Carsten Agger on Tue, 16 Dec 2008 19:27:09 +0100 (CET)

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Re: <nettime> Google's fast track

> from wsj
> Google Wants Its Own Fast Track on the Web

> The celebrated openness of the Internet -- network providers are not
> supposed to give preferential treatment to any traffic -- is quietly
> losing powerful defenders.
> Google Inc. has approached major cable and phone companies that carry
> Internet traffic with a proposal to create a fast lane for its own
> content ...

Lawrence Lessig has responded to this article and describes its
controversial points as "made-up drama":


I got off the plane from Boston to find my inbox filled with anger about an
article in the Wall Street Journal. To those who were angry, I hope you
will direct any anger at the Wall Street Journal after you read what

The article is an indirect effort to gin up a drama about a drama about an
alleged shift in Obama's policies about network neutrality. What's the
evidence for the shift? That Google allegedly is negotiating for faster
service on some network pipes. And that "prominent Internet scholars, some
of whom have advised President-elect Barack Obama on technology issues,
have softened their views on the subject."

Who are these "Internet scholars"? Me. And of course, because I have
"softened" my views about network neutrality, and because I advised the
Obama campaign about technology issues during the primary, it follows (and
obviously so) that Obama too must be going soft on network neutrality.

I don't know what Google is doing, though if they are trying to negotiate
exclusive deals for privileged access, that shows exactly why we need
network neutrality regulation. (Though note, the article doesn't say the
deal Google was striking was exclusive).

And I've not seen anything during the Obama campaign or from the transition
to indicate it has shifted its view about network neutrality at all.

But I do know something about my own views, and what the Journal has done
here is really extraordinary.

It is true, as the Journal reports, that I have stated that network
providers should be free to charge different rates for different service --
"so long," the Journal quotes, "as the faster service at a higher price is
available to anyone willing to pay it."

But the whole punch of the story comes from the suggestion that my position
is something new. As the Journal states,

    Lawrence Lessig, an Internet law professor at Stanford University and
an influential proponent of network neutrality, recently shifted gears by
saying at a conference that content providers should be able to pay for
faster service.


    Stanford's Mr. Lessig, for one, has softened his opposition to
variable service tiers.

Missing from the article, however, is the evidence that my view is a
"shift" or "soften[ing]" of earlier views. That's because there isn't any
such evidence. My view is the view I have always had -- whether or not it
is the view of others in this debate.

For example, in April, 2008, I testified before the Senate Commerce
Committee. This is what I said:

    As I testified in 2006, in my view that minimal strategy right now
marries the basic principles of ?Internet Freedom? first outlined by
Chairman Michael Powell, and modified more recently by the FCC, to one
additional requirement ? a ban on discriminatory access tiering. While
broadband providers should be free, in my view, to price consumer access to
the Internet differently ? setting a higher price, for example, for faster
or greater access ? they should not be free to apply discriminatory
surcharges to those who make content or applications available on the
Internet. As I testified, in my view, such ?access tiering? risks creating
a strong incentive among Internet providers to favor some companies over
others; that incentive in turn tends to support business models that
exploit scarcity rather than abundance. If Google, for example, knew it
could buy a kind of access for its video content that iFilm couldn?t, then
it could exploit its advantage to create an even greater disadvantage for
its competitors; network providers in turn could deliver on that
disadvantage only if the non-privileged service was inferior to the
privileged service.

That's the same thing I said to the FCC in its hearing at Stanford. You
can hear what I said beginning at minute 18:20 here. There I distinguish
between "zero price regulations" (such as Markey's bill (which I say I am
against)) and what I called "zero discriminatory surcharge rules" (which I
say I am for). The zero discriminatory surcharge rules are just that --
rules against discriminatory surcharges -- charging Google something
different from what a network charges iFilm. The regulation I call for is
a "MFN" requirement -- that everyone has the right to the rates of the
most favored nation.

This is precisely the position that the Journal breathlessly attributes to
me today. It represents no change -- no "softening" no "shift" in my

Now no doubt my position might be wrong. Some friends in the network
neutrality movement as well as some scholars believe it is wrong -- that
it doesn't go far enough. But the suggestion that the position is "recent"
is baseless. If I'm wrong, I've always been wrong.


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