1. In October 1984, 73 percent of home computers had been purchased in the previous two years. Robert Kominski, U.S. Dep’t of Commerce, Computer and Internet Use in the United States: 1984, at 9 tbl.1 (1988), available at http://www.census.gov/population/www/socdemo/computer/p23-155.html. But over 50 percent of adults with a home computer, which were present in nearly seven million households, did not even use the machine; instead, their children were the primary users. Id. at 4. Among those who did brave the waters, “learning to use” was the most popular activity, followed by video games, household records, and word processing. Id. at 16 tbl.5.
By 1989, the number of computer-owning households had doubled. Robert Kominski, U.S. Dep’t of Commerce, Computer and Internet Use in the United States: 1989, at 1 (1991), available at http://www.census.gov/population/www/socdemo/computer/p23-.html. And although children were still the proportionately dominant users (and in many cases the reason why the machine was purchased), adults had begun to use bulletin board services (5.7 percent) and e-mail (5.3 percent) on their PCs. Id. at 10, 16 tbl.5.
In 1997, PC home ownership had increased to over one-third of all households. Eric C. Newburger, U.S. Dep’t of Commerce, Computer Use in the United States: 1997, at 1 (1999), available at http://www.census.gov/prod/99pubs/p20-522.pdf. But Internet use, no longer confined to tinkering PC owners in their homes, had grown to include 20 percent of all Americans. Id. at 9. Among adult Internet users, meanwhile, 65 percent connected from their homes, and most relied on the Net as an information resource. Id. at 10. Web browsing and e-mail now trailed only word processing among adult home users. See U.S. Census Bureau, Table 7: Purpose of Computer Use at Home by People 18 Years and Over: October 1997, http://www.census.gov/population/socdemo/computer/report97/tab07.pdf.
By 2003, 89 percent of home computer users browsed the Internet and used e-mail. Only the bare majority of users, 55.8 percent, engaged in word processing, the next most popular home activity. Jennifer Cheeseman Day et al., U.S. Dep’t of Commerce, Computer and Internet Use in the United States: 2003, at 12 tbl.F (2005), available at http://www.census.gov/prod/2005pubs/p23-208.pdf. Integration of the Internet into users’ daily lives occurred at an accelerated pace between 1997 and 2003. The number of users who relied on the Net for daily news or personal communications increased by a factor of four during that period, and use of the Net for retail shopping increased by a factor of fifteen. Id. at 13 fig.8.
2. See Tim Wu, Why Have a Telecommunications Law? Anti-Discrimination Norms in Communications, 5 J. Telecomm. & High Tech. L. 15, 31-35 (2006); see also, e.g., Christopher S. Yoo, Network Neutrality and the Economics of Congestion, 94 Geo. L.J. 1847, 1878-79 (2006); Kevin Werbach, The Federal Computer Commission, 84 N.C. L. Rev. 1, 18-22 (2005).
3. See Hush-A-Phone v. United States, 238 F.2d 266 (D.C. Cir. 1956).
4. Id. at 269.
5. See Use of the Carterfone Device in Message Toll Tel. Serv., 13 F.C.C. 2d 420 (1968). The FCC held that there was “no material distinction between a foreign attachment such as the Hush-A-Phone and an interconnection device such as the Carterfone . . . so long as the interconnection does not adversely affect the telephone company’s operations or the telephone system’s utility for others.” Id. at 423-24.
6. Between 1985 and 1995, the percentage of American homes with answering machines increased from 13 percent to 52 percent. Peter Tuckel & Harry O’Neill, A Profile of Telephone Answering Machine Owners and Screeners, in Am. Statistical Ass’n, Proceedings of the Survey Research Methods, § 1157 (1995), available at http://www.amstat.org/sections/SRMS/Proceedings/papers/1995_201.pdf; see also Robert W. Oldendick & Michael W. Link, The Answering Machine Generation: Who Are They and What Problem Do They Pose for Survey Research?, 58 Pub. Opinion Q. 264, 268 tbl.2 (1994). The public’s adoption of fax machines also accelerated during the 1980s; the number of fax machines in use increased from three hundred thousand to four million by the end of the decade. See Fax Machine History, http://www.ideafinder.com/history/inventions/fax.htm (last visited May 25, 2007).
