Here’s a fantastic 11-minute video from Vi Hart that explains Net Neutrality and more.

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I wouldn’t have thought that Net Neutrality would be a particular rich vein for humor. But I was wrong. The Internet Must Die is a Colbert-style satire, with many of the heroes of the Open Internet in it.

A court yesterday heard arguments about whether the FCC’s Net Neutrality rules [pdf] should be permitted to stand. Harold Feld does his usual superlative job of explaining in depth.

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The FCC’s Open Internet Advisory Committee’s 2013 Annual Report has been posted. The OIAC is a civilian group, headed by Jonathan Zittrain [twitter:zittrain] . The report is rich, but I want to point to one part that I found especially interesting: the section on “specialized services.”

Specialized services are interesting because when the FCC adopted the Open Internet Order (its “Net Neutrality” policy), it permitted the carriers to use their Internet-delivery infrastructure to provide some specific type of content or service to side of the Internet. As Harold Feld put it in 2009, in theory the introduction of “managed services”

allows services like telemedicine to get dedicated capacity without resorting to “tiering” that is anathema to network neutrality. In reality, is great new way for incumbents to privilege their own VOIP and video services over traffic of others.

The danger is that the providers will circumvent the requirement that they not discriminate in favor of their own content (or in favor of content from companies that pay them) by splintering off that content and calling it a a special service. (For better explanations, check Technoverse, Ars Technica, Commissioner Copps’ statement.)

So, a lot comes down to the definition of a “specialized service.” This Annual Report undertakes the challenge. The summary begins on page 9, and the full section begins on p. 66.

I won’t pretend to have the expertise to evaluate the definitions. But I do like the principles that guided the group:

• Regulation should not create a perverse incentive for operators to move away from a converged IP infrastructure

• A service should not be able to escape regulatory burden or acquire a burden by moving to IP

The Specialized Services group was led by David Clark, and manifests a concern for what Jonathan Zittrain calls “generativity“: it’s not enough to measure the number of bits going through a line to a person’s house; we also have to make sure that the user is able to do more with those bits than simply consume them.

I’m happy to see the Committee address the difficult issue of specialized services, and to do so with the clear intent of (a) not letting access to the open Internet be sacrificed, and(b) not allowing special services to be an end run around an open Internet.

Note: Jonathan Zittrain is my boss’ boss at the Harvard Law Library. I’ve known him through the Berkman Center for ten years before that.

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Lots of good stuff as VP Gore answers questions mainly about climate change.

But there’s also this from him:

Our national information infrastructure is no longer competitive. We need to invest in more bandwidth, easier access, and the rapid transition of our democratic institutions to the internet. And we need to protect the freedom of the internet against corporate control by legacy businesses that see it as a threat, and against the obscene invasions of privacy and threats to security from government and corporations alike. Please think about this: almost everytime there has been a choice between privacy/security on the one hand and convenience on the other, the mass of folks have chosen convenience. I for one believe the “stalker economy” on the internet is undemocratic and anti- American. Are folks at the gag point on this yet? Thanks, btw, to the Reddit community for fighting off Sopa and PIPA. Keep your powder dry; more big struggles ahead.

F@#$ing Florida :(

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According to TorrentFreak, a leaked AT&T training doc indicates that starting on Nov. 28, if a customer is flagged 4-5 times for copyright infringement [according to faceless algorithms], AT&T, Comcast, Cablevision, Time Warner Cable, and Verizon will block access to unspecified “popular sites” until the customer completes an””online education tutorial on copyright.”

No, there’s nothing even remotely Soviet about continuous surveillance that judges you via a bureaucracy without appeal, and punishes you by blocking access to information until you come back from re-education camp. Nothing Soviet at all, comrades!

I’m not a lawyer, but I’m pretty sure that if Net Neutrality means that access providers don’t get to block access to sites, then this grotesquely violates the FCC’s Net Neutrality guidelines.

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Neelie Kroes, VP of the European Commission, has issued her statement on Net Neutrality. In my view, she correctly assesses the importance of Net Neutrality, but wrongly gauges the ability of a free market to deliver it. As a result, her policy is (in my view) seriously misguided. But so close!

Neelie writes:

When it comes to the issue of “net neutrality” I want to ensure that Internet users can always choose full Internet access – that is, access to a robust, best-efforts Internet with all the applications you wish.

