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Abstract:
This paper examines the the concept of network neutrality in telecommunications policy and its relationship to Darwinian theories of innovation. It also considers the record of broadband discrimination practiced by broadband operators in the early 2000s.

Open access, telecommunications, network neutrality, broadband, discrimination, internet, service providers, cable operators, federal communications commission

Abstract:
This paper suggest that the main challenges for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy. Since its inception copyright has set important baselines upon which publishers and their modern equivalents compete.business. As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship.

The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the existing copyright code and the history of 20th century copyright. Second, it helps us ask whether copyright is in line with other important goals of national communications policy.

copyright, communications, telecommunications, authorship, compulsory licensing, public choice, vertical foreclosure, new institutional economics, legal history

Abstract:
Over the next decade, regulators will spend increasing time on the conflicts between the private interests of the wireless industry and the public's interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

This report finds a mixed picture. The wireless industry, over the last decade, has succeeded in bringing wireless telephony at competitive prices to the American public. Yet at the same time we also find the wireless carriers aggressively controlling product design and innovation in the equipment and application markets, to the detriment of consumers. Their policies, in the wired world, would be considered outrageous, in some cases illegal, and in some cases simply misguided.

network neutrality, telecommunications, wireless, mobile, carterfone

Abstract:
What follows is a basic guide to the policy divisions in the broadband debate that have emerged and some suggested areas of reconciliation. For simplicity sakes I divide the argument to a debate between the openists and the deregulationists.

The summary is critical. I fault the openists for being too prone to favor regulation without making clear the connection between ends and means. For example, too few openists have asked the degree to which the structural open access remedies pushed by independent service providers actually promote the openists' vision. Meanwhile, I fault the deregulationists two reasons. First, the deregulationists have overlooked the fact that limiting government, as they desire, sometimes requires government action. Remedies like network neutrality, for reasons I suggest, may be as important for control of government as it is of industry. I also fault the deregulationists for an exaggerated faith in industry decision-making. I suggest that some deregulationists have failed to familiarize themselves with the processes of industry decision-making before demanding deference to it. This is a particularly serious problem given an industry with a recent track record of terrible judgment and even outright fraud. One example is the demand by some deregulationists that deference is due to a so-called mart pipe vision, without analysis of whether that vision has any independent merit.

The Article, finally, seeks to reconcile the two sides of the broadband debate and defends the network neutrality principle as a starting point. Deregulations and openists, while divided along many lines, share a common faith in innovation as the basis of economic growth. Both sides, in short, worship Joseph Schumpeter and his ideas of competitive, capitalistic innovation. Fidelity to this shared faith should mean mutual surrender of idealized models of either government or powerful private entities, respectively, in exchange for a shared cynicism. We should recognize that both government and the private sector have an unhappy record of blocking the new in favor of the old, and that such tendencies are likely to continue.

I argue that neither deregulationists or openists should have reason to oppose Network Neutrality rules that create rights in users to use the applications or equipment of their choice. What both sides should want in an inevitable regulatory framework for broadband are rules that pre-commit both industry and government to open market entry. It must be remembered that rules creating rights in users also guarantee the right of operators to enter the application market, free of government hindrance. For these and other reasons discussed below, limited network neutrality rules should on reflection be attractive to both sides.

network neutrality, telecommunications, broadband, open access, deregulation

Abstract:
The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what does need to be stopped is raw discrimination that is nothing more than a tax on innovation taken by government-supported corporations.

network neutrality, nondescrimination, common carriage, internet, broadband, telecommunications

Abstract:
Network neutrality has emerged as one of the highest profile issues in telecommunications and Internet policy last year. Not only did it play a pivotal role in both houses of Congress during debates over proposed communications reform legislation; it also emerged as a key consideration during the Federal Communications Commission consideration of the recent SBC-AT&T, Verizon-MCI, and AT&T-BellSouth mergers. In the following exchange, Professors Tim Wu and Christopher Yoo engage in a lively debate over the merits of network neutrality that reviews the leading arguments on both sides of the issue.

Abstract:
The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) "code is law."

But the idea remains extremely vague. Most problematically, none of these understandings of code and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected.

This Article proposes a new and concrete way to understand the relationship between code and compliance with law. I propose to study the design of code as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer ("P2P") filesharing, explored in depth in this Article, illustrates the possibility of using code design as an alternative mechanism of interest group behavior.

