the open architecture of the digital communication platform: economic and legal principles for...
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THE OPEN ARCHITECTURE OF THE DIGITAL COMMUNICATION PLATFORM:
ECONOMIC AND LEGAL PRINCIPLES FOR SUSTAINING THE DIGITAL REVOLUTION
MARK COOPERFELLOW, STANFORD LAW SCHOOL CENTER FOR
INTERNET AND SOCIETY
APRIL 25, 2005
Open transportation and communications networks are deeply embedded in the DNA of capitalism and are the lifeblood of democracy.
The Internet is the purest form of an open communications network we have ever experienced.
But, there are constant threats to its openness at every layer.
As a full-time activist and part-time academic I insist that this is not simply a debate about the law of property, but the political economy of property and about creating the institutions under which we want to live.
INTERNET AS A BEARER SERVICE Source: National Research Council, Realizing the Information Future (Washington: National Academy Press, 1994), p. 43.
Open to users. It does not force users into closed groups or deny access to any sectors of society, but permits universal connectivity, as does the telephone network.Open to providers. It provides an open and accessible environment for competing commercial and intellectual interests. For example, it does not preclude competitive access for information providers.Open to network providers. It makes it possible for any network provider to meet the necessary requirements to attach and become a part of the aggregate of interconnected networks.Open to change. It permits the introduction of new applications and services over time. It is not limited to only one application, such as TV distribution. It also permits the introduction of new transmission, switching, and control technologies to become available in the future
FREE SOFTWARE DEVELOPMENT PRINCIPLES
FREEDOM TO RUN THE PROGRAM FOR ANY PURPOSE
FREEDOM TO STUDY AND MODIFY PROGRAMS
FREEDOM TO REDISTRIBUTE
FREEDOM TO CHANGE AND IMPROVE
COURT CASES DETERMINE THE FUTURE OF
THE DIGITAL COMMUNICATIONS PLATFORM
CONTENT/INFORMATION
GROKSTER
BRAND X
MICROSOFT
LAYERS OF THE COMMUNICATIONS PLATFORMS AND CHARACTERISTICS THAT RAISE SPECIAL MARKET POWER OR ANTITRUST CONCERNS
PLATFORM LAYERS MARKET POWER
CONCERNS
TIPPING & LOCK-IN
Network Effects Extreme Economies of scale and scope
APPLICATIONS BARRIER TO ENTRY
Installed base Switching costs
VERTICAL LEVERAGE Incompatibilities Impairment Desupporting
VERTICAL LEVERAGE Foreclosure Refusal to Interconnect Refusal to Interoperate
CONTENT/INFORMATION
APPLICATIONS
CODE Interconnection standards, Communications protocols, Operating systems
PHYSICAL Display Devices, Switch Transmission medium
PLATFORM DESTROYING ELEMENTS OF THE CABLE ARCHITECTURE Control of Functionality
Streaming Uploading Bit stripping
Cable Modem Closed
DOCSIS, discrimination
Policy-based Routing
Exclusionary/ Discriminatory Carriage -- QOS
Preference for Affiliated Applications
CONTENT/INFORMATION
APPLICATIONS
CODE
PHYSICAL
FINGERPRINT EVERY FILE
TRACK EVERY TRANSACTION
TAG EVERY USER
COPYRIGHT HOLDERS ASSAULT ON PEER-TO-PEER COMMUNICATIONS NETWORKS
IS AN ATTACK AT THE MIDDLEWARE LAYER
Wait a darn minute!
This is intellectual property and telecommunications plant.
It is private property.
What right does Cooper have to claim access to it?
Here at the Stanford Law School Center for Internet and Society we might respond
LARRY (FREE CULTURE) LESSIG v.
THE HOOVER TOWER
These forms of property have always been subject to rules of public governance.
Intellectual property is born free under the constitution, but everywhere enchained by legislation.
Communications and transportation property are affected with the public interest from the beginning.
The term of the copyright was limited and fair use was allowed, while many uses were simply unregulated by copyright.
