructure can be owned by a public entity or a public-private partnership or by one or more private entities. The role of governments as described under article three is to ensure the deployment and functioning of open broadband networks. This aim can be achieved by means of full or partial public ownership of the infrastructure or by dedicated laws and regulations guaranteeing the open nature of a privately-owned infrastructures.

The point of all this is that society as a whole benefits from open networks.  They'll produce diverse forms of digital goods and services that we can choose -- and we'll benefit from enormous economic growth as a result.

In the middle of a very long trip some time ago, I leaned against a wall at LAX and plugged in my laptop.  A wireless signal came up -- it turned out that I was near the Continental lounge and they were providing open access.  I was tired and frustrated enough that this seemed like a tremendous gift, a sign of civilization, a harbinger of eventual arrival in a place that wasn't an airport.

Now I know that if the airport had had its way, that signal might have been banned.  Today the FCC said that landlords (including governmental landlords) can't keep renters from using wifi equipment on their premises.  This is a good development for wifi generally.

The background:  Massport, who runs Logan Airport, didn't like the idea of Continental (my friend at LAX) putting a wireless antenna in a closet in the Continental lounge.  Continental fought back, pointing out that the FCC's Over-the-Air Reception Devices (OTARD) rules prohibit restrictions on property that impair the use of certain antennas, and protect leaseholders as well as property owners. 

Massport claimed that their lease with Continental prohibited this kind of thing.  (One wonders if the crackers were subject to approval too.)  They came up with all sorts of arguments, but the key was that this nefarious closet antenna would "decrease [Massport's] revenues] -- they wanted to run their own wireless service and charge for it.  Refreshing frankness.  Massport also claimed that the police would be using the "official" airport wireless backbone, and that Continental's action might cause interference to that backbone. 

Interestingly, the Commission said that the safety exception to the OTARD rules address physical safety, not interference.  So if radio emissions were too high, or antennas were likely to fall down in high winds or block fire exits, that might remove an antenna from the protection of the rule.  But interference between unlicensed devices (the devices used by all the hotspots we love) wouldn't cause the antenna to be unprotected by the rule.  The thing about being unlicensed is that you can't complain about interference from other unlicensed uses.

The FCC's opinion strongly refutes each of Massport's arguments, including pooh-poohing their takings claim and their notion that state governments should get to do whatever they want in lease agreements when it comes to antennas.  As long as the signal sent by an antenna is (1) commercial, (2) non-broadcast, and (3) transmitted via wireless technology to and/or from a fixed customer location, the OTARD rule will protect the antenna.  Because all upstream connections to the internet are commercial in some sense, that's an easy standard for a little wireless antenna to meet.

(I can't help saying that this standard gives rise to a remarkable FCC footnote on p.8:  "[T]he Internet is used to conduct a variety of commercial activities, including on-line shopping, auctions, banking, and travel planning."  Go, team!)

This is a significant decision.  It means that landlords (even if they're government instrumentalities) can't stop people from operating community wifi antennas on their leased premises.  It means that mesh networks can't be outlawed by landlords on one pretense or another -- as long as the antenna is being used to send and receive signals within the leaseholder's own property, it's covered.  (The rules don't protect "hub or relay antennas used to transmit signals to and/or receive signals from multiple customer locations.")

And my use in LAX is covered by another footnote (n.66): "To the extent Continental's antenna incidentally transmits signals outside of the leased premises, it is not transmitting them to 'customer locations,' because Continental does not have any 'customers' outside of its President's Club Lounge."  Even though I wasn't a customer, I was grateful. 

[Thanks to Harold Feld for the news, and congratulations to him and to the Media Access Project  for their role representing Masspirg, U.S. PIRG, The New America Foundation, Champaign Urbana Wireless Network, The National Hispanic Media Coalition, Hawaii Consumers, Freenetworks.org, Acorn Active Media, Marcus Spectrum Solutions, and Free Press]