Wednesday, December 15, 2010

Xbox Hacking Case: Finally, A Judge That Stands For Innovation!

If you are at all interested in copyright law and new technology's effect on innovation, then this article will give you chills. As Anton Ego put it in the classic pro-innovation manifesto, Ratatouille, "The world is often unkind to new talents, new creations. The new needs friends." And it is with great pleasure that I report how upliftingly a District Judge in Los Angeles embodies this notion. I'd like to briefly summarize what the case is about, then talk about why the things this judge said are so exciting.

The defendant in this case is charged with breaking digital mechanisms that protect copyrights, in this case, the Xbox's controls on what kinds of games can be played on it. The defendant developed a way to hack into the Xbox and play pirated, non-officially-licensed games on his system. Arguably, the main purpose of the hack is to let illegally copied games run on the system. But our defendant argues that there are a lot of non-infringing uses for this kind of hack, including developing new technologies for the machine and for playing your own legal back-up copies of your games, to name just two.

So this case went to trial, and while there have been a lot of cases about reverse engineering technologies and hacking them (the semi-recent iPhone jailbreaking rules, for instance), this is the first about the Xbox. Very exciting, but also potentially dangerous.

Because the judge presiding over the case could happen to really likes the rule against circumventing these technologies, maybe because he thinks that protecting large companies that develop these technologies is more important than letting tinkerers break their machines open and try to innovate. If a judge like that presides over the case, then we remain where we have been since the Digital Millennium Copyright Act was put into action in 1998: copyright law prevents a very important (in my opinion) type of innovation.

But lo and behold, the judge in this case is not the kind of pro-DMCA hard-liner that some of us were afraid of. During opening statements just a few weeks back, the presiding judge, Philip Gutierrez, realized that the prosecution's case had some problems. He pointed out, as the article linked above says, problems with witness credibility and with the prosecution's characterization of the defendant's intent. Even more importantly, the judge reversed his earlier decision to remove a fair use defense from the defendant's arsenal, essentially saying that the law must allow some experimentation on this kind of technology.

That is key: according to this judge, allowing tinkering, home-brewing, and hacking is IMPORTANT, and anyone who does it is allowed to try to prove that they did it with good reason, reason more important than the arbitrary strictures of the DMCA.

It also signals a big step forward in how judges think about these issues. To a certain extent, the prosecutors made all of these mistakes in this case because they thought they could get away with it. And if they got a judge like a lot of the other circuit judges out there, who maybe don't understand the role of hacking in innovation, they WOULD have gotten away with all of this. It's supremely uplifting to see a judge making it clear that you can't just rely on judges liking your policy aims to win cases against hackers; when you want to curb innovation, your case better be pretty strong.

(Brief notes: First of all, since this incident, the prosecution decided to dismiss the hacking incident, essentially giving up, for now, on trying to prosecute this kind of thing. Victory! For now. Also, for a great overview of how this kind of hacking works, check out famed Xbox hacker Bunnie's overview.)

Sunday, December 5, 2010

What Gawker's New Design Means For The Internet

Gawker Media is a pretty large, pretty influential blogging network, which includes a lot of different types of content. They are responsible for Lifehacker (a sort of productivity blog / DIY hub), io9 (a place for sci-fi nerds), Gawker itself (a sort of gossip / politics tabloid-blog?), and many more. Essentially, they've become a platform for a certain type of content. So their choices design-wise not only indicate the way the Internet has been heading, but they also influence the future of other sites. So here's some stuff about the most recent redesign.

(Incidentally, you can scroll to the bottom of this post to read a brief disclosure about my relationship with Gawker if you are worried about my journalistic integrity. Short story shorter: I've freelanced for them, but that shouldn't matter here.)

First, a brief overview of what has happened. As you can see at this post and in the video there, the list of posts is on one side, organized with most recent first, and the content is on the other side. The new set-up also gives Gawker a way to highlight interesting media and pictures, not necessarily the text of a given post. In short, they've redesigned to emphasize interesting visuals and information, not necessarily in-depth writing.

