The Web as we know it, however, is being threatened in different ways.

Sounds serious. How is it threatened?  Well, he says….

• “Large social-networking sites are walling off information posted by their users from the rest of the Web“.  So, privacy and the “no follow” tag are a threat to the Internet?

• “Wireless Internet providers are being tempted to slow traffic to sites with which they have not made deals.”  He gives no examples.

• “The Governments—totalitarian and democratic alike—are monitoring people’s online habits, endangering important human rights.”  This is true – and a real issue – but giving government greater authority over the Internet does not seem like a good way to make this less likely.  On the contrary, asking government to place broadband under telephone regulations would seem to encourage the government to, you know, treat the Internet the way they treat telephones.

Berners-Lee goes on to say “Several threats to the Web’s universality have arisen recently”, and gives this example…

Cable television companies that sell Internet connectivity are considering whether to limit their Internet users to downloading only the company’s mix of entertainment.

Who has suggested that?  This seems orders of magnitude different than any business model I’ve heard suggested.  But this is not un-common in this frustrating net neutrality debate. Pro-net neutrality advocates say regulations are necessary to prevent [insert some absurdly improbable blocking], but few people talk about specific, plausible examples of new services that ISP’s might actually want to offer.

But when critics suggest that, perhaps, the FCC might go too far and get into content and Internet regulation, well, that’s just crazy talk.

Why is it acceptable, even “necessary”, to assume ISP’s will do something extraordinarily outrageous, but outrageous smear tactics to suggest the FCC might go much farther than the original (vague) intent of net neutrality rules?

I would have thought Berners-Lee might offer a more sophisticated analysis of the issue, but…no.

Separately, I’m also somewhat mystified by Berners-Lee’s argument that “Some people may think that closed worlds are just fine“, but “these closed, “walled gardens,” no matter how pleasing, can never compete in diversity, richness and innovation with the mad, throbbing Web market outside their gates.”  This is another example of the unnecessary “either/or” approach to open and closed systems.  Both are important, as his examples seemed to illustrate…

• His example of a “closed” “walled gardens” product?  iTunes

• His open examples? GnuSocial, Diaspora and identi.ca

I’m not sure that supports his contention that closed technologies cannot compete with “open”.   It seems fairly obvious to me that “open” technologies are useful in many ways, “closed” technologies are useful in others and people should be free to choose between the two.

The issue with net neutrality is not whether the Internet will be “open or closed”, but whether the Internet can do what it does today….or what it does today and more.

• Jeff Jarvis: @ajkeen turn the relationship 180˚, become a platform for customers’ desires: store, view, make, share stuff via us. Freedom v restriction

• Jeff Jarvis: @ajkeen encourage internet TV so as to break channels’ expensive hold on my neck….

• Jeff Jarvis: @ajkeen break bundling & pass the losses onto networks so as to, again, break their expensive hold on me in favor of open content

Yes, and imagine if everything were free and we all had a pony.  Meanwhile, in reality, as Mark Cuban explained, “There is not a single CDN that can deliver 2 or more  video streams concurrently to more than 1mm simultaneous viewers.  Not one. Anywhere. There are probably 3, maybe 4, that on a perfect day might be able to deliver a single video stream to 500k simultaneous viewers. … Video distribution of any scale places you  at the mercy of just a very few CDNs…”

So, Jarvis thinks…

• …cable providers should abandon the very effective, dedicated video delivery networks in favor of Internet TV?

• …cable providers should abandon premium content in exchange for user-generated content?

That makes no sense.  Why would cable or content companies want to abandon a successful (and extremely popular) product so they can reproduce the Internet?  The Internet already exists.  It’s called the Internet.

If content providers want to distribute across the Internet…they can do that.  If consumers would prefer to watch user generated content….they can do that.  The fact that they still choose cable services suggests, perhaps, there’s real value to what cable provides.  As Todd Spangler has pointed out, “cable TV is astoundingly popular with consumers. It’s an economic success story. People love pay television. People complain about cable bills, but nobody likes paying their mortgage either.”

