How many times have we seen this before? A federal policymaker speaks on copyright and makes several cogent and reasonable remarks about the cost of piracy and steps by the private sector to reduce that threat and provide more legal alternatives to consumers. An online critic of copyright generates hits by providing his like-minded readers red meat attacking the speech and the person giving it, going so far as to begin by comparing the speech to the failed industrial reform of the largest Communist government the world has ever seen.

The latest example of reasoned policy discourse in D.C. vs. absurdist ad hominem attack has arisen with a speech at the University of Pennsylvania by Federal Communications Commissioner Deborah Taylor Tate and a response by frequent copyright critic Nate Anderson of Ars Technica. (Note: I will make my best effort here not to make my criticism of Mr. Anderson’s words about him personally, a courtesy he unfortunately did not extend to Ms. Tate.)

Mr. Anderson suggests that Ms. Tate is uninformed on key issues, and that Ms. Tate’s focus on the harms of piracy and the need to educate students about U.S. law are suspicious in motive, and may stem from a desire for some form of employment with the copyright industries upon her departure from the FCC. She is a highly informed policymaker, and I care not a whit what her next employment is. What I do know is that I had the opportunity to sit down with her a few years ago while in the think tank world to talk about copyright, an issue for which she has great passion.

As she mentions at the very beginning of her speech, she is from Nashville, “Music City.” Now she knew when speaking to me that I was a strong advocate of artists and creators, but she still implored me to visit Nashville and spend time with its songwriters and musicians. Many of these creators were friends of hers, and she had tremendous respect for them and their contributions to culture. She also felt that society did not fully appreciate their contributions to our culture and many didn’t fully understand how taking their works without recognizing their rights to control that distribution in order to ensure payment was, well, wrong.

Since meeting with Ms. Tate I have visited Nashville on several occasions and have enjoyed the company of many talented songwriters and musicians. In fact, on my first visit it took no time at all to meet a songwriter. My cab driver wrote songs, and when I arrived at the Best Western where I was staying, one of the lobby employees also talked about his songwriting.

Creativity is the lifeblood of Ms. Tate’s hometown, and she carries that passion into her policy life in DC. That is not only defensible, it is honorable.

Now as Ms. Tate is quick to point out, her role at the FCC is not centrally involved in copyright matters. But in her speech, she cited truism after truism:

* Copyright infringement is a huge problem abroad costing our economy billions; she cited personal experiences witnessing piracy and discussing piracy with foreign officials in China and Brazil, two of the worst international offenders.
* The copyright industries are working diligently to roll out new, authorized and legal services to consumers, allowing them to enjoy creative works like never before.
* Sometimes these services use relatively innocuous technologies such as watermarking or digital fingerprinting; she acknowledged encryption can circumvent watermarking and digital fingerprinting is not 100% effective, but noted the technology is used by such giants as Google, Microsoft, YouTube and MySpace.
* Copyright infringement is rampant on college campuses, but more and more universities are acting positively to address this, which also helps their own bandwidth issues.
* Education of college students likely is too late to stem piracy, because most infringers in college began years earlier and have come to believe that such theft is reasonable and justified.
* There is every reason why an Internet service provider would wish not to be a distributor of infringing works, and reasonable network management should be able to permit actions against infringing works.

I invite people to criticize those statements, but I would say they are inarguably true. You may feel that infringing copyright is reasonable and justified, and thus not wish for students at any grade level to be taught what is and what is not against the law; I would say that if you feel that way, push to have the law changed (as many are) but in the meantime let’s ensure we are not creating a generation of inadvertent lawbreakers. (Of course, changing that law harms the songwriters and performing artists Ms. Tate refers to, along with creators and employees in other industries she cited such as software, motion pictures, etc.,and thus threatens to significantly reduce the number of creative works we can enjoy, but perhaps you view those costs as reasonable to advance your desire to download and upload creative works at no cost to yourself.)

Now as to the criticism by Mr. Anderson. First, he faults her for citing a figure that piracy costs the U.S. economy $250 billion annually. Mr. Anderson is right that Ars Technica earlier this year did a fairly extensive critique of that figure, and it would have been wiser for Ms. Tate not to cite it. I would note that to my knowledge, the Copyright Alliance has never in its nearly two-year existence cited that figure.

