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The fall has been filled with important developments in the technology world, and I continue to be a regular source for journalists as well as publishing frequent editorials and analyses of my own.  I’ve just posted another ten items to the Media Page of my website, including several articles I’ve written for CNET, an election-day op-ed in Roll Call, legal analysis for The Wall Street Journal and a long review of “The Laws of Disruption” in the International Journal of Communications.  The accidents continue to pile up at the dangerous intersection of innovation and the law, the main theme of The Laws of Disruption.

Some highlights:

The U.S. Supreme Court heard arguments in EMA v. Schwarzenegger, which challenges California’s ban on violent video games on First Amendment ground.  My article for CNET explained why the timing of the case is significant, with implications for all new media enterprises.

The European Commission is preparing new legislation to guarantee its citizens a “right to be forgotten.  On CNET, I explain why that well-intentioned initiative could have disastrous consequences for the digital economy.

My election-day op-ed for Roll Call, the leading newspaper of Capitol Hill, urged Congress to stop the FCC’s dangerous plans to “reclassify” broadband Internet access and treat it like 1930’s-style telephone business.

My detailed analysis of Rep. Henry Waxman’s proposed net neutrality bill, a last-minute effort to resolve the long-running conflict before the election, was featured on The Wall Street Journal’s “All Things Digital.”

In the important Vernor decision, the Court of Appeals in California ruled that licensing agreements that deny users a right to resell copies of software are enforceable.  Though many viewed this decision as harmful to consumers, I explain why developments in the software industry have already relegated license agreements to the margins, in a controversial article for CNET

NextGenWeb, sponsored by the U.S. Telecom Association, interviewed me one of many recent visits to Washington.

As the new Congress prepares to convene in January, watch for more important developments.

I published an opinion piece today at CNET, calling on all tech stakeholders in Washington to stop the pointless quibbling and sniping about net neutrality, reclassification, and other side-show issues.  (I’m too depressed to list them here—but see “Fox-Cablevision and the Net Neutrality Hammer” for an example of just how degraded the conversation has become.)

Instead, why not focus on a positive message, one that has the potential for win-win-win-win?  For example, the National Broadband Plan, issued in March, eloquently made the case for a U.S. commitment to universal broadband adoption.  Not as a matter of gee-whiz futurism but in the interest of giving Americans “a better way of life.”

As a technology optimist, I happen to agree.  Broadband Internet provides users with much more than cute kitten videos and finding old friends on social networking sites (not that there’s anything wrong with these).  As the plan makes clear, it also gives them access to education and employment opportunities otherwise hard to find (and certainly at a much higher price), access to government services, public safety and better health care options. The Internet will play a key role in the development of a “smart” energy grid.

And as more urban countries with higher penetration rates and faster speeds have learned to their delight, the network effects of having everyone online generate all kinds of serendipitous positive returns.

Even better, achieving the goals of the NBP won’t require massive taxpayer spending, making it palatable to both Democrats and Republicans.  Most of the $350 billion it will cost to get 100 mbps speeds to 100 million Americans—a key benchmark of the plan—will come from private investment, much of it already planned for.

So moving forward with the Plan will improve the lives of ordinary citizens, make government more responsive and responsible, stimulate the economy, and help keep the U.S. competitive in a global information economy.  And it can be done without significant taxpayer expense or new regulatory overhead.

This is the feel-good story of the decade.  Come on, everybody!  We can use my barn.

It’s all in the plan. But given the strum and drang exerted over largely inside-the-beltway minutia, the NBP's positive messages has been drowned out.

Case in point:  a recent report from the NTIA reveals that among the 25% of American homes that don’t have a single Internet user, the most frequently cited reason not to sign up for a broadband service is that they just don’t want it.  A full two thirds of the non-users, according to the report, “reported a lack of need or interest as their primary reason for not having broadband at home.”  Cost was a much lower factor.  Only four percent cited lack of availability.

It’s depressing and disappointing that so many of my fellow citizens haven’t gotten the message:  the Internet is cool, and broadband access will pay for itself many times over.

