Yesterday, the FCC released its proposed open internet (net neutrality) rules.  Although both Chairman Wheeler and the proposal extensively discuss the problems that occur when ISPs get to choose winners and losers online, the proposed rules still create fast lanes and slow lanes on the internet.  Read on to see just how these fast lanes and slow lanes would work.

Minimum Level of Access (the Slow Lane)

Everything starts with what the order describes as a “minimum level of access.”  This is the slow lane.  The order asks questions about how to actually define this “minimum level of access” (more on that below), but the most charitable reading for now is that it is essentially what you currently get with your internet connection.  That is, your current internet connection forms the benchmark for a level of access that ISPs cannot mess with.  Your ISP cannot block content or degrade this connection within this minimum service.  The rules aspire to make this level “sufficiently robust, fast, and dynamic for effective use by end users and edge providers.”  As described below, we’re not sure that is possible.

Everything Else (the Fast Lane)

Once you get outside of this minimum level of access, ISPs have a lot more flexibility to start cutting deals.  This is the fast lane.  ISPs are allowed to start selling fast lane service to whichever “edge providers” (that’s services, sites, businesses, etc. that you would want to connect with online) they want (or none at all), as long as the deal they cut passes a “commercially reasonable” test.

The proposed rules try to define “commercially reasonable” by using a multi-factor test.  These factors include the impact on present and future competition, the impact on consumers, the impact on speech and civic engagement, technical characteristics, “good faith” negotiation, industry practices, and “other factors.”  As you read these factors you may start to think that they are pretty broad, and that the outcome of any one dispute would turn on who happened to be balancing them.  This would be a reasonable conclusion.  What is clear is that some kinds of discrimination will qualify as being commercially reasonable.

A Two-Tier Internet

The result of this structure is a two-tier internet: a minimum level of access that ISPs cannot degrade, and a premium lane with plenty of flexibility for deal making.  The FCC appears to assume that the “minimum level of access” will remain a vibrant space for innovation and communication.  Unfortunately, this assumption is flawed.  Yesterday’s post had details of 5 reasons why this plan can never make sense, so for today we can just focus on two.

The Slow Lane Will Always Be Bad (Economic Reason)

This one is easy to understand.  Once there is a split internet, ISPs have the incentive to push every new innovation towards the fast lane.  Innovation in the fast lane means extra revenue, while innovation in the slow lane gets them nothing.  Investments that would have gone into the entire network before the split will now only go into the fast lane.  That means that the forces that have traditionally increased speeds for everyone will now be reserved for those who can pay extra.  All the while, the slow lane just keeps getting slower in comparison.  After all, a slow slow lane makes the premium fast lane an even better value!

The Slow Lane Will Always Be Bad (Regulatory Reason)

One response to these economic forces would be to impose some sort of regulatory requirement of slow lane improvement.  The FCC itself proposes three possible ways to do this: a best efforts delivery requirement, a minimum quantitative performance requirement, or an objective, evolving “reasonable person” standard. 

Unfortunately, none of these will protect a viable slow lane over time.  As discussed in detail inyesterday’s post, none of these factors can take into account the innovation that we don’t see in a split internet.  We simply don’t have a way to account for all of the innovation that does not show up because it can’t afford the fast lane to get off the ground.  Beyond that, there will always be excuses for why the slow lane can’t quite incorporate this improvement or that improvement, or why it is OK that the slow lane could not quite hit the benchmark it was supposed to. 

There is Still A Good Option

Most of the FCC’s text introducing the proposed rules does a good job of explaining all of the problems with a non-open internet.  But when it comes time to actually protect the open internet, the rules fall short.  In large part, this is because the rules are bending over backwards to comply with the ruling from the DC Circuit earlier this year that struck down the old open internet rules.

But this path is not the only one available after the DC Circuit’s ruling.  If the FCC reclassifies broadband internet access as a Title II common carrier (there’s that term again), it can just prevent ISP discrimination outright.  Under Title II, there it no need to create a fast lane that allows “commercially reasonable” agreements and a slow lane where everything is treated equal.  Instead, content can just be treated equally.

That’s why we are urging the FCC to take steps to actually protect an open internet.  And why you should too.

Image credit flickr user RS Sinclair



Today the FCC released its Open Internet Notice of Proposed Rulemaking – basically a draft version of its net neutrality rules.  While there is plenty to say about them, in this post I’d like to focus on one part – fast lanes.  Read on for all (or at least some) of the reasons they are a bad idea.

