It has been a great pleasure being here this week — the commentators on this site are really sharp and thoughtful, and it is just a nice platform for writing.

Enjoy Who Controls the Internet, if you’ve got a copy, and I look forward to any comments any of you may have.

If you aren’t familiar with her work, Jacobs was an enemy of bad central planning. She believed in cities that grew up in a willy-nilly, unpredictable way, allowing new buildings to gradually replace old, or be converted to new purposes. She believed the causes of urban blight were dullness, and hated housing projects, mega-blocks and other doomed efforts to make people live just so.

What Jacobs favored is letting neighborhoods be. She thought city planners ought create small roads and small blocks that worked on a human scale, and then stand back let the inhabitants decide how best to use their neighborhoods. Here thinking wasn’t quite economics or sociology, liberal or conservative, but rather a powerful attack on our constant tendancy to overestimate our own abilities to plan how people should live their lives.

The comparisons to network design should be obvious. Network designers, like say the writers of ATM, who have too specific an idea of what they want their users to do create abominable networks that imprison their users and become obsolute quickly. The more general purpose and useful the network, the more it does for society and individuals, and the better it evolves from one use to another.

Consider the comparison: a SoHo building can begin life as a factory, become an artist’s loft, then a boutique, then a condo, and so on. Some of the networks and even applications have led constantly evolving lives. The internet supported usenet, gopher, veronica, the web, ICQ, IM and so on, in a steady kind of evolution that was unpredictable in advance. The WWW itself has shuffled through static sites, through “home pages” of the Geocities era, through the rise of the search engine, through the blog, and through 2.0-style sites. Someone, maybe Danah Boyd, should write “The Death and Life of Great American Applications.”

Jacobs understood that the point of urban planning was not planning for a moment, but trying to cultivate healthy, evolving cities that make people happy to live in. Much of the same can be said about information architectures – the best planned networks don’t overplan, but somehow manage to create a kind of life of their own.

You can learn this in The Death and Life of Great American Cities, or any of Jacobs’ other books.

It was a casual meeting and we chatted for quite a while. Anyone affiliated with the Chinese government is usually quite formal, so I wore a suit for the occasion, and worried about my lack of a welcoming committee. But Xiong was of the new breed, and preempting me, he wore jeans with a jacket, like a 60-year old internet hipster. In conversation it turned out he was something of an internet utopian himself. He spoke of a network of great transformative power for China’s economy, culture, and society. A network that would take China out of its present cage, its underdeveloped version of itself. That would create applications to match and compete with U.S. versions, and even interestingly, a content industry that can best Hollywood.

But then why so many controls, I asked him? He said, “to provide room,” and to “make development possible.” I didn’t quite understand what he meant by that. He urged me to pay less attention to the present, to the controls of today, and to think about China’s future. I asked, but then what’s the long term goal — something like Singapore, more like Europe, or the United States? He said, no, probably something in the middle, something Chinese, but in the end better.

After a while, something struck me. Like many of the dreamers in our book he was so deeply convinced of the internet’s potential to liberate China from its lack of development that he was willing to overlook details nearer the present. He was buoyed by the same kind of optimism in internet progress that you see in the West, just directed to a different goal: bringing China back where it should be. That, for him, made hard questions easy. I admired his spirit but it also made me a little nervous.

On his way out he wanted to buy some of the “new” books on law or media or the internet at the bookstore that can be harder to find in China. I took him there and he bought my book (shameless, yes). He also bought Lessig’s 3 books, and Paul Starr’s “the Creation of the Media.” Neither Glenn Reynold’s nor Yochai Benkler’s new books were in the bookstore (Labyrinth Books, near Columbia).

I wondered if I should warn him that our China chapter is quite critical, but I didn’t, and off he went.

Broadcasters have long wanted yet another form of intellectual property to, yes, provide more incentives to invest in the broadcasting of content. Love suggests that a collection of web firms, like yahoo, are lobbying for a web equivalent — a webcasting right as well.

In the meantime, I’d like a property right that gives me more inventives to wake up in the morning and floss my teeth.

For Bellheads, the cell phone is in many ways a dream platform. It puts many of the sacred principles of closed infrastructures into place, including:

1. Limits on equipment attachments; (customers use approved cell phones);
2. Vertically integrated content & applications; (ringtones, etc.)
3. Pay-per-use, value added services (like “411 and more!”)
4. General freedom to bill;
5. Limited customizability or programability.

So the cell phone platform, if the Bells are right about innovation, should be just killer. As a revenue source, that’s true. Yet other than SMS, I guess, I just don’t see alot of apps other than voice.

The question is, would it make sense for a provider to experiment with an open cell platform? To make it easy for third party developers to offer applications to cell-users, without making some kind of deal?