It’s also frustrating to the authors of the NBP, whose herculean efforts were unfairly and unduly overshadowed by the universal hand-wringing that followed the D.C. Circuit’s decision in the Comcast case, which came out just a few weeks later.  (For the record, NBP executive director Blair Levin agrees with legal scholars who don’t believe Comcast undermined the FCC’s ability to move forward with the plan itself:  “I think there is a lot of good stuff that can be done to advance the National Broadband Plan,” he recently told CNET’s Marguerite Reardon, “that doesn't require any action from Congress.”)

In some sense the mid-term elections have provided the opportunity for all stakeholders—Congress, the FCC, lobbyists and advocacy groups—to resurrect the NBP and feature it as the central document in a national dialogue on technology policy.  It’s the right thing to do for the economy, and for individuals.  And in one of those rare harmonic convergences, it’s also politically expedient.  It’s positive!  It’s bi-partisan!  It’s high-tech!

So why isn’t anyone doing it?

If I ever had any hope of “keeping up” with developments in the regulation of information technology—or even the nine specific areas I explored in The Laws of Disruption—that hope was lost long ago.  The last few months I haven’t even been able to keep up just sorting the piles of printouts of stories I’ve “clipped” from just a few key sources, including The New York Times, The Wall Street Journal, CNET and The Washington Post.

I’ve just gone through a big pile of clippings that cover April-July.  A few highlights:  In May, YouTube surpassed 2 billion daily hits.  Today, Facebook announced it has more than 500,000,000 members.   Researchers last week demonstrated technology that draws device power from radio waves.

If the size of my stacks are any indication of activity level, the most contentious areas of legal debate are, not surprisingly, privacy (Facebook, Google, Twitter et. al.), infrastructure (Net neutrality, Title II and the wireless spectrum crisis), copyright (the secret ACTA treaty, Limewire, Google v. Viacom), free speech (China, Facebook “hate speech”), and cyberterrorism (Sen. Lieberman’s proposed legislation expanding executive powers).

There was relatively little development in other key topics, notably antitrust (Intel and the Federal Trade Commission appear close to resolution of the pending investigation; Comcast/NBC merger plodding along).  Cyberbullying, identity theft, spam, e-personation and other Internet crimes have also gone eerily, or at least relatively, quiet.

Where are We?

There’s one thing that all of the high-volume topics have in common—they are all moving increasingly toward a single topic, and that is the appropriate balance between private and public control over the Internet ecosystem.  When I first started researching cyberlaw in the mid-1990’s, that was truly an academic question, one discussed by very few academics.

But in the interim, TCP/IP, with no central authority or corporate owner, has pursued a remarkable and relentless takeover of every other networking standard.  The Internet’s packet-switched architecture has grown from simple data file exchanges to email, the Web, voice, video, social network and the increasingly hybrid forms of information exchanges performed by consumers and businesses.

As its importance to both economic and personal growth has expanded, anxiety over how and by whom that architecture is managed has understandably developed in parallel.

(By the way, as Morgan Stanley analyst Mark Meeker pointed out this spring, consumer computing has overtaken business computing as the dominant use of information technology, with a trajectory certain to open a wider gap in the future.)

The locus of the infrastructure battle today, of course, is in the fundamental questions being asked about the very nature of digital life.  Is the network a piece of private property operated subject to the rules of the free market, the invisible hand, and a wondrous absence of transaction costs?  Or is it a fundamental element of modern citizenship, overseen by national governments following their most basic principles of governance and control?

At one level, that fight is visible in the machinations between governments (U.S. vs. E.U. vs. China, e.g.) over what rules apply to the digital lives of their citizens.  Is the First Amendment, as John Perry Barlow famously said, only a local ordinance in Cyberspace?  Do E.U. privacy rules, being the most expansive, become the default for global corporations?

At another level, the lines have been drawn even sharper between public and private parties, and in side-battles within those camps.  Who gets to set U.S. telecom policy—the FCC or Congress, federal or state governments, public sector or private sector, access providers or content providers?  What does it really mean to say the network should be “nondiscriminatory,” or to treat all packets anonymously and equally, following a “neutrality” principle?

