LAS VEGAS, NEVADA –A warning, fair readers, this entry will address the issue of network neutrality. Those who think too much digital ink has been spilled on that topic are free to move on. For the rest of you, before we get to the main course let me serve up an appetizer involving artists.

It is no secret that massive infringement of creative works occurs across ISP networks globally. No one seems to really know the amount, but most estimates put it between 20% and 80%, a ridiculously wide range but significant no matter who you believe. But it isn’t just songwriters, recording artists and filmmakers vulnerable here. It’s novelists, software makers and even photographers.

Yesterday I wrote about a presentation done here at the Consumer Electronics Show by LimeWire CEO George Searle. He had a slide show demonstrating his new 5.0 software, and the search example he used was “monkey on a skateboard.” I thought that might be the name of a new alt band (it’s a good name, I think) but no, he was pulling up an overwhelming number of links to photos of monkeys on skateboards.

There are any number of reasons why one might want such a photo, marketing the one most likely to come to mind. But how many people out there have ever actually photographed a monkey on a skateboard? Mr. Searle randomly clicked on one of the links and pulled up a photo. I told Mr. Searle afterward that it was highly unlikely that the owner of the computer on which that photo was residing was the photographer or the copyright owner. Somebody else had ownership of that image, and now Mr. Searle had it without authorization. He acknowledged that. Apparently he wants the world’s photographers to register with him so he can give them a few pennies resulting from click-through ads framed with their photos.

Any creative work can be digitized. Anything that can be digitized can be infringed on a computer network. That is why it was so refreshing to hear genuine consensus here at CES today on the right of ISPs to manage their networks to address infringement. There is no reason policymakers should force any network operator to accept illegal traffic, and in fact Rep. Ed Markey (D-Mass.), the author of network neutrality legislation in the House, has repeatedly said that it is a falsehood to suggest his legislation would in any way inhibit an ISP from managing infringing traffic. In fact, this is exactly what New York Attorney General Andrew Cuomo is encouraging ISPs to do.

At one of the panels today addressing network neutrality, after moderator Rob Pegararo of The Washington Post suggested the debate has at times been divisive, a longtime participant in the debate, NetCompetition.org Chairman Scott Cleland, pointed out all of the areas in which the various combatants are in agreement. One he noted is the need for ISPs to target infringement, “illegal behavior” as he put it. One of the most vocal proponents of network neutrality legislation, Ben Scott of Free Press (the group that filed against Comcast in last year’s network neutrality complaint) said his side had been vocally agreeing with Mr. Cleland’s list for two years now.

When a panel includes Free Press, Google and Amazon, and no one objects to allowing ISPs to police infringement, that is a good day.

There was other agreement as well, although an odd form of agreement. Across the panels I attended there was agreement in the need for simple rules consistent across platforms. Of course, for legislative advocates that would be done through a new law, and by applying telecom common carrier requirements across all platforms, including cable and wireless. For opponents of legislation, it means working through existing fora such as the FCC and following that agency’s trend of the last ten years of unifying platform regulation by deregulating, such as the FCC’s embrace of Title I of the Communications Act.

For those not immersed in the debate, the above paragraph is what we call in journalism the “nut” graph. It is the core of the debate and will be central to everything that is thrown back and forth in the 111th Congress.

One moment was amusing to me, as someone who has been in Washington for 20 years now. At one point Mr. Cleland, the biggest non-regulatory advocate on the panel (I’ll even put him beyond the very articulate and informed Brent Olson of AT&T), cited former FCC Chairman Bill Kennard, a telecom advisor to President-elect Obama, as discussing the dangers and uncertainties of regulating the Internet. Amazon.com VP-Global Public Policy Paul Misener sat quietly next to him. Mr. Misener, before joining Amazon.com, was the chief advisor to FCC Commissioner Harold Furchtgott-Roth, a libertarian so fierce in his beliefs that he would often say that he didn’t think the FCC, then under Mr. Kennard, should even be doing most of the rulemakings they were engaging in, that most of the FCC’s regulations were not authorized by the Communications Act. Now, Mr. Misener is advocating regulation of the Internet and is hearing former Chairman Kennard’s words used in favor of not regulating. Not surprisingly, Mr. Misener did not comment on Mr. Kennard’s words.

Washington is a funny town.

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This entry was posted on Thursday, January 8th, 2009 at 7:17 pm by Patrick Ross and is filed under FCC, Obama, capitol hill, creators, network neutrality, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.