I would have preferred a phrase about all apps and data delivered free of discrimination by the carriers. In any case, based on a new study by BEREC (European regulators’ body), she feels that now enough of the market has a choice of carriers that regulation is not needed.

As my friend JC de Martin wrote on a mailing list [slightly edited]:

I am afraid that this is a bad decision on at least four counts:

1. it overestimates the ability of the average consumers not only to obtain the relevant information, but also
to fully understand its implications;

2. it underestimates the very substantial pain of switching ISPs;

3. in rural areas, or smaller cities, the ISP offer is quite limited;

4. ISPs are not all equal: very soon European consumers will have to face a choice between a fast ISP with “limited Internet” and a slower ISP with “full Internet”: which one will they choose?

If access to an open Net is as important as Neelie believes it is, then it ought not be left up to the vagaries of the market to deliver it, and we ought not be complacent about a situation in which some people cannot afford access to it.

So close :(

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Neelie Kroes is becoming one of the open Internet’s most influential supporters.

Kroes is Vice President of the European Commission and is responsible for its “digital agenda.” At the Forum d’Avignon I was at (see here and here) she was just about the only person in a positon of power — economic or regulatory — to suggest that the Internet is actually a good thing for culture, and that we need new ways to think about copyright and distribution. Yesterday she gave a speech at the World Wide Web Conference in Lyon in which she called for new thinking to support an open Internet. Most importantly, she explicitly recognized that openness is indeed the property from which the rest of the Net’s value springs.

That a leader of the EC responsible for the “digital agenda” understands this shouldn’t be news. But it is. She even cites Yochai Benkler. Go Neelie!

Her talk begins by nailing its main point:

The best thing about the Internet is that it is open. Indeed it’s built on the idea that every device can talk to every other, using a common, open language. That’s what explains its seemingly endless growth.

Exactly right! Thank you, I’ll be here all week, drive safe, and God bless.

She goes on to explain the many benefits openness brings: “…choice and competition; innovation and opportunity; freedom and democratic accountability.” “Look at what we could do if we opened up our public sectors and put their data online.” She touts open standards. She points to political benefits: “And just look at what openness can do for freedom of speech. The Internet gives a voice to the powerless, and holds the powerful to account.”

Then she turns to the factors that impede openness:

Sometimes the problem is ancient, pre-digital rules that we need to cut back or make more flexible. Other times, openness actually flows from strengthening regulation.

She goes on to say that sometimes it’s about changing a “mindset,” not changing the rules. She says that we need an environment were different models are available and can compete. For example, some people want open discussions and some want moderated forums. We should have all types so people can choose. Likewise, we should have many different business models. People who want to be compensated monetarily for their deserve to be, although many are happy to give away what they’ve created. She says:

Look at the complicating licensing systems for copyrighted material here in Europe. These guarantee that Europeans miss out on great content, they discourage business innovation, and they fail to serve the creative people in whose name they were established.

Woohoo!

After nodding to the need for security and privacy, she gets down to the infrastructure level:

…open competition, brought by the EU, has delivered for Europe. It offers consumers better deals and new, tailored services; market players new opportunities; and potential investors legal certainty.

She states her firm commitment to net neutrality. She is fine with having many market choices, including for cheaper plans that provide limited bandwidth, or access designed for specialized preferences. But, she says, there must always be truly open, neutral access, and she points to the BEREC study due in May that should tell us whether in Europe truly open access is being offered to everyone as an option.

Great speech, especially from a person in her position.

So, let me tell you my one concern. Kroes’ idea of openness means that the Net ecosystem should support the option for closed systems for those who want them: It needs to support copyright and it needs to support offerings from access providers that limit access. In theory there’s nothing wrong with that. The problem comes when you try to engineer an open system to support closed options. So, even the most crazed copyright supporter (let’s just call him, oh I don’t know, “Sarkozy”) is happy to let people give away their own content if they should be nutty enough to want to do so. But to support the “equal and opposite” option of being able to sell content, Sarkozy wants to rejigger the entire system to prevent “piracy.” If you want to offer the closed option with sufficient rigor to prevent all violations, the system would need to become closed. Kroes is certainly not advocating that closure, but the piece I feel is missing from her talk is the recognition that the value of openness surpasses the value that would come from a system engineered to so scrupulously protect IP. We have to accept some degree of risk for IP in order to have the openness that brings us the values Kroes is so eloquent about.

