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Getting straight about common carriers and Title II

Open Access is a section of the Ting blog dedicated to discussions about the open Internet, net neutrality and other important online topics. If you’re already convinced that Internet access should be classified under Title II, Tumblr has a great grassroots campaign on the go. Read on for all the gory details on Title II, common carriage and how we got to the sorry state Internet access is now in.

common carriers

Common carriers, Title II and Net Neutrality explained

If you care about an Internet that is open to every idea and every startup, you need to know about common carriers and understand what’s at stake as Internet advocates call on the FCC to reclassify the Internet under Title II.

It’s complex. So, I asked Barbara Cherry to help explain it all.

Cherry knows about this from three decades in the field, including in the telecommunications field for almost twenty years–ten of them at AT&T, five at Ameritech, and almost five at the FCC. Now she is a professor of telecommunications who trained as a lawyer and has a Ph.D. in communications studies.

Cherry explains that the idea of common carriage goes back to the Middle Ages. “If your business is to carry things for others, you have certain legal obligations,” she says. Whether you’re a postal service delivering letters or a ferry delivering people, the basic obligation is “to serve upon reasonable request without unreasonable discrimination at a just and reasonable price and with adequate care.”

There are some big ideas in that legalistic formulation.

Telcos want control of the Internet. Together we can still stop them.

Time is running out to protect the Internet as we know it.

Today is a day to rally. A day to talk, to reach out and especially to act.

It’s the last chance to fight to keep fair and equal access to the Internet. The day we exercise our freedom of speech to maintain the same right online. The day we hold high the principle of common carriage; the principal that service providers must serve the general public without discrimination. A principle that started with blacksmiths, innkeepers and ship owners and is today part of our social contracts with public airlines, railroads, buses, taxicabs, freight and phone companies and yes, Internet service providers. The latter, because as Public Knowledge said so succinctly:

“Networks are so vital to the functioning of society that the maintenance of such networks cannot be left to the market solely.”

Click to join the fight to maintain net neutrality protections before the FCC enacts its new anti-net neutrality plansThe Internet is the world’s principal source of information. We deserve access to all lawful content unedited, unfiltered, uncensored, unfettered. We want real journalism, not an echo chamber. We want to hear all voices, not only the ones who’ve paid to speak.

We don’t want a two-tiered system controlling online communication. We are not alone.

At Tucows, Ting’s parent company, we believe the Internet is the greatest agent for positive change the world has even seen. We are thrilled and humbled by what can be achieved when billions of people have access to information and a vehicle to communicate, collaborate and co-create. We are increasingly wary of large corporations that are willing to compromise customer experiences and impede progress to protect market share. We are similarly concerned about politicians that legislate on the Internet without truly understanding the world they are affecting.

So today we ask you to join our voice to protect the open Internet, by asking the FCC to preserve net neutrality. It’s easy. We promise.

Join the Heard

What can gigabit Internet do for your city?

Ting Internet has been proudly sponsoring Charlottesville’s Tom Tom Founders Festival since we first arrived in town. This year, our CEO Elliot Noss, was invited to speak on a panel discussing what fiber Internet can do for a city. Joining him is Mayor Andy Berke of Chattanooga, the city to watch for how the best Internet access improves cities; Sheila Dugan of GovEx at Johns Hopkins University and Aimee Meacham of the National Telecommunications and Information Administration. The panel discussion was moderated by Deb Socia of Next Century Cities.

It’s a lively discussion that covers everything from public/private partnerships to over-the-air Internet.

Apologies for the audio quality. This panel discussion took place in a room where a loud air conditioner was competing for everyone’s attention. We eliminated the noise as much as we could.

This was not our first time speaking with Deb Socia. Check out our interview with her from two years ago at the fiber lighting ceremony in Westminster, MD.

The Long March to Fiber Will Take Many Roads…

fiberSusan Crawford wrote a much-talked about piece last week entitled “You Didn’t Notice It, But Google Fiber Just Began the Golden Age of High Speed Internet Access.” She’s right about the problem, but the Golden Age is going to be far more complex and harder to achieve than the article lets on: we are a long way from a truly competitive market for broadband. In fact, to get there, competition is not the most important element. For now the most important thing is to get places fibered up. How that should happen depends on local variables. But the path Google has taken in Huntsville: leaving the ownership of the broadband system in the hands of the town and renting dark fiber, rather than ceding it to the company providing the service, will happen only in the minority of places. And I say this as the CEO of a company that is laying fiber in cities and towns despite telling mayors they should own it themselves.

Make use of fair use

Note: I am so not a lawyer.


Even if you don’t use Google Books or don’t like Google Books, its victory in the courts a couple of weeks ago was a huge win for all of us.

That victory solidified our right to reuse copyrighted materials under specific circumstances without having to ask permission. This is vital to keep our culture and democracy alive.