Although the FCC appears to have backed away from its original embrace of internet fast lanes and slow lanes in response to massive public outcry, and Chairman Wheeler made a passionate presentation about the value of a free and open internet at today’s meeting, the proposed rules still imagine a world where some sort of bifurcation of the internet is allowed.  Specifically, it assumes two types of service.  Within the “minimum level of guaranteed access,” (something that could also be considered the “slow lane”) the proposed rules would prevent at least most blocking and discrimination.  But beyond that unknown minimum level of guaranteed access (could be thought of as the “fast lane”), discrimination would be allowed as long as it was “commercially reasonable.”

That is a huge problem. Fundamentally, this is because there is no real way to have a internet divided between fast lanes and slow lanes that also brings all of the benefits that we have come to expect from our current, single, open internet.  Why is this so?  Let’s consider the ways.

1. Internet for Haves, Internet for Have-Nots

A fast lane/slow lane internet adds a new, unwelcome element to innovation online.  Traditionally, new services and websites succeeded or failed based on the quality of their offering.  But in a fast lane/slow lane internet, success goes to the services and websites that can afford to pay off the biggest ISPs.  Service beyond a “minimum level” is often where innovation happens.  It shouldn’t only be available to some.

2. ISPs Get to Decide Who Wins

Of course, “available to some” assumes that ISPs are even interested in doing business with a new service or site.  The proposed rules would give ISPs a lot of flexibility to pick winners and losers online, and simply ignore some players all together.  As long as its decision is commercially reasonable, an ISP could just freeze someone out of the fast lane before they even started competing.

3. The Slow Lane Will Always be Bad

This is just common sense.  If you are charging people to get into the fast lane, it has to be worth the money.  To put it another way, the slow lane has to be bad enough to justify paying to get out of it.  If the slow lane really is good enough for anything that you want to do online, why would anyone ever pay to get into the fast lane?  The result is that the slow lane will always be at least inadequate enough to push a critical mass of users towards the (paid) fast lane.

4. Investment Flows to the Fast Lane

Going forward, ISPs will have a choice.  Should they invest in the fast lane or the slow lane?  Since they get to charge extra for one and not the other, that becomes an easy decision.  You can be sure that any new innovation that would make the network faster or more responsive will debut in the fast lane.  And it may not ever trickle down into the slow lane.

5. Hope You Enjoy the 2014 Internet – It Just Became the High Water Mark

The proposed rules suggest that we don’t need to worry about a fast lane, because the slow lane (the “minimum level of access”) will always be good enough to protect innovation.  In fact, splitting the internet would all but guarantee that “good” internet circa 2014 becomes the baseline well into the future.  Put another way, the slow lane is stuck at today’s average level of service.

That is because benchmarking an “adequate” slow lane becomes all but impossible once you have split the internet.  In the absence of a unified open internet, how could you set the slow lane standard?  One option would be to look to other countries.  But the United States is already well behind other countries in broadband speed, and even today there is always an apologist willing to explain why it is OK that the US is falling behind.  There is no reason to think that would change in the future.  Even if you were willing to use an international benchmark, what would it be?  “The United States shall always have at least the 16th fastest broadband in the world”?  That’s nothing to strive for.

Another way to approach it would be to assume some sort of annual rate of improvement, or some sort of rate that marked “adequate” broadband speed improvements.  But what would the rate be?  Until 2008, the FCC defined “broadband” as 200kbps (that’s kbps, not Mbps).  In 2010, it updated that figure to 4 Mbps.  Those are not numbers that people should have been satisfied with, even at the time.  And even a speed increase rate that looks ambitious today could be rendered glacial by an unexpected innovation.

More importantly, since the slow lane would undermine the virtuous cycle of broadband innovation (high speeds encourages new services, which themselves encourage higher speeds, which starts the cycle over again), we may not even see the innovation that would push up speeds on a single, neutral network anymore.  As venture capitalist Fred Wilson memorably dramatized, we won’t even know what we are missing when innovative startups that push the network never get funded.  Those startups don’t file a complaint with the FCC before the fizzle out.  They just disappear.  You may never miss what you never know, but it will be a shame when the fast lane/slow lane internet settles into a comfortable dotage where real innovation is just too much trouble.

The Good News

The good news is that the FCC’s proposal is just that – a proposal.  There is still time to change it, and to convince the FCC to create real net neutrality rules that prevent paid prioritization and internet fast lanes.  But that opportunity won’t last forever.  So act now, and tell the FCC where you stand.

