This is the tenth post in our “Honoring Hilmes” series, celebrating the career and legacy of Michele Hilmes on the occasion of her retirement.

So much has already been said in this wonderful series to honor Michele Hilmes and all the different ways she has had such a tremendous impact on media studies and cultural history, but there is one perhaps unlikely aspect of her legacy that I’d like to emphasize in some brief thoughts here: Michele Hilmes as “new media” historian.

I had the immense privilege of being an advisee of Michele’s through my graduate career and I benefitted greatly from her thoughtful guidance, kind nature, and sage advice. In addition, I was fortunate to have been trained by such an excellent “new media” scholar. The fact that Michele has advised many digital media scholars such as myself may strike some as odd considering that Michele is primarily known for her eminence as a radio historian. The intellectual curiosity and diversity that Ben Aslinger points to as characteristic of Michele’s approach is certainly key to this, but it also makes sense if we understand Michele’s pathbreaking scholarship as “new media” history. Indeed, Michele’s work on early radio broadcasting is a history of a new medium, just as writing about digital media of today is. From the historiographical perspective so effectively championed by Michele throughout her work as a scholar and a mentor, we can see the importance of the historical context that makes a medium “new” in a particular time and place and that scholars can only ever engage those media through traces of the past, whether the past century or the past month.

Michele may not foreground this aspect of her work — as history of old media when they were new — but her scholarship is nonetheless invaluable for new media scholars to properly historicize our work and our methods. Michele shows how to think historically and historiographically about today’s “new media” — how to see how much is not really new at all. Michele has deeply explored the historical antecedents to many of the issues at the heart of new media studies today, whether it’s media and cultural convergence (Hollywood and Broadcasting), access divides of identity and geography (Radio Voices), or transnational networked flows (Network Nations). Further, Michele’s recent work directly addresses today’s new media and its connections to Golden Age radio as what she calls “soundwork.”

The most important perspective on new media that Michele’s masterful historical work offers is an understanding of the role of culture and discourse in shaping the policy decisions and institutional structures that come to define media when they are new. In Michele’s historiographical work, how new media take the shape they do — deciding what and who media are for — is not an inevitable matter of technological determinism or economic dominance, but an ideological and discursive struggle along lines of gender, race, class, and national identity. How the dominant discourse of a medium emerges in national and transnational context shapes how that medium emerges and, as Michele shows, whose voices are heard and whose are marginalized as a result. (The constructed image of the “little boys in short trousers” that policymakers didn’t trust with the future of the airwaves is just one of the many vibrant examples from her work documenting this influence on emerging media.)

Michele Hilmes’ legacy for radio and sound studies, broadcasting history, and cultural studies is clearly profound and prodigious, but her influence extends further, as well: this quintessential cultural historian is also a profound new media scholar.

The FCC has done what even a few months ago seemed to most totally unthinkable: they delivered real net neutrality policy, putting in place strong regulations to protect fairness in internet access. After a decade-long policy battle, net neutrality advocates got nearly everything we’ve been calling for: clear-cut Open Internet rules that prohibit broadband network operators from blocking, throttling, or prioritizing internet content and services, that apply to both wired and wireless networks, and— the most wonky, yet most important, point— are based in Title II of the Communications Act. In other words, the FCC can now stop broadband providers from restricting your internet traffic or charging extra for exclusive internet “fast lanes,” whether your connection is to a personal computer or a mobile device, all rooted in a long-standing regulatory tradition of “common carriage” that protects openness and equality for essential two-way communications infrastructure. (For more details, you can check out my previous coverage of net neutrality here on Antenna, where I’ve written about the importance of Title II and the politics of policy that led to this point. For more on what net neutrality even is, you can check out my explainer for the Media Industries Project.)

Overall, the FCC’s new Open Internet rules represent a major come-from-behind victory for net neutrality advocates and a significant achievement for more democratic communications in the US. So, what should we make of this landmark FCC decision? How in the world did this actually get done? And what exactly happens now? Let me mention a couple of quick points along these lines.

