Facebook is the Web with “I keep all the logs, how do you feel about that?” It’s a terrarium for what it feels like to live in a panopticon built out of web parts.

And it shouldn’t be allowed. It comes to that. It shouldn’t be allowed. That’s a very poor way to deliver those services. They are grossly overpriced at “spying all the time”. They are not technically innovative. They depend upon an architecture subject to misuse and the business model that supports them is misuse. There isn’t any other business model for them. This is bad.

I’m not suggesting it should be illegal. It should be obsolete. We’re technologists, we should fix it.

Last night, it was the turn of Rob Spectre, community evangelist for Boxee, who dropped by the NYLUG in order to grow the community.

Spectre pointed out that while open source technology is widely deployed throughout the internet from the largest core data centers to the newest cell phones, it is absent from the living. This is due largely to the monolith in the living room, as in, “my god, it’s full of patent lawyers!”

EFF and Harvard legal expert Wendy Seltzer explained the problem in detail a year ago. She wrote, “Under an anticircumvention regime, the producers of media content can authorize or deny authorization to technologies for playing their works. Open source technologies and their developers cannot logically be authorized. ‘Open-source DRM’ is a contradiction in terms, for open source encourages user modification (and copyleft requires its availability), while DRM compels ‘robustness’ against those same user modifications.”

The content control corporations are the antithesis of Boxee. Boxee, Spectre said, is the best open source social media center. It connects to Facebook and Twitter. You can recommend a show to a friend who is on Boxee. It connects to the offerings (free or paid) of online services from Hulu to MLB to Suicide Girls (may be NSFW).

The open source network will never interact with the closed content network because doing so would require DRM (see Seltzer, above), so Boxee aggregates content that’s available on the web. Spectre says that paid content such as MLB and free shows such as The Guild (Melissa’s a huge fan of The Guild and I like their theme song).

Ideas, bug notes, and recommendations can be fed to the community at the Get Satisfaction site.

Boxee is still a small organization (13 people) with a potentially big influence on the future of television. Offices are in New York and San Francisco with engineering in Tel Aviv.

Spectre noted that the project supports most CODECs. A NYLUG member added that the interface is extremely intuitive and said that while you might need to be a programmer to write an app, you certainly don’t need any special expertise to use Boxee.

Many applications are channels, linking users to specific websites that deliver content. A few deliver functionality instead of linking to specific content.

Spectre said that he got started in the community when a friend suggested that he enter an app development contest. He wrote Auto-Tune the News, named after the web show but designed to deliver popular TV shows such as The Daily Show and Stephen Colbert. “It’s one of the most popular source contributions I’ve ever made,” Spectre said.

With the positive response, he decided to work for the community. He wrote Boxee apps professionally (as a freelance for hire) for several months before joining the team.

“We get the content providers who are on the web; we get no interest from those who are not on the web. History is on our side,” Spectre concluded.

The Boxee business model will change radically in July, when a payment platform is introduced. Intially, it will deliver subscriptions only, but micropayments (buy one episode) will be added and then advertising will be added later.

Also, a clear majority believe that the broadband provider should always “deliver the promised speed” — they clearly don’t know that the contract they signed but did not read merely promises a “best effort”.

Only a third of cell phone customers are pleased with the price and speed they get, though a majority are happy with the cell phone as a phone.

It is not clear at this time how or whether the survey will influence FCC policy.

On May 21, 2010, we attended the latest performance of counter)induction. The first piece, “Ikhoor” by Xenakis, a piece for string trio, was greatly enhanced for me by a conversation I recently had with my friend Ken, a violinist. I had said that classical music does not have distortion and he described several methods by which violinists can obtain unusual sounds.

One involves turning the bow on its side, a method that Xenakis used very well in this piece. Another involves lifting the strings and letting them fall against the bridge of the violin, which produces a sound that is very different from plucking.

This was followed by Pascal Dusapin’s Trio Rombach, a piece I did not like.

All of this was a prelude to the meat of the performance.

The concert was called “child is father to the man” and the latter half of the performance consisted of a famous piece by George Crumb, “Eleven Echoes of Autumn (Echoes I)”, followed by pieces by two of his students, Douglas Boyce and Kyle Bartlett, who are founding members of counter)induction.

The performers had access to what appeared to be the original score, and it was beautiful. Crumb is famous (AFAIK) for using circular notation in his scores, and these scores were beautiful. The music was strange and interesting. Crumb’s piece was the oldest of those performed but it felt as new as the rest.

This was followed by Douglas Boyce’s “The General Schemed,” a piece in which he showcased his fondness for foreign and old cultures and musical notations. It conveyed a thoughtful and often melancholy feeling.

