ArtsWatch: FCC Chair's Half-Open Internet

Proposed open Internet rules are shaped by compromise but polarize political parties
December 06, 2010 -- 7:13 am PST
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On Dec. 1 Federal Communications Commission Chairman Julius Genachowski announced a proposed draft of open Internet rules to be voted on at the commissioners' Dec. 21 meeting. Net neutrality advocates were disappointed by the proposal's mildness — for example, broadband will not be reclassified under a stronger regulatory regime and broadband providers mostly avoid new burdens on their business models. Democratic FCC commissioners Mignon L. Clyburn and Michael J. Copps were philosophical that the proposal was a starting point, a view supported by U.S. Chief Technology Officer Aneesh Chopra and consumer advocates Public Knowledge. Consumer advocates Free Press questioned whether the proposal was "peddling fake Net neutrality." Free Press President and CEO Josh Silver said, "Now is the moment for forward-looking, visionary policymaking, not half-measures and convoluted compromises with the companies trying to kill the free and open Internet." Republican FCC commissioners Meredith A. Baker and Robert M. McDowell strongly oppose Genachowski's proposal as a regulatory push that rejects bipartisanship, attempting to intervene in broadband despite this year's U.S. Court of Appeals decision that the FCC lacks authority to enforce Net neutrality recommendations. Congressional Republicans also voiced their strong objections — Sen. Kay Bailey Hutchison (R-Texas) called on the chairman to "stand down" and Rep. Fred Upton (R-Mich.) urged the agency to "cease and desist." Open Internet principles, and the potential for Internet service providers to levy extra costs on digital distribution, have significant implications for content industries.

Genachowski revealed at a Nov. 30 press conference that his agency is "looking into" a Net neutrality dispute between Level 3 and Comcast. Level 3 alleges that Comcast wants to charge extra to deliver video streamed over the Internet to its subscribers from Level 3's new customer Netflix — a clear violation of Net neutrality that would be anticompetitive since Netflix video competes with several of Comcast's services. Comcast says that both companies supply each other with heavy Internet traffic and extra charges are normal for the industry when such traffic is especially one-sided. To Comcast, Level 3 is using this Net neutrality claim as a ruse to avoid paying fees similar to those Comcast charged Internet traffic facilitator Akamai when it used to distribute the heavy Netflix traffic. Tech journalists with Cnet News and Paid Content expressed sympathy with Comcast's perspective. In today's converged digital environment where telecommunications giants span tasks formerly entrusted to copper telephone lines and reels of movie film, the FCC has its work laid out in deciding whether Level 3's claims are spurious or well founded.

Following up on the summer's "Operation In Our Sites" seizure of nine Web domains involved in copyright infringement, Department of Justice and Department of Homeland Security's Immigration and Customs Enforcement officials announced on Nov. 29 that 82 domain names had been seized during "Operation In Our Sites v. 2.0." The targets included a number of sites engaged in copyright infringement, but as promised last summer version 2.0 widened its scope to include counterfeit merchandise including sports equipment and clothing, shoes, handbags, and sunglasses. Attorney General Eric Holder said, "By seizing these domain names, we have disrupted the sale of thousands of counterfeit items, while also cutting off funds to those willing to exploit the ingenuity of others for their own personal gain." Several consumer groups and targeted websites have complained that some seizures were unjustified or should have provided notice of infringement. The seizures were conducted under court order and it is reasonable to expect that the evidence required and enforcement procedures to be followed will evolve over time. The MPAA and RIAA expressed their gratitude for the initiative.

On Nov. 29 the U.S. Supreme Court decided not to hear teen Whitney Harper's petition for reduced copyright infringement damages based on her claim of ignorance of wrongdoing. The court had requested that the RIAA respond to her petition but did not give a reason for denying her appeal. Justice Samuel Alito wrote a dissent that should wave a red flag in favor of widespread copyright education in the schools. Better awareness than published warnings against infringement on CDs could help ensure illegal downloaders have reason to believe what they are doing is wrong.

On Dec. 1 the Copyright Office announced that the deadline was extended to Jan. 31 for those interested in submitting comments regarding how sound recordings from before 1972 could be brought under federal jurisdiction. Separately, a new round of comments regarding termination of grants of transfers and licenses of copyrights has been opened with a deadline of Dec. 27 — for example, treating recordation of termination when a grant was made before 1978 for a work that was created after 1978.

The founders of notorious torrent-linking site the Pirate Bay had their previous conviction upheld in Swedish appeals court on Nov. 26, albeit with a reduction in prison sentences but with higher financial penalties. At least one defendant expects to appeal to Sweden's supreme court. Meanwhile the infringing website remains available. International recording industry organization IFPI hailed the verdict as further evidence of why the site should be shut down. During the week of Nov. 29, IFPI's site was not available, raising the suspicion that its comments were met with a denial of service attack.

On Nov. 24 PC Magazine responded to criticism that it encouraged piracy by publishing an article advising readers how to find similar alternatives to a P2P file-sharing service that had been shut down for infringement. The magazine claimed such charges were "groundless," "nonsense" and "reek[ed] of desperation," and insisted that they would not self-censor their journalism. The critics included The Recording Academy President/CEO Neil Portnow and top executives from ASCAP, BMI, NMPA, RIAA, SoundExchange, and more.


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