The first and perhaps most important point is that a resilient social movement succeeded in getting a meaningful progressive victory in communications policy— an affirmative victory to enact good policy, not a defensive victory to stop bad policy. This success came even on a seemingly arcane and technical regulatory issue of invisible infrastructure, within a policy arena where corporate discourse and dollars dominate. I’ve spent the last eight years following net neutrality and, while I remained cautiously (if, as many told me, irrationally) optimistic throughout that it could get successfully put into policy, even I have to admit that it was quite a long shot to get rules this good from the FCC. Net neutrality policy has a long history of half-steps forward and large tumbles backwards, on a policymaking playing field heavily tilted in favor of the large corporations that set the terms of engagement there. Nonetheless, a strong coalition of media reform and civil rights activists, legal and technologist advocates, and online creators and startups pushed net neutrality forward in the policy sphere and the public sphere. They mobilized millions of citizens to engage with the FCC in its Open Internet proceeding— a powerful popular force in support of net neutrality that made it more than good policy, but also good politics. Some cynical defeatists are content to ignore the real difference made by everyday people’s voices and actions, instead emphasizing the role of the tech industry in lobbying for net neutrality in service of its economic interests. This perspective is not only demeaning and disempowering in terms of activist strategy, but also not very accurate: Google, Amazon, and other tech heavy-hitters mostly sat it out this time around, while smaller outsider tech firms (the likes of Etsy and Kickstarter don’t exactly have much sway inside the Beltway) worked better with the activist coalition.

The second point is this: even though this is a historic victory that should be celebrated, the fight is far from over. This is true in an immediate sense of challenges to the Open Internet rules. Broadband network operators and their allies in Congress are already seeking to block the new rules. The FCC will also surely be sued as soon as the Open Internet rules go into effect, kicking off yet another long legal battle over the agency’s ability to regulate internet infrastructure. It’s worth noting, though, that Comcast and AT&T both have potential mergers being considered by the FCC currently and Verizon’s appeal of the much weaker 2010 Open Internet rules backfired pretty bad on them, making theses corporations perhaps a bit more lawsuit gun-shy than usual (the cable and wireless lobbies look most likely to sue). Regardless, because this time the Open Internet rules are built on the strong and appropriate statutory foundation of Title II, we can be confident that the rules will stand up in court.

But the fight is also not over in a bigger picture sense: as consequential a victory as this is, it is ultimately just one step on a longer journey toward more equitable media structures. On the internet infrastructure front alone, there is much more to be done to ensure faster, more affordable, more inclusive broadband network access (although the other FCC action that same day— to overrule state restrictions on municipal broadband networks— opens a door toward a more promising future of public internet infrastructure for more cities). Having net neutrality meaningfully enshrined in communications regulations, and having FCC policy moving toward treatment of internet access as an essential utility, is huge, but net neutrality has proven a resonant discourse that can speak to critical social justice goals and can be employed more widely. Net neutrality could ultimately end up most historically significant, then, for the powerful discourse and movement that advocates put together around it— if we can build on this success and use this momentum to push forward for more victories like this one.

Obama’s statement calling on the FCC to implement the strongest possible net neutrality regulations in its Open Internet policy proceeding is significant for many reasons: how unusual it is for a sitting president to dive so deep into the weeds of communications regulation, the influence it can have on the policy the FCC actually adopts, and (amazingly) just how right on the President is in his plan. Obama’s net neutrality statement is also especially important, though, for what it signals about the politics of media policy: a legitimate social movement is pushing for fairness and equality in internet access by engaging in historically corporate-dominated policymaking processes and strategically “boring” regulatory discourses to successfully bring undoubtedly arcane yet crucially political media policy issues to the front and center of the national political stage. Simply put, the President wouldn’t jump this far into this fight with powerful phone and cable corporations and their allies in the incoming Republican-controlled Congress (and perhaps even the FCC Chairman he appointed) if it weren’t for wide public pressure to act boldly on net neutrality. The FCC is an independent agency that doesn’t have to answer to the President, so it remains to be seen if any of this is enough to shift the Commission’s current direction in Open Internet rule-making— right now toward a (likely untenable) attempt at compromise through a “hybrid approach”— but at the least it is heartening to see such prominent attention to obscure issues like paid prioritization (known as internet “fast lanes”) and Title II reclassification (somewhat misleadingly being called “utility regulation”).

