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An analogous issue is at stake in the government's case against Microsoft. Microsoft argues that it has furthered innovation by providing a platform upon which many application developers have been able to write code. No doubt it has--generally. But the government attacked cases where Microsoft used its power over the platform to stifle technologies that threatened Microsoft's monopoly. The charge was that Microsoft's strategic behavior undermined innovation that was inconsistent with Microsoft's business.
The Microsoft case was about the platform of the 1990s--Windows. The risk that AOL presents is to the platform of the 21st century--the Internet. In both cases, the question is whether a strategic actor can chill innovation. With the Internet, that answer depends upon the principles built into the Net.
AOL promises it will behave. It has been a strong defender of "open access" in the past. But its promises are not binding, its slowness in allowing other instant-messaging services onto its platform is troubling, and last month's squabble over access to ABC on Time Warner's network is positively chilling. These are not signs that the principle that built the Internet thrives.
The test will be whether AOL sticks to the principle of e2e, and if it doesn't, whether the government will understand enough to defend the principle in response. If AOL respects e2e in broadband, if it keeps the platform of the network neutral among new uses, if it builds a guarantee into its architecture that innovation will be allowed and encouraged, then we should not worry so much about what AOL owns. Only when it tries to own (through architecture) the right to innovate should we worry.
Sustaining a neutral platform for innovation will be the challenge of the next quarter-century. The danger is the view--common among politicians--that this neutrality takes care of itself. But we have never seen the owners of a large-scale network voluntarily choose to keep it open and free; we should not expect such altruism now. The Internet has taught us the value of such a network. But the government should not be shy to make sure we don't forget it.
Lessig, who served as an adviser to Judge Jackson in the Microsoft case, is a Harvard law professor, a fellow at Berlin's Wissenschaftskolleg and author of Code and Other Laws of Cyberspace