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Proquest Dissertations Laws of Air and Ether: Copyright, Technology Standards, and Competition Ren R. Bucholz A Dissertation Submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Master of Arts Joint Graduate Program in Communication and Culture York University & Ryerson University, Toronto, Ontario September, 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-51511-2 Our file Notre reference ISBN: 978-0-494-51511-2 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada Abstract At the dawn of each new technological era, it is common to hear how the most recent development is so powerful and novel that all social, political, geographic, and economic constraints will evaporate in its wake. This paper examines how the mythology of openness—a product of infrastructure-centered telecommunications policy—developed and continues to influence policy in the digital age. Section II explores this dynamic in the realm of network neutrality. Section III introduces "overlay networks" of control, which can operate even on "neutral" networks. Section IV explores the history of new, private standards organizations and their role in the deployment of overlay networks. It includes a case study of the Digital Video Broadcasting project (DVB). Section V explores the substantive problems with private techno-legal policy regimes and identifies shortcomings in strategies for addressing those problems. Specifically, competition law is identified as a promising but inadequate tool. IV Acknowledgments This work would not have been possible without the help of many hands. It could not have been written without Rosemary Coombe's guidance and incredible intellectual generosity. Before David Skinner and Greg Elmer became part of my committee, they were my professors and friends. They are also among the instructors—in the Communication and Culture Programme and at Osgoode Hall Law School—in whose classes I began to think and write about the positions that constitute this thesis. I am also grateful to my colleagues at the Electronic Frontier Foundation and the Google Policy Fellowship program, which gave me the freedom to explore the ideas in Section V during the summer of 2008. I am deeply indebted to my family, here and abroad, for their unstinting support and encouragement. Hannah and Don Bucholz, whose love of libraries and technology made me the geek that I am today, are especially culpable. Most of all I thank Laura, who makes everything possible on and off the page. v Table of Contents I. INTRODUCTION: INTERNET MYTHOLOGY AND THE RHETORIC OF OPENNESS 1 A. LITERATURE ROADMAP: "CRITICAL INFORMATION STUDIES" 5 B. A BRIEF CULTURAL HISTORY OF THE INTERNET 8 C. CONVERGING APPROACHES TO INTERNET GOVERNANCE 13 II. THE DIVERSIONARY EFFECTS OF NETWORK NEUTRALITY 21 A. WHAT IS NET NEUTRALITY? 23 B. How NEUTRAL IS THE NET? 28 C. OPEN PATHS, CLOSED PACKAGES 3 0 III. DISTRIBUTED CONTROL: DRM AS AN OVERLAY NETWORK 36 A. OVERLAY NETWORKS: PROLIFERATION OF PATHS 36 B. DRM AND THE EVOLUTION OF IP METAPHORS 41 C. WHY DRM MATTERS 43 1. Information & Subject Creation 44 2. New Modes of Production 45 3. Reifying Borders 47 4. Normalization of Control 51 D. IS DRM DEAD? 53 1. How DRM Works, Fails 55 2. Fixing DRM's Problems Through Standardization 60 IV. THE EVOLUTION OF STANDARDS 67 A. WHAT ARE STANDARDS? 69 B. THE STATE'S (DECLINING) ROLE IN STANDARD-SETTING 72 C. THE RISE OF CONSORTIA 76 D. STANDARDS + DRM 80 E. DVB CASE STUDY 85 V. COMPETITION LAW VS. STANDARDIZED DRM? 97 A. COMPETITION IN AMERICA 99 B. RETHINKING COMPETITION, STANDARDS, AND DRM 104 C. FRAMING OBSERVATIONS 106 1. Harm to Open Source Vendors: Concerted Refusals to Deal Ill 2. Harm to Consumers: Tying 115 3. Standards and Intellectual Property Misuse 118 4. Competition Law Beyond the US 122 VI. CONCLUSION 130 VI Table of Figures Figure 1: Layered Networks 39 Figure 2: DVD Regions 49 Figure 3: DVB Worldwide 85 Figure 4: How CPCM Works 91 vn I. Introduction: Internet Mythology and the Rhetoric of Openness The sweeping paradigm shift is a seductive image; we love to declare that something, anything, has changed everything. This may account for the popular conception of the Internet as a radically new medium that will have significant positive effects on the democratic project. According to this view, the realization of human potential, as measured by any number of metaphysical yardsticks, cannot help but be accelerated by unfettered access to information and the blistering pace of technological progress. To the extent that this new medium is perceived as vulnerable, the most commonly discussed threats are familiar to communications scholars. Monopolists and censors have plagued every mass communication technology that humans have ever produced. When considered alongside the Internet, these threats give rise to rhetorical skirmishes that pit freedom against control, "open" against "closed" networks. In this framework, freedom and openness are cast as material characteristics of the Internet. Anyone can connect via its open protocols. Once connected, the network treats all data equally. As a result, innovation takes place at the "edges" of the network without being throttled by some central authority.1 Most importantly, this model's preoccupation with centers and edges assumes that the links of the network are apolitical, frictionless, and open. So for early theorists of the Internet, freedom and openness became more than 1 ideals or metaphors: they became organizing principles and blueprints, deviation from which would lead to structural instability and eventual collapse. On the other hand, supporters of a controlled network—usually the owners of the network's physical infrastructure—explain that the future will arrive only when some measure of order is imposed on chaotic data flows.2 Because of the limited capacity of the wires in the ground and the spectrum in the air, networks demand prioritization and hierarchy if rich media experiences are to be delivered. In their view, it is time for the Internet to mature so as to realize its commercial potential. This dynamic is playing out in one of the most hard-fought battles over Internet governance. In response to attempts from Internet Service Providers (ISPs) to establish a more structured Internet, Web-savvy activists have responded by seeking "network neutrality" regulations from governments. Such rules would grant legal protections to guarantee at least some of the technical characteristics of openness. They would forbid ISPs from treating Internet traffic differently based on its source, destination, or content, so as to prevent ISPs from exerting centralized control over network usage. By using law to protect the soul of these networked machines, techno-utopians hope to preserve the network's democratizing promise. Unfortunately, even purely "open" networks, in the sense meant by the typical network neutrality advocate, fail to address emerging, distributed forms of control. In fact, these new strategies for exercising power over the flow and use of information are 2 remarkable precisely because they operate seamlessly in "open" technical environments. When implemented well, the limitations they create feel like laws of nature, not restrictions designed by human hands. The result may be the reinvigoration of the hierarchical power structures that were supposed to be "flattened" by the Web. This paper argues that traditional loci of communicative power can thrive by promoting illusions of change, and that these powers will remain relevant in our digital future. I also hope to illustrate the history of power on the Internet as a neoliberal parable that incorporates debates over the role of the state in ordering our lives, considers the ways in which capital encourages conflation between the market and the marketplace of ideas, and explores how modern power can be both distributed in application and centralized in control. All of these features can be seen on and offline; each context can illuminate the other. To understand these new threats we need to examine several apparent contradictions. First, networks of control can be overlaid on top of open networks. Even on the Internet, a successful push for open pathways may provide an illusion of freedom while enabling more subtle forms of control.
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