This is not an either/or choice.  We can have both the open Internet and premium services.  A world with only one of those options would be a much drearier place.

The initial reaction was generally predictable along ideological or industry lines.

One example was the Wall St. Journal editorial condemning the Plan on the grounds that business hated it. At the same time, the blog Techdirt condemned it on the grounds that businesses were praising it.

I am reminded of that often.  For example, consider these two reactions to Verizon and Google announcing that they had agreed upon a reasonable policy framework for net neutrality. (This is not a criticism of either commentator – just an observation of how divergent analysis of the announcement has been)

#1: Professor Nicholas Economides of NYU said Verizon got almost almost everything and Google got very little…

“The Verizon-Google proposal is a mix of 90 percent of Verizon’s anti-net neutrality positions and only 10 percent Google’s pro-net neutrality positions,” said Nicholas Economides, a professor at New York University’s Stern School of Business.

#2: Jan Dawson, Chief telecom analyst at Ovum, said Verizon made “real concessions” and Google “made few compromises”…

Ovum’s chief telecoms analyst Jan Dawson said that “Google and Verizon have done what the Federal Communications Commission has so far failed to do: forge a meaningful compromise on net neutrality between the two sides. Verizon has made real concessions here, notably forgoing paid prioritisation on the public Internet. Google, on the other hand, has made few compromises, getting most of what it always said it wanted.”

The speech could be boiled down to…

We are people who do stuff! On the internet! And we are not gonna let The Man hold us down with the chains of capitalism, nor will we be beholden to profits!

P.S. Dear government, please send money.

The fact is that people have always been free to create art without a “corporate middleman”, question the media and do their own reporting, organize and protest, make their content free and pursue unconventional business models.

This is not new.  Pointing out that people can also do this on the Internet does not mean The Internet Has Changed Everything.  It just means people can continue doing these things in a different medium.

But then the whole glib thing smuggles in a new premise.  See if you can spot it.

“At bottom, they refuse to acknowledge the value of what we are creating — or they see our commons as a threat. And so they exclude us from policy deliberations, subsidize and protect the archaic business models of corporate giants; and they try to criminalize our sharing, copying and creative transformations of works. They want to make our fundamental personal and cultural practices — our commoning — illegal.”

It turns out, they’re not so concerned with creating their own commons (which they have always been able to do), so much as imposing their commons on people who do not necessarily want it.

Don’t misunderstand. I am sympathetic to this love of a commons and of a right to be your own entrepreneur.  Digital Society lays out the premise on our Issues page that “In a digital society, everybody can be a platform.”

But it is dangerous to learn to love freedom before you learn to appreciate responsibility.  There is – and will always be – an important place for “the commons”, but the Internet has not rendered obsolete the social contract marriage of respect for both individual freedom & individual rights.  Despite the Brave New World enthusiasm of the free culture idealists, the Internet is not so very different from the analog world.

When we think about copyright, the most pertinent question to ask is not whether some change would produce less money for rightsholders, but whether some change would remove incentives to create. Has file-sharing reduced creators’ incentives?

Oberholzer-Gee and Strumpf presented a recent paper at a music business conference in Vienna that tried to answer this question empirically. By charting the production of new books, new music albums, and new feature films over the last decade, the authors tried to see whether creative output went up or down in correlation with file-sharing.

“Data on the supply of new works are consistent with our argument that file sharing did not discourage authors and publishers,” they write in their paper, “File-sharing and Copyright” (PDF).

I am skeptical, for some of the same reasons that I am usually skeptical of “the internet has changed everything!” arguments.  The Internet is not a magical device that makes everything free, copyright is not simply a legal mechanism to make creators get out of bed, creative output is not an undifferentiated mass of content and there are many more variables than just piracy that affect content production.