Which is fine! That's sort of been Gawker's model for a while. The in-depth writing is an added bonus on top of what is essentially a collection of tabloid-y news scoops, oddity roundups, and short tips, highlighted by eye-catching media. That's what it does, and it does it extremely well, in addition to the occasional in-depth writing pieces.

Anil Dash, Internet genius and trend-analyzer (and more!), has a lot to say about this redesign, including a roundup of other commenters speaking out. He's right on the money when he says that when this is the kind of information you want to put out there, this new set-up is exactly what Gawker needs. You should go there to read more, but here's a little snip:
In this way, blogs are emphasizing the trait that's always defined them, the fact that they're an ongoing flow of information instead of just a collection of published pages. By allowing that flow to continue regardless of which particular piece of embedded content has caught your eye, Gawker and Twitter are just showing the vibrancy and resilience of the format.

But I just wanted to add one more possible thought to this whole jumble. Another reason why Gawker can afford to do a design like this is that they're already famous. From a search-engine-optimization standpoint, this would be a weird choice. Only a site with a devoted audience, a clearly defined niche, and a built-in expectation for quality can afford to have such a busy front page with only one actual textual piece on its front page. A start-up blog would have to think very differently. It'd have to have a LOT of text on its front page and make a lot more effort to welcome new readers.

Dash is basically right on point when he says that this marks Gawker borrowing from the design of web-based applications like Twitter, mostly because web-apps don't have to advertise themselves on every page like blogs do. But maybe the better way to think about it is that all web-based information or media platforms are all starting to prioritize the same kinds of things, much like cable channels slowly did over the course of their development.

In the end, we're headed to a different version of the same place that we always do with this whole Gawker thing. Gawker is an established brand, a trusted news aggregator, and the internet is dividing itself into fewer and fewer recognized platforms for this kind of thing, with the independent blogger / startup personal brand having a more and more difficult time making an impact. Essentially just as television operates now.

If we think about what makes the Internet special, this would still preserve a lot of its strengths: the easiest platforms for making an impact (YouTube, for example) are those that will more fully develop and become popular, and those platforms will still allow interesting things to happen. But I think we're kind of past the days when new platforms can become giants. I have a post brewing in my head about the difference between networks, platforms, and applications in the world of media, but that'll have to wait. For now, I think Gawker's new design is a hint of the implications of this platform-centric approach to Internet media.

(Brief disclosure: I sort of work for Gawker. I write for their sci-fi blog io9, and they pay me, but as a display of my limited involvement, I heard about this redesign from Anil Dash, not from my ties to the company. I'm basically a long-term freelancer for them, so I have absolutely nothing at all to do with big decisions like this redesign or mission statements or anything. As much as I believe that my ties to the company have not influenced this post at all (since I am writing generally about structure and the purpose of Gawker), I'll leave it to you to discount what I have to say if you disagree.)

Monday, November 29, 2010

The World After WikiLeaks

The recent leaks from the website WikiLeaks have been pretty big and pretty far-reaching in their scope. The site has made strides to change the way governments think about transparency. But i think it's worth asking: is this an unqualifiedly good thing? This isn't going to be a full-on essay or anything, I just think it's important to ask a few questions about this whole WikiLeaks thing.

Some background first. WikiLeaks is essentially a place where would-be leakers from all over the world can make their leaks available. It provides a forum for people with sensitive information that they think the public should know to make that information available to the public anonymously. Now, obviously this anonymity isn't going to last in some cases, but it does encourage otherwise hidden documents to make their way to the public.

The site made their biggest headlines yet when they leaked a few waves of United States military documents portraying the US's efforts in Iraq and Afghanistan in a somewhat poor light, including footage of US military accidentally firing on civilian reporters. And just this week, the site leaked a giant cache of diplomatic cables. The big accomplishment wasn't leaking the information; it was making the information a headline. In other words, most of it was stuff that was already publicly known or could be inferred from available sources. WikiLeaks just offered a platform for organizing and sharing this information with the news and the public.