Do principles like Network Neutrality make any sense for wireless? Or are conditions sufficiently different?

Here’s a Snippet:

A lot of the difference in Chris and my own views stems from how we think the process of innovation occurs. Chris, rather like the later Schumpeter, believes that large firms — in this case, network operators, drive telecommunications innovation. As the later Schumpeter put it, the “large-scale establishment” is “the most powerful engine of [economic] progress and in particular of the long-run expansion of total output.”

Chris thinks incumbents like AT&T will rarely or perhaps never threaten innovation. Instead he views them as the driving force of the technologies of tomorrow.

I am skeptical. I think these view of incumbent behavior has been discredited, and that in general incumbents, particularly in a monopoly position, have a strong incentive to block market entry and innovative technologies that threat their existing business model.
…

From first principles, you’d except groups who want it to be harder to get pornography on the internet to want a .xxx domain — followed by a law (like this one, or stronger) ordering ISPs to block porn sites that don’t move to the porn zone. That would make it relatively easier to avoid randomly running into porn on the internet.

Yet as everyone knows the positions are reversed. The United States has signaled strong opposition, as have other governments. Groups in opposition rely on arguments that defy logic – like the argument that dot-xxx would mean more porn on the internet (if there is anything slowing the market for porn, its not the unavailability of a domain name). But U.S. groups, for reasons I cannot fathom, urge that dot-xxx would “mean perhaps twice as many Internet porn sites and twice the danger to children.”

What the episode largely teaches is a lesson in how the obessions of large and powerful states will shape the Net of the future. The opposition to dot-xxx is fairly hysterical — it is of the mindset that thinks it is better to pretend pornography doesn’t exist, for to admit it exists is to condone it. That’s a puzzling way of thinking to much of the world, but very familiar to Americans and some Europeans. Hence the opposition to dot-xxx.

Since the 1990s I’ve thought alone with others that porn on the internet could be better zoned. But if to zone it is to condone it, so much for that vision.

In 1997, the New York Times reported on the story of Tim “Ripper” Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest. As Times writer Andrew Revkin wrote:

Mr. Owens has risen from devotee to icon, from metal-head to metal-god. He is about to be transformed from a hard-working singer in a cover band and a suit-wearing traveling salesman of office supplies into Ripper Owens, the new lead vocalist for the band he once worshiped. It is as if a sandlot baseball player not only got a chance to play in the majors but got to be Cal Ripken Jr.

Great writing and a great story. Good enough to inspire the 2001 film Rock Star, starring Mark Wahlberg and Jennifer Aniston, for which, I am told, Warner Bros. paid the New York Times for the movie rights.

But wait — what movie rights? According to basic copyright law, and as interpreted by the Supreme Court, the facts of Ripper Owen’s life are free to be used by anyone. There is, according to the law, almost nothing to purchase. Reading the story out loud during the film would be a copyright violation, but under U.S. law, little else would borrow the expression as opposed to the facts.

So the existence of these licenses are, from principle if not practice, something of a mystery. I’ve heard a few explanations, though perhaps a reader has a better explanation than what I’ve heard.

One answer is that the rights aren’t expensive — the New York Times typically asks for several thousand dollars. In return, perhaps the reporter will help with the movie. So why not just buy the rights? Yet that’s still money. Why would anyone pay several thousand dollars something that doesn’t exist? Its like buying property in never-never land.

The supplementary answer is that studios are preventing even a remote risk of a lawsuit brought by the New York Times. This answer, if it’s true, is interesting, because it suggests that even if the law clearly says these rights don’t exist, people will still pay for them as if they do — its as if there’s no use even having the idea exception in copyright. It also suggests that the studios may be getting incredibly conservative legal advice, and wasting money thereby.

A final answer might be that the purchase is just an industry signal. It is no secret that preventing excessive competition is helpful to the film industry, like any industry. Two versions of Rock Star might make everyone’s life difficult (though maybe good for consumers). So by pretending that the rights actually mean something, the market can be divided between what would otherwise be competitors.

That’s a rather skeptical view. As things turned out, Judas Priest also, eventually, wanted more creative control over the movie — though of course they had no relevant rights to the story. Warner Brothers eventually took out all references to Judas Priest, and the resulting film though I haven’t seen it, was panned by critics. The usually generous Hollywood Reporter wrote “This is a completely generic movie that hits all the expected notes in a pat, formulaic way.” Oh well.

(Thanks to Jennifer 8. Lee for passing on the Judas Priest “Rock Star” example).

Anyhow, during the talk, someone asked an interesting question — what’s the difference between our book and Larry’s Code and Other Laws of Cyberspace?

It’s a perceptive question. From the outside the books look very different — ours is about international relations and nations, Larry’s is about code as a kind of law. But on the inside beat similar hearts, reflecting how much Jack and I learned from Larry, his scholarship and his book. How could it be otherwise?

