Would Net Neutrality Law Block WikiLeaks?

The Founding Fathers wanted America to have a rich public culture. They understood that all politics, all scientific and engineering development, all intellectual development of any sort required a rich feed of all that had gone before. To achieve this, they sculptured copyrights laws that gave the individual creator of a work a brief period in which he could directly profit from a monopoly on his work. After that period the work would fall out of copyright and into the public domain, and like fruit that falls to the ground, enrich the cultural soil of the community. Even though ours was an agrarian society with little use for copyright laws at the time, they felt it important enough to earn a place in the Constitution:

The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Before 1783 the longest period of copyright in America was 7 years. U.S. copyright law was written the way it was because the authors of the Constitution always saw the author's interest as secondary to that of the public. Sadly, the Constitution did not set the length of copyright.The first federal copyright law, the

Copyright Act of 1790 granted a copyright term of fourteen years that was renewable for another fourteen if the author was still living. Under pressure from the financial interests of the copyright holders, already the march was on toward extended copyright terms, but change was slow in the beginning. In 1831 the first term was extended to 28 years and in 1909 the second term was likewise extended to 28 years.

With the passing of the [sic] Sony Bono Copyright Term Extension Act in 1998, U.S. copyright law became a complete perversion of it's Constitutional intent. The U.S. copyright law was extended to as long as 120 years for works owned by corporations. Chris Sprigman gives a very good description of how Disney money bought this law barely 5 years before the copyright on Mickey Mouse was due to expire in his THE MOUSE THAT ATE THE PUBLIC DOMAIN. Simply put, according to the terms of the Copyright Act of 1998, no new works will enrich the public domain over the copyright holders objection until 2048!

Fortunately for us and our culture, the 'facts on the ground' have been somewhat different. Owning to the tremendous developments in computer technology, computer software and especially the Internet, we have been the beneficiaries of absolutely unprecedented access not only to the great body of existing works, but a proliferation of new works, many of them freely making ''fair use" of copyrighted material in their creation. My YouTube video Headless Body Turns Up in AZ Governors Debate, in which I take news footage of Jan Brewer's meltdown and add captions is but one small example.

Of course, not everybody is happy with this situation, the big corporate content owners, for example. They have been accustom to having it their way for years. When records came out they licensed the songs to us on records. When tapes came out, they licensed the same songs to us on tapes, and then when CD's came out, they licensed them to us again. The story is much the same with video media. I have payed Columbia at least 3 different times for my right to legally have a copy of Bob Dylan's Highway 61 Revisited. They have no 'upgrade' policy. Now comes the age of digital recording and digital copies. There is no degrading with age and no lost, provided digital copies can made. That is why they have fought against or wanted to tax every recording media from the copier, video tape and cassettes on. Now they would like to charge me again and this time separately for every instance of "Like a Rolling Stone" I have on every digital device I use. But pine as they may, technology moves against them and that gravy train is over.

So just when they think they pretty much have everything as they like it on the legal front, the dam breaks open on the technological and communications front. We have not been stifled so far because just when we were forced to become pirates of our own cultural, the means to do so became readily available. Most important among these means has been the Internet, a low cost way of sending any creative work that could be reduced to a digital stream anywhere in the world without fear or favor, and so far, without much concern for the copyright status of the content.

And just what does all of this have to do with network neutrality? Quite a lot it would seem, because while the liberal left lobbies for new Net Neutrality legislation that will give the FCC more control over the Internet in the name of fixing something that isn't broken, network neutrality, the big content providers are making sure there is a lot in the sausage for them, and their vision doesn't look anything like a free or open Internet.

Looking at Pickering & Markey's Internet Freedom Preservation Act of 2008 we see that it is designed "to maintain the freedom to use for lawful purposes" and "enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing." All of the rule making around network neutrality is riddled with this language about 'lawfull content'. At first glance, there would seem to be no problem, one can hardly expect a legal framework for Net Neutrality that protects 'illegal content' can one? Except that is exactly what the current international Internet regime has been doing more or less effectively now for twenty-five years. Not only has what I will loosely refer to as the IETF-W3C-ICANN regime [ and I know that is inadequate and leaves out a lot, but I wish to remind everyone that real organizations have been handling matters till now and doing pretty good at it.], have been enforcing net neutrality with very few and only short lived violations, they have done this both for 'lawfull' content and what some would consider 'illegal' content, including adult pornography, materials used in violation of copyright, and secrets embarrassing to governments and businesses. But this is not the intent of the upcoming Net Neutrality Sausage.

