December 24, 2006  ·  Lessig

“Radical” changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn’t take long before you realize how little really ever changes in DC. The latest example is the Dems and IP issues as they affect the Net. Message to the Net from the newly Democratic House? Go to hell.

As everyone knows, one issue critical to those who are making the Net interesting (for politics at least) is IP reform. Not “reform” in the sense of the last decade (e.g., Sonny Bono Copyright Term Extension Act, DMCA, NET Act, etc.), but real reform designed to make IP laws work sensibly in the digital age. Real reform — not the piddly full-employment-act-for-lawyers reform proposed by the Copyright Office for “orphan works,” or the puny reform suggested for digital libraries. Instead, reform that tries to fit the legitimate objectives of copyright — to assure that artists have the incentives they need to create great new work — into the contours of digital technology.

To craft that reform would require real work. I don’t think anyone has a clear picture of what would be best yet. But what is clear is that the war on technology of the last decade must come to an end. And the efforts by content holders to leverage their power over rights they can’t even prove they own (see, e.g., the Google Book Search battle) into control over the architecture of the net must be stopped. No one should defend “piracy.” But no one should believe that the way the law currently defines “piracy” makes any sense at all.

So is there any hope for such reform from the Democrats? Word from Washington so far: Fat chance. As reported in the LA Times two weeks ago (registration required but hey, it’s LA), the crucial House IP subcommittee will be chaired by Hollywood Howard (Berman) — among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. And while Berman is a brilliant man — whose brilliance could really have been used in the problems facing the mid-east — his brilliance has not yet been directed towards working out the problems of IP and the Net with any view beyond the narrowest of special interests.

This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party’s view about the issues, and its view of the “solution”: more of the same. This war — no more successful than President Bush’s war — will continue.

No doubt, there are Net issues beyond copyright — surveillance, net neutrality, etc. But I suggest this choice is an important signal about this party (and I’m afraid, any party). I once asked a senior staffer of a brilliant Senator why the Senator didn’t take a stronger position in favor of Net Neutrality. “No Senator remains a Senator opposing an industry with that much money” was his answer.

And so too here. The Dems have looked at the potential “return” from the activists on the Net. They’ve considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule.

Dems to the Net: “Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don’t think for a second we’re interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on — you’re all criminals. Don’t expect your criminal ways to be taken seriously by an institution as respected as the US Congress.”

  • http://www.mydd.com Matt Stoller

    Result: the 20th Century continues to rule.

    The 21st century isn’t organized yet.

  • http://drewkitty.blogspot.com/ Andrew

    Democrats and Republicans are two sides of the same coin. Expecting a Democrat to save you from the Republicans is like expecting the getaway driver to give you first aid after you’re shot by the bank robber.

  • http://www.alevin.com/weblog Adina Levin

    On the bright side, Ed Markey is chair of the internet subcommittee of Commerce. So, things are looking up for net neutrality and down for copyright.

  • lessig

    That is an extremely bright side. Markey is fantastic.

  • http://www.xanga.com/edg176 tim

    I think that this is one of the problems with the technologist community’s historical failure to engage the political process. Sure, Hollywood doesn’t sell a “tangible” product like a hard drive or an mp3 player, but they are experts at selling hopes and dreams. That translates into dollars, and more importantly, the ability to influence how people think, which in turn translates to getting the ear of elected officials.

  • Alan

    But, but, but I thought the Republicans and Bush were the source of all evil in the world and the only ones tied to corporate interests. Oh, now that the correct party is in power, the true story comes out. Hmmm…..

  • http://www.nothinginside.org/cgi-bin/blosxom.cgi/mindy Mindy

    Thanks for posting this story. How depressing to see this, though. It isn’t too surprising, however. I think that both parties are beholden to corporate interest, only the corporations are different.

    Mindy

  • wwt

    The DNC is totally in the pay of Hollywood. I expect absolutely zero in terms of populist reform in the areas of Intellectual Property or Net Neutrality.