So the role of the site in war diaries case was mostly one of a journalistic nature: the information was there, and the site just provided an organized way to source that information. In that sense, WikiLeaks is a way to facilitate transparency and accountability for organizations like, in that case, the US military or, in the most recent case, the US's international diplomacy. We haven't gotten to a point where the site is leaking actually dangerous top-secret information, but we've presumably created a world that is comfortable with that happening in the future.

That brings us to the question I wanted to ask. What kind of world is the WikiLeaks mentality leaving in its wake? Should governments and militaries be subject to the same kind of strategic transparency drops that happen to, say, Enron? It's obviously good to encourage transparency, but it's kind of a universal principle that a certain degree of information-privacy is very important.

It sort of links into the debate over privacy on social networking sites, such as Facebook or, more importantly, Google. These sites have this transparency agenda for the people that join the network, because they believe that more information surrendered to the company translates directly into a better user experience. Google has, in fact, made this a cornerstone of their business model: you let our robots skim your email for information, and the ads on your inbox better match the things you like. Or, even more usefully, on sites like, we retain information about what products you like and look at, and we in turn deliver suggestions for things you will also like.

On a larger scale, you've also got the whole world of proprietary business information, like patents and trade secrets. A patent is a way of trading disclosure for exclusive use, and a trade secret is a way of preventing disclosure to retain exclusive use. They illustrate two models for balancing privacy and transparency, but the balance is in favor of transparency: you get more government protection if you disclose more.

More transparency = better user experience: that's basically WikiLeaks's philosophy as well. WikiLeaks represents a force for a policy change, and they've decided that they favor a patents-like, Google-like approach to information policy. The mission of WikiLeaks is to make the most information possible available, and in exchange, the government and the news media can respond to that information with explanations and publicity materials and news stories, etc. More transparency is better for the system.

And I basically agree with that. But I also think it's dangerous to inflict dramatic policy changes on functional structures that rely on the older policy. We saw what happened to basically all of the record store companies when the apparent policy change happened in the public (this policy changed because of a technological development, which is how these things usually DO happen). And record companies dying or changing to harness policy changes to make better money (the iTunes store, Radiohead's pay-what-you-want model, etc.) is obviously a good thing.

But do we want the US military to have to adjust so dramatically so quickly? Do we want delicate international relationships to have to adjust to new policies overnight, risking some serious upheavals not that different to what happened to Virgin Megastore? Is the benefit of revealing the nuclear potential of a foreign nation worth the risk of them deciding it's time to use it?

Again, I want to stress that I think the policy shift WikiLeaks represents and is fighting for is a beneficial one. But the volatility that a dramatic policy shift represents can bring down very big infrastructures. It's dangerous when these infrastructures are military organizations or governments.

So I guess the short version of my question is this: given that transparency is almost always the right policy, is the WikiLeaks method of changing transparency policy an overall beneficial one? Is it worth the risk?

(Photo: AFP. It's Julian Assange, the man behind WikiLeaks, holding a paper talking about his handiwork.)

Tuesday, October 5, 2010

Fluffy Bunny's Adventures in Internet Content Monetization!

There is always a lot of buzz in the online community about content monetization. It's become a trope in parodies of "social networking gurus" (like this one), but it still poses a pretty real problem for people who make things on the Internet. You may not have heard the term, since it doesn't always go by that name, but people are often talking about how to make money off of the things they put on the web.

Here's a sort of illustration of the problem. Say you run a web-cartoon called "Fluffy Bunny." You make animated videos of the bunny being adorable and silly, and you write stories about the bunny. You're so into your Fluffy Bunny creation, in fact, that you sometimes make little felt Fluffy Bunnies and decorate your desk with them. Now, others seem to have taken to Fluffy Bunny, and a bunch of people watch your cartoons and read your work.

The next question is: how can I turn those viewers into enough money to let me quit my job as a desk-jockey and just bask in the loving glow of Fluffy Bunny? Well, you do have options, but some of them aren't obvious.

