Disqus - Latest Comments for sjschultze

Re: A response to Steve: It still doesn’t sit well

sjschultze — Fri, 10 May 2013 17:22:41 -0000

Jerry, you're obviously upset with my tone. You're right that it came out as condescending. My poking was meant in jest, even though I do genuinely disagree with you here. We agree on far to many things to be enemies, and I like you as a person even if you think I'm a lout. I'll be in Alexandria soon. Beer summit?

Re: A response to Steve: It still doesn’t sit well

sjschultze — Fri, 10 May 2013 15:51:30 -0000

Jerry,

You aren't trolling, are you? That's the only reason I can think of for continuing to make such patently bad arguments, but you seem sincere. I guess I'll portray your arguments in the most favorable light and presume that this is some kind of self-appointed pro bono devil's advocate exercise (and no, I am not saying that Craig is the devil).

I'm sorry that I brought up the copyright stuff. The problem is that coverage of this Order has almost uniformly asserted either that the copyright claims were demolished entirely (they were not) or that those that remain are unlikely to prevail (they very well could). In your post, you say that, "a site like PadMapper only copies facts about a listing." Take a look at the First Amended Complaint, pages 11 and 12. That's clearly not true. They're not Feist facts. They're not facts subject to the merger doctrine (although I commend you for incorporating another obscure if irrelevant corner of copyright jurisprudence into the discussion in this latest post. I'm sure that anyone still following along will find it educational.) In any event, even if your new merger theory were to prevail, the difference between the "facts" being non-copyrightable versus minimally enforceable under copyright law due to merger is splitting hairs. As for the validity of click-through contracts, I am sad to report that the caselaw here is very bad indeed for those wishing to to assert the tl;dr defense. Just ask Matthew Zeidenberg.

Ok, on to things that don't "sit well." Let's restrict the discussion to common law. What basis in common law do you think that Craigslist could plausibly assert? Apparently you don't like trespass to chattels after all, even though you mentioned it in your first post. You don't mention misappropriation here (also mentioned in your first post), so I guess that's out too. There is nothing left, as pleaded. Apparently you're proposing some new tort. Let's call it the mis-scraping tort. You can't scrape others' web sites even if the content scraped consists of others' (likely) copyrighted works because it doesn't "sit well" because... well, because of the sweat of the brow? We don't really like that line of reasoning here in America, but you may get somewhere with our European friends. In any case, it's a novel intellectual property creation, and I doubt that many others share your "doesn't sit well" opinion (besides, everybody knows that you have to write a Harvard Law Review article before something becomes a tort, so get to work!).

On the economics of network effects. The benefits of network effects as they existed until these startups emerged were already being internalized by Craigslist. This yeilded lock-in or at the very least high switching costs and path dependence. This is common for winners in an industry, and it's often bad for innovation because Schumpeterian creative destruction on the merits of the product is hampered. The Paleo-Schumpeterian argument is that the winner must always obtain maximum spoils (to the point of extended rent-seeking due to the aforementioned results of internalized network effects) in order to have the incentive to innovate in the first place. The obvious problem with this line of reasoning is that the "king of the mountain" position can become perpetually dominated by the schoolyard bully instead of the ingenious geek (a figure that some of us admire and identify with).

"Won’t Craigslist eventually get disrupted and have the network effect wrested away from it by a competitor that entices aways its users? It’s how Facebook beat MySpace, and how MySpace beat Friendster. Lock-in didn’t stop them. And isn’t at least some of the incentive that draws those potential disruptors the chance of one day wearing the crown?"

Don't go Paelo on me, Jerry! Innovation can happen at many layers, and Schumpeter's observation that disruption can happen in a given market is not a guarantee that it will. The Neo-Schumpeterian insight is that the waves of creative destruction are more like riddled basins of attraction (LSAT geeks in the house!) than sinusoidal curves. To put it in telecom terms, sometimes there truly is no "third pipe" on the way (oh yes, I went there).

