Acknowledging Bad Actors Online
Thursday, May 22nd, 2008 by Patrick Ross
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In the ongoing debate about network neutrality, I've limited
my comments to emphasizing the fact that there should be no legislative or
regulatory protection for infringing works. There has been bipartisan agreement
on this point, from FCC
Chairman Kevin Martin to Rep. Ed
Markey (D-Mass.), sponsor of a major net neutrality bill.
It was with this broad consensus of opinion that I was disappointed with a new policy
post by the Center for Democracy and Technology. CDT strives to be a
centrist think tank, and they've done some valuable work in the areas of
spyware, international privacy and free speech, child safety and other work.
They also have a fairly decent track record on intellectual property, as I
have noted in the past.
In their policy post on net neutrality — which essentially says the FCC
should refrain from acting due to concerns about regulation of broadband but
that Congress should legislate — I will decline to comment on their policy
positions or proposals. What I will instead note is that they have completely
left out of the debate one very important element — copyright infringement.
In CDT's initial filing
with the FCC, the words "piracy," "infringing," "infringement," "illegal,"
and even "copyright" make no appearances. The same is true in their reply
comments except for one appearance of the word "illegal," where it makes a
case for network management, and that is referring specifically to
"communications that they almost certainly do not want," such as spyware.
Apparently, if you do want illegal material — such as unauthorized creative
works — that behavior is de facto acceptable and not subject to network
management. The only mention of copyright infringement in their policy post is
to note — factually but without comment — that some copyright owners have
warned the FCC against preventing ISPs from voluntarily seeking to reduce the
presence of infringing works on their networks.
CDT has a reputation for trying to be moderate and not ruffle too many
feathers, and I respect them for that. Too many players in Washington choose
extremes and refuse to budge from that position, even when logic dictates their
position is untenable. But sometimes one can be so cautious that one ignores the
elephant in the room, namely the absurd amount of infringement occuring on ISP
networks.
The policy post contains significant discussion of P2P traffic on ISP
networks, and how ISPs are struggling to address this traffic, particularly how
uploading on an asynchronous network can deny noninfringing users of the network
sufficient uploading access. Yet throughout the discussion there is no
acknowledgement of the fact that very little of that traffic is legal. Believe
me, I'm all in favor of legal P2P services; I spoke in favor of those services
at this year's CES in Las Vegas. But even
operators of such services acknowledge that consumers are not adopting them, at
least not like they are with the infringing networks.
Kevin Martin and Ed Markey agree that piracy should not be protected under
net neutrality rules. Net neutrality proponents such as actress Justine
Bateman and Hannah Montana executive producer Steve
Peterman have said anti-piracy efforts should not be diluted by new laws or
regulations (actually, they also both praised the Copyright Alliance in this
effort; just had to note that). They made these arguments in testimony to
Congress. If those called to testify on behalf of net neutrality rules can tell
Congress not to do anything to protect infringing creative works, I believe
think tanks can go that far as well.
