A few weeks ago, NBC Universal filed comments in the FCC's proceeding on “Broadband Industry Practices.” It asked that the FCC require that Internet Service Providers institute “bandwidth management tools”–its code for network filters–to try to screen the Internet of copyright infringement. Yesterday, we filed our response, joined by Consumer Federation of America, EDUCAUSE, Electronic Frontier Foundation, Electronic Privacy Information Center, FreeCulture.org, Free Press, Knowledge Ecology International, Media Access Project, New America Foundation, and U.S. Public Interest Research Group. You can read a text version of our comments here, and the handsomely-formatted PDF can be accessed here.
NBC's comments (read them here) are filled with ludicrous claims. Art already blogged about its position that file-sharing hurts the American farmer. It also claimed that the open Internet is like a FedEx or UPS delivery service for contraband–wouldn't the government do something, they ask, if 70% of FedEx's payload was stolen goods or illegal drugs? Now, we agree that copyright infringement is a Bad Thing(tm). Any time there is widespread lawbreaking, obviously something's gotta change. But NBC's glib equation of copyright infringement to the theft of real, physical property is a common as it is unfounded. This is not the place to get into the technical, almost philosophical distinctions between rivalrous and non-rivalrous goods. OK, let's get a little philosophical. Here's one of my favorite quotes on IP, from Boethius, writing from his jail cell in 524 A.D.:
When you speak, your whole voice fills the ears of many hearers to an equal extent, but your riches cannot in the same way be shared equally among many without diminution. (Boethius, The Consolation of Philosophy 33 (Victor Watts trans., Penguin Books 2000).)
I visited Monticello a couple of weeks ago, am also reminded of Thomas Jefferson's famous quote:
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. (Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813).)
You can't just ignore the difference between physical goods and infinitely copyable bits. The Internet is like the replicator from Star Trek, but instead of making “Tea, earl grey, hot,” it makes perfect copies of files. This is what the Internet does. Every email you send, every web page you download, is a copy. If you are reading this post, you are reading a copy of a copy of a copy. Cory Doctorow always quotes Bruce Schneier as saying that “making digital files not copyable is like making water not wet.”
But all this is a digression. NBC's silly claims and reified analogies distract from the worst part of its filing. Read it carefully. They would forbid customers from using “applications that allow” copyright infringement. Here is a short list of some of these applications that strict obedience to the NBC rule would ban:
- The Web
- All P2P services
- The Internet itself
And why stop there? Piracy is also abetted by such dastardly inventions as:
- Portable hard drives, including iPods
- Burning CDs
Maybe not the last two. My point is that digital technology itself is an “application” that facilitates copyright infringement. Obviously, it facilitates a lot of other stuff as well. Democracy and free expression, for instance. NBC's idea would block all content from being transferred using its list of proscribed technologies, whether that content is infringing or not. Artists and software developers, for instance, use BitTorrent as a bandwidth-saving way to legally distribute their content. NBC doesn't care, though, and it would throw out the baby with the bathwater in order to protect the status quo ante. NBC's approach would also have the effect of making it difficult or impossible for up-and-coming competitors like Joost to function–but I'm sure that's just a coincidence.
Our challenge is to find a way to make sure that creators and artists (not bureaucrats and middlemen) get paid for their work. I've got this crazy idea that the purpose of copyright law is to “to promote the progress of science and useful arts,” not to prop up old business models and stand athwart history, yelling “Stop!”
NBC's filing is especially frustrating because the television and motion picture industries, unlike the music industry, have been very creative in coming up with new models of content distribution. I watched NBC's great show Heroes by streaming it from their website. Netflix's Watch Now feature (Internet Explorer requirement notwithstanding) is great. We should see what happens with these (and many, many other) innovative new business models and content delivery mechanisms before rushing in with new regulations.
NBC's comments also fudge the difference between an “unauthorized” use and an “illegal” one–something that the content industry is very fond of doing. Many fair uses, such as using excerpts of a work in commentary or for transformative uses–may be “unauthorized” but nonetheless legal. You don't need anybody's permission to do them. You don't need to put on your best suit, stick a flower in your buttonhole and go-a-courtin'. Lots of other uses–like the ability to move content from one device to another, make backup copies, or engage in “me to me” transfers over the Internet, also may be “unauthorized” and (DMCA anti-circumvention provisions notwithstanding) nonetheless legal. No doubt, the content industry would much rather you buy the same content over and over again: One copy of movie for your DVD player, another for your iPod; one copy of a song to listen to, another for your ringtone. But we shouldn't change the law in order to facilitate this nickel-and-diming. No network filter that blocks all unauthorized uses is acceptable. Fair use is a constitutionally-protected doctrine of free speech.
There are other problems with the NBC filing. To paraphrase Mary McCarthy, every word they wrote is flawed, including “and” and “the.” But I'll just focus on two more of the problems.
Network filters can't work. Encryption, clever technologies like traffic shaping, and determined pirates can always route around any filtration system, including so-called “deep packet inspection.” Eventually, false positives could outnumber the infringing material that is blocked. Some have already started down this road: Canadian ISP Rogers, in a futile attempt to staunch encrypted P2P traffic, has ended up degrading all encrypted traffic, including some email. Plus, network filters would have zero effect on “sneakernet” transfers (whereby people share burnt media and portable hard drives which each other), which by some measures makes up the majority of file-sharing. They would cripple the Internet for little gain, even to themselves.
The kind of regulation that NBC is calling for goes well beyond the authority granted to the FCC by Congress. Of course, we wouldn't support the regulations even if Congress was to pass them–but Congresscritters, having to answer to constituents and worry about reelection, we think would be unlikely to enact such breathtakingly anti-consumer measures.
We've seen in the Net Neutrality debate how many of the big pipe-providers don't really care for the open, end-to-end nature of the Internet. The content industry, of course, has had to be dragged kicking and screaming into the digital age. Anyone who cares about preserving the Internet's dynamic, open, democratizing nature should be worried about an unholy alliance between the two.
Comments of NBC Universal. (PDF)
Reply Comments of Public Knowledge, et al. (html) (PDF)
Our press release is here.
Coverage of our filing–and a more succinct and unbiased summary of its arguments–at C|Net News, here.