May 2006

There’s a great great post over at the abstract factory about the real issues in the debate over neutrality regulation. He points out that the horror stories trotted out by the pro-regulatory side are mostly bogus:

Political outfits–ranging from MoveOn to the Christian Coalition–are worried that network providers will begin to discriminate based on the political content of messages. This is pretty unlikely. It’s not easy for an algorithm to look at a bag of bytes and classify its political content; and network providers probably can’t pay for the computational power required to apply such an algorithm to the many terabytes of data that flow across their networks daily.

And even if they could, why would they? There’s no percentage there. In fact, I can think of two very strong reasons for them not to start filtering based on political content. First, there would be an enormous consumer backlash. Second, there would be enormous political fallout. The latter would include not only backlash against abuse of quasi-monopoly power, but possibly the imposition of responsibility for the content that flows across the pipes. Once you begin filtering based on political content, lawmakers may poke their heads in and wonder why you aren’t filtering out all that kiddie porn and gambling and such too–and if something gets through your filters, why can’t we hold you liable? The network providers don’t want to open that can of worms.

So, political censorship isn’t the real issue here. Nor, pace Moby et al., is it interconnection with small media providers versus large ones. Verizon’s not terribly likely to block access to your music blog. They might, someday, contract with certain service providers for improved performance. For example, they might strike a deal with iTunes to store songs in a local proxy cache, so that Verizon customers would observe slightly improved performance with iTunes, but not your music blog. That doesn’t strike me as either disastrous or a betrayal of the Internet’s principles. Networking researchers have been proposing schemes like this for years. In fact, Akamai’s basically a third-party version of this scheme: people pay them to store content in caches close to where it’s demanded, so Akamai-cached websites perform better than non-Akamai websites. Akamai’s been operating since 1999, and so far the Internet hasn’t been torn asunder.

He goes on to explain that the more plausible danger is discrimination on the basis of application–phone companies trying to block Skype because it cuts into their landline telephone business, for example. He’s quite right that the pronouncements of telco execs that Google needs to pay more for “my pipes” were assinine. Google pays for its own connection to the Internet. It’s consumers that pay the Baby Bells for the bandwidth they use. Telcos don’t connect their customers to the Internet out of the goodness of their hearts.

And his conclusion is also spot-on:

So I’m really glad that people are paying attention to network neutrality. But I’m also alarmed that so few of those people seem to understand what’s really going on here, and I’m skeptical that now is the time to make laws about it. So far, the Internet’s still neutral. My bottom-line recommendation would be to watch and wait.

He says other smart and sensible things as well, so go read the whole thing.

Consistency Problems?

by on May 21, 2006

Larry Lessig calls out those of us who support fair use (FU) but criticize network neutrality regulations (NN):

There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations”–each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

Fair use is an affirmative defense against claims of copyright infringement. As such, it is only asserted in cases where an alleged infringer has already been dragged into court. There aren’t fair use bureaucrats roaming the country looking for publishers violating their customers’ fair use rights. Fair use simply carves out a sphere of autonomy around individuals and their personal lives. When fair use atrophies, the result is excessive legal meddling in the lives of ordinary people.

Where did I learn that? From Mr. Lessig. One of my favorite stories about copyright law run amok, which I originally encountered in Free Culture, is the story of Jon Else, a documentary filmmaker who happened to have 4 seconds of The Simpsons playing on a TV in the background of one of his shots. Fox threatened to sue him if he didn’t pay $10,000 for permission to include the clip. In response, Else digitally edited the clip out of the shot.

That’s clearly nuts. And it is, I think, a sign of excessive government regulation of the use of copyrighted works. True, Else would probably have won in court, but doing so would have cost thousands of dollars in legal fees, as well as likely holding up the release of his movie. A stronger fair use doctrine would have given Else the confidence that such a lawsuit would have been immediately thrown out of court.

The problem is that copyright law meddles too much in trivial cases like Mr. Else’s. A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.

