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Summary:

The FCC has yet to issue a Notice of Proposed Rulemaking (NPRM) formally kicking off the process of writing and promulgating net neutrality regulations, but the battle over the scope of the new rules is already well underway within media and technology circles in Washington, D.C. At the Future of Music Coalition […]

600px-US-FCC-Seal.svgThe FCC has yet to issue a Notice of Proposed Rulemaking (NPRM) formally kicking off the process of writing and promulgating net neutrality regulations, but the battle over the scope of the new rules is already well underway within media and technology circles in Washington, D.C. At the Future of Music Coalition Policy Summit on the campus of Georgetown University on Monday, for example, panelists clashed over whether the agency will or should allow, or even mandate, the use of deep packet inspection (DPI) and other invasive techniques to block the illegal transfer of copyrighted content over broadband networks.

“The devil is certainly going to be in the details,” Hal Ponder, director of government affairs for the American Federation of Musicians, said. “I don’t know if there’s a technical solution but I think everything needs to be explored, including filtering, because we do want to see artists’ work protected.” The AFM officially supports the principle of net neutrality, Ponder said, but insists that any new regulation permit the use of technical measures to protect copyright.

But there were numerous skeptics of filtering, the loudest being Harold Feld, legal director of Public Knowledge, a non-profit public interest group that has frequently sparred with copyright interests. The problem, he said, is that there’s a culture of user behavior and there’s a culture of regulatory behavior, and the two are completely disconnected. “If you introduce filtering, or require filtering, people will find a way around the filtering,” he explained. “They’ll start encrypting content so the filters can’t detect it, or they’ll find some other way. Then you’ll have people coming to Washington saying we need to make it illegal to find a way around the filters and that somehow that will solve the problem. That’s exactly what we did in 1998 when we passed the [Digital Millennium Copyright Act], which made it illegal to get around DRM. Does anyone think piracy disappeared in 1998?”

The real issue, Feld insisted, is not whether copyrighted works should be protected against piracy, but whether users of digital networks should be subjected to the sort of intimate and intrusive monitoring of their behavior that filtering would require. “How comfortable would you being having someone listen in to all of your phone conversations?” he asked. “Because that’s really what you’re talking about with DPI: someone listening in on everything you do online and monitoring your behavior.”

In a brief keynote address, FCC chairman Julius Genachowski himself shed little light on how — or even if — the agency will address the use of DPI or filtering. “Openness and respect for copyright can and must coexist,” he said, reiterating comments he made to the Brookings Institution two weeks ago. But he said nothing about how the FCC will seek to balance those priorities.

Daniel Klein, media accounts director for London-based cyber-security firm the Detica Group, cautioned that banning the use of DPI would be counterproductive, arguing there are parts of the technology that are incredibly useful. Ultimately, Klein said, the question of filtering isn’t technological, but behavorial. “The day we start blocking [content] people will change their behavior. They’ll start encrypting or whatever. Encryption is a very real fear. If you want to affect piracy you really have to focus on the behavior.”

According to Klein, less is known about aggregate online behavior than could or should be, in part because firms such as Detica Group that could measure it fear being drawn into a dispute over filtering. “Nobody in the world is measuring what is actually going down the pipe because they’re terrified of the filtering side of the debate,” he said. “The truth is that could provide very valuable information to the industry and to artists about what people are really doing with the content so that they might be able to respond in some way other than filtering. You really need to separate the question of measurement from the question of how you respond.”

Whether the FCC will be able to keep those issues separate in setting net neutrality rules no one yet knows. The agency plans to publish its NPRM in the Federal Register later this month.

Paul Sweeting writes The Media Wonk blog and is author of an upcoming report on the e-book market for GigaOM Pro.

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  1. Ironically, the “Future of Music Coalition” is a lobbying group whose purpose appears to be to undermine copyright — and, hence, the futures of musicians! A look at its Board of Directors, advisory board, and supporters shows that they overlap heavily with those of Free Press, the New America Foundation, Public Knowledge, and other groups — most of them controlled by Google — whose mission is to undermine copyright protections and regulate the Internet. (Google also supports the “Future of Music Coalition” directly.) The group’s blogs are filled with alarmist propaganda saying that the Internet must be regulated now — to save musicians! — as if ISPs would cut off all music tomorrow if they could. But the regulation would, in fact, prevent ISPs from reining in illegal copying of music and thus would harm musicians rather than helping them.

    No musician who ever hopes to make a dime selling albums should be a member of this group.

