Network Rules

Abstract

This Essay compares the debate between the telcos and the online companies over broadband access regimes (often called the "network neutrality" debate) to the ongoing tussle between intellectual property maximalists and "free culture" advocates. These two sets of arguments are strikingly parallel. The same battles are being played out again, but this time at the fundamental level of network transport. Again, a romantic figure is being used - this time, the romantic figure of the "network builder."

Part I of this Essay discusses the context in which the telco romantic builder rhetoric is emerging, and describes how this vision is obscuring the central policy choice that should be at the heart of the discussion: will open or propertized network access lead to the greatest overall social benefit? Part II compares the network neutrality debate to the continuing battles over intellectual property that James Boyle presaged in Shamans, Software, and Spleens. Part III provides a comparative analysis, assessing the Japanese and German broadband penetration situations. Part IV provides a roadmap for future scholarship in this area.

Keywords: Network neutrality, telecommunications, VOIP, cyber law