Likewise, I have no problem with access providers offering plans with data caps or that throttle bandwidth (assuming they’re transparent about it); that does not violate my idea of net neutrality. But there are conceivable plans for “specialist user needs” (as Kroes calls them) that would be discriminatory: A plan that gives priority to the delivery of movies (for example) would give those movie bits priority over the non-movie bits that other users of the Net care about. Personally, I think the best protection for the open Internet is structural separation: access providers sell you access — including tiered services — but are not allowed to sell either content or services that discriminate among bits. I don’t know where Kroes stands on this, but again I would have preferred a clear statement about it.

But now I’m just being greedy. Neelie Kroes is an Internet champion at time when we desperately need one.

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In fact, Harold’s post is so long that I’m only half way through it, but I have to leave for a plane. In it he explains in some detail the history and ramifications of… well, here’s a taste from near the beginning:

…Verizon graciously offered to buy out Cox’s AWS spectrum so that Cox could get out of the wireless business. And, in what can only be an amazing coincidence for utterly independent agreements that should in no way make anyone think that the major cable players are colluding with their Telco/Wireless chief rival, Verizon and Spectrumco offered to let Cox in on the same three agreements to become exclusive resllers and become a member of the “Joint Operating Entity” (JOE) to develop all these cool new technologies.
So you see, it’s all totally innocent, and does not in the least look like a cartel agreeing not to compete, dividing up markets, and setting up a Joint Operating Entity so they can continue to meet and discuss their business plans on an ongoing basis while developing a patent portfolio to use against competitors like DISH and T-Mobile…

Harold Feld works for Public Knowledge, which works for an open Internet.

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Benoît Felten and Herman Wagter have published a follow up to their 2009 article “Is the ‘bandwidth hog’ a myth?.” The new article (for sale, but Benoit summarizes it on his blog) analyzes data from a mid-size North American ISP and confirms their original analysis: Data caps are at best a crude tool for targeting the users who most affect the amount of available bandwidth.

Read Benoît’s post for the details (or at least a fairly detailed overview of the details). But here’s the gist:

Benoît and Herman looked at the actual usage data in five minute increments of broadband customers sharing a single aggregation link. They looked both at the total number of megabytes being downloaded (= data consumption) and the number of megabits per second being used (= bandwidth usage).

They found that there is indeed a set of users who download a whole lot: “The top 1% of data consumers…account for 20% of the overall consumption.” But half of these “Very Heavy consumers” are doing so on plans that give them only 3Mbps, as opposed to the highest tier of this particular ISP, which is 6Mbps. So, even with their heavy consumption, their bandwidth usage is already limited. Further, if you look at who is using the most bandwidth during peak hours, 85.3% of the bandwidth is being used by those are not Very Heavy users.

Here’s the point. ISP assumes that Very Heavy users (= “data hogs” = “people who use the bandwidth they’re paying for”) are responsible for clogging the digital arteries. So, the ISPs measure data consumption in order to preserve bandwidth. But, according to Benoît and Herman’s data, the vast bulk of bandwidth during the times when bandwidth is scarce (= peak hours) is not taken up by the Very Heavy users. Thus, punishing people for downloading too much inhibits the wrong people. Data consumption is not a good measure of critical broadband usage.

Put differently: “42% of all customers (and nearly 48% of active customers) are amongst the top 10% of bandwidth users at one point or another during peak hours.” The problem therefore is not “data hogs.” It’s people going about their normal business of using the Net during the most convenient hours.

I asked Benoît (via email) what he thinks would be a more effective and fair way of limiting usage during peak hours, and he replied:

throttling everyone indiscriminately during actual peaks (ie. not predetermined times that could be considered peak) would be a fairer solution, although the cost of implementing that should be weighed against the cost of increasing the capacity in the aggregation, core and transit. The economics don’t necessarily work. And of course, that would affect all users, and might create dissatisfaction. But it would be fair and more effective.

In any case, the data suggest that “data hogs” are not the main culprits causing bandwidth scarcity. The real problem is you and me using our bandwidth non-hoggishly.

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While the Pirate Party already has an association in Italy, it seems likely that this afternoon it is going to register as an official party. That’s an exciting and encouraging step.

I of course don’t know what its platform will be, but if it’s similar to that of the other Pirate Parties, then I won’t agree with all of it, but will still welcome its presence as a voice not only for an open Internet — far wider than copyright reform — but for the set of values an open Internet permits: new forms of collaboration, lowering the hurdles to expression, bold experimentation and its concurrent willingness to fail, transparency, and joy in the new possibilities.

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