In Obama’s statement, he surprised nearly everyone by laying out in unambiguous terms an Open Internet policy plan that would deliver pretty much exactly what most net neutrality advocates (myself included) have seen as what has been needed all along: a clear-cut set of rules against blocking and discrimination that apply to both wired and wireless broadband providers and prohibit paid prioritization “fast lane” deals with online content providers, all based in a “common carriage” regulatory framework with legal authority from Title II of the Communications Act. (Yes, this is the super nerdy, but now increasingly central, terrain on which this battle is being fought!) This is a stronger set of rules than those proposed by FCC Chairman Tom Wheeler this past spring and the rules that were previously adopted by the FCC in 2010 but struck down in court in January. As I explained in a post here in the aftermath of that case, the reason why the 2010 rules failed in court (and in enforcement) is that they were not implemented with appropriate legal authority to regulate openness and equal access and if the FCC wants to move forward with meaningful and sustainable net neutrality policy, it has to reclassify broadband. What the Commission needs to do— as called for by advocates for strong net neutrality, now including the President— is to implement Open Internet rules through Title II, where the Commission has authority to regulate essential infrastructure for two-way communications (which internet access clearly is).

This traction in the political debate around net neutrality comes as a result of a popular movement that has seen nearly 4 million public comments to the FCC’s Open Internet proceeding (a record-breaking total, of which up to 99% were in favor of net neutrality), protests and demonstrations both online (like the Internet Slowdown Day) and offline (like occupations of the FCC building and even Chairman Wheeler’s driveway), and John Oliver’s tour-de-force explanation and call to action. All of the public participation in the process (just like the President’s) may not even count for much to the FCC, but it has worked to shift the discursive terrain of the issue and, therefore, the range of possible policy action. Chairman Wheeler has backed away from his initial weak proposal and is now hinting toward wireless broadband regulations and at least partial reclassification.

Right now, though, the FCC is stalling while it decides what to do and its next move will come no sooner than 2015. For passing strong Open Internet protections, Wheeler has the votes at the Commission (with two pro-net-neutrality Democratic commissioners to make a majority with him) and now political support from President, but he may be waiting for more backup from the bigger tech industry players like Google and Facebook, which have been conspicuously quiet in this round of the fight. Strong public pressure will continue to be key to keep up this progress toward meaningful net neutrality policy.

First, what’s actually at stake here? Well, the end of the open public internet and the beginning of separate but unequal private internets, under the control of the giant phone and cable companies in possession of the pipes and airwaves we depend upon for access. The FCC’s Open Internet rules left much to be desired but they were minimum protections to count on and a significant beachhead in the net neutrality battle. Without them, what do we get now? A network where Verizon can charge extra to prioritize traffic and block any service that refuses to pay a toll to reach its users (that’s what it said it would do if it won this case). A network where Comcast can derail video distribution that threatens its cable television business (that’s what it did when it blocked BitTorrent and what it does in favoring its Xfinity service— even though it’s obligated to abide by net neutrality until 2017 as a condition of its merger with NBC-U). A network where AT&T can cut deals with the biggest content providers to exempt their apps from counting against monthly data caps but squeeze out the innovative startups that can’t afford to pay (which it just announced last week with its new Sponsored Data plans). Networks — with pay-to-play arrangements, exclusive fast lanes, unfair competition, and prepackaged access tiers— where that independently-produced web video series, that nonprofit alternative news site, or your own blog are left behind in favor of those that can pay protection money to network operators. In other words, a network that is not the internet as we’ve come to know it— an open network where users can be participants in the creation and circulation of online culture, rather than a closed content delivery system for corporate media. While net neutrality proponents’ rhetoric might seem a bit overblown, we are much closer to a “nightmare scenario” than most realize.

