Do you remember the 1995 NII White Paper? I remember trying to explain it to a copyright class in 1996. It presented a powerfully pro-author summary of existing copyright law and suggested that summary represented the baseline. The idea behind the White Paper was that (inflated) baseline protections for authors -- including sharp limits on fair use -- should be migrated online in their totality. Why? Because these protections were necessary to fund the building of the "information superhighway." Without these protections in place, the internet didn't stand a chance:
[T]he full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII. Creators and other owners of intellectual property rights will not be willing to put their interests at risk if appropriate systems -- both in the U.S. and internationally -- are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, fax machines, scanners, cameras, keyboards, televisions, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is no content. What will drive the NII is the content moving through it.
The "content industry" is still fighting the net, ten years later. (Note that the internet seems to have succeeded without being architected to protect Disney.) They may have found a way forward. A combination of Cisco routers (the "self-defending" -- and all-knowing -- network) and network owner desires for monetization may make it possible for IP owners to have the IP network serve their ends. Now the baseline is protection of the network builders' investments:
[Ed] Whitacre made [ ] comments in a statement yesterday designed to threaten service providers with poor service if someone doesn't pony up for investment in new high-speed networks, and that someone is apparently not going to be AT&T. "We have to figure out who pays for this bigger and bigger IP network," Whitacre said, warning that without outside funding, investment in these networks is likely to "dry up." [arstechnica]
Once again, the threat is that unless the incumbent is paid, the internet will not thrive. Now we have two IP incumbents: the content industry, who want to make the internet safe for Disney, and the network providers, who want to make the internet safe for Disney as long as Disney pays for it.
There's a deal to be done here.
Now, the question is whether any of these deals actually will encourage the flourishing of the internet. My guess is they won't, because these deals will turn the network into a content delivery device, gradually suffocating all the innovation and unpredictability found online. Without these non-linear developments, we'll be back to broadcast.
Opposition to the White Paper was grounded in strong arguments about what copyright law really meant. In the communications law context, by contrast, we don't have the argument that what the network providers seek to do -- the "two-tiered internet" -- contravenes/misreads existing law. Broadband providers are no longer common carriers, after BrandX and the wireline DSL order. So we will just have to come up with strong, persuasive arguments about the importance of access to the internet.
Otherwise, we'll be stuck with the network providers' IP (as in Internet Protocol) baseline.
(Inspired by Jamie Boyle's "Politics of Intellectual Property" 1997 paper)