The final piece was Kyle Bartlett’s high energy “Present” in which, she wrote, the music splashes off the piano and onto the other instruments. It felt like a philosophical statement. It was a masterpiece that she presented with humility.

Many of those attending had built games for nonprofits (including the World Bank!), and some represented organizations such as IBM that are interested in the idea.

The portion of the discussion that I felt I could contribute was this: what can games do for a non-profit? Nancy Goldstein phrased the issue this way: many remember having to teach organizations the difference between a blog and a press release. Many remember organizations that simply published press releases on blog, a colossal failure and a missed opportunity to engage people. So what can a game do that a press release cannot do?

What a game can do

A game can be immersive, but delivering immersion takes a big budget. Here is the fascinating introduction to Far Cry 2, a game I am replaying. It is a shooter game, so most of those reading this won’t want to play the game or to build a game that resembles it, but the first 5 minutes of the game are very educational and I recommend watching the YouTube video linked above (click on the appropriate control bar to view it in HD). Note that the comments are about whether malaria is a serious problem — not the comments you’d expect from a video about a first person shooter!

Designing immersive games is expensive, and it is becoming more expensive. In 2007, Wired Magazine explored one of the most expensive playtesting processes on the planet, the playtesting of Halo 3. The magazine’s description takes 6 pages.

A game does not need to be immersive to be compelling. One person brought up the famous Oregon Trail game, which is similar to games I have played but is not a game I know well. The game was influential. Here’s an article from 1985 and here’s one on BoingBoing.

One game that changed the way I view pollution is so old (c. 1994) and little known that I cannot find it. It may have run on HyperCard. You were in charge of government policy and could tax or fund any of a variety of energy inputs and pollutants. Everything had a benefit and also caused a problem. Nuclear energy caused nuclear waste, solar energy increased the annual deaths in falls from roofs (the designers struggled to find something negative about solar energy), fertilizers released heavy metals into rivers, and so on. The game was both sophisticated and very easy to play. It was educational without being realistic. I showed it to Kathleen, a friend. She promptly taxed both fertilizers and pesticides out of use and the world population starved to death (but the environment did well). On her second try, she allowed some fertilizers but not pesticides and obtained a small but stable world population. As I said, educational but not realistic.

The game that I have played the most over time is Civilization IV. The game is one of the best selling and is unusual among best sellers in having real historical content. However, the game designers were more interested in the process of technological advancement than in differentiating cultures and religions, and made those cultures and religions almost identical. A site carrying discussions about the Civilization game franchise, Civfanatics.com, is one of the most popular web sites in the US, according to Alexa rankings.

One of the many things that makes Civlization IV excellent is that game players can mod (modify) it. The Fall From Heaven II mod turns a game about the advance of civilization into a game about magic, sorcery, and a very complex world ruled by angels who have lost contact with the Creator. The mod has its own message board that I check into often.

Games that you can modify can take advantage of the power of the crowd and open source development, but projects tend to need a leader. The Fall From Heaven team evolved from an old D&D game and is led by the campaign’s Dungeon Master. A structure with a leader was in place.

An old but good modifiable game is NetHack. It is an unforgiving game that delivered endless variety because over time, content had been added by numerous players. It’s the only hack and slash adventure game my mother ever played.

Another game I learned from is President Elect, released in 1988. In order to play it, I memorized the electoral votes of the various states and their post office abbreviations. I learned a lot about the positions of politicians. When Clinton’s advisors spoke about their strategy in winning the election, they talked about spending points on local instead of national advertising, one of the choices you are given in this game, and I realized that it was much more realistic than I had thought when I was playing it. I remember designing a religious right candidate to run in 1988 specifically in order to win the popular vote but lose the electoral vote, obtaining over 75 percent of the vote in Southern states.

My point is that games can do a great deal more than they are doing today. There is a wealth of game knowledge on the web. If I had to recommend one site, I’d recommend Board Game Geek, where you can find a wider variety of games and game types than you’ll find at a game store. At the brainstorm session, one participant recommended free game site Kongregate for the same purpose.

Consider cartoons and graphics instead of a game

A game is good at conveying complex information and for changing someone’s point of view. But it will not necessarily educate someone who plays it. In this interesting publication (.pdf) the interviewer talks to a child playing SimLife, and learns that the child is playing it as a video game “to win” — without learning the concepts the game is designed to teach. This will happen.

If you want to tell a specific narrative and don’t want the player to deviate from it, comics may be helpful. The cartoon Zahra’s Paradise is gaining fame (I just read about it in The Economist). It tells the story of the aftermath of the Iranian elections. It is compelling.

