as well as a course on the law of cyberspace. Except for this year, he has continued to teach
courses related to the Internet and its regulation, including a seminar examining United States v.
Microsoft. He graduated from Yale Law School in 1989, and clerked for Judge Richard A.
Posner of the Seventh Circuit Court of Appeals, and then Justice Antonin Scalia of the Supreme
Court. In 1991, he was appointed to the faculty of the University of Chicago Law School, where
he received tenure in 1994. He was a visiting professor at Yale Law School in 1995. During
1996-97, he was a fellow at the Program for Ethics and the Professions at Harvard University. In
1997, he joined the Harvard Law School. He is currently a fellow at the Institute for Advanced
We are not experts in computer architecture, or in software technology. We have
studied these subjects to understand their relationship to the competitive environment that the
Internet has created, and to the values that we have come to recognize in the Internet. It is our
view that any analysis of policy related to the Internet must explicitly consider these architectural
aspects of the Internet’s design. This “architecture,” as the Electronic Frontier Foundation puts it,
“is policy.” Changing the architecture is to change that policy.
We have not been retained by any party in this matter. At the request of Bell
Atlantic and GTE, Lessig attended a meeting with the Justice Department, to discuss the
AT&T/MediaOne merger, and helped arrange a meeting with Bell Atlantic and GTE, and some
in the Internet community to discuss broadband cable access. Bell Atlantic and GTE paid for
Lessig’s expenses relating to those two meetings. Lemley has had no involvement with any party
with an interest in this litigation.
This declaration does not address the general question of the merger of AT&T
and MediaOne beyond its effects on the market for broadband Internet service. We also assume
for purposes of this declaration that “residential broadband access” is properly considered a
separate antitrust market. Our statements here relate solely to the question of the architecture of
the resulting network under that assumption.
It is our view that it is important for the FCC to consider these matters now in the
context of this merger. It is not our view that every entity that connects its network to the Internet
must obey the principles that we describe below. Innovation in the Internet generally is not
threatened by what any one (small) company on the Internet might do. But when a policy of
closed access covers a portion of the net as significant as AT&T’s would after this merger, the
FCC must consider the overall effect that AT&T’s proposed change in architecture would have
on innovation. More importantly, even if AT&T’s policy affected the same footprint of the net
before the merger as after the merger, the increased ability post merger for the actors to behave
strategically increases the significance of the threat. So far, the FCC has considered only the
effect its “regulations” would have on broadband investment. In our view, that is only one part of
the equation. The more significant part is the effect that the FCC’s failure to regulate
will have
on innovation generally.1
Design Principles of the Internet
The Architecture of the Internet
The Internet is the fastest growing network in history. In the 30 years of its life, its
population has grown a million times over. It is currently the single largest contributor to the
growth of the United States economy, and has become the single most important influence
linking individuals, and commerce, internationally.
1 For an analysis similar to our own, see François Bar, Stephen Cohen, Peter Cowhey, Brad DeLong, Michael
Kleeman, John Zysman, Defending the Internet Revolution in the Broadband Era: When Doing Nothing is Doing
Harm, E-conomy Working Paper 12, Berkeley Roundtable on the International Economy (BRIE), August 1999.
It is not, however, the first communications network. There have been other
networks before the Internet that did not experience the same extraordinary growth. These
networks followed different design principles, including different principles governing how
protocols would evolve and become adopted. It is our view that these differences in growth can
be traced, at least in part, to these differences in design.
It is a view of many in the Internet community, and ours as well, that the
extraordinary growth of the Internet rests fundamentally upon its design principles. Some of
these principles relate to the openness of the Internet’s standards and the openness of the
software that implemented these standards. Some are engineering principles, designed to make
the net function more flexibly and efficiently. But from the very beginning, these principles have
been understood to have a social as well as technological significance. They have, that is, been
meant to implement values as well as enable communication. In our view, one aspect of this
social significance is the competition in innovation the Internet enables. The tremendous
innovation that has occurred on the Internet, in other words, depends crucially on these design
Among the Internet’s design principles is one that is particularly relevant to these
proceedings. This is the “End-to-End” design principle has been latent in system design for many
years, but was first articulated explicitly as principle in 1981 by Professors Jerome H. Saltzer,
David P. Reed, and David D. Clark.2
The “End-to-End” principle organizes the placement of functions within a
network. It counsels that that “intelligence” in a network be located at the top of a layered system
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