As individuals, are we consumers or citizens, and in either case how do we voice our view of how these problems should be resolved?  Through our elected representatives?  Voting with our wallets?  Through the media and consumer advocates?

Not to sound too dramatic, but there’s really no other way to see these fights as anything less than a struggle for the soul of the Internet.  As its importance has grown, so have the stakes—and the immediacy—in establishing the first principles, the Constitution, and the scriptures that will define its governance structure, even as it continues its rapid evolution.

The Next Wave

Network architecture and regulation aside, the other big problems of the day are not as different as they seem.  Privacy, cybersecurity and copyright are all proxies in that larger struggle, and in some sense they are all looking at the same problem through a slightly different (but equally mis-focused) lens.  There’s a common thread and a common problem:  each of them represents a fight over information usage, access, storage, modification and removal.  And each of them is saddled with terminology and a legal framework developed during the Industrial Revolution.

As more activities of all possible varieties migrate online, for example, very different problems of information economics have converged under the unfortunate heading of “privacy,” a term loaded with 19th and 20th century baggage.

Security is just another view of the same problems.  And here too the debates (or worse) are rendered unintelligible by the application of frameworks developed for a physical world.  Cyberterror, digital warfare, online Pearl Harbor, viruses, Trojan Horses, attacks—the terminology of both sides assumes that information is a tangible asset, to be secured, protected, attacked, destroyed by adverse and identifiable combatants.

In some sense, those same problems are at the heart of struggles to apply or not the architecture of copyright created during the 17th Century Enlightenment, when information of necessity had to take physical form to be used widely.  Increasingly, governments and private parties with vested interests are looking to the ISPs and content hosts to act as the police force for so-called “intellectual property” such as copyrights, patents, and trademarks.  (Perhaps because it’s increasingly clear that national governments and their physical police forces are ineffectual or worse.)

Again, the issues are of information usage, access, storage, modification and removal, though the rhetoric adopts the unhelpful language of pirates and property.

So, in some weird and at the same time obvious way, net neutrality = privacy = security = copyright.  They’re all different and equally unhelpful names for the same (growing) set of governance issues.

At the heart of these problems—both of form and substance—is the inescapable fact that information is profoundly different than traditional property.  It is not like a bush or corn or a barrel of oil.  For one thing, it never has been tangible, though when it needed to be copied into media to be distributed it was easy enough to conflate the media for the message.

The information revolution’s revolutionary principle is that information in digital form is at last what it was always meant to be—an intangible good, which follows a very different (for starters, a non-linear) life-cycle.  The ways in which it is created, distributed, experienced, modified and valued don’t follow the same rules that apply to tangible goods, try as we do to force-fit those rules.

Which is not to say there are no rules, or that there can be no governance of information behavior.  And certainly not to say information, because it is intangible, has no value.  Only that for the most part, we have no real understanding of what its unique physics are.  We barely have vocabulary to begin the analysis.

Now What?

Terminology aside, I predict with the confidence of Moore’s Law that business and consumers alike will increasingly find themselves more involved than anyone wants to be in the creation of a new body of law better-suited to the realities of digital life.  That law may take the traditional forms of statutes, regulations, and treaties, or follow even older models of standards, creeds, ethics and morals.  Much of it will continue to be engineered, coded directly into the architecture.

Private enterprises in particular can expect to be drawn deeper (kicking and screaming perhaps) into fundamental questions of Internet governance and information rights.

Infrastructure and application providers, as they take on more of the duties historically thought to be the domain of sovereigns, are already being pressured to maintain the environmental conditions for a healthy Internet.  Increasingly, they will be called upon to define and enforce principles of privacy and human rights, to secure the information environment from threats both internal (crime) and external (war), and to protect “property” rights in information on behalf of “owners.”