I didn't argue that a commons approach is always the best for all information, or that a commons in classified ads is always best, but rather that the host of these classified ads should not be given (nor should it claim) some novel property right in them. Externalities should remain just that unless a compelling argument can be made that they should be propertized and internalized. Externalized externalities are good (because they benefit everyone) unless they dis-incentivize innovation on balance. That's my limiting principle, and I think that the fact pattern here strongly supports the conclusion that more innovation would happen if this content is open rather than closed. I still don't understand what your limiting principle is, beyond a gesture to Demsetzian "worthwhile"-ness.

The online dating market is interesting, but it exhibits very different dynamics. The case for a commons there is weaker. This is in part because of the platforms' true differentiation and their active role in adding value to user-provided content. It is also because the users' incentives are aligned with their transfer of exclusive rights (which I imagine they do via click-through!).

Back to footwear. We want a market favorable to new entrants, but where incumbents can make a buck two (or not, if they don't care about that). I think it's working fairly well for sandals. Crocs didn't have to fend off a common-law property tort from Birkenstocks... or Jesus.

Re: Hack Obtains 9 Bogus Certificates for Prominent Websites; Traced to Iran

sjschultze — Thu, 24 Mar 2011 22:01:27 -0000

"not only would you have to gain access to certificates with these domain URLs, you would need to compromise DNS servers to point to your fraudulent website"

...or reroute requests destined for the genuine IP address to your own server, thus not requiring any DNS compromise at all. BTW, this practice is widespread by repressive governments (and Verizon and OpenDNS for other reasons).

"Either way, if you were able to secure DNS and lock it down to ensure it is never compromised to point at malicious websites, the certificates would not match, and throw up warning signs to the user that this appears fradulent. So yes, this would HELP make the breach irrelevant. "

Secure DNS could help make it irrelevant, but not for the reasons you list. It could help, assuming something like DANE gets implemented.

http://www.ietf.org/id/draf...

So yeah, the CEO of Comodo doesn't know what he's talking about.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Wed, 15 Dec 2010 15:15:49 -0000

To begin with, as I have stated from the beginning, it DOES NOT MATTER whether you call this a "peering" or "transit" or "interconnection" dispute. The market analysis is the SAME. However, with respect to your claim that "Both Level 3 and Comcast agree on this issue that Netflix is peering":

http://www.level3.com/index...

4. Q: Is the disagreement between Level 3 and Comcast “just a good old fashion peering dispute”?

A: No. The dispute between Level 3 and Comcast is not a peering dispute, which relates to connection of Internet backbone networks. At issue is a fundamental interconnection disagreement between Comcast, as a provider of local high speed Internet access to consumers who pay Comcast for access to content, and Level 3, which delivers content to residential broadband access providers like Comcast in response to consumer requests. Unlike “peering” in the Internet backbone, where competition abounds and prices have been declining steadily, Internet carriers that have content requested by Comcast subscribers have no choice but to exchange traffic with Comcast. Comcast is using this dominant position to demand payment for traffic delivered at its customers’ requests. You simply cannot “route around” Comcast to provide requested content to Comcast’s subscribers.

Second, Netflix and/or Level 3 cannot simply route around the problem by using transit. As I have noted here, on your blog and elsewhere:
http://www.voxel.net/blog/2...
http://www.dslreports.com/s...

My fundamental point, which you continue to try to distract from by getting lost in the weeds, is that the last-mile terminating access monopoly (and market power more generally) makes the resolution of this dispute impossible to do in a market-oriented way without first addressing that market failure. You wish to introduce an approach which is fundamentally not free-market oriented, in which a self-declared sage decides what is "fair" and what is not.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Wed, 15 Dec 2010 14:44:37 -0000

Great. I too suspected that there might be more than one type of agreement at work, but didn't simply assert it to be true (nor did I "recite a debunked myth"). Your apparent confirmation is however a far cry from proving that Netflix traffic necessarily counts as peering traffic under these agreements, and even further from demonstrating why Comcast's demands reflect the behavior of a competition-disciplined actor (and/or the optimal policy outcome). It's possible that as a narrow legal matter about the terms of the contract(s) Comcast would win a suit, but that at the same time such contract(s) do not make for a well-functioning market overall (and that given such a hypothetical outcome of the dispute L3 would probably rethink its way of doing contracts with Comcast). I see that on your blog you continue to try to engage in comparative bean-counting of the costs of each company even though this is largely irrelevant to the overall question of market power and solutions that mitigate market failures rather than relying on some third-party to dictate what is "fair" (an inherently subjective exercise).

