Posted by Jed Lewison on Tue Dec 16, 2008 at 1:51 AM Pacific

Lessig's Defense

Lawrence Lessig vigorously defended himself yesterday from allegations by the Wall Street Journal that he had softened his support for Net Neutrality. Sayeth the WSJ:

But Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service.

Lessig's response is that there's nothing new about his position.

It is true, as the Journal reports, that I have stated that network providers should be free to charge different rates for different service -- "so long," the Journal quotes, "as the faster service at a higher price is available to anyone willing to pay it."

But the whole punch of the story comes from the suggestion that my position is something new. ...

...Missing from the article, however, is the evidence that my view is a "shift" or "soften[ing]" of earlier views. That's because there isn't any such evidence. My view is the view I have always had -- whether or not it is the view of others in this debate.

...You can hear what I said beginning at minute 18:20 here. There I distinguish between "zero price regulations" (such as Markey's bill (which I say I am against)) and what I called "zero discriminatory surcharge rules" (which I say I am for). The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

This is precisely the position that the Journal breathlessly attributes to me today. It represents no change -- no "softening" no "shift" in my views.

Now no doubt my position might be wrong. Some friends in the network neutrality movement as well as some scholars believe it is wrong -- that it doesn't go far enough. But the suggestion that the position is "recent" is baseless. If I'm wrong, I've always been wrong.

Lessig invited readers to review his past statements, linking to his February, 2006 testimony before Congress on Net Neutrality. In that testimony, Lessig said:

But the problem that we've identified, in the network-neutrality work that I've been a part of, is the problem with access tiering, where you start saying to large companies like Google, ''Here, you can buy the reserved lane, so that the reserved lane serves your content well.'' And I know Google can afford it. But when Google then rolls out something called Google Video that tries to compete with the other video services out there, like YouTube TV or YouAreTV. Those competitors will never have the opportunity to compete effectively against Google Video if Google Video can buy the fast lane. So, if you want to preserve the kind of competition that made Google possible, you have to do what Google suggested this morning, in the words of Vint Cerf, you have to preserve the end-to-end neutrality principles that define the Internet and, in my view, define telecommunications law for the last 40 years.

Another quote:

Senator BOXER. Now, my question is to Professor Lessig. Suppose in the 1990s Microsoft was able to pay to get faster service for consumers accessing its search engine. What would the impact have been on the development and expansion of Google?

Mr. LESSIG. Well, it would have been negative. It would have restricted the opportunity for Google or new competitors to enter into this marketplace. Now, whether it would have been enough to stop it or not, who knows? But there's no doubt of the effect. The effect would have been to restrict application competition, which is exactly what we should be encouraging in this context.

Getting the drift? Here's another:

And the fourth point that I don't think anybody can really deny, the changes that are being described, not by the very reasonable people who testified in the earlier panel, but by the leaders of Verizon and the leaders of AT&T, the changes that are being described would radically reduce competition in applications and content on the Internet, radically reduce that competition because as they set up fast lanes on the Internet, the only companies that could afford to buy access to the fast lanes on the Internet are companies like Google and Yahoo! and Microsoft and the content companies that already have succeeded in the marketplace. The next generation Yahoos! and Googles cannot buy access to the fast lane, because they would face a barrier to entry that would restrict competition. This restriction in competition would fundamentally weaken the growth of the Internet.

And:

Access-tiering will create an obvious incentive among the effective duopoly that now provides broadband service to most Americans. By effectively auctioning off lanes of broadband service, this form of tiering will restrict the opportunity of many to compete in providing new Internet service. For example, there are many new user generated video services on the Internet, such as Google Video, YouAre.TV, and youTube.com. The incentives in a world of access-tiering would be to auction to the highest bidders the quality of service necessary to support video service, and leave to the rest insufficient bandwidth to compete. That may benefit established companies, but it will only burden new innovators.

How did Lessig define access-tiering?

By "access-tiering," I mean any policy by network owners to condition content or service providers' right to provide content or service to the network upon the payment of some fee. These fees are independent of basic Internet access fees. No one questions the right of network owners to charge Google for the bandwidth it uses. Instead, "access-tiering" adds an additional tax on network innovators based upon the particular service being offered.

Today, Lessig says that he is comfortable with charging content providers higher access fees for different service tiers so long as everybody pays the same price:

The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

So Lessig's current view is that so long as all providers are treated equally -- that none are given better pricing than others -- then everything is fine and dandy, even if some content providers are in a better position to pay the surcharges than others.

Just a couple of years ago, his position was that any access tiering that allowed wealthier companies to enjoy an advantage over other companies was problematic.

It seems fair to say then, that his views on Net Neutrality have changed, and that he's softened his views on access-tiering.

Lessig could very well be right to take the position that he does today. But it certainly doesn't seem like the position he held 2 years ago.