7. See Walled Gardens–A Brick Wall?, Shosteck E-mail Briefing (Herschel Shosteck Assocs.), Mar. 2000 (“America Online (AOL) understands this. Originally conceived as a closed ‘bulletin board’ service, AOL gained market acceptance by creating a vast array of proprietary information which was regarded as superior to rivals of the day, including CompuServe and Prodigy. However, the arrival of the Internet forced AOL to open its doors. No matter how good the AOL proprietary content and services were, users demanded access to the millions of websites available on the World Wide Web, and Internet e-mail. Now, while AOL continues to gain revenue from its proprietary e-commerce services and advertising relationships, the firm’s majority appeal is as an easy on-ramp to the Internet–in essence, an access provider with much less emphasis on specific content and services.”); see also Josh Ramo, How AOL Lost the Battles but Won the War, Time, Sept. 22, 1997, at 46 (“Retaining customers will become even harder as phone companies, cable companies, Microsoft, and Netscape make it even easier to use the Internet’s open standards for browsing the Web, chatting and sending mail”); Frank Rose, Keyword: Context, Wired, Dec. 1996, available at http://www.wired.com/wired/archive/4.12/ffaol.html (“AOL’s strategy has been built on the notion that the Net would remain a cult attraction, unsuited to a mass market that can’t handle anything more complicated than VCR . . . Yet as Wall Street and Madison Avenue fall increasingly under the Internet’s spell, as tens of thousands of new websites blossom each month, and as the telcos and RBOCs muscle into the access business, the outlook for proprietary online services looks increasingly grim. CompuServe has been hemorrhaging 10,000 members a day. General Electric’s GEnie sank to 20,000 lonely members . . . Apple snipped the connection on its eWorld service. Could AOL be next?”).
8. Amy Harmon, Loyal Subscribers of Compuserve Are Fearing a Culture Clash in Its Takeover, N.Y. Times, Feb. 16, 1998, at D8.
9. Peter H. Lewis, A Boom for On-line Services, N.Y. Times, July 12, 1994, at D1.
10. Harmon, supra note 8.
11. See, e.g., Wikipedia, Islands of Kesmai, http://en.wikipedia.org/wiki/Islands_of_Kesmai (as of May 25, 2007 at 08:00 GMT).
12. Harmon, supra note 8.
13. Peter H. Lewis, Adventures in Cyberspace, N.Y. Times, Dec. 11, 1994, at A5. One variation was MCI Mail, which offered only e-mail (and, for a time, e-mail to postal mail) services and charged per e-mail sent. The service failed to, or at least chose not to, develop any services beyond its eponymous title. See L. R. Shannon, MCI Mail Changes the Nature of Letters, N.Y. Times, Nov. 9, 1993, at C13.
14. For instance, CompuServe featured the PROgramming area, which allowed subscribers to write and post software. See, e.g., Ron Kovacs, Editors Desk, Syndicate zMag., Feb. 7, 1989, available at http://www.atarimax.com/freenet/freenet_material/5.8-BitComputersSupportArea/11.Z-Magazine/showarticle.php?146.
15. For more on the ways in which the law treated services that chose different levels of intervention into user content, see Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L. Tech. 495 (Summer 1997).
16. See Andrew Currah, Hollywood, the Internet and the Geographies of Disruptive Innovation (unpublished manuscript, on file with author); see also Mary J. Benner & Michael L. Tushman, Exploitation, Exploration, and Process Management: The Productivity Dilemma Revisited, 28 Acad. Mgmt. Rev. 238, 239 (2003).
17. See Ross Rubin, Players Scramble for Consumer Market, Interactive Home, Sept. 1, 1996; Steve Kovsky & Paula Rooney, Online Service Providers Upgrade UIs, PC Week, June 24, 1996, at 14.
18. A Little Microcomputer BBS History, http://www.portcommodore.com/bbshist.php?path=main-cbmidx-bbsidx (last visited June 1, 2007).