Based on this story, the study seems to miss the ways in which weaker copyright protections would be destructive.  It’s not necessarily that we produce less creative work – obviously, humans will never stop being creative – but that…

1. We produce less higher-quality creative work than we otherwise would with better copyright protections (i.e., witness the movement towards low-budget reality shows, with higher-budget shows moving towards cable and premium channels; or note the difference between the quality of online-only production versus premium channel production)
2. Consumers have fewer signals about quality of creative work that allows them to invest their time/resources more efficiently
3. Creators and distributors have far less incentive to make their works more readily available in better ways.

Finally, another important point, a lot of the apparent viability of creative content is simply a function of the fact that creators can still make their money through offline distribution.  But what happens when “the internet” is not a relatively minor, tangential revenue stream, but instead THE distribution mechanism for content?  A tragedy of the creative commons.

As we move more towards online distribution for everything, the inability to protect content will slow the emergence and development of efficient markets and better distribution mechanisms. It won’t stop people from producing various forms of creative content, but then copyright has never been the only reason people create all content; it is the reason they create better content and do better things with it.

In either their post or their press release praising the decision, Free Press never mentioned FCC Chairman Genachowski.

I guess they can scramble to say some nice things quickly, but it seems odd that, in their responses to the NOI vote, Free Press just completely ignored Chairman Genachowski.  That doesn’t seem like an accidental oversight.

To some extent, this is the way the Internet has always worked.  Various non-governmental bodies (IETF, ISOC, W3C, IAB, IESG, etc) provide forums for stakeholders and experts to collaboratively figure out how stuff works, how it could work and how they can make it work.

But while skeptics may argue that there’s just no way this sort of group could possibly resolve the policy questions surrounding net neutrality, some other net neutrality supporters have argued otherwise in the past…

• In 2006, Tim Wu argued that either “a code of honor or an actual law” could accomplish net neutrality.

• In 2009, Google’s Rick Whitt said “it’s about the outcome, not the path. ….  My observation is that, in fact, you can have a network neutrality environment without the regulation to get you there.  I would submit that we actually have net neutrality right now.  We don’t have a law, we don’t have legislation [...] we don’t have regulations adopted by the FCC that says “thou shalt have a net neutral world”.  [...] And so it really is about the outcome – it’s the environment we want, and not necessarily the path.   There are many ways to get there, this may be one of them, frankly.   Or other ways like self-regulating organizations, standards, bodies and the like.”

Government, like physicians, ought to take a “First, do no harm” approach to policy. Take minimal steps, then evaluate. If an actual problem exists after de minimis steps have been taken, it is possible that regulation could be appropriate, a cost/benefit analysis should be done and additional steps taken.  Or it is possible that a problem may not exist, in which case….great. Problem solved.

Starting on step 4 seems like an invitation to missteps and unintended consequences.

The Technical Advisory Group, I think, is a step in the right direction.  I hope the FCC sees it that way.

UPDATE: Er, no. This idea did not, in fact, originate in a March 2010 speech by Verizon’s Tom Tauke.  As noted above, the idea predated that speech by quite a long time.

The last time there was a major rewrite of telecommunications laws, it took something like five years for Congress’ internal mechanisms to spit out the Telecommunications Act of 1996. A push for national cable franchising legislation went on for years but died without a vote.

Which leaves pro-Net neutrality groups in an uncomfortable quandary. If they can’t prod the FCC to grease the rails and slide some kind of regulation through soon, even if the legal underpinnings are anything but firm, Congress may not act until the iPhone 8G hits the streets in 2015. And by then, today’s high water mark of Democratic political power may be just a memory.

So they need to crank up the public and private pressure on Genachowski and the other commissioners. “This appears to be the start of a long process,” Public Knowledge said Monday. It claims the FCC must use its existing “authority to carry out its plan to set some rules of the road for the Internet.”

There is a flaw in that argument. Even though there have never been explicit Net neutrality laws or regulations, actual examples of malfeasance by broadband providers have been as rare as George W. Bush being caught eating arugula. You can count them on one hand: Comcast v. BitTorrent and Madison River.