Larry’s enduring contribution in Code is the concept of dueling regulatory modalities. This is the idea that a society at any time is being governed by multiple, and different types of rules from different sources. Larry didn’t just mean federal and state law. He meant something deeper: entirely different types of regulation, or as he puts it, that we are regulated by law, social norms, market forces, and what he called architecture or code.

Perhaps this idea was somewhere latent in the sociology and economic literature. But once presented by Larry it became an idea that once you get you cannot forget. (Similar to Larry’s translation theories of constitutional interpretation, which have a way of sticking in your mind and refusing to leave). So when you’re driving — what regulates you? The speeding laws, sure. But also norms that say, for example, no skipping the line to get on the highway. And while it sounds odd, tolls on the road regulate your behavior, making one road more expensive and another cheaper. But most profound of all was the idea that the architecture of the world regulates too, just like law. A speed bump is an alternative to a speeding law, and maybe more effective too. Conversely, you don’t need a speeding law for bicycles because by their nature they only go so fast.

Our book takes on a slightly different problem of competing sources of order. The question was, how would the world come to regulate the borderless or extra-territorial conduct found on the internet? In the 1990s there were three competing answers: (1) self-regulation or “private ordering,” (2) use of international law, or (3) national laws. While (3) was certainly not a fashionable answer at the time, our book is the story of how the use of (3) outgrew the rest, at least from the 1990s through now, and what might be said about that. (And maybe the most surprising thing has been the lack of use of international law tools to handle the extraterritorial problems created by the internet, with the exception of the Cybercrime treaty).

But at the heart of our theory you can find our debt to Larry. For in our studies of the techniques used by nation-states, the same theme emerges — the use of intermediary, or what legal scholars sometimes call “gatekeeper” controls. But if you really think about it, when acting through intermediaries the government is using a technique Larry described in his book — using law to shape the code. If the law were to tell carmakers that no car could go over 65 mph, that’s a form of intermediary control, but also what Larry was getting at.

Prompted by Code, we also talk about an almost too-theoretical question — you might call it the question of “what comes first.”

In short, is law, and its basic provisioning of public goods (like physical security) necessary to successful systems of norms, a free market and so on? This position, which is more or less Hobbesian, is one we approach in the book. I don’t think the argument is bulletproof — good cases can be made, perhaps, that norms are where societies start, leading to laws, leading to functioning markets — and so on. But having Larry’s ideas helped us think this through.

I don’t want to go on too much in this vein, and there isn’t enough space to detail all the ways our book has learned from Code. But suffice to say it and much of the other writing in this area all begin with that volume.

David & I were loyal to the Apple II platform. That the IIgs was, and it pains me to say this, a flawed and doomed product, made us only more loyal. The IBM was a much better machine, yet cold and generic in a way that meant we never grew attached to it. So we let the IBM ran the BBS, and kept the Apples for ourselves. We named our BBS “Fifth Business,” after the novel, and David and I were the sysops.

Fifth Business was relatively successful. At its pinnacle, we had a fancy 2400 baud modem, about 35 calls a day, and about 40 megabytes of files and games available for our users. It was, in a sense, our dream, yet of course over time, we got bored of it. We barely played the games people uploaded — the only game we really liked was Ultima. It was actually more exciting to be a user, struggling to get ahead, than a sysop, with total power. And so one day, though I don’t quite remember when, we just turned it off, and that was the end of my career as a pirate.

David & I were lawbreakers, and part of this book is part of an effort to understand law-breaking and its effects on legal systems. (My brother, incidentally, is a programmer, and now makes his living creating the kind of software we used to make available for download for his firm, pseudo interactive, publishers of Full Auto. I should ask him how he feels about that.)

So of course the filesharing wars from the 2000s are the unavoidable focus of that discussion. What we describe in the book is what we call the “forest fire” model of legal change. That is the idea that mass waves of lawbreaking are sometimes how the law changes – in the sense that forest fires, while they look scary, can actually keep a forest healthy. Of course if the whole forest burns down that’s not quite so great, but refusing to accept what lawbreaking is saying can eventually lead to even worse results.

The forest fire is just an analogy and may not be such a good one. But it is certainly clear that Napster begat Kazaa, and that Kazaa in turn begat both iTunes and Skype, which have made enormous contributions. Not everyone likes iTunes or Skype for various reasons. But the ability to download songs for a dollar and make calls for nothing. must be counted for something.

None of this, I suggest, would have happened without the challenge to law that came from the Napster in his dormitory. And so what we need to have is a more nuanced idea of what lawbreaking is telling us, what messages its sending. That’s actually the topic for my next book, and I’ll leave it there.