[10-51] By forcing more traffic over a single port, this arms race interferes with the oppor-
tunity to optimize traffic based on ports.

[10-52] The functioning of ports is explained in Craig Hunt, _TCP/IP_Network_Administra-_
_tion,_ 2nd ed. (Sebastopol, CA: O'Reilly, 1998), 42-47. IPSec is described in a series of
RFCs, which are available at http://www.ietf.org/html.charters/ipsec-charter.html. I am
not claiming IPSec would necessarily be consistent with end-to-end, but simply that it
provides a consistent protocol that could be implemented consistent with end-to-end.

[10-53] Garrett Hardin, "The Tragedy of the Commons," _Science_ 162 (1968): 1243, 1244
(emphasis added).

[10-54] National Research Council, 24-25.

[10-55] As Faulhaber put it, "[T]he third view is that, as Adam Smith pointed out, produc-
ers are always conspiring about how to fleece the unsuspecting consuming public; it is
only the competitive market that keeps their avarice in check. But producers will always
search for ways to escape competition, through marketing, customer lock-in, predatory
pricing, network effects, etc. AND... technological innovation is just a part of this
strategic quest for greater profits, perhaps at the consumers' expense." "Faulhaber Com-
ments at E-2-E Workshop," http://www.law.stanford.edu/e2e/papers.html. Francois Bar
has made a similar point: "If the Internet could reduce friction, the same technology can
also be deployed to create more of it." Francois Bar, "The Construction of Marketplace
Architecture," 5.

[10-56] Charles Platt, "The Future Will Be Fast but Not Free," _Wired,_ May 2001, available
at http://www.wired.com/wired/archive/9.05/broadband_pr.html (emphasis added).

Chapter 11

[11-1] See 47 U.S.C.#223 (Supp. 1996); _ACLU_ v. _Reno,_ 521 U.S. 844 (1997).

[11-2] _ACLU_ v. _Reno,_ 217 F. 3d 162 (3d Cir., 2000).

[11-3] Lawrence Lessig, _Code_and_Other_Laws_of_Cyberspace_ (New York: Basic Books,
1999), 225.

[11-4] See 17 USCA #106 (2001): "[O]wner of copyright under this title has the exclu-
sive rights... (5) in the case of... pictorial, graphic, or sculptural works... to display
the copyrighted work publicly." But the claim would be weak. Except in the most ex-
treme circumstances, the public display of a copyrighted work would be fair use. William
Carleton, "Copyright Royalties for Visual Artists: A Display-Based Alternative to the
Droit de Suite," _Cornell_Law_Review_ 76 (1991): 510, 525 ("The general principle that sec-
tion 109(c) observes, however, according to the House Report, is that 'the lawful owner
of a copy of a work should be able to put his copy on public display without the consent
of the copyright owner'" [quoting 1976 U.S. Code Cong. & Admin. News 5659, 5693]).
See also _Ringgold_ v. _Black_Entertainment_Television,_Inc.,_ 126 F. 3d 70 (2nd Cir., 1997).

[11-5] See Kevin V. Johnson, "Show's Fan Sites Fight Off 'Demon;' Fox: Production Com-
pany Cites Its Copyrights," _USA_Today,_ December 23, 1999, 4D, available at 1999 WL
6862067; and Aaron Barnhart and Kevin V. Johnson, "Twentieth, the Web Slayer: Stu-
dio Shifts Its Crusade to 'Buffy' Fans' Web sites," _Electronic_Media,_ December 6, 1999,
9, available at 1999 WL 8767348. Fox does not limit itself to the Web. See _Twentieth_
_Century_Fox_Film_Corp._ v. _316_W._49th_Street_Pub._Corp.,_ No. 90 Civ. 6083 (MJL), 1990
WL 165680 (S.D.N.Y., October 23, 1990) (holding that a nightclub could not display
images of _The_Simpsons_ on its wall without Fox's permission). Fox says that it "appreci-
ates" fan sites, but not enough to allow them to exist freely. Johnson, 4D. As Warner
Bros. Online president Jim Moloshok says, "We decided that we were going to create a
better experience for the fans." Ibid.

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