In 2004, the New America Foundation published (.pdf) the Cartoon Guide to Spectrum Policy. In contrast, the (.pdf) position paper that went with it (The Radio Revolution) is harder to read, longer, and was less widely read — although its author did help pick Obama’s FCC Commissioner.

Don’t underestimate the power of an infographic. My friend Bruce Kushnick has been fighting phone bills for about 15 years. He wrote a 400 page indictment of the phone companies. On the other hand, this simple graphic may be the best work he’s done, in terms of informing people, during his entire time as an activist.

Traditional multimedia and cross platform campaigns can be effective two. Here’s a story about a recent one in NYC, advocating against gun violence.

Act now

The large corporations are very interested in games too. BP had a pernicious role in the design of a recent Sim City game.

This FCC policy would be wrong, especially since an FCC study just concluded that the FCC should be spending money on fixed wireless.

The Third Way is a phrase made popular by Tony Blair and Bill Clinton. It describes an attempt to navigate a path between socialism and the free market. Given the extent to which the Obama administration’s opponents attack so many things it proposes as “socialism”, it is courageous of the FCC to use this term. (To be fair, the FCC says it’s seeking a middle road between re-regulation of a utility and the unfettered free market.)

The FCC does not want to regulate the internet if the internet is defined as the websites and services that we use when we connect to the internet. The FCC wants to regulate the price that users pay to connect to the internet and to be able to police monopoly power at the access level. To this end, the FCC refuses to abandon the great mistake of 2002 in which the FCC first decided that the internet was comprised of both a telecommunications component and an information service.

The problem with this splitting of the internet atom is that the internet consists of interdependent services.

Take VoIP. You can use it to make a phone call. When you do so, which part is the telecommunications component? You can use VoIP by clicking on a customer service button on a website. When you do so, is VoIP now purely an information service? In either case, an ISP might affect your ability to use VoIP service by blocking ports (or using more complex procedures as Comcast did).

When is VoIP an information service and when is it a telecommunications component? If the ISP blocks VoIP with hardware, is it telecommunications, but if it routes traffic through a third party website to block VoIP, is that an information service that the FCC cannot regulate?

Commentators are cautiously optimistic today, just a few days after a major net backlash. The strength of the backlash against the FCC’s apparent attempt to abandon Obama campaign promises with regard to net neutrality made the FCC of Monday (Obama Abandons Internet Promise) seem very different from the FCC of today (Obama Abandons . . . maybe not so much . . .).

The FCC has more fears than ambitions

In his statement, Genachowski says the FCC will:

• Recognize the transmission component of broadband access service—and only this component—
  as a telecommunications service;
• Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that,
  prior to the Comcast decision, were widely believed to be within the Commission’s purview for
  broadband;
• Simultaneously renounce—that is, forbear from—application of the many sections of the
  Communications Act that are unnecessary and inappropriate for broadband access service; and
• Put in place up-front forbearance and meaningful boundaries to guard against regulatory
  overreach.

The goal of the FCC at this time is to make policy that won’t be overturned by the DC circuit court, and to make policy that won’t upset the monopolies. The FCC statement specifically says that the FCC will not create any new unbundling obligations for the large companies, and Genchowski specifically says that he wants to prevent “regulatory overreach.”

Commentators such as Yankee Group’s Carl Howe want the FCC to ensure that there’s a free and fair market. “Last time I looked, The U.S. was ranked anywhere from 19th to 21st in the world in terms of Internet speeds and costs,” Howe writes (h/t Benoit Felten). That needs to change.

The meaning of Title II in this case

Genachowski refers to six specific provisions of Title II that he wants to apply to the internet.

They are:

Section 201: fees must be “just and reasonable” — this has not harmed the large phone companies at all, but that may be because the law is not usually applied to large phone companies.

Section 202: nondiscriminiation.

Section 208: a complaint procedure that is expensive and rarely used.

Section 222: privacy rules designed to regulate large telephone companies.

Section 254: USF. The FCC is going to face considerable opposition if it seeks to apply USF fees to broadband. One way to gain support for this would be to lower the rates from 15 percent to about 1.5 percent. A broader revenue base should enable lower FCC fees.

A second problem is that this rule, like all of the others the FCC is considering, would impose a heavy compliance burden on small businesses. Many ISPs and WISPs are literally mom and pop operations. They have a lawyer they can call but none on staff. They have a bookkeeping function but not an accounting function. They can handle questions about costs but have trouble with questions about depreciation.

Section 255: Access for those with disabilities. The FCC is concerned about this issue and will hold a hearing on it (.pdf) on May 13, 2010. Vint Cerf was part of a round 1 stimulus proposal seeking $70 million for broadband for the deaf and hard of hearing (personally, I think broadband for those lacking sight would be a more impressive achievement).