  • Optimus

    As long as our economic system is based on greed and our leaders continue to be included in that same economic system, greed will choose our country’s destiny. Net neutrality may be a valiant ideal, but it’s most monetary contributors are those who stand to profit monetarily from it most. The fact is, if it is not conclusively proven that the current state of copyright law is taking money out of the economy (translation: out of the rich’s pockets) then copyright will not be reformed. Unfortunately, we, the people, are more likely to get fed up and revolt before this can happen.

  • http://www.ourmedia.org/user/17145 drew Roberts

    I see so little hope of the laws being made better anytime soon, and this is one reason why I think that those who actually care about freedom need to release as many works as they can with a copyleft license.

    Build up a valuable pool of valuable works that only “we” can properly take advantage of. Now, the big copyright boys could take advantage of them but if they start making money from them and not paying the creators, a lot of their arguments will go up in smoke. If they refrain, we get lower cost building blocks than they do.

    I also think about tweaks to the law that may fly if they can catch the public’s fancy. Check this link for instance:

    http://slashdot.org/~zotz/journal/154538

    Any thoughts?

    all the best,

    drew

  • Barry

    So, what could possibly convince Howard Berman to give up a shot at chairing the entire House International Relations Committee and instead take chairmanship of a piddly subcommittee? Any ideas? Anyone?

  • http://www.sportsnerds.com sports articles

    I just think texas should really take a look at how george bush has really been as president. Hmm Lucy holding the football. Let’s move in a new direction.

  • sw

    At one time, “content neutrality” suited the phone company. It allowed them to accept any subscriber able to pay with no questions asked – and no liability to them for what their subscribers said. Thus was born carrier status. It has grown to include shielding ISPs from liability of their customer’s questionable activities.

    Now, the carriers want to provide their own content – and give that content priority access to its customers – at the expense of other carriers’ customers.

    True, Congres could give carriers the legal right to be non-neutral, while still shielding them from liability for their customers’ activities, but can they rely on the courts to uphold this? Almost certainly, the big media companies will try to use non-neutrality as a level to be able to sue the carriers. (At least he ones that aren’t also big media companies. Would be interesting to see if, say, Sony, would sue, say, Time-Warner’s cable-internet service.)

    I think the key is to preserving net neutrality is to convince the carriers that the risks of liability significantly outweigh the benefitd of non-neutrality.

  • http://myspace.com/appleeaten mute

    re-read all politicians are criminals.

    not a subversive thought, but an honest one. there isn’t a system that protects or enfranchises the voter. instead, honorariums account for the majority of an american politcian’s income.

    simply put, elected official ‘a’ gets a specified amount to speak before a group of people while in office. this not a campaign
    contribution. any group or company may ask an official to
    speak, in return for the ‘honorarium’ or rather… the fee.
    since the “voter” (or rather all american citizens without
    political agendas) cannot compete with businesses that can
    offer these fees… year after year, who are the politicians going to favor when issues arise?

    politician “b”, who will never speak for a fee (while he/she doesn’t exist), is as guilty as politician “a” for allowing it to happen. they are all, therefore, by association… criminals.

    -mute

  • Jonathan Haas

    Why, Network Neutrality is a wonderful idea, and should be implemented all the way down the pipe, from the backbones to the last mile. After all, how fair is it that Akamai can serve streaming video to thousands of users simultaneously while I can barely eke out 32kB/s upstream on my pirate torrents? Just because they’re willing to pay for it, they should get better service than I do? I think that we need to pass laws prohibiting ISPs from providing different levels of service at different price points.

    And this obviously needs to apply further up the pipe. Sure, if Akamai were able to pay for priority routing on the backbones they might be able to deliver realtime streaming high-definition video, but then my latest porno download might run a little slower! Besides, we can count on the cable companies to provide streaming HD, since they can do it on private networks where they control the routing 100%. I’m sure that they’ll be aggressive with innovation and price even without the competition.

    Never mind those pesky economic laws that prove that widely differentiated levels of service tend to produce the best outcome for everybody. Economics doesn’t apply to the Internet. And never mind that for over a decade, vigilant Internet activists have fought vigorously against government regulation of the Internet. This is our chance to seemingly get something for nothing! Bring in the Feds! What could possibly go wrong?