The DC Circuit’s ruling was not against net neutrality itself, but rather the twisted way the FCC attempted to enforce it. The majority opinion actually went out of its way to describe why net neutrality regulations are necessary to curb abuses of power by network operators. It ruled that the Open Internet rules themselves were sound— they were just implemented the wrong way. Coming into the case, the FCC’s authority to regulate broadband at all was in doubt, after the agency was handed its hat by the same court in the 2010 Comcast case. The FCC tried it again this time with a slightly different tack (“even federal agencies are entitled to a little pride,” the majority wrote— federal appeals court humor, folks) and, amazingly, the court bought it this time around (while Verizon called the FCC’s argument a “triple-cushion-shot,” the judges pointed out that in billiards it doesn’t matter how much of a stretch the shot is if you actually make it). However, even though the court affirmed the FCC’s legal ability to regulate broadband, it found that it can’t regulate it the way the Commission wanted to in the Open Internet rules.

The court ruled that the FCC’s net neutrality policy treated broadband providers as common carriers, but that it couldn’t do that because it didn’t have those services classified in the common carriage portion of its legal framework. Basically, it all goes back to the FCC using the term “information service” rather than “telecommunications service” to define broadband starting in 2002. That’s it— this is a case where the importance of discourse, and the power to dominate discourse in the policy sphere, could not be more plain.

Net neutrality is essentially an update to common carriage, the centuries-old principle of openness and nondiscrimination on publicly essential infrastructure for communication and transportation. The FCC has regulated general purpose networks of two-way communication as common carriers since its inception with the 1934 Communications Act (at that time the focus was telephone service). Beginning in the 1980s as part of its influential Computer Inquiries and legally formalized in the 1996 Telecommunications Act, the FCC distinguishes between these basic networks, defined as Title II “telecommunication services” (think pipes), and the content made available over those networks, defined as Title I “information services” (think water flowing inside those pipes). Under this framework, the FCC regulated internet access (the connectivity) as common carriage to ensure equality and universality, but could not regulate the internet itself (the content). As telecommunications services, internet access providers’ job is to pass communications back and forth to the internet, while the information services on the internet are publishers with editorial rights to control content. This all changed during a deregulatory binge at the FCC in the 2000s: cable companies called their broadband connections “information services” (pay no attention to their actual cables), conspicuously not subject to regulation, and then-FCC-Chairman Michael Powell was happy to define broadband that way, too (he’s now the head of the NCTA, the cable industry’s trade group, by the way).

Now, because broadband internet access is not classified as “telecommunications,” it cannot be regulated as common carriage. This means that, as the DC Circuit recognized, since net neutrality is basically common carriage, it cannot be implemented as long as broadband is still defined as an “information service.” So, even though broadband is now the essential general purpose communications infrastructure of our time, there can be no openness and nondiscrimination protections for it until the FCC is willing to change the label it has applied to it in its regulatory terminology. The answer, then, is reclassification: the FCC just needs to call broadband the telecommunications service that it is before we can have enforceable net neutrality policy. The policy really is that simple— it’s the politics that are difficult. The reason that the FCC built the Open Internet rules on legal quicksand is that it lacked the political will to go through with its reclassification proposal amidst a firestorm of pressure from the telecom industry and its allies in Washington.

If we want net neutrality, we should put our own pressure on the FCC. We don’t have the money and the lobbyists that the telecom industry does and we can’t count on the clout of any big corporations whose interests overlap with the public’s on the issue— Google already sold out to Verizon and other big online content providers are now backing away from it (the Amazons and Facebooks of the world have deep enough pockets to dominate the payola market of the future, so they seem willing to play ball at this point). It’s up to us, then, to push the FCC to do net neutrality right this time.

This post will give you some background on the Verizon case and what’s at stake in it. Whether the FCC’s Open Internet rules stand or not is pivotal for net neutrality and the future of the internet— but also isn’t. While net neutrality protections are essential for internet users, the FCC’s Open Internet rules in particular are quite problematic. In some ways net neutrality would be better with these rules and in some ways could be better without them.

