Net Neutrality: How can you tell if a lawyer is lying?

October 20, 2006 - 1 Comment

SAN JOSE, CA – (With apologies to all of my lawyer colleagues, friends and family)…The answer, of course, is “his/her lips are moving.” This is what I thought of when I read Larry Lessig’s piece on net neutrality in the Financial Times today. He’s a smart guy. I’ve seen him speak and he’s got cool glasses, but he’s just off the mark on this one. He argues in favor of net neutrality, which is arguing for more government regulation, of course. He clerked for Supreme Court Justice Antonin Scalia and I’m sure Scalia read Lessig’s piece today arguing for more regulation for the internet and must think that Lessig has lost his way. In Lessig’s Wikipedia entry, it says, “He is best known as a proponent of reduced legal restrictions on copyright, trademark and radio frequency spectrum, particularly in technology applications.” Yet, when it comes to broadband he wants more regulation and restrictions. I’m no academic or mathemetician, but his math on this one just doesn’t add up.So, why is a non-regulatory guy like Lessig calling for more regulation of the Internet? I honestly don’t know. He has done great things with Creative Commons and perhaps some of his conversations with the pro-net neutrality crowd have influenced him to “the dark side” but I can only conjecture.In the FT piece he writes: “Network owners now want to…charg(e) companies different rates to get access to a “premium” internet. YouTube, or, would have to pay a special fee for their content to flow efficiently to customers. If they do not pay this special fee, their content would be relegated to the “public” internet a slower and less reliable network. The network owners would begin to pick which content (and, in principle, applications) would flow quickly and which would not.” This is sheer fiction and he knows it. The truth of the matter is that YouTube and Google, the companies he holds up at stalwarts of fair play, apple pie, motherhood and whiskers on kittens actually charge companies to get premium placement on their websites. What’s this you say? Those who own a website or service are allowed to charge money to allow an advertiser to get top placement on their website? I’m shocked and appalled and will be submitted an op-ed to the FT stating the same. What is the difference of a service provider (in his terminology, a “network owner”) of charging a service to get premium placement on their “owned” network? They are not degrading the services of others, but enhancing the service of those who choose to pay for the premium placement.Here’s another anology: We’re in the throes of campaign season here in the ol’ US of A and television and radio ads play a large role in electing or defeating a candidate. Those candidates who have more money can buy more ads on radio and TV. They can buy them during the most popular shows so that the most amount of voters can see them. If the other candidate has no money and cannot afford to place an ad on television or radio I can only assume that Larry Lessig will offer to pay their way in the name of net neutrality. Why? Because, in his mind, the playing field should be equal for all candidates. Nobody should have an advantage. He is a professor at Stanford, so if you are a D student, but really, really, really want to go to Stanford, give him a call and ask him to lobby for neutral admissions standards. Although it may sound like it, I’m not trying to pick a fight with Lessig…I wouldn’t stand a chance in a debate with him on this or other technology issues (although I think I could take him in arm wrestling), but on this issue he is just plain wrong and he, of all people, should know it.Related non-sequitur (if that is possible): When former Republican Senator from Texas Phil Gramm was retiring he was asked in an interview if the politics of Congress or the politics of academia were thicker (he had been an economics professor at Texas A&M prior to his election to Congress): His answer: (I’m paraphrasing here) “Politics are much tougher in academia. Politics are the worst when the stakes are the lowest.” So, maybe it is politics that got Lessig to pen this op-ed. Maybe it is an affinity for pro-net neutrality companies. Whatever it was, when he was asked to support net neutrality and place more regulations on the internet, he should have said “no.”ADDENDUM: A reader rightly criticized me for conjecturing that Lessig’s position on net neutrality may have been influenced by a relationship with a pro net-neutrality company, so I changed that to “affinity.” UPDATE: Please read Scott Cleland’s response to Lessig’s op-ed in his letter to the editor in the FT.

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  1. As Lessig points out, your analogies are inaccurate. Here’s a more accurate one: you apparently would like to see our Internet become the equivalent of a corporate Intranet.”