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January 21, 2011
The Next Digital Decade Book Launch and Event Recap
By Eric Goldman
I’m pleased to call your attention to a new book called “The Next Digital Decade: Essays on the Future of the Internet,” edited by Berin Szoka and Adam Marcus of TechFreedom. This is a truly remarkable book. It contains 31 essays on various Internet law topics from some of the brightest and most provocative thinkers on Internet law topics. Please note that I have some self-interest in praising the book because I contributed 3 of the 31 essays, but I would be fawning over this book even if none of my essays were included. It’s that good.
What makes this book so special is that *every* essay I’ve read is top-notch. In contrast, in many essay collection books, the essays are spotty—some great, some clearly inferior. Berin and Adam did a fantastic job curating the collection. They also did a nice job tying the essays together into coherent chunks.
In future blog posts, I will have more to say about some of the essays, including my chapter on Regulating Reputation as well as James Grimmelmann’s outstanding chapter on search “neutrality.” I have more to say on the search engine bias topic as well in a short essay that I intended to include in the book but didn’t get done in time.
As part of a book launch, earlier this week TechFreedom put together a symposium where book authors and other special friends discussed some of the themes in the book. Although the audience was well-stocked with techno-libertarians, the panels themselves were mostly nicely balanced, which led to a really great conversation. The remainder of this post reflects my notes from the day, which as usual are a blend of verbatim statements and my impressions of the speakers’ remarks.
Panel 1: Internet Optimism, Pessimism and Future of Online Culture
Berin Szoka, TechFreedom (Moderator)
Andrew Keen, author of Cult of the Amateur
Adam Thierer, Mercatus Center
Prof. Ann Bartow, South Carolina School of Law
[Note: Jonathan Zittrain was supposed to participate but he was a last-minute scratch. That left a hole on the panel, as the panelists had prepared to discuss Jonathan’s work. So the panel ended up talking a lot about—and mostly criticizing—Zittrain’s work without Zittrain around to defend himself!]
Thierer: Two schools of Internet pessimism:
(1) people without much hope that Internet will improve society. They feel the good old days were better.
(2) people who are technology enthusiasts but are pessimistic about the future of technology. For example, Zittrain’s view of threats to generativity and Lessig’s view that code as law leads to perfect regulation. They feel we’re at the cusp of a dark age of openness.
Pasquale: Takes a “progressive” approach to Internet studies. Issues on his mind:
(1) Leading Internet powers are like utilities. We should be fearful of monopolies.
(2) Fusion between government and corporate sectors.
(3) Internet is accelerating inequality. Ex: Zittrain’s ubiquitous human computing.
Bartow: More women used to write about cyberlaw in the 1990s than now. Regarding Zittrain’s Future of the Internet, the Internet doesn’t need to be either open or closed; it could be somewhere in-between. She also noted that there’s not much “law” in Zittrain’s “cyberlaw.” He assumes technologists will lead the way. In typical Ann fashion, she provided a bonus tip: avoid doing a search on “lickety split” if you don’t want porn.
Keen: [Eric’s note: I had never seen Keen’s shtick first hand, and it was exactly what I anticipated: provocative statements mixed with out-and-out gratuitous trolling. I personally do not respond well to trolls, so I found his remarks mostly a massive turnoff, despite a few interesting nuggets interspersed here and then.
As part of his trolling, he started off with a series of gratuitous insults targeted at many of the other participants and audience members. In my world, it’s really not nice to deliberately insult a big chunk of your audience before you even get to your substantive points.]
He doesn’t understand what the law has to do with the Internet. Law professors have seized control over the debate. Law professors are paid by law schools to churn out articles that have no market value. In contrast, Keen is a paid author and therefore guided by market forces.
Keen wants to defend a professional creative class. He is interested in failure of new media to provide an economic environment to pay the creative class. (1) Curse of piracy. Some people take pleasure in demise of old media. (2) Internet as content monetization system. Keen is skeptical of Web 2.0.
[Two more observations about Keen’s trolling. First, I don’t necessarily care about preserving a “professional creative class.” I care about creative outputs and less about protecting one traditional way we get them. I wonder if we can get most or all of our socially desired outputs if we abolished the professional creative class completely. Second, I understand some people are elitist, but most of the time, they try to hide their elitism. In contrast, Keen was unapologetically elitist. This deliberately set up an unnecessarily divisive “us-vs.-them” dynamic that people usually try to avoid in polite society. Personally, I think we’ll get a lot farther looking for ways to work together rather than creating a class warfare dynamic. Then again, I’m a mere law professor paid by my law school to churn out worthless junk, so what do I know?]
Thierer: Keen is skeptical about the technological transition. Thierer’s response: “humans adapt.” In a multi-iteration game, players will change from iteration to iteration. Ex: AOL dominated the 1990s and look at them now.
