Lessig

I'm happy to announce that Tim Wu, one of the authors of a new and related book, Who Controls the Internet?, will guest blog (again) this week. This is also the last week of class at Stanford, so I'll be back in a real sense next week.

The book is a great extension and critical development of some of Code-related ideas. It has an especially terrifying and extensive discussion of control in China, and is beautifully and simply written (with pictures, too!) Another must read for those in this space.

Welcome back, Tim.

Most happy to be here. Mostly, but not entirely, I'll talk this week about Who Controls the Internet. If you've already read the book, I'd love to hear any comments or feedback. The book can be purchased here or at most online or physical bookstores.

Let me introduce the book first. The book is mostly a history of the last ten years of nation-states & the internet. It is an effort to tell the story of the struggle of governments to control the net, and to understand the role played by geography, culture, and physical force in shaping what the network is becoming.

The book chronicles a rise in the use of state power to try to control network conduct. That's bookended by the Elred v. Reno case on one side, and ends with Yahoo & Google' capitulation to Chinese demands over the last few years. Along the way, it chronicles slow changes in the architecture of the network driven by local culture and government obsessions, with chapters on Copyright, ICANN, eBay, China, Int'l Law and others.

We have worked hard to make this a story accessible to many readers. Of course many of the readers of this blog are experts in one or another of the topics in the book. But even then, what we've tried to do is putting the last 10 years together, and put them in some perspective.

Jack at I were at the Markle Foundation in New York today to speak about the book, and as is so often the case, ICANN and domain name governance came up.

Carol Cosgrove-Sacks, until recently the United Nations' Director of Trade, asked whether an Internet that increasingly reflects the will of individual nations, as our book suggests, won't inevitably need a more globally responsive domain name system. In other words, she asked whether, in the long run, ICANN just cannot survive.

Esther Dyson, who happened to be at the event, gave a most interesting response. "Domain name governance" she said (and I paraphrase) "is like the One Ring. You can't trust anyone with its power."

Today I'm scheduled to meet with Dr. Xiong Chengyu, who is one of the personal advisors to Chinese President Hu Jintao for internet & media issues. He is in town to meet with the National Committee on United States-China Relations, among other things.

Here's what I'm curious to hear about: What Dr. Xiong thinks China's internet policy is; or what function, exactly the internet does or should play in Chinese society.

In the West, the typical role of a communications infrastructure is spoken of, at an ideal, something that leads to more self-expression, happier people, and more involvement in the nation's governance. Failing that, it ought at least entertain people and make the country richer.

Observers, myself and our book included, make guesses as to what China's government sees as the function of the internet in Chinese society. Not all have been, exactly, flattering.

But I am very curious to hear what is said directly, and I'll let you know what I learn.

The New York Times building has a special long hallway where it keeps pictures of reporters who have won pulitzer prizes. Its fun looking at how hair-styles have changed over the years. But most interesting of all is the picture from 1931, the picture of Walter Duranty, to which the Times has physically attached a large disclaimer.

My tour guide, Jenny 8. Lee, told me the story. In the 1930s Walter Duranty was one of America's most famed reporters. As the New York Times' Moscow correspondent, he filed vivid stories explaining the growth and meaning of Stalinism to the American people -- its differences from Marxism, and the meaning of things like collectivism and the Five Year Plan.

One theme in the book is that an evolving balkanization of the internet is often driven by consumer preference. A good example is the suprising decline in the use of the English language on the Web.

From Ch. 3

The Economist confidently stated in in 1996 that "English may now be impregnable established as the world standard language: an intrinsic part of the global communications revolution." A New York Times article written the same year, titled "World Wide Web: Three English Words," asserted that "if you want to take full advantage of the Internet there is only one real way to do it: learn English."

That turned out not to be true. English was dominant at first. But it faded fast. By the end of 2002, less than half of the web pages were still in English, and the flights from English just continued -- babelization, if not balkanization.

Today, David Sifry and Ethan Zuckerman write on "the surprising possibility that Japanese may have unseated English as the dominant language of the blogosphere." According to Sifry's fascinating survey, "

Something that may come as a surprise (at least to the English-speaking world) is that English isn't the biggest language of the blogosphere. In fact, English isn't even the primary language of one third of all posts that Technorati tracks anymore.

