Why is net neutrality a more complex issue than what you think? (Part II)
If you haven’t read Part I by Corentin Poret already, here it is.
Net neutrality and Intellectual Property — The other side of the coin
There seems to be some clouded debate about net neutrality. As its foundations were being laid in the United States under the Obama Administration, there was a growing concern about the impact of net neutrality on intellectual property. This debate is resurfacing today.
FCC and net neutrality: intellectual property introduced a loophole in the bill
Let’s jump back to 2009 as the Federal Communications Commission (FCC) was drafting the Open Internet Order. Two years prior, the Comcast vs BitTorrent case — Comcast easing off its internet traffic by reducing access to BitTorrent — pushed net neutrality on the FCC agenda. They already had set four “Internet freedoms” in their 2005 Internet policy statement. The Songwriters guild of America testified before the New York Security council to oppose the bill. They argued that “the greatest risk of harm to consumers comes from regulatory and legislative proposals to prevent responsible ISPs from managing their networks.”
The impact of net neutrality on intellectual property was worrying to any copyright holders and led the FCC to introduce an “unlawful content” close in the bill. The Electronic Frontier Foundation (EFF) strongly reacted to this lobbying, stating that this would create a loophole in the legislation that would go against the principle on which it was built. It would “theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was ‘reasonable network management’ intended to ‘prevent the unlawful transfer of content.” This would not mean that an ISP could block an entire website based on the fact that if identified some unlawful content, but that it could justify blocking the website under “reasonable network management”. How one would define “reasonable” is what focused criticism at that time — would it be 50% of unlawful content on a given website?
2015 and FCC bill: when copyright became less of a concern for activists
In 2015, the FCC adopted the Net Neutrality rules. The “copyright loophole” for which MPAA and RIAA were lobbying was still part of the new legislation. The notion of “reasonable” effort to tackle copyright infringement remained in the bill:
“Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.”
However, activists like the EFF were surprisingly not protesting as strongly as in 2009 against the ‘loophole’. EFF attorney Kit Walsh indicated at the time that the debate about paid prioritization clouded the issue regarding intellectual property.
Still, as the FCC was starting to consider repealing its bill after the Republicans took office in January 2017, Tim Wu, the professor who coined the term “Net Neutrality”, sent an open letter to Tim Berners Lee in April 2017 reinforcing the fact that intellectual property, and more precisely Digital Rights Management (DRM), could be a real danger to the principle of net neutrality as regards competition:
“ (…) [This] brings the anti-circumvention laws into play, and as you may know anti-circumvention laws have a history of being used for purposes different than the original intent (i.e., protecting content). For example, soon after it was released, the U.S. anti-circumvention law was quickly by manufacturers of inkjet printers and garage-door openers to try and block out aftermarket competitors (generic ink, and generic remote controls). The question is whether the W3C standard with an embedded DRM standard, becomes a tool for suppressing competition in ways not expected.”
The issue is antagonizing activists today, as Tim Berners Lee approved the standardization of DRM at the W3C in July 2017, leading the electronic frontier foundations to appeal its decision…
The European Commission and net neutrality: intellectual property smells like a Trojan horse
The debate about net neutrality and intellectual property in Europe is also rampant.
There are fears that the Directive for Copyright in the Digital Single Market is creating a backdoor to counter net neutrality, just like in the United States. Its article 13 is under scrutiny as it allows providers to ensure copyright protection with measures that are “appropriate and proportionate and may include the use of effective content recognition technologies”. Organizations like the Mozilla foundation explain that this goes against Article 15 E-Commerce directive and try to raise awareness among citizens on this issue.
Even tech giants, who are calling for net neutrality support in the US, seem to consider protecting intellectual property as a legitimate regulation of the internet. E.g., in late 2017, Google signed an agreement with the anti-piracy association (ALPA) in France under the supervision of the Centre National du Cinéma to allow copyright holders to access its Content ID filter on Youtube. Some also note that issues like hate speech are also threatening net neutrality and should be more debated.
Quick recap
Part I. It appears that the unit economics don’t seem to play in favor of the net neutrality regulation from 2015, notably as existing antitrust laws and competition law should be enough to thwart ISPs’ abuse of dominant power. It will be interesting to see if ISPs will be regulated like Mobile Network Operators around the world — as it is the case in the US since 2015. However, with the end of net neutrality, there is still a significant risk of stifling innovation and startups.
Part II. Net neutrality is not only a matter of economics. It entails other aspects of digital regulation. We saw that intellectual property was a concern from the origin of the concept in the US and is making its comeback both there and in the EU.
One would maybe dare to advance that “net neutrality” may be too broad a term. Tim Wu had a genius insight when coining the idea, as it is semantically positively connoted — who would oppose such an idea as a “neutral” internet? This helped online activists push their agenda for a “free” internet. However, the issue remains quite new in the Web history and encompasses many topics as regards Internet and competition — from ISP network coverage to intellectual property rights…
This complexity was funnily exposed when Youtube took down the FCC promotional video for Net Neutrality repeal because of copyright infringement claims over the use of “Harlem Shake”…
