OPEN ARCHITECTURE AS COMMUNICATIONS POLICY EDITED BY MARK N. COOPER CONTRIBUTORS: PRESERVING JOHN W. BUTLER INTERNET VINTON G. CERF FREEDOM EARL W. COMSTOCK IN THE MARK N. COOPER BROADBAND MICHAEL J. COPPS ROBERT E. KAHN ERA MARK A. LEMLEY LAWRENCE LESSIG RICHARD S. WHITT TIMOTHY WU CENTER FOR INTERNET AND SOCIETY STANFORD LAW SCHOOL OPEN ARCHITECTURE AS COMMUNICATIONS POLICY OPEN ARCHITECTURE AS COMMUNICATIONS POLICY PRESERVING INTERNET FREEDOM IN THE BROADBAND ERA MARK N. COOPER EDITOR CENTER FOR INTERNET AND SOCIETY STANFORD LAW SCHOOL Editorial Note: The papers collected in this volume were published in different Journals that use different footnoting conventions. The original footnotes are preserved. Because there are many citations common to the articles, however, one bibliography was compiled. The Bibliography accepts the shortened law review style that predominated in the articles. To ensure ease of identification and location of sources, the bibliography uses an alphabetical rule -- Author’s last name, then first name followed by the Title. Occasionally, a single article was cited using different footnoting conventions. Each citation is included in the bibliography. cc 2004 Licensed under the Creative Commons Attribution-NonCommercial- ShareAlike License. To view a copy of this license, visit http:// creativecommons.org/licenses/by-nc-sa/1.0/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA. ISBN 0-9727460-8-0 Acknowledgments The following publications have graciously granted permission to reprint excerpts from previously published works: Earl W. Comstock and John W. Butler, Access Denied: The FCC’s Failure to Implement Open Access as Required by the Communications Act, 8 JOURNAL OF COMMUNICATIONS LAW AND POLICY, Winter: 2000. Mark N. Cooper, Open Communications Platforms: Cornerstone Of Innovation And Democratic Discourse In The Internet Age, 2 JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, 1: 2003. Mark A. Lemley and Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA LAW. REVIEW, April: 2001. Timothy Wu, Network Neutrality, Broadband Discrimination, 2 JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, 1: 2003. Timothy Wu, Broadband Policy: A User’s Guide, JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, forthcoming. Contents I. INTRODUCTION.............................................................................1 THE FUTURE OF THE INTERNET IN THE BROADBAND AGE .....................1 Mark N. Cooper OPENING REMARKS ..............................................................................5 Michael J. Copps MODERATOR’S REMARKS .....................................................................9 Mark N. Cooper PART I: THE INTERACTION BETWEEN TECHNOLOGY AND POLICY IN THE CREATION OF THE INTERNET II. WHAT IS THE INTERNET?.......................................................17 Robert E. Kahn and Vinton G. Cerf III. THE END OF END-TO-END .....................................................41 Mark A. Lemley and Lawrence Lessig PART II: EMPIRICAL STUDIES, THE ROLE OF OPEN ARCHITECTURE IN STIMULATING INNOVATION IV. MAKING THE NETWORK CONNECTION ...........................95 Mark N. Cooper V. ANTICOMPETITIVE PROBLEMS OF CLOSED COMMUNICATIONS FACILITIES..........................................155 Mark N. Cooper VI. NETWORK NEUTRALITY, BROADBAND DISCRIMINATION ...................................................................197 Timothy Wu PART III: POLICY AND LEGAL FRAMEWORK FOR PRESERVING OPEN ARCHITECTURE VII. BROADBAND POLICY ..........................................................233 BROADBAND POLICY, A USER’S GUIDE .............................................233 Timothy Wu EX PARTE SUBMISSION IN CS DOCKET NO. 02-52...........................258 Timothy Wu and Lawrence Lessig VIII. ACCESS DENIED ..................................................................283 Earl W. Comstock and John W. Butler IX. A HORIZONTAL LEAP FORWARD ......................................345 LETTER TO EVANS AND POWELL .......................................................345 Vinton G. Cerf FORMULATING A NEW PUBLIC POLICY FRAMEWORK BASED ON THE NETWORK LAYERS MODEL ........................................353 Richard S. Whitt BIBLIOGRAPHY..............................................................................415 MARK N. COOPER 1 I. INTRODUCTION THE FUTURE OF THE INTERNET IN THE BROADBAND AGE The papers in this volume are collected from speakers at a forum held on Capitol Hill entitled Broadband Technology Forum: The Future Of The Internet In The Broadband Age.1 All of the speakers are active in the public policy debates, regulatory proceedings and court cases that have been defining the contours of the next