Here’s why Verizon v. FCC matters:

1. The rules prohibit the most egregious net neutrality violations. The FCC’s Open Internet rules are based in a deeply compromised version of net neutrality and are far from the strongest protections we could hope for (they were essentially written by Google and— ironically enough— Verizon). In spite of this, though, they are definitely better than nothing. The Open Internet rules bar wired internet access providers from blocking online content, services, applications, and devices or unreasonably discriminating in internet traffic. For instance, this stops Comcast from making youtube.com disappear from your browser (or redirecting it to nbc.com for that matter) and from throttling Netflix’s video streams. The Open Internet rules can be actually stronger than they immediately appear and have potential to be robust safeguards if enforced by the FCC properly.

2. The rules are an important foothold against total deregulation. Underlying the fight over the Open Internet rules is whether the FCC can regulate broadband at all. During a wave of deregulation in the 2000s, the FCC removed almost all of its oversight for internet access and now the agency is left with a shaky legal foundation for the Open Internet rules— what Verizon asserts is not enough authority. The Open Internet rules are important, then, because striking them down would eliminate virtually the last remaining public interest protections for internet access. Beyond that, though, if the courts buy Verizon’s argument in its Open Internet challenge, it would set a very troubling precedent for enforcing net neutrality in policy: the telecom operator says that it has a First Amendment right to “edit” the internet as it sees fit. If the free speech rights of “corporate persons” are allowed to trump the free speech rights of actual people, it doesn’t bode well for the future of the online public sphere.

And here’s why Verizon v. FCC doesn’t matter:

1. The rules haven’t been very effective. Even if the Open Internet rules are allowed to stand, they’re weak enough to allow a lot of net neutrality violations anyway— and for just the sort of activities especially key to the future of the internet. Most glaringly, most of the rules don’t even apply to mobile broadband (which is poised to soon become the dominant means to access the internet and already is primary among the underprivileged). This is why we see AT&T allowed to block FaceTime on the iPhone. Further, the rules don’t apply to “specialized services” (such as IPTV or any other managed service a network operator provides over broadband that isn’t regular internet access). Comcast calls Xfinity a “specialized service,” supposedly separate from the “public internet,” so it’s allowed to favor its own video streaming service by not counting Xfinity-on-Xbox traffic against users’ data caps. In other words, there are many net neutrality abuses not covered by the Open Internet rules.

2. Overturning the rules could actually lead to getting better ones. Paradoxically, there is a possibility that having the Open Internet rules struck down could be for the best in the long run— blowing up the whole thing and starting from scratch may be the only way to get truly effective net neutrality policy. Specifically, if the courts find that the FCC did in fact deregulate itself into oblivion and no longer has any statutory authority to address broadband, the agency could be forced to re-regulate broadband if it wants to actually remain relevant. (To get policy wonky: what the FCC needs to do is reclassify broadband as a “telecommunications service” under Title II of the Communications Act, where it has more authority to implement “common carriage”-based rules like net neutrality than on Title I “information services” where broadband is now). Counting on this outcome is very risky, though, because it’s impossible to know what the FCC will be like under incoming Chairman Tom Wheeler (an enigmatic figure who has inspired both hope and disgust from public interest advocates).

So, protecting net neutrality isn’t as simple as just upholding the FCC’s Open Internet rules— net neutrality could be better off with or without them. It really depends more on what the FCC does— and, crucially, what we as citizens push them to do— after Verizon v. FCC.

So what’s the big deal? What makes this bill so much worse than all of Congress’s other “anti-piracy” measures? Well, it would put in place an entire system of internet censorship that would empower the US government and corporations to block any website. The Department of Justice would have a blacklist of foreign “rogue sites” which fit a vague definition of enabling intellectual property infringement and would block American users from accessing these sites, in addition to cutting off the sites’ revenues from US-based advertising services and payment processors. All of this would happen within five days of the accusation of infringement, without any judge, any two-sided hearing, or any due process for the accused site. In fact, it further encourages pre-emptive “voluntary action” by offering immunity for internet service providers, browser producers, and search engines that block sites without even any infringement claims.