Those of us who support fair use and oppose neutrality regulation are being perfectly consistent: our primary concern is excessive state power over private activities. The courts telling Mr. Else he can’t have 4 seconds of The Simpsons playing in the background of his documentary would be unnecessary government meddling. In my opinion, so would the courts telling AT&T how to configure their routers. I don’t see a “consistency problem” here.

Moby thinks we should regulate the Internet. If the telecom policy experts at the Christian coalition didn’t persuade you that neutrality regulation is a good idea, then technology whizzes like R.E.M., Q-Tip, the Indigo Girls, Jill Sobule, Wilco, Trent Reznor of Nine Inch Nails, the Roots, and the Dixie Chicks certainly will!

Meanwhile, the pro-regulation side continues to demonstrate its incredible talent for doublespeak:

Net Neutrality is the long-held principle that ensures small music blogs and independent news sites open just as easily on people’s computers as large corporate sites. Companies like AT&T are spending millions lobbying Congress to pass legislation that critics charge would set up a discriminatory tollbooth system on the information superhighway. The proposed legislation would allow Internet providers to decide which Web sites work best on people’s computers based on who pays them the most, favoring large corporations with deep coffers while marginalizing everyday people, community groups and small businesses.

AT&T, of course, is not “lobbying Congress to pass legislation” about neutrality regulation. Rather, they are opposing new regulations on the subject. It takes a fair amount of rhetorical contortionism to take the posture of the beleaguered defender of the status quo, when you are, in fact, the one pushing new regulations. For example, Moby (no doubt reading talking points prepared by others) says there will be “a huge public backlash” if Congress “sells out the Internet.” If so, it will be one of the strangest backlashes in history. Most backlashes are spontaneous outpourings of anger against an action the public dislikes. But this “backlash” would be a carefully stage-managed reaction to Congress’s decision to leave things as they are. Of course, given the way the “Save the Internet” crowd is describing the issue, most of the people participating in the “backlash” wouldn’t know they were the ones lobbying for new legislation.

Frankly, I can’t blame Moby and company for being alarmed. I’d be alarmed too if all I heard was MoveOn’s version of the story.

David Levine points out a post from James DeLong last week in which he identifies a real problem but comes up with a peculiar diagnosis:

Once of the risks of the P2P culture’s ethics–“it’s our music and we have a right to steal it”–is that consumers will end up worse off. Content creators, to obtain any return on their investment of time, energy, and money, will be forced to partner with particular hardware makers or distributors and tightly tether content to the specific channel. The result would be a loss of flexibility and interoperability.

You mean, like, the iTunes Music Store, which won’t work with non-Apple devices? Or Google’s video store, CinemaNow, Moviebeam, and MovieLink, none of which will easily play videos on an ordinary HDTV?

Every DRM scheme works by “tightly tethering” content to a specific platform. A few of them, such as CSS and Microsoft’s Windows Media, at least allow some third party licensees under the tent, but every single one of them contributes to “a loss of flexibility and interoperability.” DRM is the reason that you can’t play DVDs on an iPod, or iTunes songs on high-end stereo systems.

It’s not clear to me what DeLong thinks we ought to do about the growing balkanization of media technologies. As far as I can see, we’re currently trying all of the anti-piracy measures he supports: the courts are shutting down Grokster and company, we have the DMCA on the books, and the recording industry is suing thousands of individuals engaged in file sharing. If, after all of that, we see continued balkanization of media technologies, might that be a sign that our approach is wrong?

Larry Lessig proudly points out that network neutering isn’t a left-right issue. His evidence? The Christian Coalition has signed on to the pro-NN coalition.

Why?

