Intellectual Property Law

Network neutrality advocates' lobbying efforts were thrust into the national spotlight on Monday when The New York Times' opinion pages ran an editorial urging rapid passage of a bill on the subject.

Wrote the NYT:

Users of the Internet take for granted their ability to access all Web sites on an equal basis. That could change, however, if Internet service providers started discriminating among content, to make more money or to suppress ideas they do not like. A new ?net neutrality? bill has been introduced in the House, which would prohibit this sort of content discrimination. Congress has delayed on this important issue too long and should pass net neutrality legislation now.

The Times goes on to make the argument that net-neutrality advocates have been making all along -- that heading down the path of discrimination will end up stifling innovation. The Federal Communications Commission, the author of the editorial argued, should actively enforce anti-discrimination policies.

But the question at issue isn't so much the content as the kinds of applications that get blocked, as the recent skirmishes and subsequent truce between the file-sharing company BitTorrent and Comcast, the nation's largest cable provider, illustrates.

Under that deal, Comcast and BitTorrent have agreed to work together to find both hardware and software solutions to enable BitTorrent's peer-to-peer system to run more smoothly over Comcast's network architecture.

BitTorrent has also promised to publish information about what it's doing online to make the process more transparent.

And that's the keyword: Transparency.  Net Neutrality advocates continue to pound on the word "discrimination," because network owners' traffic management practices seem so arbitrary and inexplicably opaque. 

Indeed, if we want the internet to retain its original open nature, network owners should not be allowed to retain sole decision-making control over what kind of protocols should run over their networks, argued Susan Crawford, a visiting law professor at Yale during a recent panel discussion on the subject matter at The Technology Policy Summit in Hollywood.

"Under a common-carrier-like regime for internet access, the network manager isn't making those decisions, everyone else is making those decisions," she said.

Perhaps, as many of the network neutrality advocates suggest -- the rule concerning network neutrality should be transparency.

Network providers and applications builders should always be required to publicize their design decisions so that the rest of the world can understand how networks are being managed, and why traffic is flowing the way it is flowing.

I'm not sure if this makes sense, but it's an idea that the presidential candidates could start discussing.

Barack Obama has already started the discussion. He has said that  he is committed to ensuring network neutrality, and his aides have said that an Obama administration would make  the kind of blocking activity that  Comcast engaged in against BitTorrent illegal. (It's not really clear how it would do this, though.)

Both Obama and Hillary Clinton have sponsored pro-network neutrality legislation, although Clinton has been criticized by some advocates for not speaking out more forcefully on the subject matter. 

John McCain has been vague about network neutrality both in congressional debates and on the campaign trail. He simply says that the issue is one that can be addressed by market forces.

Absent the relevant information and a consistent level of disclosures about how networks are run however, it's difficult to see how market forces can operate efficiently. In the case of Comcast and BitTorrent, the truce was only reached after pressure mounted through public outcry, the threat of litigation, and a high-profile investigation by federal regulators.

Perhaps McCain's senior policy adviser Douglas Holtz-Eakin would like to answer this question at this week's annual Computers, Freedom and Privacy conference in New Haven when he discusses the next administration's technology policy priorities.   

Photo: M3Li55@p>