If Keen is right, what do we want to do about it? We need to cope with the changes, not fight it. Pessimists: too quick to jump on current event catastrophes, without giving a chance for coping mechanisms to evolve. When things are darkest, biggest incentives to entrepreneurs. [The conversation took an odd turn when Frank said Thierer had ironically invoked Karl Marx, who had argue that we shouldn’t try to make things better for workers so they will have an increased willingness to revolt. I’m not sure who was more insulting: Keen trashing law professors or Pasquale calling Thierer a Marxist! But unlike Keen’s insults, I know Frank was just having fun with Thierer.]
Pasquale: we need more transparency about business practices to help government enforcers do their jobs better.
Bartow: Industry evolution cuts both ways. She gave two examples: (1) her local paper dropped coverage of the university when the paper went online and got the statistics showing the level of interest in those stories. (2) anti-virus software vendors need the continued release of new viruses to support their business model.
Thierer: compare where we are today to the past. In the past, we had information scarcity. Information overload is a much better problem to have.
Bartow: puzzled by Zittrain’s criticism of Onstar because it tracks folks when that’s the entire point of the service. Tradeoffs between tracking devices and the benefits of geolocation. A concern: technologists may not reflect women’s concerns given their backgrounds.
Szoka: Zittrain thinks everyone should want to tinker with technology, but some folks don’t want to tinker.
DelBianco: consumers are frustrated with the real problems with the Internet (crime, fraud, etc.). Governments are desperate for relevancy, so they may seize that opportunity to insert themselves into the process.
Keen: “I just have to respond to this libertarian stuff”: Zittrain’s book hasn’t been read outside of law schools. In the past, major historical events have required government management of the transition.
Pasquale: Europe is becoming the de facto regulator. If we don’t take the lead, they will fill the vacuum.
Q: Silicon Valley venture capitalists try to hit home runs by funding the new displacement technologies.
Szoka: business cycles are becoming shorter. Winners last for shorter times. Digital markets aren’t like Adam Smith’s perfect competition; but dominant players may be easier to oust today, so we might be willing to accept monopolies in the short term while new disruptive technologies are emerging that will organically trump the monopolist.
Panel 2: Internet Exceptionalism & Intermediary Deputization
Adam Thierer, Mercatus Center (Moderator)
Prof. Eric Goldman, Santa Clara School of Law
Prof. H. Brian Holland, Texas Wesleyan School of Law
Prof. Mark MacCarthy, Georgetown University
Prof. Frank Pasquale, Seton Hall Law School
Me: two noteworthy dynamics (1) different types of Internet exceptionalism are proliferating, and (2) 230 liability umbrella allows for UGC experimentation like we’ve never seen before.
Holland: 230’s exceptionalism isn’t about absence of social norms. 230 enables the creation of social norms independent of legal norms. 230 sets initial condition (by mitigating legal norms, such as tort norms) and allows experimentation with new norms. Ex: Web 2.0 communities have, through contract and code, the ability to enforce their norms (we don’t just need government as only norms enforcer). Because Wikipedia isn’t forced by law to enforce, its users develop their own norms.
MacCarthy: Payment intermediaries have taken steps to police their networks. Ex: gambling, pharmaceuticals, child porn, tobacco, copyright infringement. These efforts were largely independent on legal regime in the 1990s—he thinks the payment systems didn’t qualify for First Amendment, 230, 512. Law enforcement thus reached out to payment intermediaries. He thinks this was a success. But on cost-benefit basis, it may not be worth regulating intermediaries. Plus, intermediaries have gotten the message and are voluntarily assuming responsibility. However, in the Wikileaks case, the intermediaries may have overreached.
Goldfoot: The Internet is a physical medium, and the online activities have offline payoffs. He favor a secondary liability regime similar to the secondary doctrines in copyright and patents.
Pasquale: We may need different rules for different niches in the Internet industry. Maybe it’s better to have only a couple of intermediaries, but we can trust them. If we get de facto monopolists, let’s call them a utility and embrace them accordingly.
Government agencies have difficulty getting the required expertise to understand and regulate industry. He favors bringing in expertise to the agencies. He praised the FTC for doing that with Christopher Soghoian and Ed Felten.
MacCarthy: the Internet is concentrating at every level due to network effects. So Frank’s consolidation is happening naturally. Combine with intermediaries’ willingness to police users, and we get back to media consolidation we saw with broadcasters and newspapers. So what do we do about private censorship? We’re not going to go back to FCC controls of media consolidation.
Goldman: I dispute the empirical assumption in MacCarthy’s claim of consolidation. Regarding Pasquale, I don’t trust either the government or its oversight.
Holland: More worried about Facebook than Google. Need data portability.
Pasquale: JuicyCampus/cyber-cesspools. He prefers users migrate to Facebook, which has rules, than at cesspools. [Eric’s comment: Really? I have a hard time encouraging anyone to use Facebook. See Q2 2010 Quick Links Part 3 (Special Facebook Edition), Facebook's Anti-Spam Filter Blocks Legitimate Conversations about Power.com, Distrust in the Cloud Part #2: Facebook Blocks J.mp Links and Takes Down Lots of Status Updates in the Process]
Goldman: government embrace of leading industry players may sterilize competition/innovation. With Facebook, if we lock it in as a government-monitored “utility,” will we prevent its displacer from emerging? Also, WRT JuicyCampus and People’s Dirt, the marketplace worked just fine—they both got drummed out.
