Internet and Communications
How do the Internet and technological advances affect society’s communications, and how do regulatory interventions balance innovation and competition?
Preserving Fairness in Competition
The Internet has been heralded as a democratic medium that helps ordinary people get heard. Professor Tim Wu believes that this fundamental fairness may not last long. After all, commercial interests—the companies that own the broadband networks you use every day—are playing a growing role in what appears on your computer screen.
It was Professor Wu who introduced and popularized the concept of “network neutrality,” the idea that providers of broadband service should not discriminate on their networks, treating all content alike. “It means that a broadband supplier cannot favor Google over Yahoo or block YouTube from your computer because it’s owned by a competitor,” says Professor Wu.
The hard part comes in translating this principle into law. It is still unclear whether the FCC, FTC, or Congress will take the lead, “but someone should,” says Professor Wu. Network neutrality has inspired tremendous grassroots support and led to an online movement that defeated an anti-neutrality bill in Congress in 2006. “The Internet is meritocratic; it’s survival of the fittest,” says Prof. Wu. “Picking and choosing which content will appear changes the competitive and innovative environment in which it exists. It’s even a threat to the growth of the U.S. economy.”
Professor Scott Hemphill explores proposals to regulate broadband suppliers using a particular kind of network neutrality regulation—what he calls a “zero-price rule.” Under a zero-price rule, a broadband provider is prohibited from charging content providers to send information to consumers, even if it does so evenhandedly without discriminating among them.
Hemphill argues that such rules are not justified from the standpoint of avoiding exclusion of certain content providers, and would tend to induce costly and unregulated work-arounds by regulated parties. He argues that a stronger but narrow argument for regulation exists in certain cases in which the output of social producers, such as Wikipedia, competes with ordinary market-produced content. “Scholars and policymakers are watching ‘new economy’ giants, such as Comcast and Google, and asking anew whether antitrust law is enough to protect competition and innovation,” he says.
Free Information on the Internet
Professor Eben Moglen challenges the very premise of intellectual property law—the idea that important products will not be made without the incentive of ownership. Professor Moglen, who writes on the topic and speaks to groups around the country, argues instead that, for certain kinds of products, information-sharing will produce higher-quality material.
As chairman of the Software Freedom Law Center, he has represented many of the world’s leading free software developers. “We are trying to change not just how software is made, but what it is and how it works in relation to all the other aspects of human intellectual production,” he says. “In the 21st century, software is becoming a public utility, not a product.”
Professor Moglen has served as general counsel and board member of the Free Software Foundation and was heavily involved with drafting version 3 of the “GNU General Public License,” or GPL. Though most aren't familiar with the term, people worldwide who use everyday technology benefit from GPL, a widely used free software license. It grants recipients the freedom to modify and redistribute software and makes it possible for programmers to share code. The Free Software Foundation has released GPL version 3. Says Professor Moglen, “Free software presents an attempt to construct a commons in cyberspace.”
Professor Moglen has criticized trends which result in “excluding people from knowledge.” He advocates for moving information and access away from the few privileged owners of media, distribution channels, and software, and into the hands of the public. “The more we give away, the richer we become,” he says. Professor Moglen argues that chasing copyright violators is a waste of time and energy. “We’re all connected,” he says. “You’ll spend more putting barbed wire around the thing you’re protecting than it is worth.”
The Evolution of IP Laws
Professor Clarisa Long is exploring the political economy of intellectual property and specifically why patent, copyright, and trademark law have evolved in different ways and at different speeds over the past century. Her approach begins with asking the questions, “What legal changes are occurring?
What interest groups are involved? What tactics are they using?” She is also looking at how international treaties add a different and complex dimension to the politics of IP.