Mrs. Combs said, “Under the new rules, there is nothing to stop the cable and phone companies from not allowing consumers to have access to speech that they don’t support. What if a cable company with a pro-choice Board of Directors decides that it doesn’t like a pro-life organization using its high-speed network to encourage pro-life activities? Under the new rules, they could slow down the pro-life web site, harming their ability to communicate with other pro-lifers – and it would be legal. We urge Congress to move aggressively to save the Internet–and allow ideas rather than money to control what Americans can access on the World Wide Web. We urge all Americans to contact their Congressmen and Senators and tell them to save the Internet and to support ‘Net Neutrality’.”

I can only say that whoever talked Mrs. Combs into making this statement did a hell of a sales job. Too bad the pitch was massively misleading. Let’s count the ways that this scenario is ridiculous:

  • In the first place, no one seriously expects broadband ISPs to restrict traditional websites. Websites are sufficiently low-bandwidth that current connection speeds are more than enough to transmit them to consumers. The worry is over high-bandwidth, latency-sensitive next generation services like VoIP and video on demand.
  • The board of directors of a major corporation wants to stay as far away as possible from political controversies. When’s the last time you saw a Fortune 500 company stake out a position on the abortion debate? Even if the board of directors happened to be majority pro-choice, people on boards of directors clearly understand that their role is to represent the interests of shareholders, not to promote their pet political causes.
  • Pro-life groups aren’t hurting for money. I drive around Saint Louis and I see far more pro-life billboards than pro-choice ones. So even if we assume that corporations began to cut off access to web sites that don’t pay up, there’s every reason to think this would hurt pro-choice groups more than pro-life ones.
  • Finally, is there any doubt that the first time a company pulled such a stunt, there’d be a groundswell of support for government action? Most people aren’t fired up about network neutrality because they perceive (accurately, in my opinion) that the world will not come to an end if we maintain the status quo. But if Comcast created a blacklist and puts all pro-life web sites on it, suddenly network neutrality would become a top voting issue for millions of pro-life voters. If Comcast didn’t back down, network neutrality regulations would pass in a matter of weeks.

    I think that like Gun Owners of America’s support for legislation, this demonstrates the hazards of opining outside your professional competence. Gun Owners of America does a great job of representing pro-gun conservatives. The Christian Coalition does a good job of representing the views of religious conservatives. But it seems unlikely that either one of them has much expertise when it comes to telecom policy. Which makes them susceptible to misleading sales pitches by the left-wing activists and large corporations pushing for new regulations.

  • A few months ago I posted about a site called Consumeraffairs.com that referred to supporters of net neutrality regulation as a “rag tag band.” Pointing out that any coalition that includes the likes of Microsoft and Google simply cannot be “rag tag,” I concluded that “even wearing Underdog’s cape, net neutrality rules just won’t fly”.

    Now it seems that while they didn’t quite get the substantive message, consumeraffairs.com has picked up some of the terminology. In a story posted yesterday, it lauded Rep. James Sensenbrenner for introducing a net regulation bill, saying “when it comes to the issue of net neutrality, Sensenbrenner is on the side of the underdog.”

    At the risk of becoming repetitive, the underdog in this particular catfight includes the following companies (along with their rank on the Fortune 500 list):

    Microsoft (48)
    Intel (49)
    Amazon.com (272)
    Google (353)
    Yahoo (412)
    ebay (458)

    Add to this the potential support of financial services firms, and underdog is looking like a pretty big pooch. This is not to say that regulation opponents don’t have some heavy-hitters on their side (for instance, a pack of tech manufacturers announced their opposition Wednesday). But it doesn’t take a bloodhound to see that this isn’t a big guy v. little guy fight.

    Underdog’s cape still just doesn’t fit.

    The Department of Homeland Security’s Data Privacy and Integrity Advisory Committee will be considering a report on the use of RFID in identification documents at its meeting June 7th in San Francisco. A draft of the report has been posted with a request for comments.

    The report has already generated a little attention. This Government Computer News story overstates the tone of the report, but it’s good.

