The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Short abstract:

“Infrastructure resources are at the center of many contentious public policy debates, ranging from what to do about our crumbling roads and bridges, to whether and how to protect of our natural environment, to patent law reform, to electromagnetic spectrum allocation, to providing universal health care, to energy policy, to network neutrality regulation and the future of the Internet. Each involves a battle to control infrastructure resources, set the terms and conditions under which the public gets access, and determine how the infrastructure and various infrastructure-dependent systems evolve over time. This book advances strong economic arguments for managing and sustaining infrastructure resources as commons. The book identifies resource valuation and attendant management problems that recur across many different fields and many different resource types, and it develops a functional economic approach to understanding and analyzing these problems and potential solutions.”

Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate,and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.

I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartdly with Julie that economic models of copyright (or creativty, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, … [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilties and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.

Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy—that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency,and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.

Mike Masnick’s line-by-line reply:  http://www.techdirt.com/articles/20120208/01453517694/riaa-totally-out-touch-lashes-out-google-wikipedia-everyone-who-protested-sopapipa.shtml

Hat tip to Lauren Gelman.

There is one principle that I would add to the five principles that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startling fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

First, I argue that the FCC must resist falling into the rhetorical trap set by many participants in the debate who attempt to frame the policy debate narrowly in terms of antitrust and regulatory economics. A myopic focus on antitrust and regulatory economics misses other important dimensions at stake in the debate. Essentially, this perspective views the Internet as a mere supply chain of markets. It fails to appreciate that the Internet is a mixed commercial, public, and social infrastructure that supports an incredible variety of market and nonmarket systems and user activities that yield private, public, and social goods. Too many participants in the debate (on both sides) accept the premise that competition would alleviate concerns about discrimination or prioritization by network providers. It would not, as I discuss below.

Second, I offer a particular nondiscrimination rule that differs somewhat from the one articulated by the Commission in the Notice of Proposed Rulemaking. The FCC should prohibit broadband Internet access service providers from discriminating based on the identity of the user or use in the handling of packets. Under this approach, user may be defined as sender or receiver; use may be defined as application or content type; handling may be defined as all transport and related services associated with delivery of
packets. This simple nondiscrimination rule may seem overly strong in that it appears to rule out a significant range of activities that some might label “reasonable network management.” But as I discuss below, this rule is not overly restrictive; rather, it strikes an appropriate balance. It primarily rules out certain fine-grained forms of price or quality discrimination, does not rule out other forms of price discrimination that are not based on user/use identity, such as typical second-degree price discrimination, and does not rule out efficient methods for managing congestion, such as traditional usage-sensitive or congestion pricing. This rule maintains a general-purpose, mixed infrastructure and best preserves the Internet’s openness.

At one point, I note that “Opponents of FCC action often use powerful rhetoric to suggest that FCC action
would constitute radical intrusion by government into markets that would otherwise be free.” Of course, I dispute the opponents’ position. The Economist piece does as well. In fact, that piece ends with the following:

The FCC’s current plan—to ask last-mile providers to subsidise rural service, and to ensure equal treatment of packets of information—is a mild intervention by global standards. America’s modern-day common carriers should count themselves lucky.

It refers to Jim Speta’s excellent article, which sets forth:

three broad historical justifications for applying common carriage to regulate prices and access. First, many transporters enjoy a natural or state-granted monopoly and need to be restrained from exercising it with too much abandon. A medieval innkeeper, for example, often offered the only lodging in town; a boatman could cross only with the king’s writ. Second, the state sometimes offers favours of its own to transporters—public lands and roads, say, or the seizure of private property to make way for new infrastructure—and expects a certain level of public service in return. Third, transport is essential to commerce. It represents an input cost to almost all businesses, and to restrict access or overcharge is to burden the entire economy.

I would hasten to add that the third justification is perhaps a bit understated, at least in the context of our modern problem. As I have said here and elsewhere at greater length, it is important to recognize (even if this has not been recognized historically) that (i) transport infrastructure is essential to much more than commerce, e.g., political and social engagement among communities, communication of ideas, news, etc., and (ii) many of the activities for which transport is essential (including commerce) generate substantial spillovers (social returns in excess of private returns captured by the actors engaging in the activity). Both of these extensions may be even more significant, in my view, when we shift from transport of people and physical goods to bits (information, data, speech, communications), in part because the bits are often themselves essential inputs and also because the bits are nonrivalrous in consumption and can be shared and used and reused productively.