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Sat, 04 Dec 2010 09:19:14 -0000

And I will make it as simple as possible for you.

You have provided no actual evidence (by drawing it in your diagram or asserting it here) that this was the agreement, or that Level 3 is trying to send this traffic over a "private peering" link that is different from their general transit interconnect point.

Industry practice is for eyeball networks to pay upstream providers for transit. Sure, some edge-facilities-based CDN providers that rent capacity from others have struck such a deal in reverse, but L3 is not one of those.

In any event, the relative market power of each company within their relevant markets makes it quite clear that competitive forces will not discipline this negotiation into optimal efficiency.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 22:57:40 -0000

So your theory is that if L3 said "no" to Comcast, and if therefore Comcast customers couldn't get Netflix, that ("eventually"!) somebody think of some economically viable way of building a last-mile competitor?

Netflix can go elsewhere. (perhaps to a provider that has already acquiesced to Comcast's demands, or hasn't yet received a demand)

There are (at least partial) alternatives to Netflix (including, conveniently, Comcast products!)

Potential last-mile competitors already have plenty of incentive to build out.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 13:07:47 -0000

"I don't understand why I, as a Comcast subscriber, should be concerned about this dispute -- so long as I don't suffer from degraded Netflix connectivity. But if you're concerned about Comcast's dominant position in last-mile broadband, shouldn't you want its subscribers to revolt? Doesn't that anger encourage investors to build competing infrastructure?"

Are you implying that it would be smart business for Level 3 to call Comcast's bluff, theoretically resulting in degraded service? This doesn't work because the backbone market is competitive (ie: Netflix can go to another backbone or CDN) as is the online streaming market (at least to an extent, for example Amazon streaming). Last-mile service is not.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 12:18:55 -0000

A very good blog post explaining the situation here:
http://www.voxel.net/blog/2...

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 12:09:11 -0000

George, the problem with your analysis in that video and in your inflammatory post is that it assumes that Comcast can simply decide when particular traffic counts as "CDN peering" that they can charge for and when it counts as transit that they have to pay for. As commenters on your post and folks on NANOG have pointed out, there is no evidence of an actual peering agreement between Level 3 and Comcast, and even if such an agreement existed there is no reason to believe that Netflix traffic would by its terms necessarily be considered "on-net" traffic, or even if it is that Level 3 is required to deliver it on those terms. It could be so, but drawing a line between "CDN Divison" and Comcast does not make it so.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 12:07:00 -0000

New L3 FAQ on the dispute:
http://www.level3.com/index...

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 10:47:38 -0000

duplicate post

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 10:26:44 -0000

duplicate post

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Fri, 03 Dec 2010 10:13:58 -0000

duplicate post

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Thu, 02 Dec 2010 17:22:01 -0000

Oh, and I also think you're incorrect that "In the past, Comcast and Level3 had a different arrangement." Comcast evidently had and still has a transit agreement in which it pays Level 3. It claims to have also have a settlement-free peering agreement for "on-network traffic" that originates from Level 3 itself (although I admit their FCC letter really muddies the water here). Comcast seems to want to define Netflix traffic as "on-network" and thus claim that it is subject to the peering agreement, and to furthermore claim that it can renegotiate that agreement to charge Level 3. At least that's the best I can figure.

Re: Buzz Out Loud’s Epic Misunderstanding of Peering

sjschultze — Thu, 02 Dec 2010 17:10:02 -0000

It is not "dumping" the traffic onto the ISPs. It is delivering the contents of the requests of the ISPs' customers. This is why people call ISP networks "eyeball" networks, and why ISPs traditionally have transit agreements with backbone providers where they pay them for service despite the fact that there is always in imbalance of traffic such that the backbone sends more traffic to the ISP than vice-versa. Comcast's attempt to make this about volume is far less important than the fact that Comcast is trying to leverage its market power over near-captive consumers into the relatively competitive backbone market.