Lessig's Defense

Lawrence Lessig vigorously defended himself yesterday from allegations by the Wall Street Journal that he had softened his support for Net Neutrality. Sayeth the WSJ:

But Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service.

Lessig's response is that there's nothing new about his position.

It is true, as the Journal reports, that I have stated that network providers should be free to charge different rates for different service -- "so long," the Journal quotes, "as the faster service at a higher price is available to anyone willing to pay it."

But the whole punch of the story comes from the suggestion that my position is something new. ...

...Missing from the article, however, is the evidence that my view is a "shift" or "soften[ing]" of earlier views. That's because there isn't any such evidence. My view is the view I have always had -- whether or not it is the view of others in this debate.

...You can hear what I said beginning at minute 18:20 here. There I distinguish between "zero price regulations" (such as Markey's bill (which I say I am against)) and what I called "zero discriminatory surcharge rules" (which I say I am for). The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

This is precisely the position that the Journal breathlessly attributes to me today. It represents no change -- no "softening" no "shift" in my views.

Now no doubt my position might be wrong. Some friends in the network neutrality movement as well as some scholars believe it is wrong -- that it doesn't go far enough. But the suggestion that the position is "recent" is baseless. If I'm wrong, I've always been wrong.

Lessig invited readers to review his past statements, linking to his February, 2006 testimony before Congress on Net Neutrality. In that testimony, Lessig said:

But the problem that we've identified, in the network-neutrality work that I've been a part of, is the problem with access tiering, where you start saying to large companies like Google, ''Here, you can buy the reserved lane, so that the reserved lane serves your content well.'' And I know Google can afford it. But when Google then rolls out something called Google Video that tries to compete with the other video services out there, like YouTube TV or YouAreTV. Those competitors will never have the opportunity to compete effectively against Google Video if Google Video can buy the fast lane. So, if you want to preserve the kind of competition that made Google possible, you have to do what Google suggested this morning, in the words of Vint Cerf, you have to preserve the end-to-end neutrality principles that define the Internet and, in my view, define telecommunications law for the last 40 years.

Another quote:

Senator BOXER. Now, my question is to Professor Lessig. Suppose in the 1990s Microsoft was able to pay to get faster service for consumers accessing its search engine. What would the impact have been on the development and expansion of Google?

Mr. LESSIG. Well, it would have been negative. It would have restricted the opportunity for Google or new competitors to enter into this marketplace. Now, whether it would have been enough to stop it or not, who knows? But there's no doubt of the effect. The effect would have been to restrict application competition, which is exactly what we should be encouraging in this context.

Getting the drift? Here's another:

And the fourth point that I don't think anybody can really deny, the changes that are being described, not by the very reasonable people who testified in the earlier panel, but by the leaders of Verizon and the leaders of AT&T, the changes that are being described would radically reduce competition in applications and content on the Internet, radically reduce that competition because as they set up fast lanes on the Internet, the only companies that could afford to buy access to the fast lanes on the Internet are companies like Google and Yahoo! and Microsoft and the content companies that already have succeeded in the marketplace. The next generation Yahoos! and Googles cannot buy access to the fast lane, because they would face a barrier to entry that would restrict competition. This restriction in competition would fundamentally weaken the growth of the Internet.

And:

Access-tiering will create an obvious incentive among the effective duopoly that now provides broadband service to most Americans. By effectively auctioning off lanes of broadband service, this form of tiering will restrict the opportunity of many to compete in providing new Internet service. For example, there are many new user generated video services on the Internet, such as Google Video, YouAre.TV, and youTube.com. The incentives in a world of access-tiering would be to auction to the highest bidders the quality of service necessary to support video service, and leave to the rest insufficient bandwidth to compete. That may benefit established companies, but it will only burden new innovators.

How did Lessig define access-tiering?

By "access-tiering," I mean any policy by network owners to condition content or service providers' right to provide content or service to the network upon the payment of some fee. These fees are independent of basic Internet access fees. No one questions the right of network owners to charge Google for the bandwidth it uses. Instead, "access-tiering" adds an additional tax on network innovators based upon the particular service being offered.

Today, Lessig says that he is comfortable with charging content providers higher access fees for different service tiers so long as everybody pays the same price:

The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

So Lessig's current view is that so long as all providers are treated equally -- that none are given better pricing than others -- then everything is fine and dandy, even if some content providers are in a better position to pay the surcharges than others.

Just a couple of years ago, his position was that any access tiering that allowed wealthier companies to enjoy an advantage over other companies was problematic.

It seems fair to say then, that his views on Net Neutrality have changed, and that he's softened his views on access-tiering.

Lessig could very well be right to take the position that he does today. But it certainly doesn't seem like the position he held 2 years ago.

The Jed Report Home Page

© Jed Lewison