The scope of the problem isn't immediately evident to those that primarily do business (and therefore perceive of "business") via off-line models. Scott McCloud attempted to encapsulate the most common current models for internet content monetization as selling either atoms or eyeballs (he discusses this here). Selling atoms is taking money in exchange for physical goods, and selling eyeballs is selling to a third party the guarantee of people looking at a certain space. In the traditional, IRL sense, the former is selling shoes at a show store, and the latter is selling ad space on billboards.

These models are actually surprisingly resilient, too. They remain accurate when talking about television, for instance (selling DVDs vs. selling ads during shows). They even remain accurate when applied to the internet in a variety of cases (selling a printed collection of comics via the internet vs. selling ads on a web comic's page). You could even put adds on, or you could sell a DVD of Fluffy Bunny's exploits.

As the internet changes, though, there are new, creative monetization schemes cropping up on the internet as well. Let's explore some variations on McCloud's "eyeballs and atoms" dichotomy.

Selling atoms on the internet gets complicated quickly. For instance, in the realm of web comics, people are still selling actual atoms as t-shirts using their comic characters' likeness or printed collections of comic work. This is still a reliable way to make money and is a big part of most of webcomics artists' arsenals. But comics creators are experimenting with a new approach to selling atoms on the internet, what McCloud calls selling bits.

Some examples: James Kochalka has a daily web comic, and for a while, you couldn't see all of the comics unless you subscribed, for a small fee. Gordon McAlpin sold a high-resolution eBook of his popular "Multiplex" series. Various comics creators make custom comics for money, their quality varying directly with how much a buyer pays.

In short, you are paying either for custom online content or for access to online content, like a subscription. In all of these cases, the "atoms" are purely online content, pure bits, but the money is still real money. The atoms approach, therefore, shows signs of adapting. These models exist, but they aren't often used as permanent solutions (Kochalka now makes all of his strips available for free, and McAlpin released an actual printed book.)

The "eyeballs" portion of the discussion is a bit more complex. People are certainly still coming up with clever ways to sell ads (anything from simple link exchanges to networks for bidding on ad-space). These all work for bigger creators, but a new breed of social media creates a new wrinkle in the eyeballs model.

Think of sites like YouTube. They let anyone post videos onto their network, and they host and display them for free. But anyone that visits your posted content also sees ads posted by YouTube themselves. The size of YouTube's network makes it possible for them to create nothing, but still offer "eyeballs" to ad servers. They use others' content to draw in those "eyeballs" then sell them to third parties. (In some instances, YouTube's partners get this ad revenue, but in a lot of cases, it goes straight to YouTube.)

It's a good model for YouTube, of course, but it's important to keep in mind that those ads are not paying for content, but merely the way the content is presented. It's a model that many sites have all tried, and the most current word is that this model isn't making them enough money to remain profitable. It's a model that doesn't feel sustainable. (In a spirited and informative interview on The Colbert Report, Lawrence Lessig briefly commented on this "monetizing someone else's content" model, but Lessig notoriously focuses on the really great societal and policy implications without really acknowledging the financial or logistic pitfalls.)

The final method of turning creativity on the Internet into revenue is probably my favorite, because the trade that is actually happening is not immediately evident. The website Kickstarter offers creative people and people with visions to set up pitches to the public for their visions. People can then view the pitches and pledge money to these works. The pledge often comes with an "atoms" reward (supporting a book gets you a copy of the book, for isntance), but other rewards include having your name on a "credits" web page or, in some extreme cases, musicians offering personal concerts in your own home for you and your friends in exchange for large contributions. And it works, too; the aforementioned Gordon McAlpin turned one such campaign into a print book (the book, by the way, is really great).

This one's really interesting, because having your name in a book is certainly neither atoms nor eyeballs. It's not even bits. It's something more ethereal, but also more personal. Call it connection to creative people, call it feeling good about yourself. It's a way for people to turn their money into things they want to see happen and into support for projects they like. Things like Kickstarter truly display how monetizing your efforts on the Internet can be an entirely different endeavor than in any other medium. It turns purchasing into participating.

