There is a great paper just posted on SSRN (hat tip to Larry Solum, of course) that consists entirely of a bloggy debate between info/law profs Christopher Yoo and Tim Wu about network neutrality. A version of their exchange originally appeared last spring as part of the late, lamented Legal Affairs Debate Club (indeed, as the last installment). Hopefully by putting it up on SSRN, Yoo and Wu will reach a new audience, just as Congress starts to dig in to the difficult job of resuscitating the telecom bill and returning to this issue.
Yoo has set himself apart as one of the most thoughtful and consistent opponents of legislated limits on service providers’ discrimination among content. He suggests that we should instead look for “network diversity” and worries that forced equality among dramatically different applications with different needs (technical and otherwise) will stifle innovation. Wu has been a supporter of mandatory network neutrality, although a careful one who warns that it will be very important to get the precise definition of neutrality requirements exactly right. (My co-blogger Derek pointed out months ago that there is a similar challenge in defining the precise approach on a technical level.)
As with many issues that become politicized, a lot of the debate around net neutrality has gravitated toward competing horror stories. Proponents of regulation paint a picture of gargantuan ISPs like Comcast maintaining a stranglehold over the “last mile” conduit to our computers and favoring highly commercial content that pays for the privilege of loading fast — and consigning smaller or newer content providers to snail-like load speeds that effectively deprive them of an audience. The other side suggests that “regulating” the internet with network neutrality rules will discourage investment, freeze technology in place, and prevent exciting but bandwidth-intensive innovations such as interactive or otherwise enhanced video.
Yoo and Wu are much more thoughtful than that. Personally, I am more persuaded by Wu — especially because, as I have said before, even if competition for last mile service becomes robust (still an open question!), individual consumers are unlikely to have the necessary information to choose among network providers based on their different treatment of content. Rather than competition in a world of “network diversity” I fear lock-in of one set of favored content. But Wu (and Derek) are absolutely right that simply declaring, “No differential treatment of content!” is an unacceptably broad and simplistic solution.