DMCA

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I just posted this essay to IdeaScale at OpenInternet.gov, in advance of the Open Internet Workshop at MIT this afternoon. (You can vote it up or down there, along with other essays.)  I thought I’d put it here too. — Doc


The Internet is free and open infrastructure that provides almost unlimited support for free speech, free enterprise and free assembly. Nothing in human history, with the possible exception of movable type — has done more to encourage all those freedoms. We need to be very careful about how we regulate it, especially since it bears only superficial resemblances to the many well-regulated forms of infrastructure it alters or subsumes.

Take radio and TV, for example. Spectrum — the original “bandwidth” — is scarce. You need a license to broadcast, and can only do so over limited distances. There are also restrictions on what you can say. Title 18 of the United States Code, Section 1464, prohibits “any obscene, indecent or profane language by means of radio communication.” Courts have upheld the prohibition.

Yet, as broadcasters and the “content industry” embrace the Net as a “medium,” there is a natural temptation by Congress and the FCC to regulate it as one. In fact, this has been going on since the dawn of the browser. The Digital Performance Right in Sound Recordings Act (DPRSA) came along in 1995. The No Electronic Theft Act followed in 1997. And — most importantly — there was (and still is) Digital Millenium Copyright Act of 1998.

Thanks to the DMCA, Internet radio got off to a long and very slow start, and is still severely restricted. Online stations face payment requirements to music copyright holders are much higher than those for broadcasters — so high that making serious money by webcasting music is nearly impossible. There are also tight restrictions on what music can be played, when, and how often. Music on podcasts is essentially prohibited, because podcasters need to “clear rights” for every piece of copyrighted music they play. That’s why, except for “podsafe” music, podcasting today is almost all talk.

There is also a risk that we will regulate the Net as a form of telephony or television, because most of us are sold Internet service as gravy on top of our telephone or cable TV service — as the third act in a “triple play.” Needless to say, phone and cable companies would like to press whatever advantages they have with Congress, the FCC and other regulatory bodies.

It doesn’t help that most of us barely know what the Internet actually is. Look up “The Internet is” on Google and see what happens: http://www.google.com/search?hl=en&q… There is little consensus to be found. Worse, there are huge conflicts between different ways of conceiving the Net, and talking about it.

For example, when we say the Net consists of “sites,” with “domains” and “locations” that we “architect,” “design,” “build” and “visit,” we are saying the Internet is a place. (Where, presumably, you can have free speech, enterprise and assembly.)

But if we say the Net is a “medium” for the “distribution” of “content” to “consumers,” we’re talking about something more like broadcasting or the shipping industry, where those kinds of freedoms are more restricted.

These two ways of seeing the Net are both true, both real, and both commonly used, to the degree that we mix their metaphors constantly. They also suggest two very different regulatory approaches.

Right now most of us think about regulation in terms of the latter. That is, we want to regulate the Net as a shipping system for content. This makes sense because most of us still go on the Net through connections supplied by phone or cable companies. We also do lots of “downloading” and “uploading” — and both are shipping terms.

Yet voice and video are just two among countless applications that can run on the Net — and there are no limits on the number and variety of those applications. Nor should there be.

So, what’s the right approach?

We need to start by recognizing that the Net is infrastructure, in the sense that it is a real thing that we can build on, and depend on. It is also public in the sense that nobody owns it and everybody can use it. We need to recognize that the Net is defined mostly by a collection of protocols for moving data — and most of those protocols are open to improvement by anybody. These protocols may be limited in some ways by the wired or wireless connections over which they run, but they are nor reducible to those connections. You can run Internet protocols over barbed wire if you like.

This is a very different kind of infrastructure than anything civilization has ever seen before, or attempted to regulate. It’s not “hard” infrastructure, like we have with roads, bridges, water and waste treatment plants. Yet it’s solid. We can build on it.

In thinking about regulation, we need to maximize ways that the Net can be improved and minimize ways it can be throttled or shut down. This means we need to respect the good stuff every player brings to the table, and to keep narrow but powerful interests from control our common agenda. That agenda is to keep the Net free, open and supportive of everybody.

Specifically, we need to thank the cable and phone companies for doing the good work they’ve already done, and to encourage them to keep increasing data speeds while also not favoring their own “content” subsidiaries and partners. We also need to encourage them to stop working to shut down alternatives to their duopolies (which they have a long history of doing at both the state and federal levels).

We also need to thank and support the small operators — the ISPs and Wireless ISPs (WISPs) — who should be able to keep building out connections and offering services without needing to hire lawyers so they can fight monopolists (or duopolists) as well as state and federal regulators.

And we need to be able to build out our own Internet connections, in our homes and neighborhoods — especially if our local Internet service providers don’t provide what we need.

We can only do all this if we start by recognizing the Net as a place rather than just another medium — a place that nobody owns, everybody can use and anybody can improve.

Doc Searls
Fellow, Berkman Center for Internet & Society
Harvard University

[Later...] A bonus link from Tristan Louis, on how to file a comment with the FCC.

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Apple has the best taste in the world. It also has the tightest sphincter. This isn’t much of a problem as long as they keep it in their pants, for example by scaring employees away from saying anything about anything that has even the slightest chance of bringing down the Wrath of Steve or his factota. (How many bloggers does Apple have?)  But they drop trow every time they squeeze down—you know, like China—on an iPhone application they think might be “objectionable”.

I see by Jack Schofield that they’ve done it again, but this time they pissed off (or on) the wrong candidate: an app (from Exact Magic) that flows RSS feeds form the EFF. Sez Corynne McSherry in an EFF post, “… this morning Apple rejected the app. Why? Because it claims EFF’s content runs afoul of the iTune’s App Store’s policy against ‘objectionable’ content. Apparently, Apple objects to a blog post that linked to a ‘Downfall‘ parody video created by EFF Board Chairman Brad Templeton.”

Brad’s a funny guy. (He created rec.humor.funny back in the Net’s precambrian age.) He has also forgotten more about the Internet than most of us will ever learn. Check out The Internet: What is it really for? It was accurate and prophetic out the wazoo. Brad wrote it 1994, while Apple was busy failing to ape AOL with a walled garden called eWorld.

Apple’s App Store is an eWorld that succeeded. A nice big walled garden. Problem is, censorship isn’t good gardening. It is, says Corynne, “not just anti-competitive, discriminatory, censorial, and arbitrary, but downright absurd.” Or, as my very tasteful wife puts it, unattractive.

Also kinda prickly, if you pick on a porcupine like the EFF. Hence, to contine with Corynne’s post,

iPhone owners who don’t want Apple playing the role of language police for their software should have the freedom to go elsewhere. This is precisely why EFF has asked the Copyright Office to grant an exemption to the DMCA for jailbreaking iPhones. It’s none of Apple’s business if I want an app on my phone that lets me read EFF’s RSS feed, use Sling Player over 3G, or read the Kama Sutra.

Not surprisingly this followed, on the same post:

UPDATE: Apparently, Apple has changed its mind and has now approved the EFF Updates app. This despite the fact that the very same material is still linked in various EFF posts (including this one!). Just one more example of the arbitrary nature of Apple’s app approval process.

There’s a limit to how long (much less well, or poorly) Apple can keep sphinctering App Store choices. I’m betting it’ll stop when the iPhone gets serious competition from equally appealing phones that can run applications that come from anywhere, rather than just from some controlling BigCo’s walled garden.

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