Photo: Ironic Pothole Mayhem by Michael Gil.

Last month during Sunshine Week, the White House Office of Science and Technology Policy released a memorandum directing federal agencies to develop a plan in the next six months to make their scientific collections more available to the public. This is a great move on its own – federal agencies collect all sorts of interesting information on behalf of the American people, and it is important to make that information as easy to access as possible. But more specifically, it could be a first step toward creating a central repository of all of the government’s 3D scans. And the government has a lot of things to be scanned.

Laser Cowboys and Fossilized Whales

First, the memo recognizes the pioneering work that the Smithsonian Institution’s “laser cowboys” have been doing in digitizing its physical collection. For the past few years, the Smithsonian has been creating detailed 3D scans of physical objects in its collection andmaking them available to the public for viewing and download. What they have managed to make available so far is a tantalizing taste of what kind of objects could possibly be available if the US Government digitized everything it had. But it is really only the tip of the iceberg (or, perhaps more accurately, the tip of the fossilized whale) of the Smithsonian’s collection (137 million artifacts and counting). And the Smithsonian’s collection is one of countless collections spread throughout the entire U.S. government.

Section 3(D)

Which makes another part in the memo all the more exciting. Section 3(D) (Eh? Get it?) requires all administrative agencies to “make freely and easily accessible to the public all digital files in the highest available fidelity and resolution, including, but not limited to, … 3D files” to the extent the files are available and not limited by some other law. In other words, if an administrative agency has some 3D models (like, say NASA) and those models are not restricted by some other law, the agency has to make them available to the public.

3D Scans from Uncle Sam

This doesn’t mean that tomorrow we will be awash in 3D printable models from the U.S. government. After all, the models need to exist before agencies are required to share them and even the Smithsonian’s concerted effort to digitize its collection has barely gotten started. But this memo means that agencies need to develop a plan and (perhaps equally important) a budget to start getting this stuff done.

So don’t be surprised if you start seeing more and more free models of objects courtesy of the federal government. Since these models are paid for by taxpayers, in most cases they will befree of any sort of copyright restriction and in the public domain, which means you can do whatever you want with them. It is not quite yet, but it is a big first step.


Images courtesy the Smithsonian Institution with all rights reserved by them.  That means that the images are not made available under a CC license.

This post originally ran on the MAKE blog.


This is my first “real” (non-blink an LED) arduino project.  The problem: our bar blocks the lightswitch for the light over the living room table.  The solution: control the light by touching a picture around the corner.  Touch the picture once to turn the light on and touch it again to turn the light off.


1 Arduino (I used Adafruit’s Adruino Micro without headers): $22.95

Bare Conductive electric paint: $24.95

1 330k resistor

1 usb power supply: $5.95

1 usb cable (A to micro B): $3.95

1 arduino-controllable relay (I used the Sparkfun Beefcake Relay Control Kit): $7.95

1 solderable breadboard: $4.95

1 washer (optional)

1 magnet (optional)

arduino capsense library

This thing ended up working in a fairly strightforward manner.  The picture itself is a capacitor and touching it changes its electrical resistance.  The arduino is monitoring the picture and when the resistance changes in a way that it is looking for, the arduino triggers the relay.  That relay is attached to the light so on is on and off is off.  The hardest part is setting the trigger threshold.

Here is a crappy and probably incorrect sketch of the circuit:


B is the breadboard, A is the arduino, and R is the relay.  That word in the upper left is “sensor” because that wire goes towards the picture.  The dotted line on the breadboard shows that those two points are connected, and the zig zag line is the resistor.

(Edit 1/15: here’s a better picture using fritzing)


The first step is probably to paint your picture with the paint.  As far as I know the picture can pretty much be whatever you want. The only thing to be aware of is how you are going to connect it to the arduino.  The bare conductive tutorial that existed when I started this project (but that is now gone) suggested using the paint to “glue” a magnet to the wall.  I did that


There is no reason that the connection point is far away from the main picture.  The wire is purely aesthetic - it keeps everything behind the bar and around the corner.  Once you have the magnet on the wall you can connect it to the arduino by soldering a washer to the end of a wire.

The next step is to build the circuit.  The circuit is made up of three elements: the arduino, the relay, and the breadboard.

The breadboard is not very complicated.  In fact, I probably could have just soldered all of the parts together to let them dangle in space.  But breadboards are cheap and I wanted this to look somewhat clean, so I decided to go for it.  Since this is a small circuit, I just cut the breadboard into smaller pieces.