If Comcast or AT&T ever violates antitrust laws or consumer protection laws, existing law gives the Justice Department and state attorneys general ample authority to investigate and litigate. The lawyers staffing those agencies, hardly timid souls, have proven to be eager and willing to do just that. And fraud, of course, has been illegal for hundreds of years.

In addition, California law allows companies such as Amazon.com, Google, eBay, and Yahoo to sue broadband providers engaging in any “unfair” business practice that has caused “injury” to them.

So why is this urgent push for federal regulations so necessary? Genachowski might be asking himself that question right about now.

The FCC is out on a legal limb – their argument for Title II rested, in large part, on a dissenting (minority) Supreme Court opinion – a majority of Congress opposes expanded FCC regulatory authority, and that majority will almost certainly grow next year.  The best plausible outcome for pro-net neutrality advocates right now is basically a lengthy FCC rule-making process, followed by years of court battles….which they hope they win.  That’s more of a prayer than a strategy.

Oddly enough, all of this seems less necessary now than ever, because the actual policy differences between stakeholders are becoming smaller and smaller.  There is a growing realization that, as McCullagh points out, there are quite a lot of existing laws and mechanisms to enforce actual, harmful behavior.  There is a growing realization that managed services are important, even necessary, for some applications, and everybody (consumers, content providers and internet providers) can be better off with the option available. And there is growing realization that this is not a zero-sum game; better QoS for some content does not require degradation of other content.

It’s hard to say where we go from here, but it’s a shame that the policy making process has been so captured and shaped by polemics and hysteria.

Yesterday, the FCC reached just a little further and 6 sections became 7…

“According to sources, the Federal Communications Commission will add a seventh section to the Title II regulations it plans to apply to broadband transmission, one that requires it to report to Congress about possible barriers to minorities and women.”

As MMTC president David Honig said, “the decision on what is to be forborn or not forborn is a moving target”, especially as the Agency changes over time.  I think we’ve seen this movie before…

“And that’s it and that’s the only thing I need, is this. I don’t need this or this. Just this ashtray.

And this paddle game, the ashtray and the paddle game and that’s all I need.

And this remote control. The ashtray, the paddle game, and the remote control, and that’s all I need.

And these matches. The ashtray, and these matches, and the remote control and the paddle ball.

And this lamp. The ashtray, this paddle game and the remote control and the lamp and that’s all I need. And that’s all I need too.

I don’t need one other thing, not one – I need this. The paddle game, and the chair, and the remote control, and the matches, for sure. And this. And that’s all I need.

The ashtray, the remote control, the paddle game, this magazine and the chair.”

- Steve Martin

Cable-company stocks fell Thursday on concern about the Federal Communications Commission’s plan to regulate Internet lines. [...]

“Markets abhor uncertainty. Today we got uncertainty in spades,” wrote Sanford C. Bernstein analyst Craig Moffett in a report Wednesday night. He added that “this development is an unequivocal negative … most significantly for the cable operators and Verizon.”

A big worry for investors is whether pricing regulations will limit the carriers’ ability to recoup the costs of building their networks. Even uncertainty over the regulations could affect companies’ decisions to spend, as investments in broadband lines take years to pay back.

Checking the stock prices right now, it looks like the 5-day change for various Cable companies is:

• Comcast (CMCSA): -7.13%

• Time Warner Cable’s (TWC) stocks: -12.05%

• Cablevision (CVC): -10.2%

• Mediacom (MCCC): -20.39%

• Charter Communications (CCMM): +7.38% (NOTE: This stock shows up differently, often way down, on different tickers. I’m unsure what is going on, but I include it here in order to be complete)

• Liberty Global (LBTYA): -12.45%

• Knology (KNOL): -6.32%

Clearly, this is all just a coincidence.  I’m sure shareholders don’t mind a bit.