That’s not how the Court put it but that’s the essence of the Fair Use doctrine, a limitation on the reach of copyright that is, alas, unusual among nations. Fair Use lets you reproduce copyrighted material if, for example, you’re reviewing it, commenting on it, or parodying it, especially if you’re not providing a substitute that would affect the original’s sales. (It’s way more complicated than that. Ask any lawyer.) The Google Books case is important because it establishes Fair Use more firmly than ever, and clarifies that it applies more broadly than its opponents would like.

The legal historian Oren Bracha argues that Fair Use arose in the 19th Century as copyright was getting more inclusive and restrictive. Before that, copyright gave a printer an exclusive right to make copies, but otherwise was surprisingly permissive. For example, people were allowed to abridge a novel and publish it, or to translate it into a different language, all without getting the author’s permission or compensating him/her.

A (very) brief history of copyright

Over time, copyright was applied not just to what came off of a particular printer’s printing press but to the abstract idea of the work, so that the author could control every physical expression of that work. As the author’s grip was tightened, exemptions needed to be specified so that there could still be reasonable discussion of the work. Imagine if an author could refuse to let a reviewer cite a passage in a book if the review were critical. Imagine you had to ask permission to quote a sentence of an article in a report you were writing. Imagine you couldn’t parody Donald Trump without first having him review what you’re going to say.

So, Fair Use became a thing. In 1976, it was officially added to U.S. copyright law. That law says that there are four factors to be considered when deciding if a use is covered by Fair Use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work [e.g., is it fiction? non-fiction?];

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The purposes mentioned in #1 traditionally have included scholarship, political commentary, parody, and more.

Yes, those four factors are vague. Fair Use has always been vague. But that has the virtue of enabling it to be applied quite broadly. Of course, it also raises the risk that it will be interpreted very narrowly. The Google Books verdict establishes a precedent for applying it broadly in ways especially important to the continuing life and value of the Internet.

How the Google Books suit came about

The suit against Google Books was brought ten years ago by The Authors Guild, a professional organizations for writers. It claimed that Google’s digitizing and indexing of entire works, and then making available snippets from those books, violated copyright. Now, you may think that this is a stupid argument, and you’d be right. The courts agreed with you when it first heard the case, and then it decisively agreed with you when it again decided against The Authors Guild a couple of weeks ago.

The snippeting Google proposed in the suit was quite limited and very specific. As for whether it violates copyright to create an index of online materials, the Court seems to have no problem with that, even though to compile an index a search site first to has to make a copy of what it’s indexing. Although the copyright status of indexing apparently has not been definitively addressed, a 2006 case said that Google has the right to download and cache a copy of a site, which would seem to mean that it’s ok for them to create an index of it. (You are remembering that I am not a lawyer?)

Likewise, the courts have decided that Google isn’t violating copyright by making thumbnails of copyrighted images.

Updating copyright in the Google age

These are sensible decisions, but there were court cases about them because copyright law applies so poorly to the Net. Remember that the original and continuing core of copyright protects people from making entire copies of works without permission. Fine, but what happens every time you click on a link to a Web page protected by copyright? You’re downloading and displaying a complete copy. Since every Web page is copyrighted by default, under a mindlessly strict interpretation of copyright, your browser’s History list is evidence of massive copyright infringement. (The exception: The pages you’ve visited—including this one—that use a Creative Commons license to give readers permission to re-use them, while maintaining the author’s copyright.)

What could have happened

It’s not hard to imagine that the courts might have ruled that indexing a site infringes on its rights, and we’d be left to blindly stumble around the Net. Thankfully, the courts were wiser than that.

But this is exactly why we need decisions like the recent Google Books one. Because copyright is such a bad fit for the Net and because Fair Use is so vague, we need to nail down how copyright and Fair Use apply, and we need to do so in ways that permit the best uses of the Net to continue, despite the fear-based reaction of those who think they deserve to have complete and perpetual control over every use of every snippet of what they create.

In such a world, the Net would primarily be, like cable TV, content to be passively absorbed, as we watch our new culture and hopes for democracy suffocate under the weight of copyright.

Fiber Internet: Cities are doing it for themselves

We ought to treat the facilities that connect us to the Internet as a public utility. So argued Harold Feld, a lawyer for the advocacy group Public Knowledge, in a speech at the recent Personal Democracy Forum.

But what that would that actually look like? Feld’s brief talk left that unspecified – on purpose according to remarks he made in a mailing list I’m on.

Historically we create public utilities when we think a service is so fundamental to citizens’ participation in their economy, government or culture that we want to make sure all citizens have affordable access to it. Feld argues for treating the Net as a public utility so that the government can ensure that the access providers serve the needs of their communities, not just their own desire to maximize profits.

In the United States, much of the discussion on this subject has turned to the role of municipalities. This is consistent with how we treat provisioning other public services, such as natural gas and electricity to households. In February, the Federal Communications Commissions cleared the way for this by preempting state laws that prevented municipalities from competing with private Internet access vendors.

But how would municipalities do this? There are many factors, leading to many permutations. For example:

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