SOPA’s corporate backers in the recording and film industries focus on overseas sites that they refer to as “dedicated to intellectual property theft,” despite the fact that, for instance, targeted one-click file-hosting services like Rapidshare have been found legal in both American and European courts. In addition to plowing over such “rogue sites” that actually have substantial non-infringing uses, SOPA would also ensnare domestic sites that link to any infringing material or any “rogue site”— and would block the entire domain for even one link on one page. This means that any social media platform that hosts user-generated content— everything from Facebook, Twitter, and YouTube to Reddit, Tumblr, and Wikipedia— would become liable for everything their users post. SOPA, then, would overturn over a decade of precedent for internet law in the “safe harbor” provisions of the Digital Millennium Copyright Act that protect internet intermediaries from liability for what users do (an example of how prior copyright expansion legislation at least included some reasonable limitations).

SOPA would have a huge impact on freedom of expression, creativity, and innovation online. Doing away with safe harbor protections would place a massive burden on online services to police their users and more actively censor what they do online. This would have chilling effects on the free expression and creativity of users by encouraging self-censorship and would stifle innovative new start-ups with limited resources. Further, if whole platforms disappear from US access, the free expression of all other users becomes collateral damage. Of course, these very powerful tools for shutting down online activities hold great potential for abuse— especially when held by industries with a long history of using the law to expand their control and protect them from disruptive innovators.

Further, SOPA flies in the face of the principles of net neutrality and internet freedom that the US government evangelizes everywhere else around the world. While the US extols the virtues of free and open internet connectivity globally, SOPA would institute the same technical censorship system as China, Iran, Syria, and similarly repressive regimes. The only difference is that the American censorship system would instead be used to protect corporate profits— intellectual property now trumps all other rights. In addition to undermining American credibility in calling out authoritarian states’ internet censorship, SOPA would also set a precedent for other liberal democracies to further filter and block internet content. On top of all this, SOPA involves mucking around with the fundamental technical workings of the internet, with serious consequences for the stability and security of critical internet resources like the Domain Name System. By interfering with the connections between site addresses and the servers they are designed to connect to, SOPA’s blocking system would undermine the next-generation DNSSEC system being developed by the US government’s own internet security experts and all other internet protocols that depend on it working universally consistent.

SOPA is now in markup in the House Judiciary Committee, where the hearings have been laughably lopsided and the representatives have openly admitted their ignorance of the constitutional, economic, and technical implications of what they’re proposing. The bill’s sponsors were rushing for a vote before the holidays, but, after some last-minute jerking around with on-again-off-again sessions this week, it has now been delayed until some time in the new year. (PIPA has already made it out of committee and will be coming to the Senate floor in the new year.) This is a positive development: they weren’t able to ram it through committee around the holidays while fewer people are paying attention. However, SOPA’s supporters are surely counting on the large opposition effort losing momentum. If you find any of the above scary— if you don’t want to see your Facebook feed blacked out for real soon— you should help keep the pressure on Congress to stand up for freedom online.

As culture becomes increasingly digitized— from downloading and streaming videos and music to digital film production and cloud computing— arguments for the “dematerialization” of media are becoming commonplace. However, media have always been, and remain, embedded in and structured by material objects, networks, and practices that delimit their uses and meanings. Any cultural artifact bears traces and consequences of the material conditions of its production, distribution, and reception, whether the size and weight of the camera that shot a film’s images, the geography of the shipping or cable network through which a program was transported or transmitted, or the spaces occupied by physical record or DVD collections. Even ostensibly “dematerialized” digital media find material existence in hard disks, server farms, and wires— as well as in the proliferation of new media devices, from smart phones to iPads.

We should take this perception of the diminished materiality of media as an opportunity to reconsider and reaffirm the material dimensions of media, both in terms of the present moment and from an historical perspective. Considering the materiality of media means paying attention to the mutual relationship between technology and culture as shaping influences on each other. Media are, after all, to paraphrase Raymond Williams, both technology and cultural form. Media are not, of course, reducible to their technological or material dimensions, but these remain inescapable factors in what media mean in all manner of contexts. Scholars like Vicki Mayer, Lisa Parks, and Barbara Klinger have led the way in approaches to the production, distribution, and reception of media as inextricably material. In emerging concerns with media infrastructures and cultural geography, growing interest in the nine lives of VHS and cassette tapes, and calls like Max Dawson’s to “put the TV back in television studies,” we can see materiality coming into play in media studies more and more.

