Legislative update [LWN.net]

It seems to be legislative season, with interesting laws popping up like the flowers in this (northern hemisphere) spring. While much of this activity is happening in the US, there is also, as we will see, activity on the international scene as well.

Network neutrality

As telecommunications companies in the U.S. slowly coalesce back into the Ma Bell we knew over twenty years ago, they are increasingly making scary noises about taking control of the Internet traffic which passes over their networks. These companies would like to shake down operators of web sites for the right to communicate with their customers - who have already paid for their network access. They would like to impede the passage of voice over IP traffic, since Internet telephony services conflict with their own offerings. In general, the idea of the net as a service by which any two applications can communicate using the protocols of their choice is under threat.

In response, there have been several pushes for "network neutrality" laws which would prohibit telecom companies from discriminating between packets. These proposals have, so far, not gotten all that far in the legislative process. But they keep coming; the latest is the Markey Network Neutrality Act of 2006. The core language in this act is:

Each broadband network provider has the duty to ... not block, impair, degrade, discriminate against, or interfere with the ability of any person to utilize their broadband service to: (A) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet; or (B) attach any device to the provider's network and utilize such device in connection with broadband service, provided that any such device does not physically damage, or materially degrade other subscribers' use of, the network.

There are some exceptions, of course; for example, spam filtering and "parental control" are allowed, as long as they are optional. ISPs are also allowed to prioritize classes of service - voice, for example - as long as all traffic of that class is prioritized in the same way.

Network neutrality laws have a certain appeal; they attempt to codify the way we tend to think the net has operated all of these years anyway. There is danger, however, in giving an agency like the U.S. Federal Communications Commission (FCC) the power to regulate traffic over the net. Once the FCC starts telling ISPs how to handle the packets they carry, there will inevitably be pressure from well-funded interests to tweak those regulations in their favor. The net's relatively unregulated regime has suited it well this far; we should think carefully before starting to add regulations to the net.

Broadcast flags

U.S. Senator Stevens is pushing a huge telecommunications bill for this session. It includes a number of things, including a network neutrality section - though the Stevens version simply requires the FCC to crank out occasional reports on whether neutrality regulation may be required. Buried in the depths of this bill, however, is a subsection called Digital Content Protection Act of 2006. This section, quite simply, directs the FCC to implement the broadcast flag as described in its previous attempts.

The consequences of the broadcast flag have been discussed many times. It will treat anybody with a television or radio as a pirate and deprive them of their fair use rights. A mandated broadcast flag will also outlaw any radio or TV implementation in free software. Code which can be changed by end users will never live up to the robustness requirements that come along with broadcast flags. So this sort of legislation means the end of projects like MythTV - at least, in the jurisdictions where the legislation has force.

WIPO

The World Intellectual Property Organization is busily working on a treaty. There is now a draft of the new WIPO treaty in circulation; it has been put onto a fast track with an eye toward adoption in 2007.

There is a fair amount of bad news in this draft. It includes a DMCA-style anti-circumvention clause which all adopting countries would have to implement; the DMCA could yet become a worldwide law. This treaty also looks to extend its 50-year (minimum) protection to "webcasting organizations" which make content available on the net. The definition of a "webcasting organization" is interesting:

"webcasting organization" means the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representations thereof, and the assembly and scheduling of the content of the transmission.

Note that there is no mention of the "webcasting organization" actually owning this content or having any other rights over it in any way. By virtue of "taking the initiative" and putting content up for distribution over the net, an organization can claim exclusive copyright rights over that content for 50 years. Should somebody else wish to use the webcast materials in another work, it will no longer be sufficient to obtain the rights from any relevant copyright holders; the middlemen represented by the "webcasting organizations" will also be involved.

The webcasting provisions are an optional part of the WIPO treaty, though, as others have pointed out, it would be highly in-character for the U.S. to require adoption of those provisions as part of any trade treaty it signs. The DRM provisions are not optional, however, and neither are the articles giving broadcasters exclusive rights over "fixation" (i.e. recording) of their output. This legal right, combined with legally-enforced DRM, will, once again, be the end of projects like MythTV.

