1. IP5

2. Allocation of Spectrum Spectrum as property – sold on the market Spectrum as commons – E2E

3. 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

4. Commons Regime Competition is encouraged Innovation results from competition The risk is from overuse of the commons – result is congestion

5. 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

6. 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

7. 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?

8. 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

9. 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.

10. Endless Love http://www.youtube.com/watch?v=UtEH6wZ XPA4http://www.youtube.com/watch?v=UtEH6wZ XPA4 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

11. 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

12. 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

13. 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

14. 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