IP Democracy: Intellectual Property Rights and Network Neutrality

Stanford Law Professor Lawrence Lessig has this analysis of the network neutrality issue and how network neutrality and the issue of “fair use” in copyright law are really the same thing.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

Put in these terms, fair use (FU) and network neutrality (NN) do go hand-in-hand and most people will favor both FU and NN or reject FU and NN but not split their philosophies.

What gets difficult is understanding those who embrace one while rejecting the other — at least when that rejection is articulated in terms of “government regulation.”

Professor Lessig is one of those rare birds that rejects FU and accepts NN.

But, and far be it from me to take on the esteemed Professor, isn’t this an illogical comparison? As one commenter to Professor Lessig’s post notes, fair use involves intellectual property while network neutrality involves physical property.

The most striking difference between FU and NN is that FU restricts the rights granted to owners of Intellectual Property (more about this in my next point) while NN restricts the rights of owners of physical property.

So the two concepts can’t be equated easily…except, there is something of an intellectual property issue surrounding network neutrality and perhaps that’s why Professor Lessig is attempting to conflate the two.

Without network neutrality, will some content creators be limited in terms of what they can do with their property? Will they, in other words, be blocked from reaching the marketplace? That’s the argument made by network neutrality proponents and it sure sounds like an intellectual property argument.

But it’s not. It’s a First Amendment argument, it’s a free speech argument, but it doesn’t strike me as having anything to do with intellectual property law as we know it. Perhaps this is the territory Professor Lessig is trying to explore — whether there are some intellectual property arguments to be made in favor of network neutrality regulations.

Posted by Cynthia Brumfield on May 22, 2006 10:50 AM to IP Democracy