Archive for February, 2006

Someone asked me today what rules the FCC would apply to online video.  My first thought was “rules? why have rules? what possible basis would there be for imposing any rules?”

But then I pulled myself together and attempted to provide a principled answer.  I said, “They'll claim that certain rules are important social policies that need to be carried over into the digital age.”  (This was the same principle used to back the Television Sans Frontieres initiative [pdf, 12/05 draft, now before the European Parliament and Council], and this is how the E911/CALEA debacle started.  The next debacle will be the Universal Service discussion we'll have this year.)

The Europeans have said (overview here) we need to ensure “cultural diversity, the right to information, the protection of minors, and consumer protection.”  Will the FCC come up with a similar list?  If so, why?

The only reason to regulate here (cynicism) would be to protect the business models of existing broadcasters and the telcos/cablecos who want to become broadcasters and want to create barriers to entry to others.  There is no scarcity or “public airwave” or “invasion into the home” or spectrum allocation rationale for regulation of online video. 

This is a completely disruptive marketplace, if it's allowed to form.  We'll have so much tagging and generating and sharing of online video that our heads will be spinning.  Blogs?  Who cares!  We'll be sticking video clips together!  Text, schmext.  Take a look at the Participatory Culture Foundation.  They're creating a free and open source internet TV platform, for creation and sharing of video. 

Why would the FCC want to get involved here?  There hasn't been a market failure — but there is a fabulous and enormous market about to reach the public consciousness. 

So I'm hoping the question about regulation of IP video was just an idle one.  I'm hoping we're not headed down another rocky road of rulemaking. 

This is a note about three conferences coming up, only two of which I can go to:

1.  Silicon Flatirons – The Digital Broadband Migration.  If the rewrite of the telecom act is all about video, as some say, then I'm on the right panel.  But to confuse things, I'll be talking about E911 and CALEA and the new form of regulatory capture those rulemakings demonstrate.  (Here's The Ambulance, The Squad Car, and The Internet.)  As far as I can tell, no one from the current FCC is speaking.  But former Chairman Michael Powell will be there. Feb. 20-21.

2.  Cultural Environmentalism –  This is a celebration of Jamie Boyle's book, Shamans, Software, and Spleens, from 1996.  The conference organizers were probably hoping that I would write about copyright.  But to confuse things, I'll be talking about the network neutrality battle.  (Here's Network Rules.)  March 11-12.

3.  Freedom to Connect — I wish I could go.  But I have some teaching to do (and I have great students this term, let me tell you.)  OneWebDay is a sponsor of what is bound to be a terrific two-day meeting.  April 3-4.

The remarkable Clive Thompson has an article in New York magazine about bloggers making a living by blogging.  It's hard work.  They're professionals.  Bloggers may have started out as amateurs, but things have changed — he suggests you need a publicist.  (It's true that I would like to get OneWebDay on Oprah.)

Now, you could see the emergence of the telco/government approach to the net as the entrance of professionals.  Sure, all you amateurs have had your day, but it's time for the professionals to take care of things.  These are people who don't care passionately about the potential of the net — but don't have to.  They know how to make it work (they think) efficiently. 

When being a soldier became a professional pursuit (shortly before the First World War), things really changed.  On the one hand, the army became much better-trained and better at shooting.  On the other hand, many many more people died. 

Professionalism may not be a good thing for the world as a whole in all fields.  Amateurs may bumble, but their experimental nature means that unexpected (and sometimes valuable!) things happen.

The professional net would be very different from the one we have now.  Maybe the amateur net will persist, even if/when the professionals enter in – it's hard to say.  Amateur bloggers:  we're probably here to stay.  Even if no one pays us a dime. 

Big storm here, two feet of snow, no trains or planes, but the house was almost full tonight for the last performance of …Kismet. 

This much-loved “Arabian Night” set in a mythical Baghdad, features a lush score adapted from the melodies of Alexander Borodin . . and produced such standards as “Stranger in Paradise”, “And This is My Beloved”, and “Baubles, Bangles and Beads”.