Telecommunications plant was subject to rules of common carriage.
By law, interconnection with other networks and carriage of traffic were provided on non-discriminatory rates terms and conditions.Later rates were required to be just and reasonable.
LARRY (FREE CULTURE) LESSIG v. THE HOOVER TOWER PROPERTY RIGHTS, EXTERNALITIES AND PUBLIC GOVERNANCE RULES:
BALANCE MAXIMIZES SOCIAL WELFARE
SOCIAL BENEFITS/ EXTERNALITIES
Tragedy of Comedy of the anti-commons the Commons We do not get a lot of We get social benefits from open access private benefit from exclusion and do not lose private benefits and we lose lots of social benefits COMMON CARRIAGE 1910 MAXIMIZES SOCIAL WELFARE COPY RIGHT 1909 Efficiency Tragedy of of the Market the common We get private benefits from exclusion We do not get much social benefit from without losing social benefits open access and we lose private benefits PRIVATE BENEFITS
Excluson Exceptions Public Interest Obligations Open Access GOVERNANCE RULES
COMMUNICATIONS PROPERTY AFFECTED WITH THE PUBLIC INTEREST
SOCIAL BENEFITS/ EXTERNALITIES
Tragedy of Comedy of the anti-commons the Commons BRAND X 1900, 2000 1910-1990 Private Carriage Common Carriage prevents capture
of large externalities
Common Carrier Lite: (Cooper) When a small number of networks can replace a natural monopoly, common carriage is too onerous, but network neutrality is necessary all we asked for was a private right of action against discrimination.
Lessig/Wu 2000 Network Neutrality Common Carrier (Shelanski): Nondiscrimination leads to Underinvestment in infrastructure Efficiency Tragedy of of the Market the common PRIVATE BENEFITS
Exclusion Exceptions Public Interest Obligations Open Access GOVERNANCE RULES
The telephone has become as much a matter of public convenience and of public necessity as were the stagecoach and sailing vessel a hundred years ago, or as the steamboat, the railroad, and the telegraph have become in later years. It has already become an important instrument of commerce. No other known device can supply the extraordinary facilities which it affords. It may therefore be regarded, when relatively considered, as an indispensable instrument of commerce. The relations which it has assumed towards the public make it a common carrier of news – a common carrier in the sense in which the telegraph is a common carrier – and impose upon it certain well defined obligations of a public character. All the instruments and appliances used by the telephone company in the prosecution of its business are consequently, in legal contemplation, devoted to a public use. Hockett v. State Indiana, 1886,
INTELLECTUAL PROPERTY FROM FAIR AND PUBLIC USE RIGHTS TO EXCLUDABLE PROPERTY TO
PROPERTY AS A RIGHT TO DISTRIBUTE
SOCIAL BENEFITS EXTERNALITIES
Tragedy of Comedy of the anti-commons the Commons Open Source/Creative Commons: GROKSTER Property as right to distribute achieves Secondary Liability greater efficiency in the digital undermines technology age because it taps distributed intelligence with low communications and transaction cost Copyright 2005 Inhibits creativity
Copyright 1909
Efficiency Tragedy of of the Market the common PRIVATE BENEFITS
Exclusion Exceptions Public Interest Obligations Open Access GOVERNANCE RULES
If nature has made anyone thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been particularly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot in nature, be a subject of property. Thomas Jefferson, 1813
SPECTRUM: GOVERNANCE RULES ARE A FUNCTION OF TECHNOLOGIES AVAILABLE
SOCIAL BENEFITS/ EXTERNALITIES
Tragedy of Comedy of the anti-commons the Commons 2000 1905, 2005 Licensed spectrum Unlicensed Spectrum
Cooper: with smart technology available is a tragedy because unlicensed is possible. Unlicensed captures externalities without the tragedy because
Propertized Spectrum spectrum is “the ocean” and all investment needed to avoid interference inheres in appliances so there is no infrastructure
1927 1927 Licensed Spectrum Unlicensed Spectrum With dumb technology With dumb technology
Interference drowns out all voices Faulhaber:
Efficiency License restriction Tragedy of of the Market leads to inefficiency the common PRIVATE BENEFITS
