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.
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
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
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.
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
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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