We praised the FCC recently when it released its long-awaited National Broadband Plan. We share the FCC’s vision of a wired and wireless world of high-speed Internet connectivity. Creative industries are embracing the online market in new and innovative ways — see our In Syn(c) series for more — and the more robust and widespread broadband is, the better we can meet and even exceed consumer expectations.

Still, upon flipping through this nearly 400-page document that resembled a phone book (kids, it’s an ancient 3D technology that contained phone numbers and would materialize annually on your doorstep), we were a bit surprised. After all, Step One in determining how to stimulate broadband expansion and growth was to identify what it is that makes customers desire higher Internet speeds. Um, maybe copyrighted works like motion pictures, interactive games, music, and television? (Hey FCC, you can learn that in our March 24 filing with the U.S. Intellectual Property Enforcement Coordinator; check page 8, for example, which notes Internet video is expected to take up 90% of Internet traffic in 2012.)

The FCC never in its National Broadband Plan bothered to mention that copyrighted works drive broadband adoption. They did insert one sentence acknowledging — news flash — that piracy still exists online. And then they included a bunch of random suggestions for ways Congress could actually reduce the rights of copyright owners. I’m sorry, that will drive broadband adoption how, exactly? The illogic of the recommendations should not be a surprise, as FCC Chairman Julius Genachowski noted yesterday in a House hearing that the FCC isn’t an agency of jurisdiction or expertise when it comes to copyright law. That didn’t stop the FCC from making formal recommendations to rewrite copyright law to reduce creators’ rights, but it was enough to make a bipartisan group of key legislators who serve on the subcommittee of jurisdiction for the FCC attempt to put the Commission — an independent agency that answers directly to the U.S. Congress — in its place.

The U.S. House Commerce Subcommittee on Communications, Technology and the Internet held an oversight hearing March 25 with all five FCC commissioners testifying. Most of the discussion did not involve copyright, which is appropriate and was expected, given the official briefing memo for the hearing didn’t list copyright among the expected topics of discussion. But that didn’t stop House members who understand the critical role copyright plays in our economy and our society to remind the five commissioners that there is no merit whatsoever in diluting creators’ rights, and that in fact copyright owners need more tools to protect their rights online.

Take Rep. Chris Murphy (D-CT). He told the commissioners that the expansion of broadband should not be a “shield” for copyright infringement. Noting the country is losing billions to Internet piracy, he said the solution largely lies in the networks themselves. He would have liked to see some language in the National Broadband Plan that actually would have suggested ways to combat piracy.

Or take Rep. Mary Bono Mack (R-CA), sponsor of legislation aimed at protecting P2P users from identity theft and fraud that cleared the U.S. House last December. She also highlighted the critical importance of copyright, and noting the copyright language in the FCC’s National Broadband Plan, said efforts to weaken them should be viewed skeptically.

Or take Rep. Marsha Blackburn (R-TN), founder of the Congressional Songwriters’ Caucus. Noting her district has a lot of creators, she said she was “anxious” about how the National Broadband Plan would affect job creation and investment. The Plan to her threatened to render copyright enforcement “toothless.” She thanked the FCC for at least acknowledging piracy is a problem, but said she wants to get their thoughts on how to continue to protect innovation in the creative community and better curb illegal use of copyrighted works.

No FCC commissioner disagreed with the perspective of this bipartisan group of members of Congress with oversight over them and their agency. As mentioned above, Chairman Julius Genachowski did note that the FCC is not a copyright enforcement shop, but he made no effort to defend the provisions in the Plan that actually called for dilution of copyright owners’ rights. Commissioner Meredith Attwell Baker spoke more strongly on the importance of protecting creators’ rights online.

Commissioner Robert McDowell was the most direct. As he did in his statement on the day the Plan was released, he took the opportunity at the hearing to raise questions about the introduction of copyright-reducing language in the Plan:

I question recommendations 11.4, 15.7 and 15.9, which call on Congress to amend the “fair use” provision of the Copyright Act for various purposes. These recommendations were edited late in the process; however, it still is not clear how broadly the Plan’s proposal actually sweeps. Copyright issues in the digital era are highly complex. More importantly, policies that support strong enforcement of property rights, including intellectual property rights, will encourage the creation of more compelling content that could help spur broadband adoption. I look forward to learning more about the request for statutory change.

Point of background here. This rather odd section of the Plan correctly notes the critical role broadband can play in the education of the nation’s youth. We promote broadband-related educational opportunities through free K-12 curricula with our Copyright Alliance Education Foundation.

But the Plan recommendations include: 1) Amending the TEACH Act to enable distance educators to use copyrighted materials. Um, the TEACH Act, which cleared Congress in 2002, does exactly that. 2) Calling on the U.S. Copyright Office to create a new copyright mark, an “e” in a circle instead of a “c,” to help copyright owners designate when they will permit extra uses for educators. Um, copyright owners are working closely with educators to facilitate easier licensing of works in education, recognizing U.S. law already gives educators more leeway in their classrooms. If we need some kind of mark, the copyright industries and educators can develop something like that. But under the Berne Convention and the Copyright Act of 1976, formalities are illegal. We don’t have to put the little c in a circle on documents for them to be copyrighted; why would we want to use the limited resources of the U.S. Copyright Office to create a new formal mark?

Another recommendation in the Plan noted that public broadcasters are having a hard time getting some of the works they air on their broadcast networks streamed on their web sites or assembled onto DVDs they can then sell. It recommends a government-run web site, video.gov, that would not just house government-created video (which by U.S. law is not copyrighted) but works by copyright owners that had aired on public broadcasting. Um, unlike some other countries, U.S. public broadcasters are largely distributors, not producers or copyright owners. Sesame Street, for example, is produced by an educational non-profit Sesame Workshop. Presumably, they’d like to fund their continuing education efforts by negotiating their own terms for how their shows are streamed or downloaded online or packaged onto DVDs. They pour all of their ancillary revenues into production of new programming. We want to harm this process why, exactly?

Note that McDowell also dinged this proposal, noting quite rightly that it seemed odd for the U.S. government to launch an online video site. After all, there are a few others around, and unlike broadcast spectrum, there is no scarcity of opportunities for licensed video streams on the Internet. In fact, wouldn’t allowing a licensing market to further many, many legal distribution streams promote broadband adoption more than eliminating the market for other video sites by forcing video onto a government network?

A closer reading of the Plan reveals that the FCC at times was going for quantity over quality. Congress mandated this Plan be produced, and basically the FCC said, “Okay, you asked for it. Here, catch!” and threw that phone book at them.

There will be much discussion over the coming months on some of the recommendations of the Plan that actually are central to the notion of promoting broadband. The provisions proposing reduction of copyright clearly do not fall into that category, so it’s safe to say — based on the reception they received in Congress and the lack of support given them by any FCC commissioner the moment the bright light of Congress was shown on them — that they’ll drift quietly into the night.

Some groups, like Public Knowledge, will continue to celebrate them, and point to them as a sign that the “government” supports their view of copyright. Of course, as Jon Henke noted, they will do so with irony, a group that once decried the involvement of the FCC in copyright now pushing the FCC to involve itself in copyright.

Don’t ever say that Washington is a town without humor.

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This entry was posted on Friday, March 26th, 2010 at 7:57 am by Patrick Ross and is filed under FCC, capitol hill, copyright opponents, education, fair use, p2p. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.