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• Could Edge-Caching Violate Net Neutrality?

Note: Brendan Ballou is solely responsible for the content of this article. It is not necessarily endorsed by Professor Zittrain

Our little corner of the blogosphere has been lit on fire by the recent article in the Wall Street Journal claiming that Google was coming out against Net Neutrality. Now, there are plenty of problems with this article. Contra WSJ, to quote David Isenberg:

“Google’s edge caching isn’t new or evil
Lessig didn’t shift gears on NN
Microsoft and Yahoo have been off the NN bandwagon since 2006
The Obama team still supports NN
Amazon’s Kindle support is consistent with its NN support”

This is all more or less true (I think Lessig would himself agree that his opinions about net neutrality have evolved). However, none of this says that Google isn’t violating the principle of net neutrality. Let’s use Google’s own summary of the idea, that broadband providers “should not be allowed to prioritize traffic based on the source, ownership or destination of the content.” Strictly speaking, this does seem to conflict with Google’s OpenEdge program. The program aims to cache Google’s search and video content on servers within network operators’ facilities. Such deals would save bandwidth for the network operators and increase access speeds for broadband customers. Such deals would also give Google a distinct advantage over its search and video competitors. Says one of the commenters on David Isenberg’s above-referenced blog:

“The plan is for Google to install equipment that will bypass the public Internet and ensure that their content, e.g. YouTube, will be delivered to ISP customers faster and more reliably than competing services such as Netflix Instant Watch that depend on the public Internet for delivery. If there weren’t a performance advantage, there would be no reason to do this.

“Whether this violates [network neutrality] depends on whose definition you take, and from what era. Current Lessig says it’s fine as long as any (rich) company has access to the [cable operator], but historical Lessig said such arrangements (”access tiering”) are not fine because only a few large players can enjoy their benefits.”

Now, this might not be bad. It might not hurt innovation. It might not be evil. But it certainly violates net neutrality, if we define the principle strictly as bit-by-bit non-discrimination. That said, such a violation might not be such a big deal. Instead of asking whether this deal prioritizes certain services or content over other services or content, let’s ask whether this deal promotes users’ autonomy and generative capacity. Long-term, those seem to be the questions that matter.

Finally, at the risk of burying the lede, let me add that before publishing this post I asked JZ’s thoughts on the matter. Here’s what he wrote:

“I don’t see this as a gotcha moment, but it’s a useful pointer to a larger debate about the role of intermediaries like Akamai, which make high-bandwidth streaming work better for its customers thanks to similar arrangements.  Akamai and deals like the ones Google seek might be helpful to the Net because they ease the pressure for more formal, network-embedded discrimination, since big content providers can have their needs met with what amounts to an endpoint kludge.  And so long as the network itself isn’t discriminating, P2P provides a neat form of easy high-bandwidth distribution within the reach of any content provider — so long as the material in question is popular enough for enough P2P users to seed it.  But at its extreme, if one imagines a public Net with no further buildout and a migration of most content to edge staging points by those who can afford it, the rise of bandwidth arbitragers isn’t good.  I’m not currently that worried about this scenario because the bottlenecks in bandwidth turn out to be towards the edges rather than in the middle of the network.”

• Creative Commons- the Past and the Future

By Yvette Wohn

Creative Commons held a special panel and fundraiser on Friday featuring Board Chairman James Boyle, Stanford professor and CC founder Larry Lessig, CEO Joichi Ito, and former Executive Director Molly S. Van Houweling. The event kicked off with HLS Dean Elena Kagan announcing Lessig’s return to Harvard (in fall 2009) and an introduction by Charlie Nesson. Jonathan Zittrain- moderating the session- then zoomed in with his first question: where did Creative Commons start?