The crowd was feeling proud of itself.  No mere blizzard is going to keep us from a night of kitsch-with-veils!  Lots of uneasy laughter prompted by all the mentions of Baghdad.  Scimitars, funny hats, purple sashes, and then we all sloshed out into the night again.  The puddles are getting very deep and mysterious at the corners of the streets out there.

On another wintry note:  Hemulens.  You may know some.  Here's a classic first glimpse:

The pale winter sun shone over a big Hemulen who came rushing down the nearest slope on his skis.  He was holding a shining brass horn to his snout, and seemed to be having a splendid time.

So the Hemulen arrives and refuses to stay in the house.  No, that would be stuffy and unhealthy.  He likes fresh air, and lots of it.  He insists on having an igloo built, saying “Let's start at once and not lose any time.”  While the others obligingly build the igloo the Hemulen does gymnastics down by the river.

“Isn't the cold wonderful, ” he said.  “I'm never in such good shape as in winter.  Won't you have a dip before breakfast?”

It gets worse.  He forces everyone to ski, even though they're scared to, and rushes fiercely up and down the hills of snow.  The rest of the people really enjoy sleeping late and lolling around, but the Hemulen interrupts all that.

He always began by telling them that the drawing-room was stuffy, and describing the fresh cold weather outside. 

Then he chatted about what could be done this fine new day.  He did his utmost to find some amusements for them all, and he was never hurt when they refused his proposals.  He only patted them on the back and said:  “Well, well.  You'll see for yourself by and by how right I am.”

A Hemulen would not have enjoyed Kismet.

==

Hemulens were the invention of Tove Jansson.

Today's Washington Internet Daily (not available online) has a story reporting on a Center for American Progress discussion about municipal broadband.  A mayor of a small (6000 people) town in Indiana said that his town had 25% unemployment and incredibly high costs for business internet connections (try $1350/month for a T1 line). 

After [the town] began a limited but effective municipal broadband program, businesses decided to stay, and some even moved in, [the mayor] said. The network has expanded and covers parts of 7 counties, and is still “growing like crazy,” he said.

Now, the next question is:  will the municipality be able to provide truly highspeed broadband capabilities?  And the question after that is:  what if the municipality decides it doesn't want to carry certain content on its networks?

But the key inquiry is “compared to what.”  If the municipality hadn't done this for itself, it would still be waiting for an incumbent to deign to provide it service. 

I was dismayed to see the WSJ article today that suggested that some bloggers should have disclosed that they might be paid someday by FON. I'm sad to see their integrity questioned.  But the general idea that disclosure is a good thing — that's probably right.

So, in case you ever wonder, I wanted to let you know that I have one source of funding: the law school I work for.  I have an old advisory board relationship with Squaretrade that, like the FON advisory relationship, might someday result in some money being paid to me, but I have no idea how much or when that might happen.  I have no relationship with FON, and in fact was so out of the loop that I learned about the Google investment from a listserv and thought it was neat and blogged it.  I have no consulting relationships with anyone.  I'm so far the sole financial backer of OneWebDay.  I'm on the board of ICANN, but that's an unpaid position. I did get a free copy of the Kurzweil “The Singularity Is Near” book, and I really enjoyed reading it…

I do often post about things my friends are doing, but that's because I like what they're doing.  I'm grateful to have a voice through this blog.

At today's State of the Net conference in DC (where I was flogging OneWebDay with a lot of help from my friends), BellSouth general counsel Bennett Ross said that, sure, they'd want the freedom to do exclusive deals with internet content providers.  That's the first time the response hasn't been “But why would we have any incentive to have exclusive deals?”  It's refreshing.

A second change in meme came from Vint Cerf, who said [I'm paraphrasing, and I hope accurately] that an option in addition to or instead of legislation to deal with net neutrality would be the ability to monitor whether net performance actually was being degraded from the consumer's perspective.  That's refreshing too. 

