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This is a long lawyerly comment and counter-comment on NN
From: David Farber <dave () farber net>
Date: Thu, 22 Jun 2006 13:37:33 -0400
Begin forwarded message: From: Chris Savage <chris.savage () crblaw com> Date: June 22, 2006 12:05:37 PM EDT To: dave () farber net Subject: RE: [IP] net neutrality, continued ...
-----Original Message----- From: David Farber [mailto:dave () farber net] Sent: Thursday, June 22, 2006 11:41 AM To: ip () v2 listbox com Subject: [IP] net neutrality, continued ...
Begin forwarded message: From: "Yoo, Christopher" <christopher.yoo () Law Vanderbilt Edu> Date: June 22, 2006 10:36:29 AM EDT Subject: RE: net neutrality, continued ... What is most interesting to me is the extent to which the network that most people regard today as the Internet is already nonneutral.
Network
owners are caching popular content locally, which gives that content speed and cost advantages. Overlay networks, like Akamai (which reportedly serves 15% of the world's web traffic, including Google),
are
taking this to a wider scale by maintaining a distributed network of servers and using it to deliver content more cheaply and more quickly.
<snip> Professor Yoo is of course correct that networks are not now operated in any sort of purely "neutral" fashion. To shift to law-mode for a moment, I think a lot of confusion in the Net Neutrality debate has do with the hoary distinction in jurisprudence between "rules" and "principles." A first approximation for the non-lawyers here: the tax code is full of RULES: Take this number, divide it by that number, place the result on line 17 if it's greater than $57,206 and on line 19 if it's less. Etc. RULES are intended to direct or forbid very specific behaviors. PRINCIPLES, on the other hand, are more general. When driving you are required to use "reasonable care." If you don't, then you are negligent and can be held liable, in a tort case, for the damages you cause. And though there are plenty of rules about driving, tort liability is based on the PRINCIPLE of reasonable care, and is assessed on a case-by-case basis. "Net Neutrality" is a principle, not a rule. Without getting into endless and mind-numbing discussion of how the FCC might or might not classify this or that IP-enabled service, what Net Neutrality is basically about is the principle of non-discrimination. The principle of non-discrimination doesn't say that you cannot make any distinctions at all as between customers, services, what you charge, etc. It just says that whatever distinctions you make, have to be reasonable. So, Professor Yoo's discussion of particular ways that network operators today treat traffic differently in different circumstances is kinda beside the point. It just shows that there are reasonable distinctions that can be made. E.g., sure, give live video packets priority over email attachment packets. That's reasonable. Net Neutrality says, though, that normally you shouldn't give YOUR video packets priority over a COMPETITOR's video packets. And, in the nature of principles versus rules, the specifics have to be worked out on a case-by-case basis. Then after adjudicators accumulate enough experience perhaps more specific rules can be formulated. But the inability to formulate iron-clad, water-tight, specific rules now does not remotely imply that there's anything wrong with the principle. Chris S. Begin forwarded message: From: "Yoo, Christopher" <christopher.yoo () Law Vanderbilt Edu> Date: June 22, 2006 1:22:17 PM EDT To: David Farber <dave () farber net> Subject: RE: comment for ip? I'm not sure that I agree with the characterization of the proposed Internet-labeling statute as a generalized "principle" (or, as the legal literature refers to it, as a "standard"). Classic standards are usually very short, very general, and subject to fact-specific/case-by-case interpretation in light of the totality of the circumstances with no one consideration being controlling, e.g., unreasonable restraints of trade, reasonable care, etc. The business end of the labeling proposal includes a 200+ word definition of the "Internet" that would not meet the conventional understanding of what would constitute a standard. But even accepting for the sake of argument that the proposed labeling statute does advance standard, I'm not sure that adopting a standard would be a good idea. The standard criticism of standards is that they are so open textured that it is impossible to say for certain whether liability will exist in any particular case. What that means in practical terms is that there is no safe harbor for people who wish to avoid liability and it is difficult, if not impossible, for an adjudicating body to resolves case brought under the standard at a fairly early stage of the proceedings. This has been a particular concern in antitrust law, in which an open-textured rule of reason essentially allows cases to get to juries even on the most speculative of factual foundations. Antitrust has responded in many cases by making the rule of reason standard more "rule"-like by adding on/off filters, such as antitrust injury, proof of market power, and proof of "dangerous probability of success." These filters allow courts to dispose of clearly nonmeritorious cases early on through motions to dismiss and motions for summary judgment. The clarity also provides some benefit plaintiffs with meritorious cases, since it gives them an early indication whether they are likely to prevail. This is why the DOJ has issued its Merger Guidelines. It is also the source of criticism of the FCC's failure to provide advance guidance about its merger clearance process. At best, firms will have to wait until several cases have been decided to find out what the real governing principles are. At worst, the multifactor balancing approach will provide cover for the agency to justify whatever result it deems politically expedient. In short, reliance on standards has the potential to cast ambiguity over all conduct and deprive network owners of a safe harbor in which they can safely act without fear of incurring liability. At a minimum, it would require some sort of filter that limits complaints to situations that could plausibly harm competition (such as whether the last-mile provider offers a product that competes with the content or application that is being restricted, since if they don't they have no plausible incentive to discriminate). Such a limitation would be a far cry from the type of broad-brush approaches under discussion now, which would ban all discrimination against any application or content without regard to whether the last-mile provider offers a competitive offering. As I argue in an article recently published in the Harvard Journal of Law & Technology, I also am less optimistic about the FCC's ability to police nondiscrimination mandates than some are. To paraphrase the Supreme Court's Trinko decision, the complexity of the interface between network provider and customer gives the network provider a nearly endless number of ways for it to intentionally or unintentionally degrade the quality of service it provides. As a result, supervising nondiscrimination requires extremely close and intrusive supervision of the business relationship. As Gerry Faulhaber has argued in his excellent paper on "Policy-Induced Competition," that has proven insuperable unless the interface is simple and the information requirements are low. The increasing variety of QoS demands that content and applications providers are placing suggests that nondiscrimination will be very difficult to police. ------------------------------------- You are subscribed as lists-ip () insecure org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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- This is a long lawyerly comment and counter-comment on NN David Farber (Jun 22)