  • http://lowerdown.com Dave

    fuck the democrats, fuck the republics, time for a third party

  • http://www.asymptotic.info Steven Squires

    The problem is that backbone carrier ISPs would be asking their customers (i.e.: Google, maybe direct consumers) to pay more for a higher quality of service, even though the person or company may not be their subscriber. For example, since Google has a lot of video traffic, they have subscribed for an adequate amount of bandwidth from their “provider.” This is bandwidth they pay for and within that fee it is assumed that whatever backbone network capacity needed to facilitate this bandwidth has also been paid for by the provider’s provider, etc. However, backbone carriers that carry the data between Google and your DSL provider are saying they are entitled to a piece of this “subscription” from Google (or maybe even the consumer). What this amounts to is double billing, since Google and the consumer already pay a flat fee for a specified amount of throughput per month. This is a bad idea, since by The Internet’s design a packet of data can be routed through any number of autonomous networks before it reaches its destination. Therefore, that means that you could have many different telecommunications providers placing different quality of service standards on that same packet, based on who is sending or receiving it. This may not sound like a bad thing, but when you think about it it allows telecommunications providers a legal route of extortion, in that they can say “Well, you’re not paying me more money for faster service through my network, so pay up or suck it up.” This violates the idea of egalitarianism that The Internet was founded on–equal access and opportunity for all types of information delivery, irregardless of who might be sending or receiving it.

  • Jonathan Haas

    Uh, no, Stephen, it’s not a matter of asking Google (or others) to pay “even though the person or company may not be their subscriber.” Once a person or company pays a backbone provider for priority routing, it’d become their subscriber. This is rather like saying that the New York Times is asking for subscription fees from people who are not subscribers; anyone can read the NYT for free where it appears in public places, but subscribers receive better service. And that’s the way it should be.

    As for your silly “extorsion” argument, the same sort of logic has been used to “prove” that private land ownership simply cannot work… after all, what’s to stop a malicious individual from buying all the land adjacent to your house and preventing you from leaving? Competition in the telecom market is absolutely thriving. Nobody has a stranglehold on the market or even close to it; any competitor who attempted to maliciously extort a customer would quickly find itself driven out of the market by competitors who aren’t stupid enough to attempt to leverage monopoly power where none exists.

    I’ve been on this Internet thingamajiggy since 1991, which certainly puts me in the 99th percentile of longevity, and I don’t recall anything about “equal access and opportunity for all types of information delivery, irregardless [sic] of who might be sending or receiving it.” I do, however, recall the Internet being founded on staunchly libertarian principles with an extreme bias towards laissez faire and a healthy distrust of government regulation. Once again I invite you to consider Akamai, consider a home customer, and consider the disaster which would result if the two were required to accept the same level of service regardless of willingness to pay.

    Bandwidth is a scarce resource, and like all scarce resources, it’s allocated most efficiently in a free market, where prices can communicate information on supply and demand.

  • James Dunsdon

    I think Steven was right to come to the conclusion that you don’t understand the situation. I think he was rather naive in thinking he could change your mind by spelling it out for you. I too have been on the internet since its early days. The net is not what it once was as a direct consequence of businesses trying to exploit if for their own. Free markets only exist within frameworks (laws) that provide certain assurances for both the provider and the customer. One can also argue that certain “goods” should not be subject to a free market. Civil rights is a clear example even as they are being eroded daily in your country. While it can be argued to already be the case, should it be that one person should be afforded more protections of the constitution based on the size of their wallet?

    I would normally agree with your notion that less regulation is better if it weren’t for the one small point that I strenuously disagree with. Your statement that competition in this market is “thriving” is laughable.

  • Jonathan Haas

    Oh, I assure you, James, I understand the situation quite well. A bunch of hypocrites, who self-righteously stood against government regulation of the Internet for years, is now clamoring for the federal government to dig its hooks into that same Internet because they (quite erroneously) perceive a benefit. Does nobody have principles anymore?

    I’ll fully agree that the Net is not what it once was; it’s unimaginably better. Thanks to those “exploiting” businesses, we have a mind-bogglingly immense array of content available to us, including products and services undreamed-of just a few years ago. It’s impossible to overstate the sheer boon of the Internet, and it’s all (well, mostly) thanks to those greedy thieving exploitive businessmen pursuing their self-interest in a free market. That’s the way free markets work, and I roll my eyes at those who believe that “greed” is in any way bad. “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own self-interest.” –Adam Smith.