19. See Howard Rheingold, The Virtual Community, at xxiii-xxiv (1993), available at http://www.rheingold.com/vc/book/intro.html; Jack Rickard, Home-Grown BB$, Wired, Sept.-Oct. 1993, at 42, available at http://www.wired.com/wired/archive/1.04/bbs.html.
20. See Tom Jennings, Fido and FidoNet, http://www.wps.com/FidoNet/index.html (last visited June 1, 2007); Living Internet, Bulletin Board Systems & FidoNet, http://www.livinginternet.com/u/ui_fidonet.htm (last visited June 1, 2007).
21. Id.
22. See Tom Jennings et al., FidoNet History and Operation (Feb. 8, 1985), http://www.rxn.com/~net282/fidonet.jennings.history.1.txt.
23. Some projects are exploring mesh networking technology as a way of networking devices together, and connecting them to the Internet backbone. See, e.g., Nan Chen, Wireless Mesh Networking for Developing Countries, Converge! Network Digest, July 13, 2006, http://www.convergedigest.com/bpbbw/bp1.asp?ID=372&ctgy=; Neil Savage, Municipal Mesh Network: Protocols Developed at MIT Are Helping the City of Cambridge to Go Wireless, Tech. Rev., Feb. 27, 2006, http://www.technologyreview.com/InfoTech/wtr_16427,258,p1.html.
24. See Technology and Instruction, Accessing the Internet!, http://www.coastal.edu/education/ti/internetaccess.html (last visited June 1, 2007) (“In the late eighties and early nineties, [proprietary] online services enjoyed significant growth and prosperity, but today, they are a threatened industry, undermined significantly by the global push for standardization. Compuserve, GEnie, E-World, Podigy [sic] and many other online services all failed to recognize (or recognized too late) the dominance of HTML and other standard development languages for publishing Internet content.”).
25. See ARPANET–The First Internet, http://livinginternet.com/i/ii_arpanet.htm (last visited June 1, 2007); IMP–Interface Message Processor, http://livinginternet.com/i/ii_imp.htm (last visited June 1, 2007).
26. See IMP–Interface Message Processor, supra note 25.
27. Press Release, Yahoo! Inc., Yahoo! Inc. Announces First Quarter Results (Apr. 22, 1996), available at http://yhoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=173428.
28. Peter H. Lewis, Yahoo Gets Big Welcome on Wall Street, N.Y. Times, Apr. 13, 1996, at 33 (reporting that the first day of trading “gave the young company a first-day market valuation of nearly $1 billion. . . . Goldman Sachs & Company set an offering price of $13 Thursday night on 2.6 million new shares, but the stock opened yesterday at $24.50 as demand outstripped supply. The shares rose quickly in very heavy trading to reach $43 before settling back to $33 at the end of the day”); Rose Aguilar, Yahoo IPO Closes at $33 After $43 Peak, CNET news.com, Apr. 12, 1996, http://news.com.com/Yahoo+IPO+closes+at+33+after+43+peak/2100 -1033_3 -209413.html (“Yahoo opened at about 8:45 a.m. PDT and shot up to $43 an hour later, which equals $1 billion for the company.”).
29. See Barry M. Leiner et al., A Brief History of the Internet, http://www.isoc.org/internet/history/brief.shtml (last visited Dec. 2, 2007) (“[The Internet] started as the creation of a small band of dedicated researchers, and has grown to be a commercial success with billions of dollars of annual investment.”); Barry M. Leiner et al., The Past and Future History of the Internet, Comm. ACM, Feb. 1997, at 102.
30. See Comm. on the Internet in the Evolving Info. Infrastructure, The Internet’s Coming of Age 43 (2001).
31. See Richard T. Griffiths, The History of the Internet, Chapter Two: From ARPANET to World Wide Web, http://www.let.leidenuniv.nl/history/ivh/chap2.htm (last visited June 1, 2007) (“It is worth remembering, at this stage, that we are still [in the mid-1970s] in a World where we are talking almost exclusively about large mainframe computers (owned only by large corporations, government institutions and universities).”).