The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer code can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.

Abstract:
This essay proposes a new way to assess the desirability of intellectual property rights.

Traditionally, intellectual property assignment is assessed based on a incentive/monopoly pricing tradeoff. I suggest they should be further assessed by their effects on the decision architectures surrounding the property right - their effects on how firms make product innovation decisions. The reason is that different decisional structures for product development can be are fundamental to the performance of firms, industries, and even the economy as a whole.

The organizational economics literature can help with this assessment. It makes an important and useful distinction between hierarchical (centralized) and polyarchical (decentralized) decision architectures. The key point of this paper is that government's decisions with respect to property assignments can steer decision architectures toward a polyarchical or hierarchical architecture, respectively.

Innovation, intellectual property, copyright, patent, organization economics, decentralization

Abstract:
In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet.

Over the last five years, national governments have begun to impose more controls over the internet - in particular, filters that keep certain forms of applications or content out. The inevitable effect is to create barriers to trade in services. Countries have filtered or blocked internet imports without seeming to think twice about the consistency of such actions under WTO law. More such practices will fall under WTO scrutiny in the years ahead. For the most part, WTO oversight will be invisible. Yet in other areas the influence of the WTO will no doubt help shape the future of international internet transactions - and the internet itself.

In its introduction to problems of trade in internet-based services, this paper focuses on two cases: one a country and one a product. The national study is of China, among the world's more comprehensive internet regulators. China makes for an interesting case because as a condition to accession to the WTO, it agreed to what has been called "radical" reform of its service practices. Yet at the same time China is among the world's more active filterers of internet services. As we shall see, these two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS.

The second study is of the company Skype, a provider of voice over Internet services. Skype offers free voice telephone services to anyone with an internet connection. As a consequences, incumbent telephony carriers, often state-owned, have a strong competitive interest in preventing Skype from reaching their customers. The instances of Skype blocking in several countries raise interesting trade in services issues.

This paper is meant for two audiences. For those within the world of trade law it clarifies how internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements. The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted. For those within the world of telecommunications or internet law, this paper introduces the relevance of WTO law to national regulation of internet services. One of the most interesting consequences may be a tempering of what we might call the "Yahoo! Presumption"; that is, the presumption that the burden lies with internet companies to adapt to national legal systems. While still generally true, the tendency in WTO jurisprudence is to put the burden on national governments to justify internet blocking.

internet, regulation, WTO, filter, filtering, China, Skype, voice, telephony

Abstract:
This paper presents telecommunications law with a challenge: how much of the present Telecommunication's Acts objectives might be accomplished with a focus on a central anti-discrimination rule? The one-rule model provides one answer. This rule should be (1) a general norm that is technologically neutral, (2) in the form of an ex ante rule with ex poste remedies, and (3) anchored on a model of consumers' rights. The form of the rule recommended here is hardly radical. It is, rather, something of a restatement of the best of telecommunications practice based on decades of telecommunications experience. It borrows from what, as best we can tell, has worked, while shunning the regimes with the greatest tendency toward corruption.

telecommunications law, anti-discrimination, technology, network neutrality, common carriage, antitrust, localism, infrastructure, market entrant

Abstract:
While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of public infrastructure - similar to other laws governing "regulated industries," yet also influenced by the U.S. First Amendment and antitrust law.

telecommunications, regulation, history

Abstract:
Over the last decade, writers begun to try and understand the other side of copyright, sometimes called its competition policy, communications policy, or regulatory side. This paper focuses attention on a crucial problem familiar to antitrust courts that is becoming more clearly important to copyright decisions. In both copyright and antitrust, a central question is how important intent is. Judges, stated slightly differently, face a choice between what we can characterize as the bad actor and welfarist models of deciding cases. What we can call the bad actor approach punishes alleged wrong-doers based on the mens rea of the suspect, and the prospect of harm to favored sectors of the economy, like small businesses (in antitrust) or the entertainment industries (in copyright). A second, or welfarist approach calls for judges to generally ignore intent or bad behavior in exchange for a more disciplined focus on questions of industry economics and consumer, or user welfare.

