From: Josh Kolsky <jmk2118@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Tue, 25 Apr 2006 18:01:42 -0400

[CPC] Paper 2: Content is King

Content is King
by Josh Kolsky

	The introduction of any major new communicative technology brings
forth changes to human interaction that affect the structure of
society at large.  This much is certainly true of the Internet. 
The question for the population inevitably becomes, which of these
changes should be embraced and which avoided?  While there is a
tendency to oppose any regulation that would alter the Net, some
limitations on Internet capabilities are appropriate.  Regulation
should be used to control harmful features of the Internet and
protect beneficial features.  The most beneficial feature of the
Internet is the democratization of speech, allowing the popularity
of websites to be determined according to content, instead of
capital.  While content is king now, industry is working hard to
dethrone it and install capital as the chief determiner of Internet
traffic.
	Although the tendency is strong to oppose any new regulation of the
Internet, some aspects of the technology present real problems that
can and should be dealt with.  As more services go online, the
Internet develops into a true virtual world, and opportunities that
are foreclosed in the physical world become available online.  In
particular, the Internet allows individuals to become invisible, to
interact anonymously with the online community and sometimes escape
responsibility for crimes.[1]  An absolutist approach to Internet
regulation would ignore the potential for harm here, but this
feature of the Internet is not worthy of total protection. 
Instead, limited and narrowly tailored regulation, such as tracking
IP addresses in certain situations, may be appropriate to control
this emergent property of the Net.
	Other properties of the Internet must be safeguarded.  Without a
doubt, the feature that is most deserving of protection is network
neutrality that allows equality on the Net.  What makes the
Internet so special is that it nearly eliminates the monopoly over
speech that exists for the monied interests in the physical world. 
Because of the costs of production and distribution associated with
traditional media, an ordinary individual or even a committed group
of activists could never compete with a well-financed news
corporation.  As a result, the old adage that “freedom of the press
exists for those who own one” rings true in the physical world.  But
the Internet drastically lowers the costs of production, thereby
allowing dailykos.com to compete with nytimes.com in a way that Z
Magazine could never compete with the New York Times print edition,
for instance.  The principle of network neutrality, which mandates
that network service providers not interfere with the content of
the Internet by favoring some sites over others, places all
websites on equal ground.  Consequently, users have a much greater
number of options for news and opinion, and the success of a site
is largely dependent on the quality of its content, as it should
be.  While the financial resources behind a website do still have
an effect – a wealthy site can draw users with visually attractive
pages, advertising, and name recognition – the content of a website
is nonetheless a major determiner of a site’s popularity.
       But this integral component of the Internet is under attack. 
Congress is currently considering legislation that could destroy
network neutrality.  Under the Communications Opportunity,
Promotion, and Enhancement Act of 2006, the FCC may not require
telecommunications companies to abide by the principle of network
neutrality.[2]  If enacted, the law will allow the companies that
own broadband networks to charge websites premium rates for better
access by their users.  The result will be a multi-tiered Internet
– sites that can afford the premium will have lower page-load times
while sites that cannot will be left with a slower site.
       Elimination of network neutrality will harm Internet equality
in two ways.  Most directly, websites owned by wealthy parties will
be able offer a fundamentally better product – a faster, more
accessible website.  Sites without the same financial backing will
not be able to compete, for even a slight advantage in
accessibility will likely draw many more users.  But the
potentially greater harm comes from the fact that a website’s
success will have to depend on financial resources, often
advertising, thereby destroying the financial (and perhaps
editorial) independence of popular websites.  Political sites that
are independent now will be forced to become slaves to advertisers
in order to compete.  Fundamentally, both of these harms result
from the same problem – a regime that forces a website’s success
and accessibility to be dependent on capital, instead of content. 
The precious feature of the Internet – the democratization of
speech – will be replaced with an approximation of the physical
world.  No longer will a speaker’s value be determined according to
what he has to say, but rather according to the depth of his
pockets.  Industry is seeking to impose precisely the unfortunate
aspect of the physical world that the Internet allows us to avoid.
       In the face of threats to the Internet, there is a tendency
to want to protect and preserve anything and everything that is
part of the Net.  While skepticism over Internet regulation is
important, so is rationality.  Instead of protecting anything that
is “net-like,” we should consider each feature of the Internet
independently, and decide whether it is helpful or harmful. 
Opposing all forms of Internet regulation causes us to ignore the
real threats to the Internet – those that seek to restore the
dependence upon capital of speech in our society.  Wealth is the
only inherent advantage of the corporate media, so it makes sense
that they would seek to impose a regime that forces success to be
dependent on wealth.  In order to maintain equality for all
speakers however, content, not wealth, must be king.


[1] I discuss this topic in my first course paper, “The Danger of
Absolute Internet Anonymity,” at
http://moglen.law.columbia.edu/CPC/discuss/337.html.

[2] Rep. Ed Markey, “Net Neutrality and the Coming fight For
Internet Freedom” available at
http://www.huffingtonpost.com/rep-ed-markey/net-neutrality-and-the-co b 19056.html.

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