I then connected the wires and the resistor. Remember that everything in the same number row is connected electrically.


I used a 330K resistor.  The advantage of a 330K resistor (compared to, say, a 10K resistor) is that it increases the spread between the value returned by the picture when no one is touching it and when someone is touching it. (Edit 1/15: after having some problems with this - mostly the lights flashing on and of and/or the switch not responding to a touch - I went back and reread the capacitive sensor arduino library documentation.  I was using a resistor that was way to small.  The documentation recommends at least 1 megaohm for touch and larger ones for proximity.  Hopefully changing this will address some of my problems). This spread becomes important when you are setting the threshold.  We’ll get to that in due time.

Once the breadboard is done it is time to connect it to the arduino.  I got a headerless arduino because I wanted to be able to solder the connections and I got the micro arduino because I wanted the final assembly to be as small as possible.  Connect the wires to the proper pins (2 and 4 if you are using my sketch).


Next you need to connect the arduino to a relay. But what is a relay and why do you need it?  In a perfect/easy world, you could just use the ardino to power the light.  Activating a pin would send enough electricity towards the light to turn it on. In our imperfect/hard world, arduinos work at fairly low voltage while overhead lighting works at a fairly high voltage (the upside of this is that it is hard to kill yourself with the power coming out of the arduino).  A relay is essentially a high-voltage-controlling switch that is controlled by a low-voltage trigger.  When the relay gets the signal from the arduino it activates the high power switch controlling the lights. While these two switches are connected insomuch as the low voltage can control the high voltage, they are separate so the high voltage does not destroy the arduino.

You need to connect three wires from the arduino to the relay: 5v, ground, and control  The 5V and ground map directly from the arduino pins to the relay port.  The control pin is pin 13, which also controls the onboard LED.  The default state for the relay is off so when the on board LED is off (and pin 13 is off) the relay will be open and when the on board LED is on (and pin 13 is live) the relay will be closed.


The next wire to connect is the one that goes from the breadboard to the picture (in the upper left).  Solder it inline with the wire connected to the 2 pin.


You can now install the circuit.  I decided to replace the lightswitch with the relay.  The good thing about this was that it put the relay close to the power controlling the light.  The bad thing was that it exposed the relay connections to the ground that remained in the lightswitch port in the wall.  In order to prevent accidental shorts I wrapped the relay in rubber bands and electrical tape.  You can also see that the main wire is screwed into the relay (don’t forget to turn off power going to the light while you do this!).


Now connect the arduino to power with the USB cable and power supply. 


With that done it is time to program the arduino.  Make sure you have the capsense library installed.

Here is the sketch I used:

//make sure to install the CapSense Library then upload to your Arduino.
//for more information on the basic workings of this sketch check out

#include <CapacitiveSensor.h>
#define MAINSpin 13
const int threshold = 2000; //This is the threshold that you should adjust after watching the serial port. The MAINSpin is only set high if “total 1” is greater than this number 
// currently set for a 330K resistor plugged into the wall outlet
// find the lowest possible number that won’t get triggered by random environmental factors
// if the light is on all the time the value is too low
// if the light tends to flash on and off it is close, but still too low
int val = 0;
int old_val = 0;
int state = 0;
int Touch = 0;

CapacitiveSensor   cs_4_2 = CapacitiveSensor(4,2);        // Your resistor goes between pins 4 & 2. Your pad of paint should be connected to pin 2
void setup()                   

pinMode(MAINSpin, OUTPUT);
digitalWrite(MAINSpin, LOW); 

void loop()                   
val = Touch;                    
long total1 =  cs_4_2.capacitiveSensor(100); 

Serial.println(“ ”);                      

if (total1 > threshold){     
Touch = 1;   
} else {     
Touch = 0;   

if ((val == HIGH)&& (old_val==LOW)){  
state = 1-state;     

delay (50); //delay for debouncing 

old_val = val;    