Over recent years the Supreme Court has steered copyright doctrine closer to an intent or bad actor premised analysis. While politically attractive, the long term effects of this approach can be expected to be pernicious.

copyright, antitrust

Abstract:
Tolerated use is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging - an opt-in system for copyright holders, that is in property terms a rare species of ex post notice right. In addition, this paper proposes a several ways to deal with tolerated use problems, including a complement-driven theory of derivative works, and the copyright no action policy.

copyright, tolerated use, fair use, secondary works

Abstract:
These proceedings represent the perspectives and views of several experts and participants in the Internet Governance and ICANN process of the late 1990s and early 2000s.

internet, naming, governance, ICANN, DNS

Abstract:
It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors, book publishers, record labels, broadcasters, and others, who control the rights, bring the lawsuits, and take copyright as their industries' 'life-sustaining protection.'

This paper offers a new theory and defense of the role of authors and authorial copyright in the copyright system. I argue that the device of making authors rights-bearers can seed new modes of production in the industries under copyright. Rights-bearing authors can, in other words, help unsettle industry structure, by taking their rights to competitive disseminators or new modes of dissemination. Recent examples include the role of authorial rights in the rise of open source software and creative commons, while older examples include the rise of competing publishers in 18th century England.

copyright, authorship policy, Bridgeport Music

Abstract:
This article, the product of extensive interviews across China, asks the following question: What has China's internet revolution meant for its legal system? What does cheaper if not free speech mean for Chinese judges?

China, internet, judges, free speech

Abstract:
This paper discusses future competitions between cellular and computer platforms, in the context of a discussion of Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).

Generative, Internet, Zittrain

Abstract:
Much Internet scholarship tends to analyze the Internet at an inappropriate level of abstraction; focusing on the Internet as one "medium," when -- by design -- nearly all of the significant facts for certain questions are to be found at the level of the application and its associated protocols. The article suggests that application-centered thinking makes a better tool for the hard Internet questions, such as First Amendment questions (such as filtering) and questions of private ordering.

Abstract:
Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.

First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that the world's citizens receive is disproportionately dictated by the choices and preferences of powerful nation-states and their respective effects on giant and small targets.

Second, traditional conflicts analysis can help explain and predict the future course of privacy analysis. Privacy regulation can be understood as a species of information regulation to which companies and individuals will respond in predictable ways. The analysis here shows an international privacy system that has fractured into three distinct regulatory patterns. Mainstream privacy, or transactional privacy, has become dominated by the rule of the most restrictive state, a pattern familiar to other areas like the world's regulation of competition (antitrust). Conversely, the problem of information theft has been pushed by the international system toward a kind of a race to the bottom, or to the least restrictive rule. Most akin to international piracy (the kind on boats), it is a familiar problem to international law that will nonetheless take considerable political will to reverse. And finally, while there is a potential for the international system to influence how governments handle the privacy information of their own citizens, the direct collision of interests have limited the extent to which governments police one another.

Privacy, Internet, conflicts, law

Abstract:
This paper advances a theory of judicial treaty interpretation and enforcement in the American legal system.

Today, the doctrine of self-execution dominates the study of judicial enforcement of treaties in U.S. courts. This paper, based on an extensive study of the record of treaty practice in U.S. courts, suggests a different analysis.

Treaty enforcement has in practice varied on who judges are asked to enforce a treaty against - the party alleged to be in breach - whether States, the Executive, or Congress. This paper shows this pattern thorough the history of U.S. treaty practice.

treaties, international law, treaty interpretation, self-execution

Abstract:
America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and own fiber connections that run from their homes. They would then be able to connect to a variety of service providers, including today's Internet, television, and telephone services, as well as ultra-bandwidth intensive services of the future. Consumers would have the opportunity not only to get a fast broadband connection, but also benefit from greater competition and lower prices in the retail service market.

Abstract:
Today, through historical practice, there exists a de facto ban on termination fees - also referred to as a “zero-price” rule (Hemphill, 2008) - which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that the Internet, as an intermediary between users and content providers, exhibits pricing dynamics similar to other intermediaries in “two-sided markets.” In particular, we posit that the Internet’s absence of payments from content creators to users’ ISPs facilitates the entry of content creators. In that respect, the rule provides an alternative implementation of the policy goals provided by the intellectual property system and achieves functions similar to copyright and patent law. The rule also helps avoid the problems of Internet fragmentation, in which content providers who do not reach agreements with ISPs cannot access all customers, and consumers on a single ISP are foreclosed from proccessing their content.

net neutrality, copyright