And these aren't all of the examples. But they show how sticking to old models, while it offers some modest successes, doesn't really harness the truly unique character of the Internet. Creators working with purchasers to offer things people want is how markets have always worked. But only now can creators interact directly and personally with their customers to truly tailor the market experience.

You'll notice that this post doesn't really propose answers. The goal is really just to get a lay of the land in online advertising and start talking about which of these things are working. I hope to have new posts about this topic in the future. But the bottom line is that, with a little ingenuity and adaptation, the days of the Internet bubble-burst can be behind us, and Fluffy Bunny can maybe start to become the Cash Cow you always hoped it would be.

(image: David Barrie's "Don't get left in the dark.")

Wednesday, September 15, 2010

This discussion is taking place in the real world

One of the web's most awkward articles.

I do not know why I choose to read articles like this, but I frequently do and they never cease to annoy me. Of course communication on the internet differs from direct face-to-face communication. In the same way that all written communication differs from verbal communication.

This article is not making a distinction between the internet world populated by the "people who don't sit in front of their computers tweeting about how "Eating pancakes makes me feel like death now that I'm 30 #notakidanymore"" and the "majority of society." It is highlighting the distinction between any communication in one context and communication in another context.

The most egregious part of the article for me is the finale. "The day that LOL becomes common parlance, my friends, will be the day that this whole internet Bard-penned comedy will become a complete and utter tragedy."

LOL IS common parlance. A very large subculture of the world uses it in conversation with regularity and it needs no explanation for the majority of people who are not part of the subculture. It has meaning just like any word in any language.

Thursday, August 26, 2010

"We Are Living in a Totalitarian Dystopia, and Other Fictions," by The National Media

 ("No Trespassing" by Dru Bloomfield on Flickr)

Back in January, the 9th Circuit Court made a decision, in a case called United States v. Pineda Moreno, that some media outlets are calling a "worst nightmare" scenario. This nightmare decision was just published recently, and the media is panicking. After this ruling, according to the press (Time, CNN, etc.), "Government agents are now legally able to sneak onto your property, put a GPS tracking device on your car and track your movement without you ever knowing" (NBC4i). If you read some of these articles, you'll find that there are more Orwell references in the press around this ruling than in an Apple ad.

In fact, from press descriptions, it sort of does sound like a dystopian, science-fictional prospect: a government gone horribly wrong and violating individual privacy rights. But that's because the descriptions are often wrong; that's not at all what is happening here. The reality, as evident to anyone with at least a little legal training, is certainly interesting, but a lot less alarming than this.

The case is divided into two pieces: putting the GPS device on a car in a driveway and the government using the data. Here's why neither part of this ruling is as surprising or as threatening to our civil liberties as these stories might have you believe.*

First of all, there's the placing of the device. The press is making it sound like the government now has a license to sneak onto your private property and put trackers on your car. This is a horrible misrepresentation of what this case stands for. What the case at issue did was categorize peoples' freely-accessible driveways as not private property, but semi-private areas.

The fact of the matter is that the court decided, in 1999, that putting trackers on cars was not an illegal search and siezure if the car was in a public place (US v. McIver). All this case did was affirm the determination (again, made over ten years ago) that a driveway is closer to a public place than to a private place.

And even this decision, which still has a semi-ominous ring to it, comes with a lot of protections; the court, in this case, was careful to say that if there had been a "no trespassing" sign or some sort of barrier, the case would probably come out differently.

