Fair use and network neutrality – is there a stable solution?

May 23rd, 2006 | by ian |

In his post “Fair Use and Network Neutrality” Lessig draws a connection which did not seem to previously exist but appeals to me as I have been looking for an excuse to talk about both in the same breath. He says:

“…in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.”

I do see the problems as somewhat related: clearly both network neutrality and fair use (in copyright law – fair dealing for Canadians) do deal with the control of information. Both deal with the preservation of rights which are in the public interest and are unlikely to be preserved in recognizable form by sheer market forces (in the classical sense). Once a power structure emerges which controls large tracts of information (big media) or the communication of the information (big networks), obviously these controlling interests will strive to use their position to shore up and maintain their position at the expense of the benefits for which the public invested in it in the first place. Especially if we create additional incentives to do so (such as shareholder profits). There is a reasonably well understood evolutionary process at work here which I will try not to belabour.

So to reframe Lessig’s question in my own words: Do we need regulation to protect us from internet and content companies (who it bears mentioning are standing on the backs of the folks who started it all with a somewhat different initial intent than to maximize commerical profit) using the money collected via commerce (and originally our taxes) to reinforce their ability to maintain and grow profits, even while the costs of producing and communicating content are dropping every day?

Well yes, I think they should be regulated in the public interest. But on the other hand should government and law decide to or not, I also believe the market will make them pay dearly by creating alternative channels for content (CC) and an alternative internet should the real one continue to follow its transformation into a collection of commercial intranets. So why bother with regulation? I’m getting to that.

The disruptive technologies of P2P, cheap storage, bandwidth and wireless/mesh networks to name a few are the environmental changes which signal that prior market solutions may no longer be optimal and are possibly even maladaptive under these new conditions, and as a result we expect some instability and periods of rapid change. Existing power networks will adapt or be outcompeted. All this is an evolutionary truism I suppose. Any historian would have predicted that the formerly well adapted powers that be would fight the changing environment (destabilizing technologies) by attempting to control them (DRM, etc…) but this is probably as tough a challenge as trying to control global warming. Oops did I say that out loud? I meant to say “unpredictable weather.”

So as mentioned I do think markets will fight back whether government and the courts, particularly IP law, wise up or not. My concern is the destabilizing force of transition: I think balanced legislation could make the difference between reasonably controllable phase change and revolutionary change. And revolutions can get ugly.

To the rights holders: Lets have a reasonable dialog on how to save the credibility of IP law before everyone and even their mothers only want to or can only afford to look for ways around it. Even if it means working somewhere IP law doesn’t really exist. Get past the short term gains and worry about sustainable solutions. There are very very big problems here.

To the network owners: Keep the content biased “application networking” technology on the edges of the internet. Otherwise it will transform “the internet” into “the intranets” and a new internet will likely be forced to arise. We don’t want to have to do that work all over again do we?

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