However, Ms. Tate does cite telling statistics from many other credible sources, such as an IPI study on music piracy, a Centre for Media in the Public Interest study, and a 2004 study on file-sharing on college campuses. It’s not clear to me why Mr. Anderson would (reasonably) criticize one statistic from Ms. Tate’s speech but ignore many dramatic and documented statistics about the cost and extent of piracy.

Then Ms. Tate is criticized for (1) mentioning digital rights management tools that are not 100% effective and (2) being honest by admitting they are not 100% effective. Makes it a bit hard to win when you argue the glass is half-full and you’re criticized for even bringing up the glass.

The criticism by Mr. Anderson on education seems to stem from a mistrust of those that might be involved in the education than the education itself. I wish he had been clearer on that point, because it’s hard for me to imagine what is wrong with telling young people what the law permits and what it does not permit, what the logic is behind that law, and how the law supports their own rights as creators. One can differ on the manner in which one would wish that message to be delivered — I’m sure Ms. Tate would want students to see the face of copyright in the songwriters she has befriended in Nashville — but the need for such a message seems inarguable, and it is an effort the Copyright Alliance is pursuing with outside educators.

As for Ms. Tate’s suggestion for a role on copyright education in the federal e-rate program, I’ll confess I’ve never thought of that before, and I’m a little ticked at myself for not having done so. I’m fairly familiar with the e-rate program, and wrote extensively on it when it was first launched. It seeks to get computers and Internet access into every school in the country, something private-sector groups such as the cable industry “Cable in the Classroom” had already been doing.

Unfortunately, like any government grant-and-loan program, the e-rate program has been rife with incompetency and, some would say, corruption. (Let me note here that it was created by Congress long before Ms. Tate was named to the FCC and she is not directly responsible for any of its flaws.) It has been investigated by Congress. Millions of dollars have been wasted. It is this type of program that gives weight to arguments that we should not force creative industries into a collective licensing regime. But there is eminent logic in the notion that if schools are receiving federal aid in gaining access to broadband, legal use of such access be taught as well.

Finally, Mr. Anderson faults Ms. Tate on her arguments regarding network neutrality. Now a bit of background here. Ms. Tate is a Republican commissioner who is a strong advocate of the free market and is reluctant to regulate prophylactically. It is also clear in her speech that she is not advocating ISPs restrict lawful uses of the Internet. However, Mr. Anderson shouldn’t be surprised that she’s not leaping at the opportunity to regulate ISPs on network management, in particular efforts to target unlawful uses.

Yet House Commerce Telecom Subcommittee Chairman Ed Markey (D-Mass.) is eager to regulate, and has been pushing a bill in this Congress to do just that. But like Ms. Tate, he has made it clear he is seeking to prevent ISPs from managing lawful traffic, and doesn’t wish to interfere with network management against illegal traffic. Here’s a passage from a story by CNET’s Anne Broache:

Markey attempted to reassure copyright holders that his bill will do nothing to hamper ISPs’ ability to block “unlawful” pirated content, vehemently taking issue with any suggestions to the contrary.

“This whole idea that this legislation helps piracy is 100 percent wrong,” Markey said. “It’s a red herring. We should put an aquarium out here because there are so many red herrings floating around to mislead about what the intent of Net neutrality is.”

So I would suggest that any advocate of network neutrality who has an issue with ISPs attempting to address unlawful activity on their networks is a few steps beyond the policymakers who are most likely to impose network neutrality laws or regulations. Thus, if you have an issue with ISPs using network management tools to reduce infringement, your issue is not with Ms. Tate, who doesn’t wish to regulate network neutrality beyond its current enforcement, but with network neutrality advocates such as Mr. Markey, who does. Please take your complaints up with him.

Ms. Tate gave a speech to a small audience at the University of Pennsylvania. The speech was then misconstrued in an online post read by a much larger audience, an audience predisposed to oppose existing copyright law, and an audience that, most likely, did not click through to read Ms. Tate’s speech so as to compare it to Mr. Anderson’s critique. This is, of course, the nature of the Internet, and it wouldn’t be fair to criticize Mr. Anderson for writing an opinion piece taking issue with the statements of a public official. It is fair for me to despair at misrepresentations of reasoned, thoughtful, pro-creator positions, whether the misrepresentation was intentional or not.

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This entry was posted on Wednesday, December 10th, 2008 at 11:26 am by Patrick Ross and is filed under FCC, capitol hill, copyright law, copyright opponents, counterfeit, creators, drm, education, internet, network neutrality, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.