These problems will continue to be different and the same, and will be joined by new problems as new frontiers of digital life are opened and settled.  Ultimately, we'll grope our way toward the real question:  what is the true nature of information and how can we best harness its power?

Cynically, it’s lifetime employment for lawyers.  Optimistically, it’s a chance to be a virtual founding father.  Which way you look at it will largely determine the quality of the work you do in the next decade or so.

I was pleased to be interviewed last night on BBC America World News (live!) about the convictions of three senior Google executives by an Italian court for privacy violations.  The case involved a video uploaded to Google Videos (before the acquisition of YouTube) that showed the bullying of a person with disabilities. (See "Larger Threat is Seen in Google Case" by the New York Times' Rachel Donadio for the details.)

Internet commentators were up-in-arms about the conviction, which can't possibly be reconciled with European law or common sense.  The convictions won't survive appeals, and the government knows that as well as anyone.  They neither want to or intend to win this case.  If they did, it would mean the end of the Internet in Italy, if nothing else. Still, the case is worth worrying about, for reasons I'll make clear in a moment.

But let's consider the merits of the prosecution. Prosecutors bring criminal actions because they want to change behavior—behavior of the defendant and, more important given the limited resources of the government, others like him.  What behavior did the government want to change here?

The video was posted by a third party. Within a few months, the Italian government reported to Google their belief that it violated the privacy rights of the bullying victim, and Google took it down. They cooperated in helping the government identify who had posted it, which in turn led to the bullies themselves.

The only thing the company did not do was to screen the video before posting it. The Google executives convicted in absentia had no personal involvement in the video. They are being sued for what they did not do, and did not do personally.

So if the prosecution stands, it leads to a new rule for third-party content: to avoid criminal liability, company executives must personally ensure that no hosted content violates the rights of any third party.

In the future, the only thing employees of Internet hosting services of all kinds could do to avoid criminal prosecution would be to pre-screen all user content before putting it on their website.  And pre-screen them for what?  Any possible violation of any possible rights.  So not only would they have to review the contents with an eye toward the laws of every possible jurisdiction, but they would also need to obtain releases from everyone involved, and to ensure those releases were legally binding. For starters.

It's unlikely that such filtering could be done in an automated fashion. It is true that YouTube, for example, filters user postings for copyright violations, but that is only because the copyright holders give them reference files that can be compared. The only instruction this conviction communicates to service providers is "don't violate any rights." You can't filter for that!

The prosecutor’s position in this case is that criminal liability is strict—that is, that it attaches even to third parties who do nothing beyond hosting the content.

If that were the rule, there would of course be no Internet as we know it. No company could possibly afford to take that level of precaution, particularly not for a service that is largely or entirely free to users. The alternative is to risk prison for any and all employees of the company.

(The Google execs got sentences of six months in prison each, but they won't serve them no matter how the case comes out. In Italy, sentences of less than three years are automatically suspended.)

And of course that isn’t the rule.  Both the U.S. and the E.U. wisely grant immunity to services that simply host user content, whether it’s videos, photos, blogs, websites, ads, reviews, or comments. That immunity has been settled law in the U.S. since 1996 and the E.U. since 2000. Without that immunity, we simply wouldn't have--for better or worse--YouTube, Flickr, MySpace, Twitter, Facebook, Craigslist, eBay, blogs, user reviews, comments on articles or other postings, feedback, etc.

(The immunity law, as I write in Law Five of "The Laws of Disruption," is one of the best examples of the kind of regulating that encourages rather than interferes with emerging technologies and the new forms of interaction they enable.)

Once a hosting service becomes aware of a possible infringement of rights, to preserve immunity most jurisdictions require a reasonable investigation and (assuming there is merit to the complaint), removal of the offending content. That, for example, is the "notice and takedown" regime in the U.S. for content that violates copyright.

The government in this case knows the rule as well as anyone.  This prosecution is entirely cynical—the government neither wants to nor intends to win on appeal.  It was brought to give the appearance of doing something in response to the disturbing contents of the video (the actual perpetrators and the actual poster have already been dealt with). Google in this sense is an easy target, and a safe one in that the company will vigorously fight the convictions until the madness ends.