    It’s no surprise that Julius Genachowski didn’t say much about his intended regulation at the event. While no one knows what the proposed rules will say, the Chairman’s rush to regulate has already come under fire from many members of Congress, and runs counter to his own assertions the FCC will now be “data driven” and regulate only when markets do not work. One can only hope that the FCC will publish a Notice of Inquiry, rather than a Notice of Proposed Rule Making, at the upcoming meeting, and study the matter before proposing rules.

    1. Will deep packet inspection apply also to photographs to be sure they are only being transmitted according to the licensing terms, at the right size, with the right attribution, and within the time frame of the copyright license?

      And will they inspect written text (or spoken versions of it) to be sure that excerpts and copies of copyrighted documents are legally owned or that any other use is “fair use” or one of the codified exemptions.

      And don’t forget “Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited.” They’ll certainly have to stop people talking about their favorite game.

      Since the internet is but one medium to protect they will of course be also inspecting cell phone calls, postal parcels and letters and pillow talk.

      1. David, it’s ironic: ISPs are not doing, and do not want to do, any of the things you mention. (Nor, by the way, are any of the things you mention prohibited by the proposed “network neutrality” regulations.) But Google, the primary force behind “network neutrality” lobbying, in DC, does! It not only reads the text of all GMail messages and uses them to compile dossiers on the user; it also (due to its acquisition of DoubleClick) is the #1 source of spyware tracking cookies on the Internet. (If you subscribe to GMail, the two sources of spying information are combined.)

        What’s more, “network neutrality” regulation prevent ISPs from managing their networks by reining in P2P. P2P doesn’t just degrade the service of other users; it is also far and away the most common method of piracy (that’s what it was designed for — to make it difficult to stop piracy. It’s far less efficient at delivering content than other methods.)

        In short, “network neutrality” regulation would do nothing to stop the privacy-invading practices you mention, but at the same time would facilitate piracy of intellectual property.

      2. Brett. my comment was partly tongue in cheek in that if an ISP is going to monitor downloaded content then why privilege only films and music for copyright protection/enforcement [or why penalize music/film users] over against other forms of copyrighted material.

        Will be have two regimes, one for music and film from large studios, and another for photographs, text and everything else?

    2. Way too much vested interest analysis.

      Out here in the ordinary world apart from vested interests, there are folks who’ve been involved in online freedoms who just don’t want to see the growth of the ability to communicate limited by corporate beancounters.

      We don’t wish to see the Web turn into America’s newspapers or network TV.

      I’ve been online since 1983 and appreciated every step. I only download legally – but, I don’t care to trust my ability to do so to Comcast or the MPAA. I was a performing artist for a big chunk of my life and never hired goons to patrol a concert or public appearance to rip recorders from the hands of the audience.

      Trusting in the corporate God of copyright has become a Disneyland farce – removing public domain from the possibilities of anyone but centenarians.

      Though I’m getting closer every day.

      1. Unfortunately, Washington DC is all about vested interests. And the regulation for which Google is lobbying will hurt the public as well as artists.

  2. Deep packet inspection does not equal someone listening to a phone conversation as Klein states. That is categorically untrue. DPI simply means that packets are monitored *beyond* the header to see if those packets match certain signatures. For example, a VoIP packet has a certain signature and a P2P packet has another. No one is sitting in a server closet somewhere monitoring all of your packets and sifting through your personal life. I sense that the Public Knowledges of the world know this but prefer to offer this tortured analogy in order to trick people into seeing things their way.

    If SPI, DPI, and packet prioritization aren’t allowed then our communications networks (esp. wireless) will suffer dramatically.

    1. Yet DPI certainly can move towards more invasive content inspection as suggested here:

      “The IFPI, which plays a role similar to that of the RIAA in European litigation, wants the ISP to start filtering traffic to scrub all illicitly uploaded and downloaded copyrighted material on its network.

  3. Brett,

    We’re HUGELY pro-oopyright. In fact, we think the artists should have more control over exploiting their own creative works for gain.

    We’re also pro innovation, and the open internet is where that happens. Did you catch any of the numbers that Dan Ek of Spotify was offering up at our Policy Summit re: the switch to legal services in Europe?

    Licensing and the ubiquity of quality, affordable broadband can help the industry. Neutrality needs to be part of that agenda, so all artists and entrepreneurs can have a shot at success in a legitimate digital music marketplace.

    1. If you’re so hugely pro-copyright, how come you have people like Gigi Sohn and Eben Moglen (both very anti-copyright) on your advisory board? How come you advocate P2P — and regulation of the Internet that would prevent it from being reined in? Like most lobbyists, you seem to be full of doublespeak.

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