Rapid advances in technology have been occurring since the Renaissance, and yet sometimes the greatest advocates of advancement fail to predict where science will go. In the 19th Century Lord Kelvin was a father of modern physics, identifying absolute zero, naming kinetic energy, and setting in motion the identification of the second law of thermodynamics. Yet he dismissed Darwin’s theory of evolution out of hand, said radio had no useful properties, argued X-rays were a hoax, and insisted heavier-than-air flying machines were impossible.

That kind of narrow thinking has now unfortunately been put before the Federal Communications Commission in a paper authored by the advocacy group Public Knowledge. The paper is at times thought-provoking, but on the whole, it demonstrates a phenomenal lack of respect for technological advancement as well as the functioning of a free market. On the former, note that PK’s aggressive press release argues that network management of infringement “will not work.” Okay, I guess we can all go home now.

Being only an amateur student of science and science history, I do not feel qualified to predict the future of any technology. But I would note that a careful reading of the paper does not in fact make the case that PK’s confidence in technology is any more perceptive than the late Lord Kelvin’s. In fact, the nearly 20-page technology section leading the paper includes almost no technical analysis of note; I understood the technology aspects of the whole section, which isn’t saying much for the report. It is in fact a policy primer, not a technological analysis, as the technology section subheads — “I. Determining Filter Policy, A. Strict Policy Definition, B. Permissive Policy Definition” — make clear.

That is fine. PK is a policy advocacy group, not a tech lab. The paper was drafted for a federal agency. But it thus must be seen in this context — it is instructing policymakers that a certain type of technological approach is potentially illegal and maybe even unconstitutional. Yet it is doing so in the guise of absolutist scientific conclusions.

The press release nicely summarizes the straw men the paper sets up and attacks. Here are some of them:

1. “Filtering will not be the ‘magic bullet’ that the media moguls want.” First, I always love the whole “mogul” thing, as if individual creators don’t matter, and as if PK supporter Google is a mom-and-pop store. Anyhow, I am not aware of anyone throughout the creative industries who argues that any technology is a “magic bullet.” Gotta lose these absolutes.
2. “The content industry would like to convince policymakers and the general public that copyright filtering is the most effective means by which to combat online copyright infringement and protect America’s creative economy.” That quote, in both the press release and the report, again is absurd. First, even among those in the copyright community that welcome filtering, I think it would be the rare bird that would say it is the “most effective means.” Such an ordinal system is really better for US News and World Report special issues and VH1 specials. Ranking in this context is impossible given that technology continually shifts and the future is so uncertain, but of course we have learned the authors of the report have a difficult time looking ahead when it comes to technology. But the bigger issue here is that there is a wide breadth of opinion on the merits and rationale of filtering and network management within the copyright community. (That is in addition to the fact that there is a wide range of network management options available to ISPs, which are largely glossed over in the paper.) The public dialogue is not advanced with such blanket statements as the “content industry,” which, trust me, is fully unified on the preeminent importance of copyright owner’s rights, but naturally takes individual approaches in policy debates.
3. “[C]opyright filters will be underinclusive, overinclusive or both. The filter will fail to identify all copyrighted works that pass through it, will filter out legal, legitimate content or, as is the case with most filtering technologies currently on the market, the filter will fail on both counts.” This is also in both the press release and paper. This is the core of PK’s argument in this space. At one point their CEO endorses network management for infringement in principle (most recently at January’s Consumer Electronics Show), but then she dismisses it in practice because it would never be perfect. A PK attorney testified on my panel earlier this year at the FTC summit on digital rights management and made the same argument, namely that government should more aggressively regulate DRM because it isn’t always perfect. Again, very odd to see self-described innovation advocates reject technological approaches that fall short of perfection.

The paper tells ISPs, essentially, they have rocks in their heads if they attempt any type of network management regarding illegal traffic on their networks. Very well. They have a right to say that, some of my members arguing otherwise have the right to dispute that, and ISPs have the right to decide for themselves — in a free market — whether they wish to make such attempts and how they might wish to implement those attempts.

What is interesting here is that, if PK is correct and these attempts will fail so miserably, why do they feel the need to involve policymakers? If one ISP crashes and burns — I would think even PK wouldn’t go so far as to say that crash and burn would cause serious, irreparable harm to the diffused Internet itself — why would any other ISP wish to emulate such behavior? The only reason to convince policymakers to forbid such action — to regulate technology, which is so in opposition to everything they stand for — is if, in fact, they are not convinced that it would be the Armageddon they outline in the paper.

This post is more an analysis of the scare tactics of this paper rather than the paper itself; I invite readers to examine the work and draw their own conclusions. But remember that this is not some wonky product of an IT professor in an ivory tower somewhere with no stake in public policy. This is an advocacy group of attorneys pushing a public policy agenda and doing so by making obvious statements (filtering isn’t perfect), sweeping generalizations (the content industry moguls) and flat-out comical assertions (technology doomed to fail).

As a homo sapien I am a beneficiary of evolution. Radio waves are a regular part of my entertainment existence. I have received superior health care because of X-rays, and have taken and developed X-rays when I worked in an animal hospital (yes, I wore the lead smock, sorry to disappoint those who don’t think much of me). I fly with some regularity; just last week I was on a round-trip to Montreal on Air Canada.

Technological advances benefit every part of my day. I am very grateful that technologists push forward regardless of naysayers with policy agendas seeking to thwart and regulate such advances.

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This entry was posted on Thursday, July 23rd, 2009 at 10:09 am by Patrick Ross and is filed under FCC, FTC, copyright opponents, creators, drm, internet, market forces, network neutrality, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.