And not unrelated, it underscores a message the Italian government has been sending any way it can to those forms of media it doesn’t already control—that it will use whatever means at its disposal, including the courts, to intimidate sources it can’t yet regulate.

So in the end it isn’t a case about liability on the Internet so much as a case about the power of new media to challenge governments that aren’t especially interested in free speech.

Internet pundits are right to be outraged and disturbed by the audacious behavior of the government. But they should be more concerned about what this case says about freedom of the press in Italy and less what it says about the future of liability for content hosts.

And what it says about the Internet as a powerful, emerging form of communication that can't easily be intimidated.

comcast logoMy op-ed today in The Hill (see “The Winter of Our Content,”) argues against those who want to derail the merger of Comcast and NBC Universal.  I don’t know enough to say whether the deal makes good business sense—that’s for the companies’ shareholders to decide in any case.  But I do know that every media or communications merger of the last twenty years has been resisted for the same reason—that the combined entity will both have and exercise excessive market power to the detriment of consumers.

That argument has turned out to be wrong every time.  It will be here as well.

Under the terms of the agreement, Comcast will get a 51% interest in NBC, Universal and several valuable cable channels including MSNBC and Bravo.  Comcast already owns E!, the Golf Channel, and other content, as well as being a leading provider of cable TV access, Internet access and, more recently, phone service.

A wide range of public advocacy groups have already objected that the new Comcast will be too powerful, and will have “every incentive” to keep programming it controls off the Internet, including new services such as Hulu, which is 33% owned by NBC.  Consumer groups also fear that Comcast will dismantle NBC’s broadcast network, all in the service of pushing American consumers onto paid cable TV subscriptions.

Why Comcast would want to use its leverage in the interest of only one part of its business I don’t understand.  But even if that was the goal, I very much doubt that goal would be achievable even with the new assets it will acquire.

As is typical in industries undergoing wrenching and dramatic consolidation and reallocation of assets, the urge to merge is a function of three principal forces, first introduced in my earlier book, Unleashing the Killer App. These forces—globalization, digitization, and deregulation—are themselves a function of the profound technological innovation that all of us know as consumers of devices, services, and products that didn’t exist just a few years ago.

There are several technologies involved here, including standards (the Internet protocols as well as compression and data structures for various media), software (the Web et al), hardware (faster-cheaper-smaller everything) and new forms of bit transportation, including cable, satellite, and fiber.  It’s the combination of these that makes possible the dramatic ascent of new applications—everything from Napster to YouTube to the iPhone to TiVo.  It’s why there are now hundreds if not thousands of channels of available programming, increasingly in high-definition and perhaps soon in 3D and other innovations.

With the advance of digital technology, driven by Moore’s Law and Metcalfe’s Law, all content is moving at accelerating speeds from analog to digital forms of creation, storage, and transport.  (This includes media content a well as user content—email, phone calls, home movies and photos.)  See my earlier post, “Hollywood:  We have met the enemy…”

That fundamental shift has made it easier to create global markets for content use and in turn has put pressure on regulators to open what had been highly-parochial approaches to  protecting the diversity of content.  Until very recently,  in the U.S. that diversity was represented by a whopping three choices of television programming—that of ABC, CBS, and NBC.

As globalization and digitization advance, the pressure to deregulate increases.  Caps and other artificial limitations of media ownership have been falling away over the last twenty years.  Clear rules separating who can transport data versus voice versus video make less and less sense, and have been removed.

Each of these changes has been resisted by consumer groups.  One long-forgotten change to the media industry occurred even before the rise of digital life, in the stone age of 1995.  That was the year the FCC eliminated the “financial syndication” rules, or finsyn, which had been adopted in 1970 to limit the power of the three broadcast networks.  (See Capital Cities v. FCC, 29 F.3d 309 (7th Cir.1994)).