Everyone seemed to agree that CC was a collaboration of bits of ideas from several people, and that the concept evolved over many meetings. Zittrain insisted that it was Lessig’s obsession with the letters CC, which began as “counter copyright” in the Eldred v. Ashcroft case. Lessig said that for him, the real start of CC was after he lost the Eldred case, which he thought (if won) would create a nationwide movement to change copyright. “We thought we were going to unleash rationality from top down through the Supreme Court but found out that we had to unleash rationality from the bottom up,” he said.

The panelists reflected on milestone moments of the organization. For Van Houweling, it was when Justice Breyer referred to Creative Commons without footnoting it in his dissent for MGM Studios v. Grokster — assuming everyone would know what it was. For Lessig, it was when Hewlett Foundation walked up to them after losing the Eldred case with a million dollars. Boyle said it was when someone in his class looked at a Coco Chanel bag and said, “Oh, Creative Commons.”

Discussing the development of CC, the panelists emphasized that breaking down barriers was an important movement for CC and people who “prevent failed sharing.”

As it turns out, the enemy is near. Lawyers are the enemy of sharing, Lessig said, criticizing that law professors teach their students to give clients absolute power. “Lawyers’ mentality is to build systems which exert as much control as possible– never thinking about the consequences of that way of deploying culture, knowledge, or science,” he said, pointing out that the situation was similar to that of global warming in that in early stages, people deployed technologies without thinking of how it would affect the environment. Part of the objective of CC is to wake up lawyers to the responsibility they have in deploying inobstructive legal tools, he said.

Ito agreed with Lessig, saying that the unintentional bits of legal code that prevent sharing are results of people don’t understanding interoperability. Even if you wanted to created an open license, different licensing systems would clash with one another, he said.

Boyle also brought up the problem of limited open systems that can build self-reinforcing incentive structures. “We know from things like open source software that if you have a community, you can have structures that incentivize this and start to build norms of communities and cultures of sharing that work, and work economically.” Understanding the net and the role that the net has to enable those cultures of sharing is a central influence in thinking of CC, he added.

One of the big futures of CC is the growing international movement. “While we were barely hanging on with our fingernails to launch CC to the US, which has its own set of complicated copyright issues, Larry said that it needs to be global.” Boyle said. “I told him it was impossible, but soon professionals, artists, lawyers, professors from all over the world were coming to us.”

The panelists also hope that CC will provide the necessary framework for people to make their own decisions about sharing. CC doesn’t have the authority to define freedom and speak on behalf of the creators but it encourages people to become involved and argue about what they think freedom should be, Lessig said. He noted that over time, people were seen moving away from the most restrictive licenses, and that CC provides the infrastructure to encourage arguments on what is the appropriate architecture for freedom.

The audience also had various comments and questions for CC– like if there were any lawsuits involving a CC license (there have been: see here and here), or how CC intended to educate people who don’t know a thing about CC or copyright (Ito suggested that future web standards could automatically include licensing data, making it easier to implement).

As a parting message, the panelists strongly solicited donations, saying that the number of individual donors is increasing but corporate sponsors are bailing. Lessig emphasized that money is important; and that ideas can’t be realized without being backed up with resources.

*Watch the forum on Berkman’s YouTube channel

• Required reading: big news

Larry’s site has been pwned for the moment, so here’s a copy of his blog post announcing his move:



It is with a complicated mix of excitement and sadness that I make the following announcement.

As some of you remember, just over a year ago I reported that I was shifting my academic (and activist) work from free culture related issues to (what I called) “corruption.” At Stanford, a year ago, I outlined what this work would be: To focus on the many institutions in public life that depend upon trust to succeed, but which are jeopardizing that trust through an improper dependence on money. Read the New York Times Editorial of last week. Or think of medical researchers receiving money from drug companies whose drugs they review; legal academics receiving money to provide public policy advice from the very institutions affected by that advice; or Congress filled with Members focused obsessively on how to raise money to secure their (or their party’s) tenure. In all these cases, dependency on money in these ways tends to weaken public trust. Or so was my hypothesis when I launched on this project.