    From the DHS Privacy Committee Web site:

    The Use of RFID for Human Identification (PDF, 15 pages–127 KB) The DHS Emerging Applications and Technology Subcommittee of the Privacy Advisory Committee is seeking comments on this draft report. This report will be considered by the full Committee during the June 7, 2006 public Advisory Committee meeting in San Francisco, CA.

    Please provide any comments in writing to privacycommittee@dhs.gov, by postal mail, or by fax by 12:00 p.m. EST on May 22, 2006. All Comments will be considered on an ongoing basis.

    Wall Street Journal reporter Amy Schatz has an important story on B1 of the paper today providing further evidence of how a handful of media activists groups–and the one in particular–have co-opted the FCC’s broadcast indecency complaint process for the own ends. Schatz notes that the Parents Television Council (PTC) was responsible for the vast majority of complaints against a single CBS program “Without a Trace,” which the FCC recently slapped with a record $3.6 million fine in March.

    The WSJ filed a FOIA request to examine the complaints for that program and found that “all but three appeared to originate as computer-generated form letters (from the PTC).” In other words, virtually every complaint was identical and originated with the PTC’s website. “Only 2% of the people who filed complaints, or about 135, added personal comments,” Schatz found.

    These results are consistent with the findings from my paper, “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process.” In that paper, I noted the influence of the PTC on the indecency complaint process and showed how the organization is essentially “stuffing the (complaint) ballot box.”

    Continue reading →

    Senate Majority Leader Bill Frist (R-TN) is making a major push this week to pass legislation through the Senate that would significantly increase fines for “indecent” broadcast programming. The bill, S. 193, which was originally introduced by Sen. Sam Brownback (R-KS), would hike fines against broadcasters that air obscene, indecent or profane material to a maximum of $325,000 per incident. (The current limit is $32,500 for supposed violations).

    Such legislation makes good election year fodder for politicians, and it obviously appeases a base of potential voters who feel there is too much “smut” on TV or radio today. For both groups, the rallying cry here is: “it’s for the children!” But I want to ask both groups a serious question: Do you really think broadcast censorship accomplishes that goal today?

    Seriously, look at these recent Bolt Media poll numbers. Almost 80 percent of 16- to 18-year-olds surveyed were unable to even name who the big 4 TV broadcasters are! (They are ABC, NBC, CBS, and Fox just in case you don’t know). Meanwhile, the majority of respondents (85 percent) said they spend their free time on the Internet, compared to only 69 percent who said they spend their free time watching TV.

    Continue reading →

    Ed Felten reports on his keynote at the SANE conference in the Netherlands:

    The talk was a quick overview of what I used to think of as the copyfight, but I now think of as the technologyfight. The first part of the talk set the stage, using two technologies as illustrations: the VCR, and Sony-BMG’s recent copy-protected CDs. I then switched gears and talked about the political/regulatory side of the techfight.

    In the last part of the talk, I analogized the techfight to the Cold War. I did this with some trepidation, as I didn’t want to imply that the techfight is just like the Cold War or that it is as important as the Cold War was. But I think that the Cold War analogy is useful in thinking about the techfight.

    The analogy works best in suggesting a strategy for those on the openness/technology/innovation/end-to-end side of the techfight. In the talk, I used the Cold War analogy to suggest a three-part strategy.

    He offers a three-prong strategy in the techfight. Prong 1 is containment: patiently but firmly resisting content industry efforts to gain ever more control over our technological devices. Prong 2 is explanation: Make sure that the public clearly understand what’s at stake. This is, I think, the most difficult task. I remember wandering around the University of Minnesota campus in 2001 with flyers explaining why it was a bad thing that Dmitry Sklyarov was in jail. I got mostly blank looks. Consumers benefit from open technologies, but most of them don’t really understand how they work or why they’re important. I think this job is gettig a little bit easier as DRM-related problems become more widespread, but the issue is still off the radar of virtually all voters.

    I think his third prong is the most important, creation:

    Continue reading →