Trucks, Trains, and Transformation: Net Neutrality Lessons from the First Cyberlaw Symposium
21 Pages Posted: 1 Sep 2016 Last revised: 26 Oct 2016
Date Written: August 30, 2016
In 1992, before the the term "network neutrality" was a twinkle in Tim Wu's eye, before Chicago's famous "Law of the Horse" symposium, and soon after the birth of the commercial internet, a group of scholars and practioners met at what is believed to be the first Cyberlaw symposium - hosted by Hank Perritt and Villanova Law School.
The group discussed many of the same issues that continue to vex scholars today, including access to networks and whether to treat hosts as distributors or publishers. This essay, in celebration of the Villanova Law Review's 60th anniversary, considers one pointed (and surprising in retrospect) argument against what we now call net neutrality through common carrier regulation.
David Johnson, who would go one to lead the Electronic Frontier Foundation and coauthor one of the most cited internet law articles ever, made the case that common carrier regulation should not govern access to networks, and that contracts should apply instead. He memorialized this position in an essay cowritten by then Villanova student Kevin Marks. It was an interesting argument from an important figure, made surprising by a seeming reversal today: Johnson favors the current common carrier network neutrality rules.
This essay considers this turnabout by making three contributions. First, it critically examines the Johnson & Marks analogy that networks are like the trucking industry, including analysis of what happened in trucking since 1992. Second, it considers an alternate analogy, railroad regulation, and shows where proponents and opponents of this analogy are persuasive. Third, it explores what has changed in 1992 to see why Johnson changed his mind, and whether his argument would have turned out differently if he were faced with today's market back in 1992.
Keywords: Internet, NREN, Network Neutrality, Common Carrier
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