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Protection of Intellectual Property: The Core of the Net Neutrality Debate

It didn't take long for criticism of the Verizon/Google net neutrality proposal to start pouring in. "[I]nterest groups, bloggers, and even Google fanboys [have started] discrediting the plan" according to one trade publication.

Although most of the commentary simply echoes various groups' long-held positions, the Electronic Frontier Foundation, the nation's foremost cyber-rights watchdog, provided a crucial insight about the plan that goes to the core of the net neutrality issue.

EFF found merit with some aspects of the proposal, particularly with regard to limiting the FCC"s regulatory authority. The NGO stated that although they strongly support net neutrality, "we are opposed to open-ended grants of regulatory authority to the FCC." EFF also thought that a Verizon/Google recommendation for using standard setting bodies to "develop reasonable network management" was an "intriguing" approach to "handling concerns about politicization of the FCC processes...."

The most significant element of EFF's critique, however, is their objection to limiting net neutrality to "lawful" content. EFF stated that the plan would limit "nondiscrimination to 'lawful' content without defining the term or giving any indication of who decides what is 'lawful,' opening the door to entertainment industry and law enforcement efforts that could hinder free speech and innovation."

Whether or not to permit network management practices that discriminate against unlawful content is the crux of the net neutrality debate. EFF would like the issue addressed by applying non-discrimination provisions to content irrespective of its lawfulness while the FCC largely pretends that the lawfulness issue does not exist.

Although the FCC would nominally limit regulatory protections to "lawful" content, their net neutrality plans ignore the fact that most content distributed through peer-to-peer file sharing mechanisms is unlawful. As the Library of Congress' Copyright Office stated, "the files distributed over peer-to-peer networks are primarily copyrighted works...."

The FCC's new net neutrality plan rests on the fundamental mistake the agency made in their Comcast decision, determining that there is harm in companies limiting what is mostly the unlawful dissemination of music, movies, software and other protected intellectual property.

Until the FCC's error in the Comcast decision is corrected, a responsible net neutrality framework cannot be developed.

By Bruce Levinson, SVP, Regulatory Intervention - Center for Regulatory Effectiveness
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False pretenses The Famous Brett Watson  –  Aug 17, 2010 5:30 PM PDT

As the Library of Congress' Copyright Office stated, "the files distributed over peer-to-peer networks are primarily copyrighted works...."

The vast majority of all files that exist are copyrighted works. Very few works have been allowed to fall into the public domain in recent times, and all new works are copyrighted by default. I'm not a huge user of peer-to-peer data distribution technologies, but I've used bittorrent to obtain (and redistribute) quite a few gigabytes in my time — primarily ISO images of CDs containing free software distributions. These are all copyrighted works, despite some ideas to the contrary, but that does not make my actions unlawful in and of itself.

The FCC's new net neutrality plan rests on the fundamental mistake the agency made in their Comcast decision, determining that there is harm in companies limiting what is mostly the unlawful dissemination of music, movies, software and other protected intellectual property.

It is not a mistake to determine that there is harm in preventing lawful behaviour, such as mine, which you ignore in your analysis. It is a mistake to think that the likes of Comcast ought to take law enforcement into their own hands, without judicial oversight, right of appeal by those affected, concern for accuracy in enforcement, or any kind of accountability. Of course, the likes of Comcast have no interest in acting as a law enforcement agency, and aren't actually concerned about the law in question: they just want carte blanche to discriminate against a class of network usage they find burdensome, and use the label "unlawful" to discourage anyone coming to its defence as they do so.

Don't get me wrong: I'm pretty sure that the majority of file-sharing is unlawful, given the state of the law. I'm just deeply unimpressed with self-serving corporations which attempt to hide their selfish motives behind a veneer of concern for a law in which they have no actual interest, while simultaneously trampling over the rights of the law-observing minority.

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