Conclusion: questions remain

1) Is the FCC serious about supporting competition? As David Isenberg wrote, “we’ll see.” The FCC just lost a major legal battle to NBC-Comcast. Will it be willing to fight such a battle again?

2) Will the burden of complying with new rules fall on small businesses but not on large businesses? Madison River paid the fine, but Comcast-NBC sued the FCC and won. In this way (and many others) FCC regulations restrict only what small companies can do.

2a) Will broadband providers have to justify their prices every year or only if the FCC audits them? Will the FCC ever investigate deceptive advertising or falsified charges? Would it investigate small companies only or would it actually investigate Verizon’s phantom data fee or its fee for not using long distance service?

3) How will the USF apply to broadband. There will be no cash for broadband without a tax on broadband. Implementing it in a fair way will be difficult.

4) What does the FCC intend to do about people with disabilities? What about the enforcement of non-discriminiation rules?

All of these questions explain what David Isenberg and others mean when they say, “we’ll see.”

The key difference between then and now is that through 2002, the ISPs still had control of the market, but today, the phone and cable companies rule.

Here are snapshots of the market from Q4 2002 and Q3 2008.

In 2002, the top 5 ISPs were AOL, MSN, EarthLink, United Online, and Comcast. Together, the top 5 ISPs controlled just over 50 percent of the market, which was already too much.

In 2008, the top 5 ISPs were SBC, Verizon, RoadRunner, Verizon, and AOL (representing 4 companies). Together, these four companies controlled about 56.2 percent of the market.

In 2002, I estimated that independent ISPs had about one third of the market and comprised three of the top 5 U.S. ISPs.

In 2008, I estimated that independent ISPs had none of the top spots and that EarthLink, ranked sixth, was doomed. I estimated that independent ISPs had much less than one quarter of the U.S. market.

Today, independent ISPs have an even smaller share of the market.

What the new administration is doing right

The Obama administration aims, through the stimulus, to fundamentally change the ISP business. The ideal depicts a local business serving a rural community and helping it thrive in the face of negligence from the large monopoly internet providers.

The data that the FCC is using ignores the fact that the phone companies are ditching landlines by selling them to entities that will surely go bankrupt.

AT&T has already filed for permission to shut down its copper network. AT&T believes that the future is VoIP, which explains why AT&T has tried to prevent a free market in VoIP services.

What the FCC is doing wrong

Small businesses are harmed more by regulatory uncertainty than by any actual action of the FCC. In an environment in which investors and entrepreneurs do not know whether they will have permission to run their businesses, conspiracy theories are running rife.

The FCC appears to be embroiled in chaos of the worst kind. It is preparing to try to enact rules that were just ruled illegal by the DC Circuit Court.

The FCC should take this an opportunity to change the way the internet is regulated. The internet should be regulated as one entity — as today’s Waxman Rockefeller letter (.pdf) so rightly notes. The false splitting of the internet baby into an information service and a telecommunications component dates back to a disastrous anti-competitive finding from 2002.

A bold FCC would articulate a vision for how the internet should be regulated and then proceed to figure out how to get there. A bold FCC would define the internet as a utility over which the services of the 21st century flow in an unprecedented, connected manner.

One such vision was articulated in 2002: take away the monopoly protections and let the legacy networks fail fast. Current policy is to allow these legacy networks to lie and to pile debt on the backs of companies that will soon fail. Current policy is the opposite of fail fast — it is a constant bailout in which ever more government cash is devoted to businesses that could not survive a genuinely competitive and free market.

The New York Times called for clear regulation of the internet (Verizon opposes the idea). The most popular comment on the editorial said, “The giants controlling the market have no interest in ensuring that everyone has access at all, much less equal access. And they certainly have no interest in competitive pricing.”

I agree.

The ISP business just needs honesty and sanity

The ISP business should be a reliable and dependable business. Customers pay the same fee every month (or pay up front for six months to a year) and the ISP delivers the same reliable service to customers day after day.

Uncertainty in the ISP business comes not from customer behavior — ISPs with a sufficient number of customers can generally predict customer behavior in a manner similar to that employed by insurance company actuaries. Instead, uncertainty comes from the behavior of the monopolies. Every price change affects the industry.

All too often, independent ISPs advertise the actual price of service while the monopolies do not. Cellular pricing is even more opaque than wireline, though a few are working hard to decode prices every time they change.

The FCC has never enforced truth in billing rules.

The recent national broadband plan made some positive recommendations for forcing the monopolies to stop lying about broadband speeds, but failed to do anything about pricing lies. Doing nothing about the problem is not a plan. The rip offs continue.

