Legislative update

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:

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:

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.