Lessig is right in seeing that the struggle to sustain freedom in our day is not limited to the net neutrality fight--and right in his insight that ownership of monopoly last mile resources broadband resources by the public is absolutely crucial to that freedom.
The core of this resistance comes from municipalities. Local governments are building neutral infrastructures that allow anyone, from ISPs to community networks, to use and extend blisteringly fast broadband networks. At the end of its first year, a project in Sandoval County, New Mexico, for example, already provides many in the area with more than 10 times the capacity than anywhere else in the US.
These activists recognize the basic truth of what I call the McAdams theorem: Monopolists, as Cornell economist Alan McAdams puts it, don't monopolize themselves. If the monopoly-like asset is owned by the user, he has little incentive to exploit himself. Put differently, private ownership by users creates its own business model.I've made this same point, at some length, on this site.
It's good to see a leader in the net neutrality debate affirm the muni cause. But its sad that he doesn't quite seem willing to grasp the full implications of the logical position he takes. I'm somewhat embarrassed to say that think Lessig is showing a sort of ideologically-based naivete that I often see on the pro-corporate side of this issue. Those folks exhibit what is charitably called a naive faith that "free enterprise" cures all ills. --It doesn't and anyone who has had to deal with companies like Cox and BellSouth knows that faith is misplaced.
Lessig here exhibits a similar naive faith in the open source movement. Granted, the Linux project has proved that the model of free, community-built software can be used for even the most complex and critical software, the OS. But he is, in my judgment, seriously and dangerous mistaken if he believes a useful last-mile broadband infrastructure can be built solely with free labor, however dedicated and noble. Software is unique in that it can be built solely with donated labor. There is no material cost. Last Mile Networks are different. The network cost real money to build and maintain, the connection to the larger network that usefully connects the last mile network to the outside world is also expensive (and increasingly owned by the same few monopolists that currently own the last mile). Further, all credible networks, wireless as well as wired require access to property in the form of public rights of ways, poles and towers.
The full local community must be involved and it must be involved as a political community to at least the degree that it grants access to its publicly owned rights of way. There really isn't any practical way a noble band of soldiers can do this without government help--and really there is no reason why they ought to try. Providing necessary infrastructure, particularly in natural monopoly situations, is a perfectly legitimate and time-tested role of government. The implication that the model that has worked for Linux and open source software will work in the last mile is dangerously naive and suspiciously ideological.
Afterthought: Lessig's agrument is implicitly premised on the idea that Linux has succeeded in breaking the Microsoft monopoly. I don't see where that is even close to true. Certainly the sorts of control that the regulators were concerned about when they succeeded in their antitrust suit against Microsoft remain problems. The Justice Department was in part concerned that the market power that MS had was sufficient to allow it to determine which technologies succeeded and failed and to secure its future monopoly by making its proprietary technologies standard. It's pretty clear that, Linux or no, Microsoft still retains this power. Witness, for only one example, TiVo's recent announcement that addition of free, streaming movies and TV shows to already established accounts will only be available to users who happen to use late versions of Windows and Internet Explorer. Why? Because MS has leveraged its near monopoly of the OS market to make its proprietary Digital Rights Management (DRM) "solution" for video the one that TiVo must use to succeed in the marketplace.
Linux has not, and shows no signs of, solving the problems that motivated the Feds' successful antitrust action. It is a great thing--but it is no substitute for enlightened public self-interest even in its areas of greatest success.