So far, all we have are fears and threats:  fears that prioritization will lead to the net going out of business, and threats to control everything with no particular promises.  Some empirical evidence one way or the other, as to whether the net is dimming, might be useful.

This is a fine story.  It's a harbinger:  Google and Skype have invested in a Martin Varsavsky startup called FON.  (Note that Varsavsky floated the idea in a blog.) (Note that OneWebDay could use sponsors.)

All you need to do to become a Fonero is download some software that turns your wireless router into a local hotspot.  Then anyone around you can flip open their laptop and become part of the network.  Listen to Skype founder Janus Friis:

“There is no more important shared goal that we have as an industry than helping to make broadband Internet access widespread and low cost.  So as part of Skype’s role in making this happen … today we are announcing that we are making a small investment in a new and exciting company called FON.”

It would be great to have wireless internet access available everywhere.  It would be a dream come true.

As it becomes more difficult to imagine drafting a network neutrality legislative command that will be both meaningful and easily enforceable, it becomes easier to imagine a wholly different kind of legislative action: enforced separation.

In 1992 a FERC Order (No. 636, known generally as the Open Access Order) made pipeline unbundling a requirement, mandating that pipelines separate transportation from the services they offer.  Order 636 meant that the transport pipelines could no longer engage in gas sales or sell any product as a bundled service.  Thus, no advantages in terms of (among other things) the timing of gas transportation could be afforded by a pipeline to its affiliates.  This set of actions has had generally beneficial effects on gas customers. 

It was expensive to achieve:  FERC recognized that pipeline companies would incur costs as a result of complying with Order 636, and allowed them to charge customers for them.  The initial plan was to allow pipeline companies to charge exit fees and surcharges to recover 100 percent of their “prudently incurred” transition costs; later, FERC issued Order 636-A on August 3, 1992, which required pipeline companies to recover 10 percent of these transition costs through the rates they charged for gas transportation.  (Note — these are transition costs, not “what we could have gotten if we could have soaked everyone for every dime” costs.) 

It is true that having the FCC work on such a “prudently incurred” cost-assessment regime would take a great deal of time and would be heavily regulatory.  But the cost might serve a higher public value — access to the internet-as-ocean.

Alex Soojung-Kim Pang and David Pescovitz say we need a better word.  There's even a blog about the end of cyberspace.

I'm not so sure.  I don't think we have a better word than cyberspace right now, with its ”self-steered” meaning.  It's a great word for a collective mind that orders itself and reflects its influences.

Talking about cyberspace is difficult, because we are fundamentally ill-equipped to understand it.  Legal thinkers are prone to imagine the world mechanically, as a collection of configurations of structureless particles, pushed around by enslaved forces.  Communications law mavens will say confidently that nothing much has changed in twenty-five years, and the Baby Bells and cable companies talk of “customized video products” and “viewing experiences,” but that is not the internet.  Because the internet is made up of computers, people often forget that it is a non-mechanical social world, full of patterns that have arisen from decentralized local behaviors.  It is a constantly shifting kaleidescope of energy and attention.  Like all complex adaptive systems, the internet is constantly in a state far from equilibrium.  It is changing and adapting, causing itself to find its own stable organizational patterns that will themselves change in time.

The internet is the “transcendent” medium described by Judge Dalzell in the CDA litigation, characterized by low barriers to entry and parity among speakers.  It is not like anything we have seen before; it is not like broadcast or a newspaper or a telephone network—none of which could be described as complex adaptive systems.  We need to take a more imaginative approach when thinking about it. More data will not help us, and mere Newtonian mechanical references (the pure syntax approach) cannot explain what it is.  A Newtonian might say, “You have a particle with mass, it’s acted on by forces, and there you are,” and the cable/telcos have a similar approach:  they say this is just another communications network characterized by access points and flows of data.

“Cyberspace” is a useful portmanteau term.  It carries the idea of not needing external direction, the notion of spaciousness, and the feeling of a group mind.  Someday it will be in vogue again, and I'll still be using it.