32. See Leiner et al., A Brief History of the Internet, supra note 29 (“Internet was based on the idea that there would be multiple independent networks of rather arbitrary design, beginning with the ARPANET as the pioneering packet switching network. . . . In this approach, the choice of any individual network technology was not dictated by a particular network architecture but rather could be selected freely by a provider and made to interwork with the other networks through a meta-level ‘Internetworking Architecture.'”).
33. See id. (“Four ground rules were critical to [the early designs of the Internet]: [First, e]ach distinct network would have to stand on its own and no internal changes could be required to any such network to connect it to the Internet. [Second, c]ommunications would be on a best effort basis. If a packet didn’t make it to the final destination, it would shortly be retransmitted from the source. [Third, b]lack boxes would be used to connect the networks; these would later be called gateways and routers. There would be no information retained by the gateways about the individual flows of packets passing through them, thereby keeping them simple and avoiding complicated adaptation and recovery from various failure modes. [Fourth,] [t]here would be no global control at the operations level” (emphases added).).
34. David D. Clark, A Cloudy Crystal Ball 19 (1992), available at http://ietf20.isoc.org/videos/future_ietf_92.pdf.
35. See Comm. on the Internet in the Evolving Info. Infrastructure, supra note 30, at 34-41 (discussing the design principles underlying the Internet that allowed for scalable, distributed, and adaptive design); see also Leiner et al., A Brief History of the Internet, supra note 29 (“While there were other limited ways to interconnect different networks, they required that one be used as a component of the other, rather than acting as a peer of the other in offering end-to-end service. In an open-architecture network, the individual networks may be separately designed and developed and each may have its own unique interface which it may offer to users and/or other providers, including [sic] other Internet providers.”).
36. See Jay P. Kesan & Rajiv C. Shah, Fool Us Once Shame on You–Fool Us Twice Shame on Us: What We Can Learn from the Privatizations of the Internet Backbone Network and the Domain Name System, 79 Wash. U. L. Q. 89, 114 (2001).
37. See id. at 115-17. The new “border gateway protocol,” or BGP, has proven central to Internet development.
38. See Trumpet Software Int’l, History, http://www.trumpet.com.au/history.html (last visited June 1, 2007).
39. See John C. Dvorak, Winners for the 1995 Dvorak PC Telecommunications Excellence Awards, http://www.citivu.com/dvorak/95awds.html#winsock (last visited June 1, 2007).
40. Winsock experienced extremely wide distribution. See Trumpet Software Int’l, supra note 38 (discussing the “hundreds of thousands of Winsock packages to universities, government organisations, businesses, and domestic users around the world”); Tattam Software Enterprises About Us, http://www.tattsoft.com/aboutUs.htm (last visited Dec. 2, 2007) (“[S]ales grew exponentially and within months Peter had to leave his university job to nurture and grow the fledgling small business into a multi million dollar company”); Cristina Cifuentes & Anne Fitzgerald, Copyright in Shareware Software Distributed on the Internet–The Trumpet Winsock Case, in Proceedings of the 19th International Conference on Software Engineering 456 (1997) (describing Winsock as gaining “an international reputation as the best available software for connecting to the Internet” and noting that guides to the Internet published during 1994 and 1995 invariably advised readers to use Trumpet Winsock for Internet connection.).
41. See Wikipedia, Winsock, http://en.wikipedia.org/wiki/Winsock (as of June 1, 2007, 11:00 GMT).
42. See Walled Gardens–A Brick Wall?, supra note 7 (“No matter how good the [America Online] proprietary content and services were, users demanded access to the millions of websites available on the world wide web, and Internet email.”); see also Harmon, supra note 8 (“Compuserve’s [sic] era as the home of choice for the technological elite really ended . . . when the service failed to quickly offer subscribers a path to the World Wide Web.”); Robert Seidman, America Online’s Elusive Exclusive with Time, Inc., In, Around and Online, Jan. 6, 1995 (“America Online announced an expanded agreement with Time, Inc. that will bring the ‘Entertainment Weekly’ magazine to America Online. The press release from America Online also stated that the agreement extends their exclusive arrangement with Time Magazine–that Time couldn’t be offered on any other online service.”).