If you look at the survey, you'll notice other oddities too. French accounts for but 2% of technocrati blogging, for example, despite being one of the world's most widespread languages.

So much for those ten years I spent in French lessons (yet fortunate that I've had 3 months of Japanese, kamon).

My first experience using a chatroom was in 1988. Some group in Toronto, Canada, set up something called the "Free Access Network," or FAN. It wasn't really the internet: it was all dialup, with perhaps 100 phone lines or so. And it was, true to the name, free.

FAN was amazing, and still maybe the most addictive thing I've experienced in a life with a decent amount of experimentation. After school we'd run home, Lisa, Karen myself, Quaid and others (Onil was always skeptical), 15 year-olds all, and "war-dial" FAN desperately trying to get an open line. I developed a Pavlovian response to the sound of the modem's carrier - a kind of deep excitment that comes back just by thinking about it.

As an aside, I remember Cory Doctorow, the writer and Boing-Boing editor, well-known to readers here, was also on FAN. Cory and I went to primary school together, and even once colloborated on a short film, but since high school we'd drifted apart. My last memory of Cory on FAN, at the last time I would see him in a decade, was the day Robert Heinlein died, May 8, 1988. Cory, of course, wanted people to quit talking about nonsense and recognize the importance of what had happened.

But back to FAN -- what drew us in? There was, of course, flirting, which to a 15-year old has a power not dulled by the drudgery of dating. But, to me, really it was something else -- this sense of vastness of opportunity. The feeling, oddly enough, that you can get in the Grand Canyon, or walking around parts of New York City, when you think, who knows what you might find or become. Something about those simple lines of text made the imagination run free, like all the dust at Black Rock City, and I'm still not sure why.

That was how it was -- when the internet promised deliverance from the hassles of identity. And when the internet mostly was stuff that took you away from the "real world," or what sometimes was called "meatspace."

From the window.

When I was in my teens my brother David and I ran what was then called a pirate bulletin board. We had at the time three computers, an Apple IIgs, a IBM 286, and a Mac we borrowed from school, and we had very different feelings about each.

David & I were loyal to the Apple II platform. That the IIgs was, and it pains me to say this, a flawed and doomed product, made us only more loyal. The IBM was a much better machine, yet cold and generic in a way that meant we never grew attached to it. So we let the IBM ran the BBS, and kept the Apples for ourselves. We named our BBS "Fifth Business," after the novel, and David and I were the sysops.

Back on March 30 I presented Who Controls the Internet at Ed Felten's Infotech lecture series at Princeton. The crowd was extremely sharp; the discussion was great, and I had the chance to meet Brian Kernighan, from whose book I learned C programming. I must say there is something uncanny about the enthusiasm for political theory and policy found in computer science departments today. Seems like everyone is a policy-geek -- what ever happened to just being a geek? Maybe that's what engineering department are for.

Anyhow, during the talk, someone asked an interesting question -- what's the difference between our book and Larry's Code and Other Laws of Cyberspace?

A relatively little-known fact outside of copyright practice is that movie studios regularly purchase the film and television rights to newspaper stories. Yes, newspaper stories, which by their nature, report on facts or ideas, two things the copyright law does not protect. So what are studios buying?

In 1997, the New York Times reported on the story of Tim "Ripper" Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest. As Times writer Andrew Revkin wrote:

Mr. Owens has risen from devotee to icon, from metal-head to metal-god. He is about to be transformed from a hard-working singer in a cover band and a suit-wearing traveling salesman of office supplies into Ripper Owens, the new lead vocalist for the band he once worshiped. It is as if a sandlot baseball player not only got a chance to play in the majors but got to be Cal Ripken Jr.

The dot xxx debate has been back in the news recently, and what I find unendingly puzzling is the sides taken.

From first principles, you'd except groups who want it to be harder to get pornography on the internet to want a .xxx domain -- followed by a law (like this one, or stronger) ordering ISPs to block porn sites that don't move to the porn zone. That would make it relatively easier to avoid randomly running into porn on the internet.