But how I would pursue this work has been a constant challenge. I started immediately to devour the books recommended to me by colleagues and on my wiki. I attended conferences and gave talks about the subject. I began a series of interviews with insiders. And with the help of Joe Trippi, I launched Change Congress, which was designed to focus these issues in the context of American politics.

Throughout this process, however, I have felt that the work would require something more. That the project I had described was bigger than a project that I, one academic, could pursue effectively. This wasn’t an issue that would be fixed with a book. Or even with five books. It is instead a problem that required a new focus by many people, across disciplines, learning or relearning something important about how trust was built.

About six months ago, I was asked to consider locating this research at a very well established ethics center at Harvard University. Launched more than two decades ago, the Safra Center was first committed to building a program on ethics that would inspire similar programs at universities across the country. But the suggestion was made that after more than two decades of enormous success, it may make sense for the Center to consider focusing at least part of its work on a single problem. No one was certain this made sense, but I was asked to sketch a proposal that wouldn’t necessarily displace the current work of the Center, but which would become a primary focus of the Center, and complement its mission.

I did that, mapping a five year project that would draw together scholars from a wide range of disciplines to focus on this increasingly important problem of improper dependence. Harvard liked the proposal. In November, the Provost of Harvard University invited me to become the director of the Safra Center. Last week, I accepted the offer. In the summer, I will begin an appointment at the Harvard Law School, while directing the Safra Center.

This was a very difficult decision to make. Stanford is an extraordinary law school, and I have loved my time here. The students are brilliant, yet balanced. The faculty is brilliant, yet surprisingly humble. The Dean has an amazing vision of the future of legal education, and is redefining the law school in ways that I completely support. I am endlessly proud of the Center for Internet and Society and the Fair Use Project. I have the very best assistant in the world (and she promised at least 5 more years if I stayed). I have written four of my five books while here. I’m almost finished with my 6th, the book I am sure I will be most proud of. This is a place that has given an enormous amount to me, and from which I have benefited greatly.

On a personal level, too, this was a difficult decision. California has become our home. My wife is strongly attached to everything Californian; we both have very close friends here; I hadn’t ever imagined raising my kids in anything but the social and political environment of San Francisco. I still find it hard to imagine that I won’t, if not now, sometime. And the enormous beauty of the environment here still takes my breath away. A year into my time at Stanford, I was certain I would never leave. After a blissful weekend with my family last week, it still hasn’t registered that I will be leaving.

But in the end, it was impossible for me to be committed to the project while turning down this opportunity. It is not just the institution, nor the (partial) freedom from teaching. It is the chance to frame a large-scale project devoted to a large, important and complex problem. Once we saw it like this, my wife and I decided that returning to this old home was the right thing to do. And so in June, we will pack up the car for a cross country trek, back to Harvard.

Of course, I have no objective cause to complain. Harvard too is an extraordinary law school. As anyone who knows me knows, some of my closest friends in the world are at Harvard, including the Dean (or at least until Obama steals them all away). Harvard has grown and changed in wonderful ways over the past eight years. It will be an enormously exciting place to teach and learn.

But I regret deeply doing anything that is hurtful to those I respect and like. Worse, I hate doing anything that can be misunderstood. When Dean Sullivan recruited me, she said Stanford was paradise. I thought that was just a slogan. It isn’t. I consider the 8 years I have had here to be the most important and invigorating in my career. And I will miss everything about this place.

Some things won’t change. I will continue to work with Joe Trippi to build Change Congress. And I will continue to explore how best to incorporate this space (the Net) into this research. But I will do all of this, and my work, in the context of Harvard’s Safra Center and its Law School, and of old friendships, revived.


• Welcome back, Larry!

Larry Lessig to head east.

• Q&A with Zittrain on MySpace Suicide Case

By Yvette Wohn

Megan Meier (13) met Josh Evans (16) on MySpace, the online equivalent of malls for teenagers in the 21st century. After months of flirting, Josh “broke up” his relationship with Megan. “This world would be better without you,” he wrote. Megan fled upstairs to her room in tears; her mother later found her hanging by a belt. It was Oct. 16, 2006.

