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Lessig on Fair use and Network neutrality

Larry Lessig has an interesting post on the parallels between fair use and network neutrality. Here is a brief excerpt:

[I]n 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.

While the comments to his post touch on a number of differences between FU and NN, the point is not that FU and NN are identical in all respects, especially in terms of how either might be implemented. Of course on the finer details of implementing either or both, there is plenty of room for nuanced opinions, criticism, and doubts about uncertainty, costs, benefits, and so on.

The point is that FU and NN are based upon very similar fundamental principles, and not surprisingly (at least once you make the connection), FU and NN encounter very similar opposition (from what I have called a Demsetzian view of property rights, although I was told recently that I should be saying neo-Demsetzian). In the post, Larry discusses the difficulty in understanding those that categorically support one (FU or NN) and oppose the other.

I think Larry is absolutely right about FU and NN being the same fundamentally. Let me further tease out what I think is shared by FU and NN:

Both FU and NN serve an important allocative function – – (1) restricting private control over resources, (2) to structure a participatory environment and sustain socially valuable activities and the spillovers that such activities generate, (3) because a market allocation system without FU or NN would structure the environment differently and diminish participation in such activities. (For more on this, see papers on spillovers and infrastructure)