More Policymakers on Targeting Infringement
Friday, October 9th, 2009 by Patrick RossAdd U.S. Senator Al Franken (D-MN) to the list of Washington policymakers insisting that there should be avenues for copyright owners and ISPs to target infringement on networks. It’s kind of hard to say we should build into law or regulations a safe harbor for illegal behavior, but it’s always nice when politicos here in town reinforce the obvious.
Franken spoke this week at the Future of Music summit in Georgetown (see his video on FoM’s site here, and here’s Copyright Alliance intern Chelsea Richardson’s take on the conference). I spoke there, too, but far more interesting was Franken and FCC Chairman Julius Genachowski.
Genachowski repeated his previous statements in his Senate confirmation hearing and in his recent announcement of an upcoming net neutrality rulemaking that there must be reasonable network management allowed to target illegal behavior online, including copyright infringement.
Franken spoke passionately in favor of net neutrality regulations, linking them to the First Amendment and even citing Iran as an example of, apparently, what we could face in the U.S. without regulations. (I think net neutrality rules are focused more on keeping corporations from controlling voices rather than the U.S. government, but I don’t think any of us want a government official deciding what we hear or read online).
But Franken also made clear that it was critical that copyright be enforced as well; he acknowledged he has profited from being a copyright owner as an author, and of course he has worked in television and radio much of his life. His career has been supported by copyright.
An audience member asked him what sort of technologies he’d permit in order to target online infringement. Franken, who earlier had been teasing former U.S. Senator Ted Stevens (R-Alaska) for comparing the Internet to a series of tubes, gave the right answer. He began by saying such a decision was either above or below his pay grade; he didn’t know how much a skilled engineer made in income relative to himself. But he then said he didn’t want to have a “tubes moment” by weighing in on something he didn’t truly understand.
The fact is, not even the most talented and brilliant technologist can tell us with certainty what technologies await five, ten, fifteen years from now that might provide robust efficiency in targeting the most egregious piracy online, the clearest cases, without threatening our privacy. What is clear, however, is that if we proactively place restrictions on technology itself — rather than behavior regarding the use of technology — those future technologies won’t exist, because there’s no incentive to develop technologies that can’t be used.
Franken sure sounded like he’s reluctant to lay down defined limits on technology, which any fan of the Internet, regardless of how they feel about copyright infringement, presumably should support. My argument in my panel presentation was that we should regulate behavior, not technology. Technology is neither good nor bad, and if it’s clear how one should conduct oneself, the technology is irrelevant. Dan Klein, a skilled technologist on my panel working in this space, agreed completely.
That is also the message I brought to the FCC in my testimony on September 17th, and it’s one I will continue to make on behalf of artists and creators everywhere.
October 9th, 2009 at 1:21 pm
“f we proactively place restrictions on technology itself — rather than behavior regarding the use of technology — those future technologies won’t exist, because there’s no incentive to develop technologies that can’t be used.”
This is exactly why Section 1201 of the DMCA is such a disaster, because it places severe restrictions on multi-purpose technologies regardless of how they are used. How do you justify your support for regulating so-called “circumvention devices” while arguing for a hands-off approach to technologies to filter, track, and censor the Internet? Shouldn’t we target behavior rather than tools in both cases?
October 9th, 2009 at 2:22 pm
Seriously, John, if you’re going to set a rhetorical trap, make sure there’s actually bait in it. The restrictions there are also behavioral; you can’t USE lockpicking technologies and you can’t DISTRIBUTE them. There are restrictions that could be put on technologies in dealing with infringement, for example you could say that a copyright owner can’t send a bot into a potential infringer’s computer to blow it up. That precludes the use of that technology in that circumstance.
John, I’ve lost track of how many questions you’ve set me up with since this blog’s launch. My bio is on this site, I am quite open in sharing my point of view, yet I know nothing of who you are, if that is your actual name, what you do, or why you personally are so offended by rightsholders enforcing their rights and show no inclination to ever agree or support even a fraction of what we write, even when we try to find middle ground. On behalf of the readers of this blog, I invite you to post below who you are and why your one-man comment crusade against our point of view is being waged.
Forgive me if there’s a delay in posting your response, I’m about to start two weeks of business travel and my online access will be spotty.
October 14th, 2009 at 11:06 am
Sorry Patrick, the trap is of your own making, and you can’t escape with semantics. The DMCA prohibits distribution of technologies that have lawful uses. It is equivalent to outlawing the sale of crowbars because they can be used to commit burglary. In that context you support “a restriction on technology itself.” In the context of Internet filtering you apparently oppose any restrictions on the types of technology that ISPs can deploy to go after file sharing (you don’t specify but I assume this refers to filtering, deep packet inspection, and other surveillance infrastructure). This is inconsistent.