The Honorable Julius Genachowski
Chairman, Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Dear Chairman Genachowski:

The undersigned are a diverse group of academic researchers who study Internet policy. We applaud the Federal Communications Commission for launching the Open Internet proceeding. It is an essential step forward in the ongoing public debate over the future of the Internet. A notice and comment rulemaking proceeding is an appropriate and much needed forum for discussion about the complex issues involved.

This proceeding builds upon previous FCC actions to preserve a free and open Internet. For many years, the FCC has taken steps, such as the Carterfone rules on network attachments and the Computer Inquiry rules on enhanced services, to prevent gatekeepers from choking off the potential for innovation on top of communications networks. These actions allowed the Internet we know today to emerge. The FCC’s Internet Policy Statement, issued unanimously in 2005, articulated the basic principles that network operators should not prevent users from accessing sites, using devices, or running applications of their choosing.

In your speech on September 21, you emphasized the overarching public policy goal of sustaining the Internet as “a free and open platform that promotes innovation, investment, competition, and users’ interests.” You made clear that this goal supports many important social values, including market values such as economic prosperity and growth, as well as nonmarket values such as “speech, democratic engagement, and a culture that prizes creative new ways of approaching old problems.” It is essential that the Internet continue to support both sets of values.

We believe the NPRM is a laudatory next step. First, from a legal perspective, it is the appropriate regulatory mechanism to evaluate the central substantive and procedural issues regarding discrimination, network management, innovation dynamics, transparency, implementation mechanisms, and so forth.

Second, and more generally, it is an appropriate public forum to gather and evaluate competing claims and relevant evidence. The public debate on these issues often is poorly framed and polluted with broad hyperbolic claims lacking theoretical or empirical support. A notice and comment rule making process is a useful forum to sort fact from fiction. The FCC has already launched a website and blog to promote discussion and comment on these important issues. It has also initiated a series of public workshops on questions about broadband deployment. The FCC deserves credit for initiating such open and participatory processes, which this proceeding builds upon.

Third, sound regulatory policy in this area depends critically on expertise from different disciplines. There is a tendency in public debates about regulation to gravitate toward antitrust and regulatory economics, to the exclusion of other factors. There are strong reasons to resist that pull in this debate. The issues being debated are not only legal or economic or technical or social. In the Internet context, the interdependence of legal, economic, technical, and social factors has produced the powerful market and non-market benefits of open infrastructure.

The future of the Internet is a matter of intense public concern. We support the FCC’s efforts to create a public process to develop the best policies to promote continued openness and innovation across the Internet.

Sincerely,

Paul Schiff Berman
Sandra Day O’Connor College of Law at Arizona State University.

Annemarie Bridy
University of Idaho College of Law

Adam Candeub
Michigan State University College of Law

Barbara Cherry
Indiana University Bloomington

Deven Desai
Princeton University

Peter Charles DiCola
Northwestern Law School

Rob Frieden
Penn State University

Brett Frischmann
Loyola University Chicago School of Law

Llewellyn Gibbons
University of Toledo

Stephen E. Gottlieb
Albany Law School

Mark Lemley
Stanford Law School

Lawrence Lessig
Harvard Law School

David Levine
Elon University School of Law

Ira Nathenson
St. Thomas University School of Law

Andrew Odlyzko
University of Minnesota

Barbara Van Schewick
Stanford Law School

Wendy Seltzer
University of Colorado School of Law

Olivier Sylvain
Fordham University School of Law

Tim Wu
Columbia Law School

Here are various public docs:

NPRM: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.pdf
Press Release: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-294159A1.pdf
Genachowski Statement: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A2.pdf
Copps Statement: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A3.pdf
McDowell Statement: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A4.pdf
Clyburn Statement: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A5.pdf
Baker Statement: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A6.pdf
Staff Presentation: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-294152A1.pdf