Net Neutrality not in conflict with copyright enforcement

It is unfortunate that some in the music industry have fallen on hard times.  But it's not the fault of those of us who favor an open and non-discriminatory Internet.  It is a gross misperception of reality to say that proponents of Net Neutrality like Public Knowledge are “more interested in the freedom to steal” digital content, as songwriter Rick Carnes wrote here last week.

Let’s be clear – Public Knowledge and its allies are not in favor of stealing content.  We don’t devalue copyright and we don’t think enforcing copyright law is “trivial.”   We don’t believe that everything should be “free,” as in “free coffee,” as opposed to  “free” as in “free speech.” To say otherwise is flat-out wrong.  What we believe strongly is this: online copyright enforcement should not violate Internet users’ privacy, limit lawful speech or chill innovation.  But Carnes appears willing to sacrifice those democratic values in the hope that a closed, filtered Internet can somehow fix a problem that existed long before the digital age.

What Carnes’ believes to be simple fixes to online theft are far more complicated.  First, many of the remedies he favors are harmful and possibly illegal.  It’s misleading for him to say that Public Knowledge opposes certain ideas because they are not perfect.  It's that the harms are too great to ignore. Does Carnes really want telephone and cable companies looking at every bit of data that people send from their Internet connections?  That’s spying, and people don’t like it when the government does it, much less when some private companies do it, without a warrant, on the off chance that there is some copyrighted content in that data.  Does Carnes want Internet users to have their digital lifelines severed because of three allegations of infringement, as Big Media has proposed in asking for “three strikes” policies?  In America, we are considered innocent until proven guilty, and we can’t be proven guilty without due process.   “Three strikes” turns due process on its head.

Second, the Federal Communications Commission (FCC) has no authority to enforce copyright law.  Carnes wants to shoehorn the ability to spy on Internet consumers into FCC net neutrality rules which would allow for “reasonable network management.”  It would take quite a stretch to equate private-industry spying with making sure bits flow smoothly.  It is also shocking that any artist would want the FCC to have more involvement in making judgments about the content of communications.

Importantly, Carnes ignores the many thousands of musicians, independent filmmakers and other artists who support an open Internet because it gives them untold opportunities to reach large audiences quickly and inexpensively.  Many of these artists are second to none in wanting their works protected, but they are wary that Big Media gatekeepers will use a closed Internet to maintain market advantage.  It is puzzling why Carnes, a self-styled defender of the little guy, is taking a position so at odds with individual artists and so in line with Big Media.

Carnes similarly links arms with Big Media when it comes to another idea -- Selectable Output Control (SOC), a.k.a. the Hollywood Kill Switch.  Movie companies want the FCC to give them the power to control your set-top box or TV set, deciding when it works and when it doesn’t.  SOC would limit the use of millions of digital TV sets and devices like TiVos and Slingboxes.  The companies say SOC will stop theft – but independent filmmakers realize that this is really about control.  Public Knowledge opposes SOC because we respect the rights of Americans who have not been accused of any crime, but who are being treated like criminals.

Carnes’ insists that Public Knowledge only says “no” to efforts to curtail online infringement, but he clearly hasn’t taken the time to read anything we have said for the past eight years.  Carnes’ is just wrong to say that Public Knowledge doesn’t support ISPs sending warning notices – we do.  We support the notice and takedown provisions of the Digital Millennium Copyright Act, filtering of content at the network’s edge (such as what YouTube does) and even lawsuits against the biggest online infringers.

But most importantly, Public Knowledge will always say “yes” to new business models that allow consumers access to a full catalogue of reasonably priced music and movies.  Carnes and his colleagues in the recording industry don’t like to admit it, but new sources of revenue are developing thanks to iTunes, the increasing success of Internet radio services like Pandora, and the exploding sales of ringtones. Hollywood had a record year at the box office in 2009.  If the studios ever loosen their grip on licensing newer films for streaming over cable and services like Netflix, I predict more success. 

We agree with FCC Chairman Genachowski that “[t]he enforcement of copyright…and the obligations of network openness can and must-coexist.”  It’s a shame Rick Carnes does not.

Gigi B. Sohn is president and co-founder of Public Knowledge, a Washington, D.C.-based public interest group working to defend citizens' rights in the emerging digital culture.