When RIAA CEO Mitch Bainwol said

he isn't opposed to net neutrality legislation that recognizes the difference between legal and illegal content, protects only legal activities, and doesn't hinder efforts to combat illegal activities. "

Markey said the bill would not interfere with the music industry's fight against piracy.

But I think the real question is does it give the FCC increased powers to further the industry's piracy fight? Because even if those powers aren't exercised by the current administration, what about a Republican administration? If it does, perhaps another way should be found because if we create an atmosphere where each national government is monitoring and filtering for what it considers 'illegal content' it will lead to the balkanization of the Internet of which some have warned.

The Internet community has it's own definitions of what constitutes legal and illegal Internet content. The Internet Engineering Task Force [IETF] is first of all concerned with a very different 'illegal' content, namely data and systems that violate the well established protocols and standards. For example RFC3462 refers to "re- encoded into a legal 7-bit MIME message or the Text/RFC822-Headers content-type." All sorts of viruses and malware are also considered illegal content.

There is another definition of illegal content that is generally accepted in the Internet community, for example this is the way that INHOPE defines illegal content:

* Child pornography images and websites
* Illegal activity in chat rooms (e.g. grooming)
* Online hate & xenophobia websites

As you can see, they define illegal content very narrowly and in terms of content that any reasonable person would oppose. But when it comes to copyrighted material, and the enforcement of the copyright laws of all the countries on the Internet, the Internet has taken a 'copyright' agnostic viewpoint. The position taken by different ISPs, on the other hand, has varied.

In January. the news came out that Verizon, unlike Comcast, Quest and Cox, was refusing to boot paying customers off their network because they had received "too many" RIAA or MPAA DMCA warning letters accusing them of piracy. BroadbandDSLReports.com supported Verizon's policy, "given the legal repercussions of terminating accounts based on little more than an IP address and a wink from the entertainment industry."

When it comes to the type of 'illegal' content that concerns Hollywood, copyright violation, one IETF writer points out that

from a technical perspective this is trivial, ISPs cannot distinguish illegal from legal content, assuming a minimal amount of encryption/obfuscation. The content industry could only tell the ISP "user XY is doing something illegal, do something about it" and the ISP would have to believe that without being able to verify it.

and with regards to the various technical copyright enforcement schemes:

Another issue is that such schemes might drive illegal filesharing deeper underground, e.g. onto darknets which provide pseudonymity and plausible deniability at the cost of increased bandwidth consumption, another network overlay and data being bounced through random nodes, which is completely the opposite of what we want to achieve.

You just have got to love the way the Internet has been put together. Initially designed to be decentralized enough to survive a nuclear attack, it has proven very resistant to the attempts of governments and corporations alike to control it. Nonetheless, the content owners expect a lot of help from the FCC as they implement their version of Net Neutrality.

The Copyright Alliance, writing on their blog , 4/27/10 says "At stake is the ability of copyright owners to protect their rights online." Commenting on the FCC's Net Neutrality fillings, AFTRA is “generally in favor of the Commission’s proposed rules in this proceeding as applied to lawful content, so long as the Commission encourages any parties subject to these rules to take affirmative steps to stop the distribution of content that violates federal law, including content distributed in violation of copyright.” According the the blog, the outlook of the National Music Publisher's Association [NMOA]

echoes that of FCC Chairman Julius Genachowski, who has frequently stated that net neutrality rules should only be applied to lawful content. “To be meaningful in practice, however,” the filing states, “the FCC must also clearly and unambiguously ensure that the distinction between lawful and unlawful content can and will be enforceable,” adding that “[n]et neutrality cannot serve as a vehicle to maintain — or, even worse, expand — opportunities for activity that is illegal, such as the digital theft of copyrighted works.”

