Laws of air and ether: Copyright, technology standards, and competition.

摘要

At the dawn of each new technological era, it is common to hear how the most recent development is so powerful and novel that all social, political, geographic, and economic constraints will evaporate in its wake. This paper examines how the mythology of openness---a product of infrastructure-centered telecommunications policy---developed and continues to influence policy in the digital age. Section II explores this dynamic in the realm of network neutrality. Section III introduces "overlay networks" of control, which can operate even on "neutral" networks. Section IV explores the history of new, private standards organizations and their role in the deployment of overlay networks. It includes a case study of the Digital Video Broadcasting project (DVB). Section V explores the substantive problems with private techno-legal policy regimes and identifies shortcomings in strategies for addressing those problems. Specifically, competition law is identified as a promising but inadequate tool.