IP5

Allocation of Spectrum

• Spectrum as property – sold on the market

• Spectrum as commons – E2E

Property Regime

• If the market is perfect, great competition results– Strategic action by a dominant resource owner is not

possible

• Innovation results from competition• Under this regime, spectrum costs include

securing rights to access, costs of sharing access

• The FCC’c choice of holding auctions has resulted in auctions with high sale prices that serve as barriers to entry and encourage oligopoly

Commons Regime

• Competition is encouraged• Innovation results from

competition• The risk is from overuse of the

commons – result is congestion

Alternative Regime

Allocate some parts of spectrum as property and some as commons.

• Encourages diverse usage• There are different parts of the usable

spectrum – each should have some portion as property and some as commons

• Use intelligent devices to handle contention

Analogies and Metaphors

What are the correct metaphors for spectrum? Which is another way of asking how should we think about spectrum?

• Property• The highway system• The National Park system

Bottom Line

• Our cultural notion of democracy is to limit the size of government and private entities

• Where is the correct balance between property/control and commons?

• Why is there such a trend toward strong property/control regimes?

The Wealth of Networks

• Law affects human behavior on both a micro level and a macro level

• The causal relationship between law and behavior is complex

• The effects of laws differs depending on material, social, and cultural contexts

• The process of law making is intertwined with the relationships among law, micro-level behavior, and macro-level behavior

Diebold Case

• Diebold internal emails released by an activist showing flaws in the security of e-voting machines and posted on Swarthmore University website

• Using DMCA, Diebold sends a takedown order to Swarthmore

• Students use eDonkey, BitTorrent, and FreeNet file-sharing to keep files available

• Court rules that since files were not for sale and of significant public value that this is fair use.

Endless Love

• http://www.youtube.com/watch?v=UtEH6wZXPA4

• Must have access to unencrypted file to produce this

• Fair use?– Not likely to be market impact– Quotation of a large part of the song– Use of ‘found materials’ produces a new

product

Three Layers

• The Diebold case and the “Endless Love” case involve the physical, logical, and content layers.

• Content – emails, song, video footage• Physical – constellations of machines

capturing, manipulating, fixing, and communicating

• Logical – Software used to operate the machines, DMCA, communication protocols

Physical

• Transport enclosure– DMCA ISP liability– Municipal

broadband barred by state law

• Device enclosure– CBDPTA: regulatory

requirements to implement “trusted systems”

• Transport openness– Open wireless

networks– Municipal

broadband initiatives

• Device openness– Standardization– Competition for

commodity components

Logical

• Transmission protocol enclosure– Privatized DNS/ICANN

• Software enclosure– DMCA

anticircumvention– Proprietary OS– Software patents

• Transmission protocol openness– TCP/IP– p2p networks

• Software openness– Free software– Widespread use of

p2p– Social acceptability of

hacking of copy protection

Content

• Content enclosure– Copyright expansion

• No de minimis digital sampling

• Narrowing of fair use• Criminalization• Term extension

– Contractual expansion UCITA

– Database protection– Increased influence of

WIPO with respect to harmonization

• Content openness– Free distribution of

music– Creative Commons

model– Social contempt for

copyright