Yet as everyone knows the positions are reversed. The United States has signaled strong opposition, as have other governments. Groups in opposition rely on arguments that defy logic - like the argument that dot-xxx would mean more porn on the internet (if there is anything slowing the market for porn, its not the unavailability of a domain name). But U.S. groups, for reasons I cannot fathom, urge that dot-xxx would "mean perhaps twice as many Internet porn sites and twice the danger to children."

So I've been in a debate with Christopher Yoo over at legal affairs on the topic of Network Neutrality --

Here's a Snippet:

A lot of the difference in Chris and my own views stems from how we think the process of innovation occurs. Chris, rather like the later Schumpeter, believes that large firms -- in this case, network operators, drive telecommunications innovation. As the later Schumpeter put it, the "large-scale establishment" is "the most powerful engine of [economic] progress and in particular of the long-run expansion of total output."

Chris thinks incumbents like AT&T will rarely or perhaps never threaten innovation. Instead he views them as the driving force of the technologies of tomorrow.

I am skeptical. I think these view of incumbent behavior has been discredited, and that in general incumbents, particularly in a monopoly position, have a strong incentive to block market entry and innovative technologies that threat their existing business model.
...

Over the next ten years or so, as others have said, a big platform war may not be as between Windows & Linux, but between computers and (deluxe) cell phones.

For Bellheads, the cell phone is in many ways a dream platform. It puts many of the sacred principles of closed infrastructures into place, including:

1. Limits on equipment attachments; (customers use approved cell phones);
2. Vertically integrated content & applications; (ringtones, etc.)
3. Pay-per-use, value added services (like "411 and more!")
4. General freedom to bill;
5. Limited customizability or programability.

So the cell phone platform, if the Bells are right about innovation, should be just killer. As a revenue source, that's true. Yet other than SMS, I guess, I just don't see alot of apps other than voice.

The question is, would it make sense for a provider to experiment with an open cell platform? To make it easy for third party developers to offer applications to cell-users, without making some kind of deal?

Do principles like Network Neutrality make any sense for wireless? Or are conditions sufficiently different?

James Love has an interesting article on the treaty on broadcasting and webcasting rights now under discussion at the WIPO, and completely ignored by nearly everyone.

Broadcasters have long wanted yet another form of intellectual property to, yes, provide more incentives to invest in the broadcasting of content. Love suggests that a collection of web firms, like yahoo, are lobbying for a web equivalent -- a webcasting right as well.

In the meantime, I'd like a property right that gives me more inventives to wake up in the morning and floss my teeth.

Xiong Chengyu, a personal advisor to Chinese President Hu Jintao on internet policy, came to New York briefly and on Tuesday we met at Columbia law school.

It was a casual meeting and we chatted for quite a while. Anyone affiliated with the Chinese government is usually quite formal, so I wore a suit for the occasion, and worried about my lack of a welcoming committee. But Xiong was of the new breed, and preempting me, he wore jeans with a jacket, like a 60-year old internet hipster. In conversation it turned out he was something of an internet utopian himself. He spoke of a network of great transformative power for China's economy, culture, and society. A network that would take China out of its present cage, its underdeveloped version of itself. That would create applications to match and compete with U.S. versions, and even interestingly, a content industry that can best Hollywood.

Jane Jacobs, the great theorist of all things urban, died recently. It had been my dream to go find her in Toronto but that will never happen. She's obviously influential to urban planners, but I've found her writing tremendously helpful for thinking also about network design.

If you aren't familiar with her work, Jacobs was an enemy of bad central planning. She believed in cities that grew up in a willy-nilly, unpredictable way, allowing new buildings to gradually replace old, or be converted to new purposes. She believed the causes of urban blight were dullness, and hated housing projects, mega-blocks and other doomed efforts to make people live just so.

What Jacobs favored is letting neighborhoods be. She thought city planners ought create small roads and small blocks that worked on a human scale, and then stand back let the inhabitants decide how best to use their neighborhoods. Here thinking wasn't quite economics or sociology, liberal or conservative, but rather a powerful attack on our constant tendancy to overestimate our own abilities to plan how people should live their lives.