As for me, I am a citizen who is deeply concerned about the market power held by a small number of cultural gatekeepers. I am not “offended by rightsholders enforcing their rights” but by media oligopolies who, instead of adapting to technological change, fund sites like this one for the purpose of influencing policymakers to protect their outdated business models. That’s why I comment on your site.
As for why I “show no inclination to ever agree” if you look back you will find that’s not so. I agree with you that copyright law matters, and that we all have a stake in getting it right. I’ve never said otherwise. If you only want comments that make you feel warm and fuzzy, hey, it’s your blog.
October 14th, 2009 at 12:21 pm
Hello Patrick, it was a pleasure to meet you at the Los Angeles CCC. Thanks for sharing valuable info with us.
Mobile networks can help us right the wrong that was done to the integrity of the U.S. copyright system. That wrong was implemented by those that released the Internet for public use with little or -0- consideration for the impact upon our copyright system. Here is an open letter to the Library of Congress that was copied to the NTIA, FCC, the Executive Branch and other government entities that may help going forward.
Dear Mr. Carson, Dr. Billington and Ms Campbell,
Here and now we live in a self- publishing society thanks to the Internet and related technologies. The undermining of the U.S. copyright system by peer2peer file sharing abuse is an urgent matter that needs to be addressed now before it is too late.
The good news is that there is a way to strengthen the integrity of the U.S. copyright system going forward if implemented promptly. We must act now. Please don’t place our request to be heard by persons of authority into the non-productive maze of passing the buck. These are urgent issues that we have spent years researching. We are very pleased to say we have a solution.
Background
The Internet was opened to public uses
As the United States Defense Department moved to enable commercialization of the Internet there were meticulous considerations regarding The Domain Name System and related issues. ICANN, a nonprofit organization contracted by The Department of Commerce led the way in the administration and eventual privatization of the Domain system. By most standards this was an excellent model of transitioning from a government entity to privatization. The foresight in understanding the repercussions of NOT having a plan for Domains going forward is highly commendable.
But ironically, that same foresight was grossly absent in considering the repercussions that public use of the Internet would have upon the U.S. copyright system.
If the Betamax Case was a Supreme Court precedent setting event, what in the world were we thinking by unleashing the Internet without addressing the copyright issues beforehand? The Internet coupled with a personal computer is the most powerful copying and publishing mechanism man has ever known!
Therefore, it was the government’s responsibility to ensure that rights holders’ interests were protected before unleashing the greatest copying and publishing mechanism ever and it was the government’s responsibility to insure that ISP’s, (Internet Service Providers), would be in compliance or they would NOT be issued clearance to be an ISP.
Basically, a statutory rate should have been established. Whereas, whenever copyrighted materials were downloaded, (this is a form of distribution and publication), via an ISP the rate would kick in to be deposited with a designated collective that represented the interests of ALL rights holders.
It is my guess that The Library of Congress was not privy to the conversation.
The Solution - Mobile Networks
Mobile networks contain the Internet within
As we move towards a mobile future it is important to know there is another opportunity to put measures in place before they become a problem to the U.S. copyright system.
As I mentioned in my first correspondence to you, within 5 to 10 years we will more likely than not be able to send an entire movie from one mobile device directly to another mobile device, (peer2peer). A statutory rate will make that a productive event. What if there is nothing in place?
We have a plan for implementation.
Conclusion
Regarding our petition for rulemaking before the CRB, we were already informed by Judge Sledge that there was not an existing statute that would enable the CRB to act upon our proposal. That is why we began and continue to solicit Congresspersons and Senators on the Judiciary Committees. We have also solicited the NTIA and Department of Commerce for help in the development of our work.
Regarding further funding, we understand the Library of Congress may not have resources available for such a thing.
However, your attentions and concerted actions will be much more valuable to our movement than direct funding.
We are very hopeful that this correspondence causes actions on your part as it is our firm belief that this is the right time to move on this because there is no time to waste.
With all due respect, as of now, The Library of Congress IS privy to the conversation.
Best regards,
/max davis/
Max Davis, Director
DataRevenue.Org
22647 Ventura Blvd
Woodland Hills, CA 91364
(818) 713-1510
December 23rd, 2009 at 9:43 am
[...] in D.C., I can empathize.) Senator Franken is a major advocate of net neutrality regulations, as he made clear recently when speaking at the Future of Music Summit. But in that same speech he also said it’s essential that copyright be enforced, and noted [...]
December 23rd, 2009 at 9:47 am
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