It would have been a very sad story of a girl who already had a history of depression and peer troubles. But there was an ugly twist. Josh wasn’t really a teenager– he was a fake profile created by Lori Drew, a 49-year old woman . The account was used by Drew, her daughter Sarah, and another family friend to find out if Megan was saying bad things about Sarah behind her back.

Megan’s parents learned about this hoax account about six weeks after Megan’s death, through a parent whose daughter had access to Josh’s profile. They took the case to the Missouri court and lost. Prosecutors in St. Charles County, Mo., declined to prosecute Drew or the teens involved, saying there wasn’t enough evidence to apply criminal standards for the state’s statutes on harassment, stalking or endangering the welfare of a child.

Prosecutors, however, took the case to Los Angeles, which is where MySpace servers are based. Recently, the grand jury indicted Drew with three misdemeanor violations of the Computer Fraud and Abuse Act (CFAA), which is normally associated with hacking. She was charged for accessing protected computers without authorization– in other words, she had violated MySpace’s terms of service, which prohibits the use of fake identities and harassment of other MySpace members. That could mean three years in prison or fines of up to $300,000. (The jurors couldn’t agree on the charge that Drew conspired to violate Section 1030, a felony that carries a prison term of up to 20 years.) Drew has filed for an appeal.

Because Drew was convicted of an act unrelated to cyberbullying (or even identity theft– although she used a picture of an anonymous boy), many scholars (here, here, and here) think this case sets a dangerous precedent. The Electronic Frontier Foundation, Center for Democracy and Technology and Public Citizen, and a group of scholars filed an amicus brief calling the case a threat to online free speech and the Heritage Foundation called the case a “case study in overcriminalization.”

While the Drew case has been drawing attention because of its legal twists, larger issues regarding malicious acts online still remain unsolved. With more and more people connecting to the Internet at faster speeds, are current laws enough to maintain a civil online environment? I asked Jonathan Zittrain a few questions about his take on the case and thoughts on regulations in cyberspace.

Q. Do you think the Lori Drew case sets an uneasy precedent?

Yes.  The facts are awful, and there might be a civil claim in there– Megan’s parents can sue Lori Drew for money.  But it’s not easy to figure out what criminal statute to draft to cover these facts without criminalizing a bunch of other stuff that’s more innocuous, and in any case no one has gone to that trouble– the hacking statute is a terrible fit for this.

Q. We are seeing an increase in slander cases on the Internet, but U.S. law clearly exempts web service providers from taking any responsibility for malicious content. How do you feel about this?

I’m not sure I’d describe this as “malicious content.”  It’s true that Federal law tends to relieve ISPs and online service providers like Myspace from having to monitor what others post through their services.  This is even further out: it’s activity that Myspace would have next to no chance of ferreting out beforehand, and as it stands, the scam was ultimately discovered.

Q. I know you’re a great fan of Wikipedia. Do you think “Wikipedic” self-cleansing measures can be used to clean up content on the web?

I think we can make great strides on technologies to facilitate social signaling, allowing people to express their preferences with respect to information that bears on them.  For example, Google News has started an experiment in this area that lets people who are quoted or mentioned in an article have a privileged place in posting a comment next to it when it appears as a Google News result.  Such signaling won’t help every problem– certainly I don’t think there’s much that could have helped in the Lori Drew situation– but we can’t try to preempt every possible problem with the law.  That’s why we have a tort system, to arrange for compensation later, and I suspect that Lori Drew very much regrets what she did– if only because of the enormous amount of disapprobation she’s experienced since the case went hyper-public.

About Jonathan Zittrain

Jonathan Zittrain is the Professor of Internet Governance and Regulation at Oxford Internet Institute, Oxford University, and co-founder of Harvard Law School’s Berkman Center for Internet and Society.