The comparisons to network design should be obvious. Network designers, like say the writers of ATM, who have too specific an idea of what they want their users to do create abominable networks that imprison their users and become obsolute quickly. The more general purpose and useful the network, the more it does for society and individuals, and the better it evolves from one use to another.

Consider the comparison: a SoHo building can begin life as a factory, become an artist's loft, then a boutique, then a condo, and so on. Some of the networks and even applications have led constantly evolving lives. The internet supported usenet, gopher, veronica, the web, ICQ, IM and so on, in a steady kind of evolution that was unpredictable in advance. The WWW itself has shuffled through static sites, through "home pages" of the Geocities era, through the rise of the search engine, through the blog, and through 2.0-style sites. Someone, maybe Danah Boyd, should write "The Death and Life of Great American Applications."

Jacobs understood that the point of urban planning was not planning for a moment, but trying to cultivate healthy, evolving cities that make people happy to live in. Much of the same can be said about information architectures - the best planned networks don't overplan, but somehow manage to create a kind of life of their own.

You can learn this in The Death and Life of Great American Cities, or any of Jacobs' other books.

Well I had planned to write a few thoughts about Yochai's book, but I haven't finished it yet! Perhaps later, with Larry's good grace.

It has been a great pleasure being here this week -- the commentators on this site are really sharp and thoughtful, and it is just a nice platform for writing.

Enjoy Who Controls the Internet, if you've got a copy, and I look forward to any comments any of you may have.

So the British are considering extending the terms of copyrights for recordings from the current term of 50 years to 95 years -- this to "harmonize" with the US, after the US extended its term to "harmonize" with Europe. Anyway, you know my views about term extensions for existing works, so I won't repeat all that here.

But last night in the British Parliament, there was an extraordinary breakthrough in thinking about this issue. While the best rule would be that copyrights of existing works would never be extended, a second-best rule would be that, at a minimum, any extension should be limited to those copyright holders who take steps to claim that extension. And so has Mr. Don Foster now proposed.

This is the first such proposal that I've seen a government official make. (If I'm wrong about that, please let me know.) But it is fantastic progress in the second-best world we inhabit.

There has been good progress in the Net Neutrality debate. Critical to this debate is that it not become a left/right issue -- because however much we on the left push it, it is not properly seen as a left/right issue. The Christian Coalition has now helped by announcing their support for Net Neutrality principles.

Also, PublicKnowledge has a great PSA on the issue.

The Second Circuit Court of Appeals' decision in Graham v. Dorling Kindersley Limited
is fantastic. Could this signal general progress?

On Wednesday, May 24, in select theaters in New York and LA, a film by Davis Guggenheim about Al Gore's global warming slide-show will open. I have seen the slide-show. It is -- by far -- the most extraordinary lecture I have ever seen anyone give about anything. And I've now seen the film, An Inconvenient Truth, twice.

I will rarely ask favors of those who read here. But this is one. No issue is as important. I doubt you will ever see an argument as compelling. And though this is a beautiful and pasisonate film, it is, in the end, an argument that gets built upon the ethic that guides at least some conversation in places like this -- facts, reason and a bit of persuasion.

I push for you see this because of the peculiar economics of theaters. Unlike blog posts, that are equally as available always, whether or not this film gets seen is a function of what happens in the next four weeks. If many see it, then many more will have the opportunity. So if there is a time to see it, it is early and often.

You'll see me credited at the end. I gave some advice re fair use (you can't believe the insanity filmmakers live with). And some might notice that Guggenheim is on the board of Creative Commons. But none of that is behind this recommendation: Even if you want to reject the argument, understand it first. This is a perfect opportunity to understand it.

There's an overly professional website associated with the film at ClimateCrisis.Net. You can pledge (no, I don't know whose idea this was) to come, and take others. Tere's a list of places the film will be showing. And there's a blog.

Please. If there were an obvious way to put everything else aside and work on this, I would. Meanwhile, please see the film.

So the recent struggles about network neutrality have led me to recognize something I hadn't quite seen before. And that something in turn makes more puzzling the debates that have been raised around network neutrality.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight -- the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

So from this perspective, it is easy to understand those who reject FU and NN (who are they?). And it is easy to understand those who embrace FU and NN. What gets difficult is understanding those who embrace one while rejecting the other -- at least when that rejection is articulated in terms of "government regulation."