Re: What is a Tech Libertarian?

sjschultze — Tue, 16 Nov 2010 12:54:46 -0000

+1 (to Tim)

It is bewildering to me how the strain of self-declared tech libertarianism so often exhibited here can be so wholeheartedly blind to the coercive effects of anything but the government... and to any freedom-enhancing effects of government intervention. The unrelenting drumbeat of sarcastic scorn of the state simply drowns out more holistic consideration of how to encourage freedom of and by technology.

Re: What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy

sjschultze — Thu, 10 Jun 2010 13:04:37 -0000

So you disagree with Berin, the choice is not between one or the other? The best solution is some combination of the two?

Re: What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy

sjschultze — Thu, 10 Jun 2010 12:08:17 -0000

Right, so no regulation of the oil industry at all, right? Because that's what Berin's analogy suggests.

Re: What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy

sjschultze — Thu, 10 Jun 2010 09:38:48 -0000

Berin, for all your claims of logical fallacies, you introduce one yourself -- the false choice.

To get back to the metaphor, what does your framework tell us we should do in the case of the oil spill?

Re: Broadband Reclassification: The Third Way or the Highway?

sjschultze — Tue, 25 May 2010 09:34:30 -0000

Larry, why does an announcement of public discussion and solicitation of input signal something other than what is "specified in the Constitution and the standing rules of the House and Senate," and rather, "made up of byzantine posturing and back-room dealing"? If anything, the industry-penned letter making the rounds is an example of this, whereas the public drafting process is an example of your "first kind" of process.

As for your theory that yesterday's announcement might signal some broader consensus by the congressional leaders against Genachowski's proposal, they have already made clear publicly their support for his approach.

The fact of the matter is that the situation is quite clear. A majority of the Commission and the relevant Congressional leaders think that reclassification is legal and a good idea. Other constituencies don't. Everybody agrees that the Communications Act could be improved. There will be competing ideas about how to update the Act, with Adam and his crew arguing for an ex post antitrust-like approach and others arguing for a light-touch ex ante regulatory approach. The process of passing something will take awhile. In the meantime, we may be operating under the "Title II plus forbearance" regime.

Re: Government Transparency & Smarter Regulation through Standardized Data Use

sjschultze — Tue, 18 May 2010 23:58:47 -0000

Berin, you should certainly take Andrew up on the offer. He's part of my old running crew at MIT, and they do great work.

Re: Albert Gallatin and the First National Broadband Plan

sjschultze — Wed, 12 May 2010 12:23:14 -0000

Larry,

On the level of rhetorical analogy, I'm puzzled as to why you hold up Gallatin as an exemplar of successful American-style infrastructure planning. From your description, his federal-only approach was rejected in favor of a public-private approach.

In addition, his approach seems irrelevant to the regulatory (as opposed to government investment) questions you raise in the second half of your piece. Subsequent historical regulatory precedent seems much more relevant. Here, it is important to look at accurate parallels rather than simply assume that one type of regulation is equivalent to all types. Your comparisons fail in this regard.

You implicitly equate rate-setting regulation with non-discrimination regulation, but these are distinct. Mann-Elkins did both, but there's no reason that present-day regulatory oversight need include one if it includes the other. I have critiqued your characterization and analogizing of the "morass" of past and present railroad/telecommunications regulations (which appears to borrow from Bruce Owen or vice versa) as such:

"Owen’s retelling of history is remarkably selective. With little analysis, he concludes that over a century of railroad common carriage regulation resulted in "a series of highly discriminatory and dysfunctional regional transport cartels," and describes telecommunications common carriage in the context of the drawn-out U.S. v. AT&T antitrust proceedings in the early 1980's. Of course, the AT&T proceedings are not so much a result of common carrier regulation as they are a complicated set of decrees based on antitrust analysis. This is ironic, because Owen too proposes antitrust as an ultimate safeguard. He also seeks to write off the Computer Inquiries, the series of FCC proceedings which defined the different roles of regulators with respect to content versus transport. Whereas many scholars believe that the Computer Inquiries facilitated the flourishing of dial-up internet, Owen inexplicably asserts that they ended in "morasses of complex, unworkable, and ineffective or self-defeating regulations." In any event, he fails to support his equally vague assertion that neutrality rules necessarily imply the entire common carriage apparatus."