if (state == 1) {   
digitalWrite(MAINSpin, HIGH); //turn LED ON 
} else {   
digitalWrite(MAINSpin, LOW); 
The real action here is on the “const int threshold” line.  That is where you set the threshold to trigger activating or deactivating the relay.  In order to identify the right number, connect your arduino to your computer and turn on the serial monitor (tools -> serial monitor).  The serial monitor will start spewing numbers at you.  If it is working, those numbers will be relatively low when you are not touching the picture (mine tended to be around 400) but relatively high when you are touching the picture (mine tended to be around 4000).  The kind of resistor you use on the breadboard will definitely influence these numbers, especially the difference between them.  It is possible that the size of your picture will also influence it.
As noted in the sketch, you want to find a number that is high enough not to be triggered by random events.  If you find the light quickly flashing on and off your number is too low - essentially the random variation in the sensed number is jumping just above and below the threshold.  If you set the number too high you won’t be able to trigger the light.
In theory, once you get the number right you can upload the sketch to the arduino and go on your merry way.  Unfortunately I found that the proper threshold differed slightly depending on if the arduino was plugged into a laptop or the wall.  So don’t be surprised if you need to adjust the numbers again once you start plugging it into the wall.
The good news is that once you have the number you are done.  Touching the picture once should turn on the light and touching it again should turn it off.  It may take a bit of practice to get the touching just right (a higher number will be less sensitive and a bit more forgiving).

This post originally appeared in Slate

The caterpillar from Alice’s Adventures in Wonderland taught generations of children a simple message: When you need to do some deep thinking about the world, a hookah is a great place to start. A case decided earlier this year in California brings comfort that, whatever future technology holds, the ability of the hookah to reveal inner truths about the world around us remains.

Inhale Inc. vs. Starbuzz Tobacco Inc. doesn’t just provide us with a window into the competitive world of hookah manufacturing. It offers a template for many of the 3-D printing copyright cases we are likely to see in the coming years.

One of the often-overlooked aspects of 3-D printing is of the way it demonstrates the limits of copyright. Unlike the articles, photos, movies, and Facebook postings that make up much of our online world, only some physical things are eligible for copyright protection. An easy copyright-or-not test is to divide things into two categories: artistic objects and useful objects. If an object is purely artistic—say, an abstract sculpture—it is eligible for copyright protection. But if an object is purely functional—say, a hinge—it is not eligible for copyright protection. (It may be eligible for patent protection, but for various reasons related to the process of getting a patent and how long they last, the number of patent-eligible things that are protected by patent is much smaller than the number of copyright-eligible things that are protected by copyright.)

While these categories are all well and good, in the real world many things aren’t just artistic or just functional. Instead, they are a mixture of the two. A hookah, to pick a not at all random example, illustrates this nicely.

Inhale was manufacturing and distributing a hookah with what, for the purposes of this article, were two distinct elements. The first was the shape of the hookah itself. The second was a series of skull-and-crossbones images that adorned the outside of the hookah. In 2011, Starbuzz Tobacco started selling a hookah that—according to Inhale, at least—was shaped exactly like the Inhale hookah. Importantly, the Starbuzz hookah did not include the skull-and-crossbones images.

Inhale sued Starbuzz for copyright infringement, claiming that Starbuzz was infringing on the copyrighted shape of the original hookah. But, in a twist that we are likely to see more of if 3-D printing-related litigation starts to spread, it turned out that even if Inhale was right about Starbuzz’s copying, it didn’t matter.

That is because copyright can only protect nonuseful objects. And a big part of any hookah’s design is to provide a useful function—a function the court described as “to hold the contents within its shape.”

In this case the court found that even though the Inhale hookah had a distinctive shape, “the shape of the alleged ‘artistic features’ and of the useful article are one in the same.” In other words, even the distinctive shape is still doing important functional work. That means it is not protected by copyright. Thus, even literal copying (if that’s what actually happened here) is not copyright infringement.

In contrast, the skull-and-crossbones design on the outside of the hookah serves no functional purpose (looking like a badass to college freshmen probably doesn’t qualify), so it probably would be protected by copyright. But since Starbuzz only copied the non-copyrightable shape of the hookah and not the non-functional decorations of the hookah, that didn’t really matter.

So what does this have to do with 3-D printing? The future of 3-D printing is going to bring us all sorts of objects. For better or worse, it will probably also bring us all sorts of claims related to copying objects from house spiders to citrus juicers and everything in between. This case serves as a concrete reminder that in the physical world copying does not always equal infringement. If a functional item isn’t patented, copyright won’t prevent it from being copied.

While this has always been the case, 3-D printers make it easier than ever to reproduce physical things. That will force everyone to remember that the “copyright on just about everything” world of the screen does not directly translate to the physical world.

But not everyone will remember. Some people are going to respond to the ability to reproduce physical things by trying to bring more infringement lawsuits. As you see those lawsuits, try your best to remember the lesson of Starbuzz: Copying isn’t infringement unless there is a copyright involved.