Last month, NBC Universal filed comments in the FCC’s
proceeding on “Broadband Industry Practices.”
NBC asked that the FCC require that ISPs institute “bandwidth
management tools”, code for network filters, to try to stop the
Internet infringing copyrights.
Public Knowledge recently filed their response, joined by
Consumer
Federation of
America, EDUCAUSE,
EFF, Electronic
Privacy Information Center, FreeCulture.org,
Free Press, Knowledge Ecology
International, Media
Access Project, New
America Foundation, and U.S.
Public Interest Research Group.
NBC’s comments (read them here)
are filled with ludicrous claims.
The Internet Is Like FedEx?
It claimed that the open Internet is like a FedEx or
UPS delivery service
for contraband—wouldn’t the government do
something, they ask, if 70%
of FedEx’s payload was stolen goods or illegal drugs? Now, we
agree
that copyright infringement is a Bad Thing(tm).
Any time there is
widespread lawbreaking, obviously something’s gotta change.
But NBC’s
glib equation of copyright infringement to the theft of real, physical
property is a common as it is unfounded.
This is not the place to get
into the technical, almost philosophical distinctions between
rivalrous
and non-rivalrous goods.
OK, let’s get a little philosophical. Here’s one of
my favorite quotes
on IP, from Boethius, writing from his jail cell in 524 A.D.:
When you speak, your whole voice fills the ears of
many hearers to an equal extent, but your riches cannot in the same way
be shared equally among many without diminution. (Boethius, The
Consolation of Philosophy 33 (Victor Watts trans., Penguin
Books 2000).)
I visited Monticello a couple of weeks ago, am also reminded
of Thomas Jefferson’s famous quote:
He who receives an idea from me, receives
instruction himself without lessening mine; as he who lights his taper
at mine, receives light without darkening me.
Letter
from Thomas Jefferson to Isaac McPherson (August 13, 1813).)
The Internet Is Like Star Trek’s Replicator?
You can’t just ignore the difference between
physical goods and infinitely copyable bits. The Internet is like the
replicator
from Star Trek, but instead of making
Tea,
earl grey, hot,”
it makes perfect copies of files.
This is what the Internet does. Every
email you send, every web page you download, is a copy. If you are
reading this post, you are reading a copy of a copy of a copy.
Cory
Doctorow always quotes Bruce
Schneier as saying
that “making digital files not copyable is like
making water not wet.”
But all this is a digression. NBC’s silly claims and
reified
analogies distract from the worst part of its filing. Read it
carefully.
They would forbid customers from using “applications
that
allow” copyright infringement. Here is a short list of some
of these
applications that strict obedience to the NBC rule would ban:
- The Web
- Usenet
- BitTorrent
- IRC
- All P2P services
- The Internet itself
And why stop there? Piracy is also abetted by such dastardly
inventions as:
- Portable hard drives, including iPods
- Burning CDs
- Photocopiers
- VCRs
- Libraries
- Friendship
- Puppies
Maybe not the last two. My point is that digital technology
itself
is an “application” that facilitates copyright
infringement. Obviously,
it facilitates a lot of other stuff as well.
Democracy and free
expression, for instance. NBC’s idea would block all
content from being transferred using its list of proscribed
technologies, whether that content is infringing or not.
Artists
and software
developers, for instance, use BitTorrent as a
bandwidth-saving way to legally
distribute their content. NBC doesn’t care, though, and it
would throw
out the baby with the bathwater in order to protect the status
quo ante.
NBC’s approach would also have the effect of making
it difficult or impossible for up-and-coming competitors like
Joost to
function—but I’m sure that’s just a
coincidence.
The Challenge Ahead
Our challenge is to find a way to make sure that creators and
artists (not bureaucrats and middlemen) get paid for their
work.
I’ve
got this crazy idea that the purpose of copyright law is to
“to
promote the progress of science and useful arts,”
not to prop up old business models and stand
athwart history, yelling “Stop!”
NBC’s filing is especially frustrating because the
television and
motion picture industries, unlike the music industry, have been very
creative in coming up with new models of content distribution.
I
watched NBC’s great show Heroes
by streaming it from their website. Netflix’s Watch Now
feature
(Internet Explorer requirement notwithstanding) is great.
We should see
what happens with these (and many, many other) innovative new business
models and content delivery mechanisms before rushing in with new
regulations.
NBC’s comments also fudge the difference between an
“unauthorized”
use and an “illegal” one—something that
the content industry is very
fond of doing. Many fair uses, such as using excerpts of a work in
commentary or for transformative uses—may be
“unauthorized” but
nonetheless legal.
You don’t need anybody’s permission to do
them. You
don’t need to put on your best suit, stick a flower in your
buttonhole
and go-a-courtin’.
Lots of other uses—like the ability to move content
from one device to
another, make backup copies, or engage in “me to
me” transfers over the
Internet, also may be “unauthorized” and (DMCA
anti-circumvention
provisions notwithstanding) nonetheless legal.
No doubt, the content
industry would much rather you buy the same content over and over
again: One copy of movie for your DVD player, another for your iPod;
one copy of a song to listen to, another for your ringtone.
Catch All Network Filters Are Unacceptable
But we
shouldn’t change the law in order to facilitate this
nickel-and-diming.
No network filter that blocks all unauthorized uses is acceptable. Fair
use is a constitutionally-protected doctrine of free speech.
There are other problems with the NBC filing. To paraphrase
Mary
McCarthy, every word they wrote is flawed, including
“and” and “the.” But
I’ll just focus on two more of the problems.
-
Network filters can’t work. Encryption, clever
technologies like
traffic shaping, and determined pirates can always route around any
filtration system, including so-called “deep packet
inspection.”Eventually, false positives could outnumber the infringing
material
that is blocked. Some have already started down this road: Canadian ISP
Rogers, in a futile attempt to staunch encrypted P2P traffic, has ended
up degrading
all encrypted traffic,
including some email.Plus, network filters would have zero effect on
“sneakernet” transfers (whereby people share burnt
media and portable
hard drives which each other), which by some measures makes up the
majority of file-sharing. They would cripple the Internet for little
gain, even to themselves. -
The kind of regulation that NBC is calling for goes well
beyond
the authority granted to the FCC by Congress. Of course, we
wouldn’t
support the regulations even if Congress was to pass them.But
Congresscritters, having to answer to constituents and worry about
reelection, we think would be unlikely to enact such breathtakingly
anti-consumer measures.
We’ve seen in the Net Neutrality debate how many of
the big
pipe-providers don’t really care for the open, end-to-end
nature of the
Internet. The content industry, of course, has had to be dragged
kicking and screaming into the digital age.
Anyone who cares about
preserving the Internet’s dynamic, open, democratizing nature
should be
worried about an unholy alliance between the two.
Resources:
Comments of NBC Universal. (PDF)
Reply Comments of Public Knowledge, et al. (html)
(PDF)
Coverage of the filing—and a more succinct and
unbiased summary of its arguments—at C|Net News, here.
John Bergmayer is a contributing author discussing matters relating to the broadband video and IPTV industry. His work can be found on Public Knowledge. Post has Some Rights Reserved.
