Open Internet

Please don't miss my Daily Caller Op-ed: "Supreme Court's Likely Leashing of 'Chevron Deference' Is FCC Game Changer" -- here.

The latest attempts to subvert the competitive success of the current free market broadband Internet to advance the fantasy of abundance uneconomics and cost-less Internet commons is the New America Foundation's (NAF) white paper entitled: "Capping the Nation's Broadband Future? Dwindling competition is fueling the rise of increasingly costly and restrictive Internet usage caps;" and Senator Wyden's proposed "Data Cap Integrity Act" to have the FCC effectively price regulate broadband usage and ban traffic discrimination a la "net neutrality."

In a nutshell, the NAF paper argues competition, usage-based pricing and the profit motive ill-serve the broadband Internet consumer; thus the Government should prohibit the market-pricing model of broadband data caps.

In a nutshell, Senator Wyden's proposed legislation argues that broadband usage and tiered pricing harm consumers by discouraging Internet use, discriminating against high-bandwidth services, and inhibiting innovation because ISPs make money on heavy broadband usage. Thus the Government should price regulate competitive broadband companies to prevent extraction of "monopoly rents."

Kudos to the Center For Individual Freedom CFIF for its outstanding paper: "The Constitutional and Historical Foundations of Copyright Protection" authored by former Solicitor General Paul D. Clement, Viet D. Dinh, and Jeffery M. Harris, all of whom clerked for the U.S. Supreme Court.

This paper is an exceptionally lucid and particularly timely addition to the current discourse on copyright, given the recent boomlet in revisionist copyright history proffered of late by opponents of copyright specifically, and intellectual property in general, who obviously have not done their homework.

The best new fact that I learned from the  paper is that: philosopher "John Locke himself... argued in a 1694 letter to the Parliament that formal publishing rights should last for the life of the author plus seventy years."

That shows that the penultimate natural rights conservative, John Locke, would not find current copyright durations out of bounds.

Current attempts to deem consensus around copyright legislation appear contrived and one-sided because they isolate a particular copyright problem out of context of the other countervailing problems with copyright law. TechFreedom's event this week asks: "CopyRIGHT: Can Free-Marketers Agree on Copyright Reform?"

The initial question for free marketeers will be whether the goal here is true "reform" that addresses the full range of real copyright problems for copyright holders, users, and intermediaries, or if the goal is more about a one-sided "neutering" of copyright by those who don't believe in intellectual property rights at all, and/or those who politically seek a property-less and permission-less Internet commons (i.e. the "information wants to be free" tech-left of Professor Lessig's Free Culture/CopyLeft movement and the Google-led Internet lobby.)

This week Google's actions made the case that U.S. communications law and regulation is obsolete.

The Head of Google Fiber disclosed that Google considered offering phone services in Kansas City as part of its bundle of Gigabit "ultra high-speed" Internet service and TV offering, but declined to do so when they became familiar with the prohibitive morass of legacy analog federal and state telephone regulations with which Google would have had to comply. While acknowledging that the incremental cost of offering voice services would have been "almost nothing," Mr. Medin lamented that Google would have had to build a more complex billing system to comply with the various state calculations in Kansas and Missouri.

It is telling that with all the special tax breaks and large business subsidies that Google was offered to choose Kansas City as the pilot Google Fiber city, they were still not enough to offset the high operational, management, and regulatory costs to comply with legacy telephone regulations.

There are many strong reasons for conservatives to be skeptical of proposed copyright reform and new entreaties for conservatives to actually lead a copyright reform effort.

• Jerry Brito of the Mercatus Center argues the opposite in his introduction to the new book: "Copyright Unbalanced: from Incentive to Excess." In his introduction, "Why Conservatives and Libertarians Should Be Skeptical of Congress' Copyright Regime" Mr. Brito concludes that conservatives may find they "are the best situated to lead a reform" of copyright law.

While Mr. Brito's reasoned intro shows why there is a legitimate debate to be had concerning the Constitutional definition of "limited times" to authors for "their respective writings" and provides some context to justify his position, Mr. Brito does not provide the full context necessary for conservatives to make an informed decision of whether or not they should support copyright reform let alone lead the charge for it.

Let's examine the strong reasons conservatives should be skeptical here.

While the D.C. Circuit Court of Appeals gave the FCC a significant win in upholding the FCC's Data Roaming Order, the incremental, serpentine, and limiting way the court did it suggests that this same Court will likely not uphold the FCC's sweeping assertion of legislative-like Internet regulation authority in its Open Internet Order.

In upholding the Data Roaming Order, the Court was faced with a set of facts where the FCC already had clear authority to require mobile voice roaming and the question was whether the FCC had enough authority to extend it to data roaming. In excruciating legal detail, the Court explained why the FCC had the Title III radio authority for this limited action and why the FCC "warrants deference" in this "gray area" of determining when a service is or isn't common carrier. Nevertheless, the court warned the FCC to not try and overreach beyond the narrow boundaries that the court allowed.

Simply, the court gave the FCC more leash in this set of circumstances, but still warned they remained on the court's leash.

I can't remember reading a more misinformed op-ed than today's NYT's "Bad Connections" by David Cay Johnston.

His stated premise that telecommunications competition hasn't fulfilled its promise of lowered prices, more innovation or improved quality since 1974 is apparently blind to obvious commonly-known facts.

In 1974, most all Americans used black rotary-dialed phones, suffered from prohibitively-expensive long distance rates, and phone technology that hadn't changed much for forty years.

Now thanks to competition Americans can:

Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed a policy brief on copyright "myths" last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee's views. Don't expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.

There are at least five fundamental flaws in Mr. Khanna's characterizations.

1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.

Mr. Khanna's effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution's treatment of property rights, and copyrights in particular, are really "myths" that misinterpret what he posits the Founding Fathers really meant to do in promoting "progress of science and the useful arts," puts his opinion squarely at odds with America's two centuries of experience with Constitutional rule of law.

The genuine U.S. Constitutional principle of "Freedom of Speech" in the First Amendment -- that protects us from the real and time-tested threat of governmental tyranny -- continues to get debased, devalued and misrepresented by the free-of-cost tech movement of Free-Culture, the Free-Software Foundation, Public Knowledge, and their corporate online-advertising allies who commercially-depend on free content and the no-cost sharing of others' private property. They justify their means of debasing, devaluing and misrepresenting Constitutionally-protected freedom speech because it advances their ends of an Internet information commons.

Ironically these freedom-from-cost interests just argued against a Constitutional interpretation of protecting freedom of speech in a brief before a Federal Appeals Court in opposing Verizon's challenge to the FCC's Open Internet Order, because Verizon had the temerity to assert its Constitutional right to freedom of speech, in addition to other legal and Constitutional defenses.