Unfair Use

Larry Lessig raises an interesting straw man relative to my favorite topic:

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

Is he right, is Net Neutrality simply Fair Use applied to routers? Bearing in mind that Lessig argues that TCP/IP is something like the Law of the Internet, here’s my response:

It’s hard to debate NN because nobody knows what it means. One theory bans all forms of packet-level discrimination and another simply bans deep packet inspection. There’s also an intermediate theory that says packet-based prioritization is only OK if all packets that ask for high priority are automatically given it, but that’s a non-starter from an engineering perspective as the whole point of priorities is to maintain a short queue for some traffic on the egress from a congested router.

If NN were applied to supermarkets, there would be no quick check line and every trip to the store would end in a hellish wait in the kind of checkout line they have at Costco. I don’t know what this has to do with fair use exceptions to copyright law, you may as well be comparing NN to gay marriage.

That’s actually a close fit. NN says the fathers of the Internet wrote a Code of Conduct into its design, and any departure from it brings us perilously close to Satan. The Christian Coalition is in favor of NN regulation for this very reason. Opposition to gay marriage is similar to support for NN, as it argues from an “original intent” perspective on marriage law.

But let’s play along. Assuming the RFCs for TCP and IP are the Internet’s constitution, are we allowed to amend them without running the risk of bringing the Apocalypse down on our heads? Recall that the US Constitution had to be amended to abolish slavery and to allow women to vote.

Supposing the deal we’re facing now is like this: the Internet, as originally designed by Vint Cerf and the merry elves at USC, discriminates against real-time applications just as the Constitution used to discriminate against women and slaves and may against gays in the future. We’re now at a point where the balance of traffic on Internet could shift from downloads and web pages to real-time voice and video. Wouldn’t it be reasonable to amend the rules such that these new packets are treated reasonably? Bear in mind that TCP can’t really be used for Voice.

That’s the better analogy.

I wonder how many people understand this crap.