A few major events have dominated the net neutrality front in the last several months.  The FCC’s policy proposal process was interrupted in April when the Comcast v. FCC case put the commission’s legal authority to regulate internet access at all highly in doubt (the legacy of Bush-era reregulation).  Over the summer, then, the FCC held meetings to negotiate a compromise on net neutrality regulations— meetings held behind closed doors with only representatives of the cable and telecom industries and internet content and service companies at the table.  Then, in August, Verizon and Google reached an agreement and announced their plan for how to enact net neutrality policy, as covered here on Antenna by Mark Hayward and here by Jennifer Holt.

Net neutrality as a term, while it has been translated different ways, ultimately has been articulated to a particular principle of openness and nondiscrimination— like common carriage, the public obligations of private infrastructure owners.  The concept of net neutrality is constructed discursively: while the term has absorbed different values and interests from various stakeholders, a common sense of its meaning has coalesced and it has become relatively stable as a discursive formation.  The term started its life as a technical principle, coined by Tim Wu to describe the most efficient network design to encourage innovation.  It has also been taken up by internet content and service companies like Google (pre-Googizon era) and Skype, mostly as an economic principle describing the most fair marketplace for their content and services to compete.  Public interest organizations like Free Press have used it to describe a civic principle of freedom of expression and democratic participation.  Despite the differing interests of these groups, they formed a sort of alliance that came together in support of a few basic tenets: infrastructure control should be kept separate from content control, so that internet access providers should not interfere with or give preferential treatment to any particular content, service, application, or device based on who owns it.

Now that one of its biggest “supporters” is Verizon and Google, once the loudest pro-neutrality voice, has committed itself to a very compromised position, what net neutrality actually means is changing very quickly.  This is evident especially in the recent (eventually shelved) net neutrality bill introduced into the US House by Rep. Henry Waxman and its resemblance to the Verizon/Google vision of net neutrality.  Judging from this, “net neutrality” means something very different now.  First, openness rules apply to the “public internet,” but there are no such requirements on “differentiated services,” which means that this “private internet” would become a de facto fast lane for only the content and services owned by cable and telecom companies (hello Comcast-NBCU) or those who can afford to cut deals with them (goodbye Antenna).   Further, there are no nondiscrimination rules at all for wireless internet access, which is especially troubling since it’s easy to see that mobile devices will very soon be the dominant way to access the internet.  Finally, the FCC is left to investigate bad actors only on a case-by-case basis and has no rulemaking authority over internet access, which is clearly an indication of how corporations like Verizon and Google can cut regulators out of the policymaking process altogether and just do it themselves.

Clearly, then, there is a difference between the principles behind net neutrality and the way it is now talked about– especially in the policy sphere where discourse has the power to shape the technical structures in question.  One undeniable reason for the progress that had been made toward enforceable net neutrality was the support of big internet corporations– especially Google.  However, the alliance that came together around the issue is beginning to splinter, as shown by Google moving away from the overlapping interests that once brought this alliance together and toward new interests, especially their relationship with Verizon in the mobile device market.  The compromise reached between “both sides,” then, is between two competing sets of corporate interests and the definition of the net neutrality situation is left up to those with the biggest profits to gain.  Like Bill Kirkpatrick detailed here on Antenna recently in regard to ACTA, this is yet another way of confusing the powers at play in making policy: when the party at the negotiating table in these policymaking issues that comes the closest to representing the public interest is just another big corporation and the public interest and the corporate interest inevitably split, then we’re all left out of the process.