MacCarthy: there are small numbers of gatekeepers at each level. Media world is always a concentrated market. How do we deal with their consolidated power?
Alex Howard from audience challenging MacCarthy: Top 10 blogs aren’t old line media (ex: Huffington Post, Mashable, Engadget, TechCrunch). Indeed, old line media are syndicating these new media players.
Goldman: even if mass-market topics consolidate on the Internet, the conversations in sub-communities are way more interesting and not consolidated at all.
Holland: small audiences are OK.
Goldfoot: should consider secondary liability on tort-by-tort basis, not blanket basis.
Milton Mueller: 230 establishes rules that enhance freedom. Contrast: utility.
Pasquale: competition/innovation isn’t our own goal. Let’s not forget that the public sector done some good things.
Braden Cox: why not extend 230 to offline world?
Goldman: I will argue for that at our 47 USC 230 conference on March 4.
Goldfoot: secondary liability has its role, such as in products liability, but maybe we could reduce liability for defamation because no one sues on those torts.
DelBianco: COICA goes after ad networks.
Goldman: If you’re going to regulate the payment systems, you have to regulate the ad networks too. Unfortunately, there is ongoing pressure to put a range of service providers to websites on the hook. We’re seeing lots of activity in this area in IP arena, but not in areas covered by 230.
Goldfoot: to be responsible, intermediaries must know what’s going and must be able to stop it.
David Johnson: Internet as global network. What entity is doing the deputization?
Goldfoot: international users delegate the power to the companies they use. Russian citizen accepts US law by using Facebook.
Jonathan Allen: does FCC net neutrality rules affect other Internet players?
Goldman: I’m seeing a quest to impose neutrality at every layer of telecom stack.
Panel 3: Who Will Govern the Net in 2020?
Berin Szoka, TechFreedom (Moderator)
Prof. David Johnson, New York Law School
Prof. Milton Mueller, Syracuse University
Shane Tews, VeriSign
Chris Wolf, Hogan Lovells
This panel did not quite come together as the event organizers probably expected. David Johnson started out by describing himself as an “optimistic exceptionalist communitarian,” and it progressively got more esoteric from there. Part of the problem is that David J. and Milton enthusiastically agreed with each other, and the other two panelists didn’t really challenge them very much. Lovefests are fine but tend to make for less interesting panels.
The topics mostly addressed Internet transnational regulation and Internet community self-regulation. From my perspective, this conversation didn’t really seem that much different from a conversation we might have had a dozen years ago.
Chat with FCC Commissioner Robert McDowell
Moderated by Declan McCullagh.
Declan: why aren’t FCC Net Neutrality rules yet published in Federal Register?
McD: might be buried in bowels of the government
Declan: did FCC step in due to Congressional vacuum?
McD: we didn’t have the authority to step in
Declan: where can government facilitate technological innovation?
McD: tax policy—Ex: extend R&D credit. Get government out of the way.
Declan: Comcast/Level 3 dispute. Should FCC in peering disputes?
McD: FCC may not have jurisdiction, it shouldn’t be involved. Peering relationships have been working out fine. If there’s an antitrust problem, it should be reviewed by antitrust authorities.
McD: Comcast consented to the net neutrality order because they were before regulatory agency.
Declan: will FCC authority wither away as more data moves to packet-switching?
McD: the Internet has shrunk the universal service pool, but we shouldn’t worry about fund shrinkage. As technology and consumer practices evolve, what is FCC’s role? Spectrum scarcity may be technologically mooted someday and undercut the rationale for FCC regulation, but this is long term.
Declan: should we be optimistic about next decade?
McD: Yes. We’re just entering golden age of wireless. But I worry about what government might do. Government is a blunt regulatory instrument.
Declan: predictions on Congress and Net Neutrality?
McD: No. I do what Congress wants. Congress could introduce legislation.
Declan: who will file first lawsuit over Net Neutrality?
McD: someone unhappy with the order! [the next day, Verizon sued in the DC Circuit]. He thinks FCC order will fail in courts.
Politico: which condition in Comcast/NBC merger are you most unhappy about?
McD: net neutrality condition. It makes one marketplace player live by the rule even if the rule is overturned; that’s misguided public policy.
Andrew Keen: there seems to be consensus that some compromise on net neutrality was needed.
McD: what was broken that the government needed to fix? Answer: nothing. The few examples of net neutrality problems all were fixed by existing law. Plus, there could be a chain reaction internationally. Are we inviting the other countries to impose their view of what’s reasonable regulation for the Internet? Plus, marketplace will be unsettled during litigation.
Thierer: FCC isn’t very transparent about releasing information.
McD: direct that comment to the chairman, who controls the process.
Mueller: Canada has done some net neutrality work. Good example?
McD: we know about it. Like us, the EU didn’t regulate net neutrality either. Most common request we get at the FCC: please regulate my rivals.
Q: hasn’t congress told the FCC to think in a stovepipe way?
McD: Yes, but statute should be modernized over time.
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