    Free markets exist within the “framework” of laissez faire, when people are left alone so long as they don’t initiate force or fraud against others. That’s what built the magnificent Internet we have today, and that’s what people like you are trying to destroy. As far as your constitutional example, I thank you for the chuckle. Rights are not goods, and you have no constitutional right to bandwidth. Should one customer be permitted to utilize more bandwidth because he’s willing and able to pay for it? Yes, absolutely.

    I’m afraid your comment was unclear; what’s the “one small point” you strenuously disagree with? Why is it that you’d balk at the government dictating that all cars be sold at the same price, or that all food be sold at the same price, but insist that the government dictate that all bandwidth be sold at the same price?

  • Alberto

    Berman got on the committee because Hollywood hired lobbyists. That’s what *we* need to do. Pony up, people! Play the game if you want change in the short term. Change the game if you want it in the long run…the really long run.

  • k

    Jonathan,

    I think what Mr. Dunsdon found disagreeable was the comment that there is “thriving” competition in the telecom market.

    Truthfully, while you are probably more right than not regarding the free market vis-a-vis the internet, I agree with him on that point. Competition in the telecom space as been decreasing for years. Giant mergers are returning us to the world of one AT&T, which the government will likely have to shatter a second time eventually. And, of course, government regulations benefiting the large telecom providers have a long history as well.

    There are a lot of wonderful companies and services taking advantage of telecommunications technology these days, but the core providers are hardly involved in a strenuously competitive battle.

    Off topic, but relevant, I think, is the possibility that wireless WAN technology may change that eventually, as there’s no analogue to ownership of the (very expensive) overland or buried cables as there is in the existing wired network space. For now, of course, it’s not near fast enough or ubiquitous enough. Nonetheless, wireless could change the market topography in substantial ways.

  • http://www.rick-barret.com Rick Barrett

    The comment about WAN technology was interesting. But, there is ownership of the “lines” for that medium, too. The FEDS are the ones who “sell” the bandwidth to the “highest bidder” and if you look at the money that cell companies paid the feds and then passed on to the consumer in high cell phone fees you see that the chances of a competitive technology anytime soon in WAN with a government hungry for trillions of dollars are just unrealistic given what happened with cell phones. Maybe in the 23rd century.

  • Jonathan Haas

    k,

    I appreciate your point, but the fact that mergers are occuring does not necessarily mean that competition does not exist, nor that it is not thriving. There are still several competing bandwidth providers; I just pinged my employer from my home (a distance of less than half a mile) and the packet traveled over two different backbones to get there. And the backbone providers are constantly adding capacity to avoid falling behind in the race with their competitors.

    Wireless broadband holds a great deal of potential, but I doubt it’ll ever replace wired broadband. Wires by nature are capable of carrying more bandwidth than the wireless spectrum, and I doubt we’ll ever see wireless broadband capable of carrying multiple high-definition video streams.

    The fact remains that so-called “network neutrality” is a terrible idea for several reasons, both ethical and practical. Even if you don’t find compelling the argument that the government has no business telling people what they can do with their own networks nor the argument that federal regulation of the Internet is a slope so slipperly it may as well be greased, there’s the plain fact that scarce bandwidth can best be allocated by a pricing system. I’ve yet to hear anybody come up with a good reason why network neutrality on the backbone would be fundamentally different from network neutrality on the last mile… nor has anybody been foolish enough to assert that network neutrality on the last mile would be anything but catastrophic.

    Ironically, the big winners from “network neutrality” would be the very companies that advocates claim it’s needed to fight against. The cable companies, who would face no competition on their private municipal-area networks (which are most definitely not “neutral”), and the telcos, which would stave off the inevitable obsolescence of their outdated landline networks. The current scheme of “network neutrality” means that VOIP remains more latent and less reliable than landline telephone service, and laws preventing companies like Vonage and Skype from paying backbone providers for better service means that the situation will remain static.

  • S4T4N

    I personaly think u guys need to go out and get a real life (key word real) i mean all u people need to forget about politics and stuff mi mean get some friends come on its real life faggots come on please take no offence but get a damn life fags