Exclusion Exceptions Public Interest Obligations Open Access GOVERNANCE RULES
Dimension Modality Digital Communicationsof of Platform (Internet, Web Social Order Regulation Peer-to-Peer, Open Source,
Unlicensed Spectrum)
Technology Architecture Distributed Intelligence,Participatory, Intensive Open Communications
Economy Market Decentralized, Collaborative, Cooperative
Social Norms Voluntary, Transparent Institutions Non-hierarchical,
Non-DiscriminatoryPolity Law Deliberation, non-coercive,
Egalitarian, Responsive,Property as Distribution, not exclusion
0
2
4
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18
1996 1997 1998 1999 2000 2001 2002
ISP
S P
ER
100,0
00 S
UB
SC
RIB
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S
DIAL-UP CABLE MODEM DSL-OTHER
DENSITY OF INTERNET SERVICE PROVIDERS BY YEAR
FALLING BEHIND ON BROADBAND AND INTERNATIONAL INNOVATION AND COMPETITIVENESS
Ahead on competitiveness/ innovation
Ireland is the only nation ranked ahead of the U.S. on Competitiveness/innovation that is not ahead in broadband. Sources: Broadband, ITU, February 2005, Competitiveness rankings, Richard Florida, “America’s Looming Creativity Crisis,” Harvard Business Review, October 2004.
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10
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70
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90
100
% O
F H
OU
SE
HO
LD
S
ANY BROADBAND
PENETRATION OF INTERNET AT HOME BY HOUSEHOLD INCOME REVEALS A GROWING DIVIDE
Sources: Nielsen/Netratings, “Affluent Americans Power Internet Growth,”April 19, 2004; Pew Internet and American Life Project, Database, February 2004.
1st Divide
2nd Divide
This is more than a debate about political economy, it is a life or death struggle to create a set of social institutions that are true to our progressive, capitalist, democratic traditions.
We live in interesting times as academics because we are redefining the terms of property.
We live in important times for activists because we have the opportunity to choose the kind of society in which we will live by writing new rules of public governance.
TWO ALTERNATIVE POLITICAL ECONOMIES FOR THE DIGITAL AGE SOCIAL BENEFITS/ EXTERNALITIES
Tragedy of Comedy of the anti-commons Commons Licensed spectrum Unlicensed Spectrum Open Source/Creative Commons Secondary Liability
Propertized Spectrum Private Carriage Common Carrier Lite
Network Neutrality Traditional Common Carriage Copyright 2005
Efficiency Tragedy of
of the Market the common PRIVATE BENEFIT Exclusion Exceptions Public Interest Obligations Open Access GOVERNANCE RULES
The excessively propertized, privatized world, without public governance and
obligations is a mistake, a radical break with our legal tradition, economic
experience and social history.
IT WILL CHILL INNOVATION (TECHNOLOGY)
SLOW GROWTH (ECONOMY)
INCREASE INEQUALITY & STIFFLE CREATIVITY (SOCIETY)
UNDERMINE FREE (CHEAP) SPEECH (POLITY)
We are enabling commerce in a way we did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and the question is “Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?”I do not think we can. Or should. Or will. We can no more stand neutral on the question of whether the Net should enable centralized control of speech than Americans could stand neutral on the question of slavery in 1861. We should understand that we are part of a worldwide political battle; that we have views about what rights should be guaranteed to all humans, regardless of their nationality; and that we should be ready to press those views in this new political space opened up by the Net.Lawrence Lessig, Code
This quote from Lessig may sound a bit melodramatic, but it was actually prescient. It recognized the stakes long before they had become clear to other. And, it makes the point about property I have been making in the most forceful way. The decision about slavery was a redefinition about how society defined property. It took property rights away from some and gave them to others. It also makes the point about activism.
John Kennedy said it well
“The hottest places in hell are reserved for those who remain neutral during times of moral crisis.”