As everybody knows by now, Andrew McLaughlin from Google said recently,

Cutting the FCC out the picture would probably be a smart move. It is much better to think of this as an FTC or unfair competition type of problem.

As others have said, this is an important and encouraging shift, and we’ll be watching Google as the conversation moves forward. But this brings strident net neutrality advocate David Isenberg to dust off a ditty he penned last year:

Google and Yahoo and Microsoft and Skype,
They’re already successful, they can make deals for those pipes.
But when I want to publish stuff in my blog
It will not be OK for you to once again pay.
We already pay for our Internet connection.
We don’t need to subsidize a dying industry’s obsession!
If looking at my blog cost you an extra dime
You’d probably find another way to spend your time.

Well, sure, if that was the issue. Isenberg looks a little silly compared to his usual ally, Kevin Werbach, who writes:

What Google’s global policy counsel (and in full disclosure, my friend and law school classmate) Andrew McLaughlin said to kick of the firestorm was that differentiated quality of service (QOS) is OK, as long as it’s available to anyone who will pay. This is no different than the current situation, where all major websites pay a content delivery network (CDN) such as Akamai, or pay to self-provision a CDN, in order to deliver popular content quickly and efficiently to their users. Those who don’t pay for CDNs are disadvantaged, just like those who don’t buy enough bandwidth for their network connections, but that’s their economic choice. … So, put aside all the conspiracy theories. If supporters of network neutrality don’t have room in their big tent for the view Andrew expressed, they are really in trouble.

Not a bad point. The argument over net neutrality has developed a lot over the past year, and anybody still afraid that an Internet provider is going to cut you off from your favorite blog is unable to keep up with the times.

One thing this means is that Dorgan-Snowe, the Senate bill kicked around since last year, is itself out-of-step with the current landscape. Will net neutrality supporters ask that it be withdrawn? Maybe not – but it would be in their best interest to do so.

Larry Lessig is one of the academics most closely associated with the development of the “net neutrality” concept. Its adherents like to pretend it’s a long-standing principle, but in fact Lessig and fellow professor and web writer Tim Wu came up with the term in just the last few years.

Before that, Lessig was a prominent supporter of the last big mistaken governmental intrusion into the high-tech marketplace: the poorly thought out attempt to break up Microsoft in the late 1990s. Lessig has since recanted his support for a breakup, and in the latest Wired, this has him rethinking his convictions on “net neutrality” too:

I think about this mistake whenever I think about the current Microsoft-like network-neutrality debate – whether network owners can pick the stuff that flows across “their” network. In this debate, too, I am a reluctant regulator. And again, I don’t see how it’s possible to steer broadband providers away from a business model that – like Microsoft’s – may benefit them but could stifle innovation. Every dominant commercial competitor has the same incentive: to build a business that extracts all potential value from the pipes that company owns.

But life is all about repeating the same mistakes in many different contexts. So, are we reluctant regulators wrong again? Is there something we think is impossible today that will be obvious tomorrow? Can last-mile broadband be developed in a way that doesn’t rely on the incentives that drive current providers toward innovation-stifling business models?

Lessig looks to the Linux model for an archetype for what could happen in computer networks. There may be something to that, although Linux has a tiny market share concentrated among technology elites (especially people who know what a “compiler” is).

But most people don’t need Linux. For most, Windows (or Macintosh) is all they’ll ever need, and the breakup attempt had no positive effect for the consumer.

Likewise, “net neutrality” regulations make no sense when antitrust law already covers this space and new pipes are coming online around the country. And the last thing the telecommunications industry needs is the destructive, distracting equivalent of the Microsoft trial.