Posted 10:37 PM by Robert

Dead Again

It is an old Chinese proverb of great carrying power that "It is better to start poorly and finish well." The personal history of Professor Lawrence Lessig suggests that he has not read it.

After a very fast start followed by lots of increasingly ill deserved adulation, Professor Lessig seems in recent years to have formed an absolute determination to come down hard on the wrong side of every hot dispute in which he takes an interest concerning intellectual property law, and especially the internet. He has praised the wisdom of copyright pirate enablers such as Grokster, employing arguments bordering on ludicrous that were quite properly and unceremoniously discarded by the Supreme Court. The Supreme Court's rejection of his ludicrous assault on the Sonny Bono Copyright Term Extension Act was correct and thorough and unimpressed and ultimately distinctly unkind (his main argument was dismissed in a curt footnote). Sadly, one could go on for a bit with Professor Lessig's recent missteps.

Now there is a new dead end of Lawrence Lessig: Congressionally mandated "network neutrality." Little can legitimately be said in favor of this effort to freeze the internet into a form that it happens to have (or may have had) at the moment or in the recent past, although the reader is invited to read Professor Lessig's linked effort to do just that. There is nothing sacred about that current form. There is nothing less destructive and anti-freemarket about federally mandated internet rate structures proposed by Professor Lessig than there was about the federally mandated railroad and trucking rates that hobbled the nation's economy for decades. The correct (and wealth creating) principle under which the internet has developed is simple: Minimal regulation. The legislation proposed by Professor Lessig and Representative Markey would grossly violate that principle for no apparent benefit.

There is one positive aspect to this new camino extraño down which Professor Lessig proposes to drag the internet: At least he is presenting his position to the legislature instead of arguing in the courts that his radical (and erroneous) approach is already dictated by the Constitution or existing statute, as he did in his prior efforts noted above. But so far Congress has wisely been as unimpressed with Professor Lessig as the Supreme Court was in his earlier efforts. By a lopsided vote of 321 to 101 the House today passed a bill that rejects mandated network neutrality, and does nothing to prevent the phone and cable providers from charging Internet content providers a premium for carrying services like video offerings that could rival those of the telecom companies – and not including the Markey amendment. One hopes the Senate has as much sense as the House on this topic.

I could write quite a bit more about the irrationality of mandated network neutrality. But an article on the topic aptly titled The Web's Worst New Idea does a pretty thorough demolition job on the pretensions advanced by Professor Lessig. As the article points out:

Increasingly, and with the backing both of the Moveon.org crowd and "Don't Be Evil" Google, a movement is afoot to give these entitlements the force of law. Congressman Ed Markey has introduced a bill to "save the Internet" by codifying Net neutrality principles in law. The FCC would be charged with enforcing "non-discrimination" and "openness" rules.

Does such FCC regulation sound like the spirit of the internet the reader has known? Of course not. That’s the old “regulated industry” model of the communications industry that the internet rejects and always has rejected. Once again, Professor Lessig pretends to the role of the visionary (even the revolutionary), while his actions and positions are those of a tired reactionary.