The court indicated that, in order to stop this horrifying invasion of privacy, you don't need to resort to illegal signal jammers. All you need is a bit of cardboard, a marker, and a nail. Or to be safe, a gate on your driveway. That's all. Your private property is still as safe and private as it has been for the last ten years.**

And then there's the matter of using the GPS data against someone. In 1982, the US Supreme Court decided that putting a tracker in a bottle of chemicals purchased by a suspected narcotics manufacturer was legal without a warrant (US v. Knotts). This court decided that the same logic should apply to cars traveling public roadways. If this is a violation, it's a violation that has been happening since 1982, not just because of this "nightmare ruling," but because the highest court in the country thought it was constitutional.***

The cautionary tale buried in this saga is not one of civil liberties or privacy. It's one of reporting. Media outlets are often a little quick to paint new rulings as dramatic departures and usurpations of civil liberties. In reality, new rulings like this one would function better if reported as reminders to the public that they aren't thinking carefully enough about their own privacy.

The privacy lesson of this case is that if you care about things being private and keeping the government's prying eyes off of your business, keep that business in the garage, since you can't reasonably expect your driveway to be private property. This is maybe a challengeable prospect, and it probably will be challenged in the supreme court. But despite what some would have you believe, the only way this case relates to Orwell's Nineteen Eighty-Four is that the rule codified here has essentially been the law since the mid-80's. Any innovation is only in how it's being reported.

* The ruling could still be troubling if you think the government is moving in a bad direction, but it's important to remember that there isn't a whole lot of innovation in this ruling. Also, a lot of my discussion here was informed by the LLRMI analysis of the case, which is farily representative of what the case actually says.

** The ruling is, however, maybe symbolic of a class divide (between people that can afford gates and people that cannot). This is discussed in the dissent to the case and is a very interesting issue. It's not, however, that indicative of the actual privacy implications of this ruling.

*** Don't mistake this for an argument that, since it's been going on for a long time, it should be legal. Again, I'm complaining about how the ruling is being presented. The ruling itself will get the challenge it deserves when the case goes to the supreme court.

Tuesday, June 29, 2010

"Glee" and Intelectual Property Attitudes

I've spent a lot of time thinking about how the attitudes of the public intersect with the current regime of copyright law. It seems like a lot of people acknowledge that copying CDs and downloading illegal mp3s is a morally questionable (or even morally wrong) activity. But most of these same people engage regularly in the activity. There's a gulf between the sort of logico-moral approach and the actual activity.

But that's just one illustration of the kinds of thoughts-action duality copyright law can create. In the realm of remixing, reposting and reusing cultural property, the dichotomy isn't really centered in the public. It manifests itself in the activities of large media companies. The most common form of the dichotomy is a large music company playing into the public's love of remix by selling interesting remixes but then cracking down litigiously on those that create unauthorized remixes.

I guess it wouldn't be too challenging to explain this away; the music companies, of course, own the materials they are remixing, and a lay-remixer does not, so the company's remix is legally allowed. But the bottom line is that the anti-remix stance of big media companies is not consistent with their exploitation of the fact that remix sells.

I think the best example, though, is one that was recently explained at the blog Balkinization. The article outlines how the popular television show Glee uses the idea of remix culture to show a group of kids bonding over shared cultural experiences and musical expression, essentially by performing "remixes."* But the show doesn't once mention that if someone were to engage in these activities in the real world, they'd be slapped with giant fines, most likely including some fines from 20th Century Fox, the producers of the show. The media industry is putting out a show glamorizing remixing with one hand, and slapping remixers with the other.

So my take is that the real problem lies with this big media industry; it's an industry that made most of its living in a traditional anti-remix culture that is now trying to sell to a modern pro-remix culture. It leads to inconsistency in both their behavior and in the laws they lobby for, thus creating a big cultural rift that will take major copyright overhauls to heal.

It takes a special kind of hypocrisy to appreciate the market for, and cultural appreciation of, something that you are fighting to destroy. It takes a special kind of day-job book-burner to write novels by night. The big media industry is adept at this kind of hypocrisy, and U.S. copyright law makes it possible.**


* I'd just like to clarify that "remixing" isn't only the activity of slicing up music and recombining it to make new songs. It's also changing the context of some bit of media to comment on it, or recreating that bit of media slightly differently to change its effect, etc. Lawrence Lessig talks a lot about the various ways of doing "remixing" and the cultural implications in his book, Remix.

