September 2009

Matt Salmon, immediate past president of COMPTEL and former Arizona Congressman, has an excellent Op-Ed in today's Washington Examiner entitled:     
"Net Neutrality Threatens the Balance of the Internet."

DOJ's 28-page Statement of Interest to the Court responsible for deciding the fate of the Google Book Settlement speaks volumes. 

First, it ensures the current proposed settlement is effectively dead.  

• It is hard to conceive a U.S. Federal District Court Judge approving a settlement, which the United States Government indicates may be illegal under three completely different bodies of law (class action, copyright and antitrust), and also may be per se illegal in multiple different ways.

Second, despite the DOJ's encouraging tone in the press release, the DOJ statement itself set a very high bar for the parties to overcome. Substantively, the DOJ is insisting on radical changes in the settlement that practically would gut the unique and self-serving going-forward public benefits of the deal for the parties.   

• In a nutshell, the DOJ's is effectively urging the deal be radically pared back from covering:
  • ~All books -- to just books-in-print (a fraction of the seven million books Google has copied);
  • U.S. and foreign works -- to just U.S. works;  
  • Scanning and all derivative uses -- to just scanning and snippets;
  • Retrospective and prospective impacts -- to retrospective and heavily-scaled-back prospective impacts; and  
  • Just the parties who get special public benefits -- to enabling most outsiders to share equally in the settlement's public benefits. 

Third, it raises the question if there is still a basis for the parties to settle, because the DOJ recommended fixes fundamentally and substantially limit what the parties can extract from the settlement.

For those trying to better understand some obvious, important and necessary reasons why networks need to engage in "reasonable network management" and prioritize Internet traffic to ensure quality of service for all -- please read a great post by George Ou over at Digital Society. 

Traffic prioritization is not anti-competitive or anti-openness -- its simple common sense network management.  

The FCC Chairman's proposed preemptive net neutrality/open Internet regulations are unjustified.

• That's the thrust of an excellent Washington Post lead editorial today entitled: "The FCC's Heavy Hand: Federal regulators should not be telling Internet service providers how to run their businesses."

Kudos to the Post for great clarity of thought in getting right to the crux of the problem with the proposed regulations in asking the simple bottom line question: "Is this intervention necessary?"

• The editorial put a bright spotlight on an embarassing vulnerability of these proposed regulations -- that they obviously are unjustified on their face.

The Post is also dead on in exposing the severity and intrusiveness of the intervention that the FCC Chairman is proposing, despite assurances to the contrary.

• "In short, ISPs, which have poured billions of dollars into building infrastructure, would have little control -- if any -- over the kinds of information and technology flowing through their pipes."

Lastly, the editorial belies the FCC Chairman's claim that the FCC won't overreach, by accurately calling the proposed regs for what they truly are: "attempts to micromanage what has been a vibrant and well-functioning marketplace."

Simply, the old adage is true here: "if it ain't broke, don't fix it."