43. See Robert X. Cringely, That Does Not Compute!, PBS, Sept. 17, 1997, http://www.pbs.org/cringely/pulpit/1997/pulpit_19970917_000543.html (“Compuserve [sic], which couldn’t decide whether it was a stodgy online service or a stodgy network provider doesn’t have to be either. AOL, which couldn’t decide whether it was an on-the-edge online service or an over-the-edge network provider, gets to stick to content and stop pissing off users by pretending to know what a modem is. . . . AOL not only becomes by far the largest online service, with almost 12 million users they will define what being an online service even means. Prodigy, Genie [sic], and the Microsoft Network will be lost in the noise: They mean nothing. From this point on, there will be only AOL and the Internet. But there is still a serious question of whether AOL can survive in the long term. . . . Unlike your local ISP, which spends nothing on content, AOL/Compuserve [sic] spend[s] a lot on content. And unlike the other emerging media companies like Yahoo, Excite, and even Netscape, which also spend a lot on content, AOL/Compuserve has to spend more money to maintain all those points of presence (PoPs) in every city.”).
44. See Stephen C. Miller, Point, Click, Shop till You Drop, N.Y. Times, Apr. 20, 1995, at C2.
45. See Leiner et al., A Brief History of the Internet, supra note 29 (“The Internet has now become almost a ‘commodity’ service, and much of the latest attention has been on the use of this global information infrastructure for support of other commercial services. This has been tremendously accelerated by the widespread and rapid adoption of browsers and the World Wide Web technology, allowing users easy access to information linked throughout the globe. Products are available to facilitate the provisioning of that information and many of the latest developments in technology have been aimed at providing increasingly sophisticated information services on top of the basic Internet data communications.”).
46. See J.H. Saltzer et al., End-to-End Arguments in System Design, 2 ACM Transactions Computer Sys. 277 (1984).
47. See, e.g., Susan Brenner, Private-Public Sector Cooperation in Combating Cybercrime: In Search of a Model, 2 J. Int. Comm. L. Tech. 58 (2007); Byron Hittle, An Uphill Battle: The Difficulty of Deterring and Detecting Perpetrators of Internet Stock Fraud, 54 Fed. Comm. L.J. 165 (2001); K. A. Taipale, Internet and Computer Crime: System Architecture as Crime Control (Ctr. for Advanced Studies in Sci. & Tech. Policy Working Paper, 2003).
48. See, e.g., Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193 (1998); Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. Rev. 925 (2001); Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Texas L. Rev. 533 (1998).
49. Jonathan Zittrain, Internet Points of Control, 44 B.C. L. Rev. 653 (2003).
50. Large Internet Service Providers peer with each other rather than paying for service, assuming that there is inherent shared value in the transfer of data. See, e.g., Paul Milgrom et al., Competitive Effects of Internet Peering Policies, in The Internet Upheaval, 175-95 (Ingo Vogelsang & Benjamin M. Compaine eds., 2000); W. B. Norton, The Evolution of the U.S. Internet Peering Ecosystem (Equinix White Paper, 2004), available at http://www.nanog.org/mtg-0405/pdf/Norton.pdf.
51. David Clark, Address at Oxford Internet Institute on New Approaches to Research on the Social Implications of Emerging Technologies (Apr. 27, 2006).
52. See Tsukasa Ogino et al., Study of an Efficient Server Selection Method for Widely Distributed Web Server Networks (2000), http://www.isoc.org/inet2000/cdproceedings/1g/1g_1.htm (“In order to disperse the load on a Web server, generally the server cluster is configured to distribute access requests, or mirror servers are distributed geographically or situated on different networks.”); see also Jonathan L. Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974, 1994 n.72 (2006) (mentioning companies that provide edge-caching services).
53. See, e.g., Lemley & Lessig, supra note 48; Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. Telecomm. High Tech. L. 141 (2003).
54. See Burning Man, http://www.burningman.com/ (last visited Dec. 2, 2007); see also Xeni Jardin, Burning Man Never Gets Old, Wired News, Aug. 25, 2003, http://www.wired.com/culture/lifestyle/news/2003/08/60159.
55. See FCC, Wireline Competition Bureau, High-Speed Services for Internet Access: Status as of December 31, 2004, at 6 (2005), available at http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/hspd0705.pdf.