** This is, of course, an oversimplification. The article I linked to has a much more sophisticated discussion of the role of U.S. copyright law in this discussion, specifically in creating the balance between promoting cultural development and rewarding past creators.

Thursday, June 3, 2010

TED and moot and 4chan

Above is an embedded video from the really great site,, which collects talks from their conferences on big ideas and fascinating topics. The one I've pinpointed here is the one buy a guy named Christopher Poole, known on the Internet as "moot." He's the notorious founder of 4chan, the cesspool that fuels the complex memetics of the Internet and creates the dominant cultural stance on what the Internet finds "funny."

There's no denying the power that comes with a position as a pretty prominent taste-maker on the Internet. But Poole recognizes that this isn't a power he has. It's a social power he's unleashed. or maybe concentrated. He knows that he's just some guy, and the real hilarious and terrible and important and damaging work that 4chan makes possible is actually self-organizing, perpetrated by a band of no-names that wander onto his web page and use his site as the structure on which they build their antisocial social network.

I've written about 4chan and "anonymous" before (once to extol the virtues of the subgroup "Anonymous," and once to discuss what anonymity does to social organization and norms) . But I wanted to respond briefly to some things in this TED talk.

First of all, I think that Poole does a good job side-stepping the questions about accountability for terrible things found on his site. He essentially says that, for all of the child pornography and violent images and racism that 4chan can be littered with, it's clear that there is a certain social value to allowing people to express their true selves anonymously and find a community that appreciates the same things as them.

But I also think that Poole doesn't really need to sidestep the issue; he can confront it head-on. The horrible things that characterize 4chan are not really there because people want child pornography or violence or racism. They are there as a sort of rebellion against the restraints of the Internet's legal structure.

If you outlaw something on the Internet, sure, it'll move into the sort of "black servers" on the Internet, the spaces where regulation is extremely difficult or impossible. But unlike "black markets" in real space, the actual focus doesn't seem to be the provision of these illicit materials; it seems to be demonstrating that no matter how harshly you outlaw things, smart and dedicated people that don't like your laws will find a way to rebel. Essentially, it's a crude, simplistic version of the Boston Tea Party.

Though I don't want to sound like I am justifying this terrible behavior. I just think that painting 4chan as a haven for depraved people and criminals is counter-productive; it's more like a haven for anti-establishment types and anti-authority teenagers. Treating anti-authority tendencies requires a very different approach than treating anti-social criminality and depravity. Poole's best response to allegations of harboring illegal activity and depravity is to remind people that the pursuit of liberty, not pornography, is the driving force here.

I also wanted to briefly say that the presenter could have done a better job with not sounding like he's patronizing Poole. This guy understands the importance of anonymity and ideological freedom better than almost any other TED speaker, and to ask simple questions about pornography and hate-speech is to miss the point of what Poole's site has actually accomplished.

All that said, the video is a good watch as an overview of what 4chan is all about and how it has impacted the discussion of Internet life and how the Internet works. I'll hopefully have more to say about 4chan soon. But remember, no one speaks for 4chan, so let's just all try to speak coherently and intelligently and non-condescendingly about it.

Thursday, April 8, 2010

The Open Internet In Limbo: An Update On My Goings-On Cleverly Disguised As A News Post About Network Neutrality

I'll start this post as I start a lot of posts about internet regulation and structure: with an illustration. Imagine you're a BigNet internet service subscriber. You pay a monthly service to connect to the internet through their pipes. You also really love the show "Small Wonder" So, you watch this show on a popular video streaming site pretty regularly.

But today, it turns out, BigNet has decided to start selling a video subscription service, one that will bring "Small Wonder" via cable to your television on demand. Now, you have no need for this service, because you can get all of the "Small Wonder" you need from the free video streaming site.

Now imagine that BigNet caught on to your free "Small Wonder" watching and decided to make their service more appealing by blocking or slowing down your access to the free video streaming site. Then, deprived of your full-quality streaming "Small Wonder" episodes, you'd be forced to buy into BigNet's new on-demand streaming service.

