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OPEN ACCESS TO THE BROADBAND INTERNET: TECHNICAL AND ECONOMIC DISCRIMINATION IN CLOSED, PROPRIETARY NETWORKS Mark Cooper* Introduction A. Closing Down The Internet A recent book entitled Code and Other Laws of Cyberspace (“Code”) has attracted a great deal of attention. It appears to have finally driven home the point that a fundamental change in the nature of the internet and communications networks is taking place. The dynamic, open nature of the internet is threatened by technological and legal developments. The book argues that this change can be managed, if not prevented, to minimize the damage to the qualities of the internet we wish to preserve. The author, Larry Lessig, recognizes that values central to our way of life are at stake. We are enabling commerce in a way we did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and the question is “Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?” I do not think we can. Or should. Or will. We can no more stand neutral on the question of whether the Net should enable centralized control of speech than Americans could stand neutral on the question of slavery in 1861. We should understand that we are part of a worldwide political battle; that we have views about what rights should be guaranteed to all humans, regardless of their nationality; and that we should be ready to press those views in this new political space opened up by the Net. While Lessig is not optimistic about the ability of policymakers to accomplish this goal, he clearly identifies the many ways in which powerful technological forces can be directed toward the goals we wish to achieve as a society. Not only has he made it more likely that policymakers will finally “get” what is happening, but he has also made it more likely that the policymakers will be required to do something about this problem