For there is a consistency problem for those who embrace FU while arguing against "government regulation to support NN." For FU and NN are both "government regulations" -- each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner "this use of your property is opposed by the state." And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

So too are other arguments advanced against NN also available FU. NN opponents say the market will take care of the problem -- that people won't use networks that don't give them the freedom they want. But the same could be said about copyright -- if Madonna's too restrictive, you could try Lyle Lovett. Some say there's not a showing of market power with NN sufficient to justify state intervention. But on that standard, could there ever be a justification for FU? Who could possibly have enough culture as to have that amount of market power over culture? And finally, NN opponents say NN would sap the incentives from network owners, and they won't build fast networks. But again, the same argument is made against FU -- that giving up perfect control destroys the incentives of copyright holders. In both cases, the arguments are the same -- on the one side, the call for perfect control over a property right; on the other, the demand for some limit in the exercise of a property right.

There's also a consistency problem of course for those who embrace NN and criticize FU (me, for example). For the reasons I'm critical of FU are exactly the reasons people are fearful of NN. That recognition has helped me understand the nature of the concern about NN. But again, having lived the legal battles over fair use, and watched the regulatory battles over NN('s equivalent), I don't see how anyone can be categorical in embracing FU while rejecting NN.

No doubt, some of those who embrace FU while rejecting NN (or the other way round) do so because the value said to be protected by each is not, in their view, sufficiently strong. That difference wouldn't raise questions about consistency. It would simply reflect differences in values.

But then let's hear that debate. Let's hear people who say competition in applications and content isn't important. Or that it doesn't raise issues of free speech. Or whatever other reasons might be advanced to argue that government shouldn't intervene here. Such arguments would at least be progress in a debate that seems to me so far just stuck in a confusion.

So the Gore movie will at least give lots of good and appropriate work to bloggers, as lots try to spin the story told by Gore. My favorite so far are two ads released by the Competitive Enterprise Institute. (Both are here.) The first is totally empty and hilarious, with the slogan (and who could make this up): CO2: They call it pollution. We call it life.

The second has more substance, charging the biased media with not reporting the fact that there were scientific studies showing that the ice caps were in fact thickening, not thinning. That claim has incited a strong rebuke from the scientist quoted in the ad:

"These television ads are a deliberate effort to confuse and mislead the public about the global warming debate," Davis said. "They are selectively using only parts of my previous research to support their claims. They are not telling the entire story to the public."

CEI: They call it truth. Scientists call it lies.

Wired is holding a town hall discussion at Town Hall, New York, with Al Gore, James Hansen, Laurie David, and Lawrence Bender, moderated by John Hockenberry, Thursday, May 25, from 8-10pm.

You can get tickets here.

From Henri Poole:

At 8:30am this morning, wearing neon Hazmat gear, 25 techology activists from FSF & EFF swarmed the 2006 Windows Hardware Engineering Conference in Seattle.

Following the lead of the French anti-DRM activists, the new initative, Defective By Design, is signing up activists interested in getting involved in local actions to bring awareness to the crippling effects of DRM on art, literature, music or film, and free software.

ThinkProgress has a nice clip from Fox News on which an Exxon lobbyist compares Gore's film to Goebbels' propaganda. That didn't take long.

Follow the discussion at OpenBusiness.CC.

In a rare spin into politics, ebay's Meg Whitman has written to eBay community members asking them to write members of Congress to get them to support Network Neutrality legislation. (eBay's policy statement on NetNeutrality is here. )

This is a critical time. Congresswoman Zoe Lofgren is my favorite leader on this issue. After just barely squeezing a victory in the House Judiciary Committee last week, the press is on now for the vote on the floor. The Congress Daily (which can't be linked to) estimates about a $1 million per week is being spent on ads by telecom and cable companies to fight neutrality legislation.

SaveTheInternet.com has an action site. There's another (overly fancy) site I hadn't seen before: It's Our Net. But whether you like fancy or plain, spread the word.