Mélanie Dulong de Rosnay, CNRS

1. Le marché d'internet
face au droit européen et au droit de l'état
Melanie Dulong de Rosnay
Institut des Sciences de la Communication
(CNRS - Paris Sorbonne – UPMC)
Université Paris II
9 Juin 2017
Colloque
Entre Etat et marchés, la dynamique du commun :
vers de nouveaux équilibres

2. Community networks as infrastructure commons
How CNs interact with state, market, science, local authorities?
netCommons
3 years EC-funded project
netcommons.eu
@netcommons

3. Community networks
p2p, DIY, mesh & alternative internets
“Mesh networks are an especially resilient tool because
there's no easy way for a government to shut them down.
They can't just block cell reception or a site address.
Mesh networks are like Voldemort after he split his soul
into horcruxes (only not evil).
Destroying one part won't kill it unless you destroy each
point of access; someone would have to turn off Bluetooth
on every phone using FireChat to completely break the
connection. This hard-to-break connection isn't super
important for casual chats, but during tense political
showdowns, it could be a lifeline."
http://www.npr.org/blogs/alltechconsidered/2014/09/29/352
476454/how-hong-kong-protesters-are-connecting-without-ce
ll-or-wi-fi-networks

5. Community Networks
Affordable internet access
free or cheaper subscription
+
Extra services in addition to connectivity
Sharing content,broadcast radio, video streaming, wiki, podcast...
Storage, VOIP, encryption, IM, IRC, videoconference, mail
servers, VPN, self-hosting...

6. Bottom-up alternatives to ISPs
● Peer production
● Citizen science
● Do It Yourself, makerspace
● Alternative
● Autoproduction, autogestion, cooperatives
● Commons
● Sharing
● Collaboration & participation
Sources:
https://commonsblog.wordpress.com/2014/09/23/ohne-commons-keine-postwachstumsgesells
chaft/
http://chateauxrealtyparkcity.com/do-it-yourself-projects-should-you-or-shouldnt-you/

7. Alternative?
- Independent
- Decentralised
- Avoid dependencies (single points of failures)
- Deconcentrated (avoid concentration of power)
- Respectful of users' rights
- Balanced terms of use
- No surveillance
- Bottom-up, self-organised, democratic
- Not commercial, non-profit, commons-based
“Not...” → Positive definition of what is alternative

8. AlterNets Values
● Democracy
● Net neutrality, transparency
● Participation & local development
● Independent infrastructure
● Alternative to commercial ISPs
● Users rights
– Terms of use
– Surveillance
– Data sovereignty

9. Complex Commons
Infrastructure commons because
of their physical materiality
(internet cables) and the need of
open hardware (routers),
Natural commons because of their
dependance on access to
spectrum, an unusual natural
resource,
Knowledge commons because of
the technical and governance
skills required to deploy and
maintain a local CN,
Urban commons because of their
local organisation, and value
sharing on territories,
Digital commons because of their
purpose, the communication of
information, subjected to the same
regulation and challenges, such as
tort, copyright or privacy, than
intangible informational commons

10. Skills
● Computer & network science: router, nodes,
● Communication and community-building
– Find more nodes
– Write documentation
● Political and governance
– run a coop
– manage decision-making
● Socio-economics:
– negociate with partners
– crowdfunding
● Legal: liability, privacy, terms of service
● Advocacy: telecom package

11. Law & P2P
Traditional application of law to tech disrupting the law
Actions and files fragmentation
+ local encryption
Challenge liability, control, ownership and responsibility
Harder to al/locate responsibility on one agent
Chilling effect of cybercriminality regulation
– Three strikes
– Monitoring
– Outlaw the tech?

12. Mc Fadden v. Sony EJC Case
Can CNs continue to offer
open WiFi access points?
Munich to ECJ
1) Can a free WLAN operator be qualified as “provider of
information society services” and enjoy the liability limitations
introduced by art. 12, Dir. 2000/31 applicable to a WLAN
operator?
2) What measures should a provider adopt to avoid liability for
third party’s intellectual property rights infringement?

13. What is a provider of information
society services?
Recital 18 of Dir. 2000/31 specifies that
information society services must be an
economic activity.
However, this does not mean that the
“remuneration” has to come from clients or
customers
→ for CNs, how to distinguish ancillary and
commercial activity
in the absence of a remuneration

14. What measures should a provider
implement to avoid liability for
infringement?
Monitoring
Termination
Password protection
clash with fundamental rights

15. Intermediary or not?
Would it for a CN – or for a gateway node - be better to qualify as a
provider
and to be submitted to liability exemption
but also to its counterparts, including possible injunction?
//
Or in the contrary, would CNs be better off
(and would this be an option at all)
if they do not quality as intermediaries and economic operators?
→ non-profit but at the same time non-ancillary nature of their activity
→ each individual node an intermediary in the technical sense
but not in the economic sense

16. Can the decision affect the shaping and the sustainability of CNs?
would a modification of the design be so disruptive that it would signify
the end of open CNs?
● Fee, absence of a fee, subscriptions at different levels for different
categories of members, depending of their involvement in the CN
Would in-kind contribution
(as manager of a node, as rooftop care-taker, as community officer
reaching out to new audiences, as drafter of user documentation)
be assimilated to a professional role?
● Governance decisions: board, nodes, noone?
modifications to the other dimensions of the CN: the fee policy, the
legal structuration, the technical design, or Terms of Use, when they
exist, and whether CN could or should amend their promises or
exclusion of service (is 'be nice' enough?)

17. Techno-political citizen projects
● geek <---> hacker <---> activist
● a techno-political community
STS material practise + civic participation
– Teaching to researchers
– CS, commons, IT law
● Challenges: non geek & gender inclusion
MERCI !
@melanieddr
@netcommonseu