Some good news came from the battlefield that is media and technology policy recently: some important fair use rulings that help to hold off the ever expanding clutches of copyright.  Through a nice (if small) corrective built into the generally heinous Digital Millennium Copyright Act, every three years the Library of Congress rules on exemptions to the anti-circumvention clause that makes it illegal to break technological protections on copyrighted material.  Here are the new exemptions:

• Ripping clips of DVDs for educational purposes and use in documentary and noncommercial works is now allowed under the law.  This extends the previous exemption enjoyed only by lucky film and media studies instructors and their classroom uses to recognize more instructors, non-classroom uses, and students.  Make sure to check out Jason Mittell’s posts here and here for details and what this means for academics.  Beyond that, this ruling is also a big victory for those documentary filmmakers and remix video artists who have to crack encryptions on the existing material they transform for criticism and commentary.

• It’s also now legal to jailbreak your phone, opening up its operating system for other mobile networks and applications.  This ruling is most specifically about unlocking the iPhone for use with carriers other than AT&T and to run apps other than those available on Apple’s tightly controlled iTunes App Store, which is an important limitation on the power that device producers like Apple can have over users.

• Users also now have the right to crack digital rights management in order to run screen-readers on ebooks.  Many publishers technologically restrict the use of text-to-speech functions on computers and devices like the Kindle, so allowing for getting around this is especially key for promoting accessibility for people with print and visual disabilities.

• The ruling also allows for academic security research on video game DRM, in response to concerns over some specific security vulnerabilities.

The legal recognition of these fair uses is a very encouraging development— the result of a lot of great work by organizations like the Electronic Frontier Foundation, American University’s Center for Social Media, the Organization for Transformative Works, the Society for Cinema & Media Studies, and others.  As Jonathan Zittrain and others point out, though, there are still a number of technological and legal hurdles that remain in the way of these uses— not least, of course, are the technical skills necessary to pick the locks in the first place.  And this is all only good for another two years, when these exemptions will have to be defended at the next review.

The Library of Congress’s ruling is even more encouraging, though, when taken along with two other recent court decisions on copyright.  The first case made some headlines: in June, a federal court threw out Viacom’s $1 billion copyright infringement lawsuit against YouTube.  The summary judgment ruling took a good strong reading of the “safe harbor” provision of the DMCA, finding that Google only hosts others’ content on YouTube and therefore can’t be held liable for the actions of its users.  The second case went relatively unnoticed: the day after the LOC announced its exemptions, a federal appeals court ruled that breaking DRM just to access a piece of software isn’t illegal under the DMCA’s anti-circumvention rules.  While a rather abstruse case involving medical system software and dongles (yes, dongles), the decision sets a pretty clear and substantial fair use precedent: breaking technological protections on a work is legal as long as the use you make of it is legal.  These cases, though, are likely far from over— expect to see appeals to the Supreme Court in both.  Nonetheless, in the fight for a more balanced approach to copyright regulation (and especially in light of some really scary stuff on the horizon), it’s nice to have some victories to celebrate.

There’s been a lot of Buzz about what Google’s been up to in the last week or so.  But as significant as Google’s move into social networking is, a less talked-about announcement the company made last week is the real big deal: Google’s plan to build an experimental 1 Gbps, fiber-to-the-home broadband network is likely to have a big impact on Internet policy in the US, especially net neutrality and broadband stimulus.

Google’s plan has been interpreted a number of different ways but it seems pretty clear that this is really about more than just giving developers a nice sandbox to play in and some lucky folks freaking fast Internet access. Google is very active in the goings-on at the FCC right now, including leading the advocacy for putting net neutrality principles into binding regulations for ISPs and pushing for open access standards and faster speeds to be part of the National Broadband Plan.  By building this network, then, Google wants to show off to the FCC and ISPs just what an open, neutral, and really really fast network looks like.  This move is consistent with the company’s propensity toward big symbolic gestures that can be influential whether or not the stated intentions actually get followed through on: its bid on wireless spectrum in 2007 was really a stunt to encourage open access and the threats to pull out of China (detailed here on Antenna by Liz Ellcessor) have not yet been acted on.  This announcement alone has drummed up the kind of excitement that could work to raise the bar for the broadband deployment plan, which is especially crucial for bridging the digital divide with more than just access, but access that is open, neutral, and as fast as anyone in the world.