Finsyn, among other controls, limited the ownership in prime-time programming the networks could obtain, and prohibited them from selling the programming they owned directly.  Once a program, say "Gilligan’s Island," finished its prime-time network run, the networks could only syndicate it through third party syndicators.  The goal was to protect non-affiliated stations (mostly on the UHF band), who might not get a chance to buy syndicated programs at all if the networks kept control.  The networks might have only syndicated to their own affiliates.

Cable TV, which made the weak UHF signal stronger, along with the rise of Fox as a fourth network and independent producers who self-syndicated (particularly Paramount, which produced several made-for-syndication Star Trek series), made clear that the finsyn rules were no longer necessary.  The independent stations and consumer advocates fought to retain them anyway, and lost.

Of course we now have more diversity of programming than anyone in 1995 would have ever imagined possible.  Not because finsyn was repealed, but in spite of that fact.  Technology, left alone, achieved multiples of whatever metric regulators established for their efforts.

Those who object to the reallocation of industry assets see these deals entirely as efforts by vested interests to resist change inspired by what I called “the new forces.”  In part these deals are surely trying to hold back the flood.  They may even be motivated by the belief that consolidation translates to control.

But it never works out that way.  Consumers always get what they want, usually sooner than later, and regardless of what entrenched industry providers may or may not want.  Artificial limits on who can do what do more to hold back the technological inevitability than they do to protect consumers.

Resistance here is not only futile, it’s counter-productive.

icann logo

Forty years after the first successful connection was made on the predecessor to the Internet, the U.S. has given up its fading claims to govern the network.

A fight over governance which erupted in 1998 has ended with a whimper.

In this case, I’m not talking about the regulation of human activity that takes place using the Internet, but of the internal working of the network itself.

As reported by the Advisory Committee of the Congressional Internet Caucus, the U.S. government’s agreement with ICANN was allowed to expire on September 29th. (The Department of Commerce has a separate agreement with ICANN, which was also significantly modified.)

ICANN is a non-profit corporation formed in 1998 to manage two key aspects of network governance: the assignment of domain names and website suffixes and of IP addresses for computers connected to the Internet. There are now over 110,000,000 registered domains.

Hard as it is to believe, before 1998 the management of names and addresses was largely left to the efforts of Jon Postel, a computer science professor at the University of Southern California. As the Internet shifted dramatically from an academic and government network to a consumer and business network, it became clear that some more formal mechanism of governance was required.

But by then the Internet had become a global phenomenon. The U.S. government was adamant that it retain some measure of control over its invention; the rest of the world argued that resting authority for a global infrastructure with one national government would cripple it, or worse.  Hearings were held, speeches were made, the U.N. was called in (literally).

ICANN was the compromise, and it was an ugly compromise at that. ICANN has run through several executive directors and political battles. Just explaining the selection of members of its Board of Directors, as David Post demonstrates in Figure 10.3 of his book, “In Search of Jefferson’s Moose: Notes on the State of Cyberspace,” requires a flowchart with nearly fifty boxes.

It has also been the subject of regular criticism, in particular for the ways in which it subcontracts the registration of domain names, its resistance to creating new “dot” suffixes, and its evolving and weird process for resolving disputes over “ownership” of domains, typically involving a claim of trademark infringement or unfair competition. Former board member Karl Auerbach, quoted in Information Week, put it this way:

At the end of the day it comes down to this: ICANN remains a body that stands astride the Internet's domain name system, not as a colossus but more as a Jabba the Hutt. ICANN is a trade guild in which member vendors meet, set prices, define products, agree to terms of sales, and allow only chosen new vendors to enter the guild and sell products.

Still, through boom and bust, Web 2.0 and social media, the Internet has continued to grow, operate, and reinvent itself as new technologies arrive on the scene.

And what started as a U.S. government project is now clearly a worldwide convenience. According to Christopher Rhoads in The Wall Street Journal, “today just 15% of the world’s estimated 1.7 billion Internet users reside in North America.”

Which is perhaps why the end of federal government oversight of ICANN received so little attention in 2009.

But in 1998, you would have thought the future of civilization depended on keeping the Internet an American property.