Wired for Business or Democracy?

While Internet stocks may have crashed, Internet optimists still abound.

In Next: The Future Just Happened (W.W. Norton, 2001), for example, author Michael Lewis celebrates what he sees as the unstoppable momentum of the digital age, the liberating effect of digital technologies and the inherent ability of the new technologies -- and those, ever younger, who generate them -- to overcome the vested interests of establishment organizations.

Stanford Law Professor Lawrence Lessig has a new book, too (The Future of Ideas: The Fate of the Commons in a Connected World, Random House, 2001). But Lessig is no optimist, at least not now.

While he is as much a fan of Internet technologies as Lewis, Lessig argues that corporate interests are conspiring to destroy the Internet's essentially free nature, thereby putting a stranglehold on its development and quashing many of its best potential features.

By free, Lessig means not that one can get on the Internet for free, but that its crucial layers are either unowned or accessible to all on a nondiscriminatory basis. Now cable interests, copyright holders and others are working at different points to rob the Internet of these freedoms.

Where telephone companies were required by "common carriage" regulations to be neutral and open -- to let anyone use the telephone wires, without regard to what they were saying or doing -- cable companies do not operate under such regulatory strictures. As people move from a reliance on telephone modem connections to the Internet to high-speed broadband cable connections, this regulatory difference has critically important implications.

"Cable companies have the power and the right legally to exercise much more control over what happens on the network," Lessig told us. "They are building technologies and deploying technologies that will enable discrimination in the content and applications that run on the network."

For example: "Policy-based routing is implemented through a router that allows the cable owner to choose which content flows quickly, which content flows slowly, what applications are permitted and what applications are not." The cable companies can enable their preferred content to move quickly while competitors' content is slowed.

AOL-Time Warner represents the biggest threat to Internet freedom in this respect. Time Warner has a huge library of proprietary "content" -- magazine articles, movies, cartoons, music -- AOL controls tens of millions of people's access to the Internet through their proprietary software, and Time Warner is a major cable operator.

Notes Lessig, "This vertical integration creates all the wrong incentives for keeping the platform of the network open."

But the future of the Internet is not just under threat from cable operators. The expanding application of ever-more restrictive copyright rules -- in many cases now going far beyond any legitimate protections -- is further endangering Internet freedom and technological development.

On the Internet, the influence of copyright is potentially much more insidious and pervasive than is immediately obvious. If you put a picture of Mickey Mouse on your personal website, you might reasonably figure, Disney is not going to come after you. (And if your site is a parody, you might even know that you have First Amendment protections against copyright claims.) But the company may go after your Internet service provider, demanding it remove your copyright-infringing website or face litigation. Such demands, delivered through "cease-and-desist" letters, are issued all the time, with a huge chilling effect on Internet creativity and discussion.

Expanded copyright protections -- pushed by an aggressive copyright bar and copyright holders, such as Disney and the movie studios -- are increasingly blocking Internet users' ability to disseminate information and ideas on the web. And, they are disabling new technologies that rely on various kinds of electronic copying.

Opportunities remain to restore freedom to the Internet and turn back the controllers. To expand competition to the cable monopolists, Lessig says, the government should supply a broad space for high-speed wireless Internet. He calls for new regulations that would impose common carriage rules on cable Internet services, so that cable operators could not discriminate in favor of their preferred content. And he proposes limiting the scope and duration of copyright, so that the public domain is enhanced, and much more frequent compulsory licensing of content that remains copyrighted (enabling non-copyright holders to use content, but with a requirement that they pay a license fee).

But Lessig confesses to being skeptical about the prospects of success. While he is a strong booster of Internet technologies, he recognizes that the potential embedded in a technology only presents possibilities. How a technology actually unfolds also depends on politics and legal arrangements -- that is, the balance of power in society. And now, he says, "the powers on the side of changing the Internet are much stronger than the powers on the side of preserving" its freedoms.