generation of the Internet. The purpose of the forum was to engage staffers from Congressional offices and federal agencies in a dialogue over the importance of preserving the vibrant nature of the Internet. With that purpose in mind, this volume blends new papers and comments with several that are half a decade old (ancient by Internet standards). Taken together they seek to provide a comprehensive basis for understanding the interaction of technology and public policy in the development of the Internet. Written at different times and for different purposes over the past five years, the papers are powerful testimony to the proposition that open architecture is critical to the success of the Internet. The end-to-end principle of the Internet and the open communications networks in which it was incubated are critical building blocks of a dynamic, innovative information economy. The papers address three aspects of the environment in which the Internet was created and flourished – technology, economy and law – three of the critical modalities of regulation, as Lawrence Lessig called them in CODE AND OTHER LAWS OF CYBERSPACE.2 PART I: TECHNOLOGY AND POLICY IN THE CREATION OF THE INTERNET Chapter II is a paper by Robert E. Kahn and Vinton G. Cerf, What Is the Internet (and What Makes It Work)?, INTERNET POLICY INSTITUTE (1999, revised 2004). It provides a brief discussion of the architecture of the Internet through the chronology of the development of its fundamental 2 INTRODUCTION technologies. Both of the authors were at the center of the creation of the seminal technologies. They are keenly aware of the role of institutions and public policies in the creation of the Internet. Chapter III is a paper by Mark A. Lemley and Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA LAW REVIEW (April: 2001). The paper presents a discussion of the design principle of the Internet. Not only does it explain how the design principle operates to promote innovation, but it directly refutes many of the economic arguments made by those who would abandon, or allow the network facility owners to abandon, the end-to-end principle and open communications networks. PART II: EMPIRICAL STUDIES: THE ROLE OF OPEN ARCHITECTURE IN STIMULATING INNOVATION Part II presents empirical studies of the dynamic environment created by open architecture in digital networks and the negative impact on innovation of closure and discrimination in communications networks. Chapter IV presents a paper prepared for the forum by Mark N. Cooper that takes a broad view of the impact of the Internet. It attempts to use network theory and recent analyses of technological change to reinforce the long-standing claim that the open architecture of the Internet represents a fundamental change and improvement in the innovation environment. It concludes with an examination of the role of Internet Service Providers in the spread of the Internet. Chapter V is excerpted from a paper by Mark N. Cooper, Open Communications Platforms: Cornerstone Of Innovation And Democratic Discourse In The Internet Age,” 2 JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (1: 2003). It demonstrates the increased possibility of anticompetitive practices by firms that dominate key points of the digital communications platform. It links the potential harm back to the network theory by presenting a case study of the elimination of Internet Service Providers. Chapter VI is excerpted from a paper by Timothy Wu, Network Neutrality, Broadband Discrimination,” 2 JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (1: 2003). It attempts to precisely define the characteristics of the Internet that should be preserved. In contrast to chapters IV and V, which emphasize the commercial relationships between MARK N. COOPER 3 network owners and Internet Service Providers (ISPs), Wu provides a detailed study of the customer contract provisions that threaten or infringe on the freedom for consumers to use the Internet and applications. PART III: POLICY AND LEGAL FRAMEWORK FOR PRESERVING OPEN ARCHITECTURE Part III maps out the current terrain of law and regulatory policy. The papers share the objective of preserving open architecture. They would travel somewhat different routes to achieve that goal. Chapter VII is composed of two papers. It opens with a paper by Timothy Wu, Broadband Policy: A User’s Guide, Journal OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, forthcoming. It reviews several aspects of the current policy debate and offers a recommendation of nondiscrimination. The chapter then presents a formal proposal for network neutrality that was presented to the Federal Communications Commission (FCC) in an ex parte filed