This distorts the market. Customers have to compare the real prices posted by independents with fake heavily advertised price points set by the monopolies. Few are able to do so.

The decision throws into focus the muddle that is current internet law in the United States.

“America needs competition among its high-speed internet providers. Open access has proved to be an effective way to do this elsewhere. Barring that, the FCC’s now-voided rules on net neutrality would have been a poor, but adequate substitute,” wrote The Economist, which is not a radical lefty ragsheet, in its response to the decision. The magazine recommended that Congress clarify the distinction between the internet and telecommunications.

All of this is necessary only because of a mistake the FCC made in 2002.

In February of that year, the FCC ruled that internet services are “information services, with a telecommunications component, rather than telecommunications services” which essentially deregulated the internet. Perhaps the real question is why it took so long between then and now for the internet to be deregulated, as it was by the DC Circuit court’s decision.

My colleague at the time Roy Mark quoted Jeffrey Chester, the executive director of the Center for Digital Democracy, as saying that the proposed rule changes should be called the “Cable and Bell Internet Monopoly Act of 2002. By declaring that broadband is an information service, the FCC is giving gatekeeper control to a handful of cable and Bell super-monopolies.”

Competition shrank. The number of ISPs in the US was estimated at 8,000 in 1999, 6,000 in late 2002, and about 2,000 today. As 75 percent of the competition sold out or went out of business, investment stagnated and consumer prices rose. This changed somewhat when the FCC gave ISPs full ownership of fiber builds.

But now, in 2010, Verizon has more or less stopped rolling out fiber. In recent earning releases, the focus has been on wireless (and the same is true with acquisitions, such as Alltel). Back in 2003, I wrote:

It’s too bad the FCC did not investigate any actual deployments, because the final irony of its new rules is that the RBOCs are not deploying and have not deployed fiber, and the FCC will not be able to get them to do so (and spend money on the equipment makers who lobbied so hard for this section of the ruling).
In a comment buried in footnote 809 [of the triennial review order], the FCC acknowledges, “Corning estimates that competitive LECs have deployed FTTH loops to 44,890 homes, that small incumbent LECs have deployed FTTH loops to 3,600 homes, that the BOCs have deployed FTTH loops to some 400 homes, and that municipalities have deployed FTTH loops to about 18,100 homes.”

It looks like 2010 will be like 2003 — the majority of fiber deployments this year will, once again, be projects from comeptitors and municipalities. If that’s what happens, will the FCC once again decide to give the ILECs whatever they want? I hope that this FCC is different from the FCC of 2003. I hope that this FCC is willing to make it easier for municipalities and competitors to deploy fiber. (I wonder whether there’s a regulatory capture playbook somewhere. Mining companies are threatening not to invest in Ghana if the government raises royalty rates from a paltry 3 percent. The monopolies here will threaten something similar.)

Reactions to the Decision

The ILECs’ fans, such as FCC Commissioner Robert McDowell, felt that everything was fine. McDowell got a prominent place in that right wing ragsheet The Washington Post to say that the FCC needs to not regulate the internet.

The people I agree with thought otherwise. Susan Crawford, who I think of as a defender of the free internet (previously at ICANN), wrote in the ragsheet that tries to be centrist, The New York Times, that the FCC must take back the power to regulate the internet.

I believe that the FCC needs the help of Congress if it chooses to take back its power to regulate — and that somebody (the FCC or Congress) has to refute the flawed decision in 2002 that created this mess in the first place.

I worry, however, that we’re entering a period of uncertainty that would be as disastrous for competition now as it was in 2003.

Nevertheless, there is a real opportunity to modernize laws and to recognize the internet for what it really is. Internet lawyer Eric Cecil wrote recently, “There is no longer any such thing as telecom, cable or broadcast except in regulatory silos gamed by business-driven technology models whose resulting incentives are to prevent and stall evolutionary change while nations like China make fools of our incessant fighting over who subsidizes which buggy whip.”

The phone and cable companies are not standing still. Comcast just disabled VCRs in order to force customers to buy its DVR service.

But those trying to reign in the monpolies aren’t resting either. The House recently passed a law aimed at preventing copper monopolies from unloading massive amounts of debt as they sell off copper assets that they no longer care about — that were built with taxpayer funds and subsidized the ILECs’ new businesses, the cellular and fiber lines of business that represent the Bells’ future.

In the long run, the monopolies’ businesses rely too much on the complexity of current regulation. If we can simplify that regulation, we can stimulate competition and make the country that invented the internet one of its leaders, as it was in the past, and as it is not now.