Business aren't the only ones that have an interest in blocking what they consider illegal content. Governments have also done this, and they pray to a higher god than 'copyright'. They pray to the god of 'national security'. As Adrian Chan points out in Why the Pentagon's War on Wikileaks Is Like the Music Industry's War on Napster, they desire a similar control over the Internet and the content of it's communications. The current Net Neutrality emphasis on 'lawfull' content is not likely to offer much protection to the likes of WikiLeaks.

Concerns like these played a large role in the Electronic Frontier Foundation's opposition to the Proposed FCC Net Neutrality Rules introduced in January and slapped down by the courts in April. Blogging on January 14th, say said:

While the question of how to best protect the openness of the Internet is a timely and important one, EFF believes the FCC currently lacks the statutory authority to issue the broad regulations on ISPs that it has proposed. The "ancillary jurisdiction" that the FCC has asserted as a basis for the regulations is legally insufficient and would, if accepted, give the FCC potentially unbounded power to regulate the Internet however it likes... in order to protect the free speech interests of Internet users, the Commission should reject copyright enforcement as "reasonable network management." Copyright enforcement has nothing to do with the technical business of network management.

The corporate copyright holders and content providers on the other hand, want the FCC to take on a much larger mandate in the name of defending network neutrality, one that would give the FCC 'unbounded' power, in the words of EFF, including presumably, the power to enforce their copyright regime on the Internet. This is the Trojan Horse problem which EFF has been concerned about.

Since he works for NBC, it is not surprising that Keith Olbermann favors this road to net neutrality. That is why he argued,

But the FCC could, under at least one reading of its authority, ensure that net neutrality extends to the wireless Internet, as well as to the wired Internet.

This no doubt would be the much wider mandate the FCC is seeking which coincidently would also put the FCC in a better position to police after NBC's piracy concerns on the Internets!!

What about the Free Press, the FCC lobbying group that loudly condemned the Google/Verizon proposal, spearheaded a petition campaign calling upon Google to "Don't be Evil", and has raised such a scare about the imminent lost of net neutrality. How do they think it should be achieved?

The FCC Should Classify Broadband Internet Connectivity as a Telecommunications Service Under the Communications Act and Pair that Determination with Tailored Forbearance.

They write in FCC filings. In other words, they favor giving the FCC near unlimited power over the Internet, and then hoping they will use it wisely. If they hadn't received a quarter million dollars in newspaper [content provider] foundation grant money in January, I would find it easier to believe that they are innocent in overlooking the copyright enforcement aspects of their position. I am also very suspicious of their attacks on Google, first because I believe that their critique of Google's position on net neutrality is not well founded, as I have detailed elsewhere, and second because Google has always been the bane of the copyright holders. It's search engine, Google Video and YouTube, among other things, make much copyright material available to the world because Google has adopted a very liberal view of what encompasses the 'fair use' of copyrighted material and has the clout to back it up. They haven't folded in the face of Hollywood demands the way Facebook and MySpace have.

And it is certainly easy to see why the FCC wants this new authority, as the Technology Liberation Front points out, without it, it may soon have nothing to do:

If the Federal Communications Commission cannot regulate the Internet, it may die. The telephone and television industries are declining, whereas communications industries which the FCC monitors to some extent but does not regulate, e.g., the Internet backbone, broadband Internet access and wireless, are thriving. The Internet, which the FCC cannot regulate, is subsuming legacy communications services which the commission can regulate. That spells doom for legacy regulation. Career regulators are worried.

So I say again, there is a lot of Trojan Horse Meat in this Net Neutrality Sausage they are cooking up for us and we should just decline this meal and not fix what isn't broken. All we need is an FCC that has to power to make sure our corporations obey the rules of the Internet. It doesn't need the power to try to make the rules for the World Wide Web.

The next thing we know, they'll be telling us that only 'lawful' speech is protected by the First Amendment.

Here is a recap of my other DKos dairies on this subject:
Free Press: Country Codes for the Internet?
The Mountain comes to Mohammad
Keith Olbermann's Deception
Court rules -> Google Must Be Evil & Maximize Profits
EFF on the Google\Verizon Net Neutrality Proposal
Google-Verizon: What is the Free Press Agenda?
End of the Internet As We Know It!
Free Press would make this Illegal!
Google Verizon Announce Terms of Deal