"But wait," you say, "this whole reclassification push does indeed imply the entire common carriage apparatus!" But of course it does not, because large portions of Title II will be inapplicable from the get-go, and many other portions will be explicitly forborne from. Most notably, given the current discussion, the rate-setting provisions.

But let's move on to your mischaracterization of the present-day facts and harms. First, the public-private approach to infrastructure buildout is far from an America-only approach. Indeed, with respect to broadband there are many nations (including those with more aggressive regulatory structures that go beyond non-discrimination to full-blown unbundling) that have taken a mixed approach. Second, you claim that the NBP blames lower per capita adoption on "the supposed failure of ISP competition, the absence of enforceable net neutrality rules, and the lack of meaningful FCC supervision of ISP business practices under Title I." Of those three items, only the first is remotely claimed as a result of lower adoption. Failed ISP competition, and the higher prices it inevitably brings, can indeed make a difference in adoption. Net neutrality rules and lack of other oversight have nothing to do with adoption rates, and nobody claims they do. You are trying to weave together two different issues without a thread. However, net neutrality and consumer protection issues certainly do alter the value of broadband once it is adopted, and hence are absolutely appropriate to address in the NBP.

You also myopically focus on only one motivation for Title II reclassfication. To be sure, it is related to the ongoing non-discrimination debate, but it goes much further. It also touches upon a variety of other critical policy issues (including universal service) which should be obvious if you read the Schlick memo.

Re: The FCC Goes Backwards

sjschultze — Sun, 09 May 2010 20:56:46 -0000

Hey Ryan, good to be chatting with you... virtually this time.

The failure in the quotes you present -- and indeed this is a mistake many current commentators in this space are making -- is in conflating the transport with the content. There is a very long history of distinguishing between the two with respect to government jurisdiction and policy. Indeed, this was the governing framework at the time of the 1996 Act (and until 2002 or 2005, depending on how you count it). It is *still* the governing framework. Broadband is treated differently, but that's not because of any change in the Act. Rather, it's a result of the Title I experiment.

The notion that re-establishing authority over transport (telecommunication services) would cause cascading authority over content (information services) is unfounded speculation. People claiming so are just using "The Internet" to refer to both because they are ignorant, lazy, or deceitful. The law professors' letter on this is particularly lucid:
http://fjallfoss.fcc.gov/ecfs/comment/view?id=6...

This EFF post gives a decent overview of why Title I classification is more frightening in this regard, in that any defensible authority based on that approach is ill-defined and prone to expansive broadening:
http://www.eff.org/deeplinks/2010/05/net-neutra...

This Cybertelecom article on Computer II is good for history too:
http://www.cybertelecom.org/ci/cii.htm

Re: The FCC Goes Backwards

sjschultze — Fri, 07 May 2010 12:00:11 -0000

Interesting piece. Your powers of speculation are remarkable.

"Away from home and want to use your laptop to set your DVR to record the finale of "Lost"? Not if the FCC places restrictions on the way cable companies can link set-top box features to broadband Internet connections."

Please expand. I'd love to hear that theory.

"Telephone service is about one-to-one connection. Broadband is about many-to-many interconnections. That’s why the FCC separated the two to begin with."

That is also a novel theory. I thought they separated them because they determined that broadband internet at the time inextricably intertwined an "information service" and a "telecommunications service." I thought that this was connected to the earlier basic/enhanced distinction that emerged out of the Computer Inquiries. I thought that the framework for regulation of telecommunications/basic services was grounded in the legacy of non-discriminatory transport going back to the origins of the Communications Act, and before that English common law of duty to serve. But what do I know.