(See writeups by Cory Doctorow and the EFF for more information on WIPO).

The drive to gain control over information is relentless. As a community based on openness and sharing of information, we are threatened by those who require technical and legal controls over the sharing of information. If we want to continue to live in a world where we have the right to create, to share our creations when we so choose, and to use free systems to do so, we must pay attention to these threats. Tempting as it may be to ignore the unpleasant legislative processes happening world wide, the sad fact is that those processes will not ignore us.

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the net has never been unregulated

Posted May 4, 2006 16:57 UTC (Thu) by stevenj (guest, #421) [Link]

The net's relatively unregulated regime has suited it well this far; we should think carefully before starting to add regulations to the net.

This seems to be a common fallacy — the net has never been unregulated, and and regulation (specifically anti-trust regulation of the Bell corporation) has arguably been a key factor enabling the Internet as we know it.

The question is not regulation vs. no regulation, but rather who is regulating and to what end. I would rather be regulated by elected representatives than by telecom quasi-monopolies, the MPAA, or Microsoft.

Lawrence Lessig actually wrote about this very issue six years ago:

There is deep confusion about the idea of "regulation" within our political culture and about its relationship to innovation and the Internet. The fashion is to say that regulation harms innovation; that government-backed rules undermine creativity; that the best or most effective policy for regulators is, as Federal Communications Commission (FCC) Chairman William Kennard put it, to allow the "marketplace to find business solutions ... as an alternative to intervention by government." Any talk about "regulating" cyberspace invites the breathless reply of the impatient young Capitol Hill staffer: Cyberspace was born in the absence of regulation. Don't kill it with regulation now.
This attitude is profoundly mistaken. It betrays an extraordinary ignorance about the history of the Internet, and this ignorance threatens to undermine the innovation that the Internet has made possible. Innovation has always depended upon a certain kind of regulation; the greatest examples of innovation in our recent past evince this reliance. And unless we begin to see the relationship between this type of rule and the innovation it promotes, we are likely to kill the promise of the Internet.
[...]
Though the Internet proper was initially a network among universities, had it not been for the ability of ordinary consumers to connect to the Internet, that network would have gone nowhere. (Universities are fun, but they aren't enough to fuel commercial revolutions.) Ordinary consumers connected to the Net across phone lines. And had it not been for the open-access rules that the government imposed upon telephones, the telephone companies would most likely have behaved just as every network owner in history has behaved—to control access and use architecture to minimize competition. If it hadn't been as cheap to dial a local bulletin-board system (BBS) as it was to dial a local friend; had the Baby Bells kept the power to force customers to a Baby Bell ISP; had the government not insisted that competitors be connected and had it not policed pricing to ensure nondiscrimination—had it not, in short, used the power of law to force a competitive neutrality onto the telephone system, the telephone system would not have inspired the extraordinary innovation that it did.
By keeping the network neutral, by keeping it open to innovation, the FCC has made possible the extraordinary innovation that the Internet has produced. Open access was the rule; a regulation produced that rule.

anti-user tactics

Posted May 8, 2006 12:33 UTC (Mon) by dion (subscriber, #2764) [Link]

I think that the anti-customer stance of the media is some sort of death rattle because the situation looks more and more impossible for each day:

* HD on disk is useless because it's all tied up in DRM (AACS).
* Even DVD is illegal to watch under the DMCA.
* DVB-s (digital sat tv) is worthless as well because of many different competing DRM implementations, operators that try to exclude eachother and refuse to support non-approved receivers.

Because the media moguls are so tightfisted with their content that I can never use it with my (theoretical) MythTV setup, so I'll probably never bother to set up a TV or buy a single AACS encumbered movie.

If They(tm) are trying to kill old media for me then they are succeeding and these laws will only help bring about their end.

Being restricted from doing morally ok things by shortsighted laws sucks, but I choose to see the DMCA-like laws and DRM as signs that the companies that use them don't want my money.

I guess my point is that just like high oil prices are forcing people to wean them selves off of that fuel (painful as it may be) then so is cumbersome legislation going to wean people off the old encumbered media.