Or how about this: you've come up with a revolutionary new technology called TalkBingo that could change the way people have face-to-face conversation on the internet. This technology, though, uses a lot of bandwidth, so BigNet decides you should have to pay them a premium to make this sleek, awesome technology available to people. You can't afford that; you're just a programmer in a garage. So, TalkBingo never sees the light of day, and the conversation revolution doesn't get the kick-start it needs.

The possible examples go on and on: blocking access to politically objectionable content, slowing voice-over-internet services to favor phone plans, etc. But. Examples of what? It's clear something similar is happening in all of these cases, which might be described as internet service providers (ISPs, like Comcast, AT&T, or BigNet) discriminating against different kinds of traffic as it goes out to end users, either charging more for that content to be transmitted or slowing down or stopping certain kinds of traffic. And this kind of discrimination feels wrong, doesn't it? Like it doesn't fit with our vision of an open internet?

Well, the FCC agrees. And so does Lawrence Lessig and President Obama and Google and Microsoft. All of these people and companies agree that ISPs should treat all lawful internet traffic equally. They all believe, in short, in network neutrality.

Net neutrality is the principle that the providers of the internet and of connection to the internet should not be allowed to meddle with the traffic that flows to users, with the way the internet looks to someone who connects to it. This is hopefully accomplished by banning all ISPs from discriminating between different kinds of traffic.

But that puts us in a weird position. Because since the beginning of the internet, discrimination has been a pretty important part of keeping the whole mess working. When there is a surge in traffic that an ISP can't handle, the ISP is forced to block that traffic to protect its network. Or if someone is illegally sharing files or trading in child pornography or hacking the network itself, ISPs should reserve the right to stop these kinds of illegal and harmful activities.

That's where "reasonable network management" comes in. Most versions of rules about net neutrality include an exception for reasonable network management, in the interest of complying with the law or maintaining quality of service / preventing congestion on the internet. The exceptions take various forms, and I'm writing a very sizable paper about one such version of these exceptions, which I'll get to later.

The important next question is, who gets to decide what net neutrality regulation will look like? The answer has traditionally been the Federal Communications Commission, who started regulating the internet back in the mid-00s. The FCC classed broadband internet as an information service in 2005, thus entitling them to regulate it differently than telephone services and the like. From that point forward, the FCC experimented with internet regulation, culminating in a ruling against Comcast on a set of policy statements and some proposed rules codifying those policy statements into law.

It sounds complex, it's true. But the gist is that the FCC first unofficially made it clear that they would not tolerate discriminatory handling of internet traffic, then ruled against Comcast for violating these unofficial rules, and finally tried to make the unofficial rules official. It sounds shakier than it is, and the big problem isn't the unofficialness of the rules; it's the FCC's jurisdiction to make them that's really problematic.

The DC Circuit Court recently heard both sides of the Comcast / FCC battle on appeal and officially decided that the FCC didn't have the explicit authority from congress that they needed to make rules about net neutrality. That means that the FCC can't actually make their unofficial rules official unless they either win a further appeal or lobby congress for the authority they need. As of now, that puts the proposed official rules in a strange limbo, both very near being officially codified and very far from it.

It also puts my paper in an interesting position. As I mentioned, I'm writing about how the "reasonable network management" exception is likely to be enforced and interpreted, specifically in the context of these proposed rules. The rules are stuck in this weird place, but decisions still have to be made about how best to protect reasonable internet practices while preserving the best, most fair experience for end users. So I'm hoping that my paper still has some interesting stuff to say about that balance.

And that's also why I'm not writing as much here these days. I'm mostly absorbed with carefully poring over hundreds of comments on the proposed rules and trying to get a handle on what the exceptions might look like when the dust finally settles. It's clear that the dust has to settle eventually, and when it does, I'll be here to help navigate the messed-up terrain the fracas leaves behind. See you then!

(Image: WWIII Propaganda: Support Net Neutrality, a Creative Commons Attribution Non-Commercial Share-Alike (2.0) image from doctabu's photostream)