ReasonedResponse.com

Word out of the Wall Street Journal this morning is that the Recording Industry Association of America will cease its senseless strategy of suing its own customers and instead attempt to force ISPs to enforce the copyright laws for them.  Certain unnamed ISPs are said to already be discussing "cooperation" with them.

Ho-hum.

Let's be blunt here.  Being invited by copyright holders to discuss "cooperation" is like being invited to dinner by Hannibal Lecter.  Copyright holders aren't interested in cooperation.  They are interested in forcing ISPs to become copyright police.  They are interested in extorting as much cash as they can from every ISP worldwide.  And they are desperately interested in maintaining control of an entertainment industry whose business model died two decades ago.

Let's examine what the WSJ article purports.  First, the RIAA says it will stop suing people for allegedly downloading music in violation of the copyright laws.  Good idea, given that the RIAA has done such a sloppy job of the lawsuits that they have filed against geriatric grandmothers, toddlers and even dead people.  The RIAA should have abandoned the strategy years ago.

For the record, ISPs have always been interested in protecting copyrights and cooperating with the entertainment industry.  I've personally been part to at least five meetings to discuss "cooperation," none of which were productive because the copyright holders have virtually no idea what an ISP is or how the Internet industry really works.  Like petulant, screaming children, they cannot be reasoned with.  They want it their way or no way. 

As for the supposed "new plan" in which ISPs will take over punishing file sharers, it's drivel and nonsense.  There is no such plan, and no major ISPs have agreed to it.  To do so would require them to violate the Digitial Millennium Copyright Act, violate their own terms of service agreements, and then put themselves in jeopardy of a network neutrality complaint by throttling back the service of consumers.  What nitwit would agree to that?

What ISPs will do is to adhere to the law, as they have since the law was enacted.  That's the fair and legal thing to do. 

Meanwhile, in the spirit of "cooperation," the copyright community is said to be actively shopping for a small ISP they can sue in the US, as they did in Australia, in an effort to force changes in the law that they can't coerce Congress to change for them.

And they are pursuing a new global trade agreement that would force liability on ISPs.  ACTA is being pushed by the Office of the US Trade Representative at the behest of copyright holders in the US, including the entertainment industry, again because Congress has been smart enough not to give them their way under US laws.

The fact that the RIAA is dropping its vile lawsuits is good news for consumers -- though they didn't say they plan to give money back to the hundreds of consumers whose lives they have ruined in this decade of lawsuits.  The fact that they may be interested in working with ISPs may be good news, if they will let go of their obsessive need to punish their own customers and instead focus on ways the entertainment industry can thrive online.

I'm skeptical that they will do this.  Every time I hear about a new plan from the RIAA the words "fava beans" and "chianti" pop into my head.  It is true that there is a future for the music and film industries online, and it is true that they will need the support of ISPs to make that future.  But that future doesn't begin by asking ISPs to break the law and violate their own customer relationships on the whim of the RIAA.

As the end of his term as Chairman of the FCC looms, I am becoming more comfortable with Kevin Martin and his style.  In fact, I'm downright tickled with his recent handling of the "network management" flap and its demonstration of how well the system works.

The furor over using forged TCP reset packages to shape traffic on Comcast's network clearly presented a legitimate question:  To what degree are such actions in the best interests of consumers, and to what degree do they violate the spirit and letter of the Principles adopted by the FCC in 2005?

The way the process is supposed to work is that such questions are first handled directly between the consumer and the broadband provider, based on terms of service and commercial agreements.  When this first step does not resolve the issue, it gets elevated to the FCC.  Which it did.

Here's where things get sticky, because this legitimate issue of consumer rights got tangled in the efforts of a lunatic minority to force the FCC to adopt new and outrageous regulations for the Internet.   This minority of roughly one one-thousandth of one percent of Internet users in the US sought to use this legitimate inquiry to bully the FCC into changing its principles into hard regulation.  This would then enable a handful of lobbyists to "game the system" whenever they want by endlessly accusing broadband companies of "violations."

The FCC knew there was a potential for the Principles to be abused.  That's why they clearly stated at the time of their adoption that the Principles did not and would not be regulatory rules.  This way, the Commission has the flexibility to address each situation as it occurs.  It was a wise move in 2005, and remains so today. 

So the issue is taken to the FCC for consideration, and things get tricky because the pro-regulation minority was howling for a one-size-fits-all regulatory quick fix they could more easily use for their own political purposes.  Kevin Martin had to weave his way through this minefield. 

But then things spun out of control at Comcast.

I've worked for enough large corporations, both inside and as an advisor, to know that things can pile up during a crisis.  Good intentions turn bad, innocent actions are in retrospect portrayed as sinister, and the whole organization is left wondering what the heck happened.  If you want proof, just consider the Exxon Valdez oil spill.

Whatever the reason, it appears that Comcast first tried to duck the issue, then prevaricate its way out of the issue, and then compound its public relations problems by derailing the FCC's hearing in Boston, filling the public seats with homeless people.

Which, of course, was the cue for Congress to open its own witch hunt over the issue.

In short order, Chairman Martin faced the task of protecting the integrity of the consumer protection process from both the raging minority of pro-regulation loons and the Congress; while dealing with the questions of policy that were presented in the first place; while keeping intact the consumer Principles enacted by the FCC; and providing support for the legitimate needs of broadband providers to manage their networks.  Oh, and punish the guilty if there were any.

It wasn't easy.  It took guts, a steel-reinforced loin cloth, a commitment to principle and a belief in the power of the process to listen to the loons without over-reacting, stare down Congress and push to a resolution.  But in the aftermath, here's the scorecard:

*  Everyone got their day in court in a hearing before the FCC.

*  The Commission clearly upheld the need for and benefits of network management, refusing to buy into the vision of a "wild west" internet ruled by anarchy. 

*  Chairman Martin held his own before Congress, outlining the policies clearly.

The process is not complete, of course.  Martin has indicated he will take action against Comcast for its behavior, though he has not specified what action.  And there remains the question of how this might impact other service providers and their efforts at traffic shaping.

There are other benefits as well.  Consumers learned more about how a handful of users are taking more than their fair share of bandwidth.  We all learned more about the progress being made to accommodate file sharing on broadband networks, through such efforts as traffic shaping and P4P.  And the process drew attention to the need for more transparency in commercial contracts and user agreements, so that both sides more clearly understand the terms of service.

Best of all, the process was validated.  It works, and we don't need draconian regulation of the Internet to assure that problems can be handled effectively.

Kevin Martin, the lame-duck Chairman of the FCC, refused to be bullied by either the loons or the Congress,  His performance through it all was calm, deliberate and purposeful.  And that's not bad at all. 

What's scary, funny and boring at the same time?

Maybe it's the way in which Peter Svensson at the Associated Press uses bombastic rhetoric about mundane things like ISP Terms of Service Agreements.

You may remember Svensson as the AP writer who stirred a tempest in a teapot over Comcast slowing the connections of some users on its network who were abusing their connections with massive BitTorrent file swaps.  Never mind that what Comcast did was not (and still is not) a violation of any law.  Never mind that its efforts were intended to protect the rights and interests of the hundreds of other Internet users.  Svensson got 15 minutes of fame, the taxpayers were billed millions of dollars for the FCC to spin in circles, and in the final analysis most subscribers to the Internet arestill happier if their ISP is doing something to keep bandwidth hogs from sucking up all of their capacity on the Internet.

But now Svensson is at it again -- this time, noting that the Terms Of Service (TOS) agreements used by most ISPs fail to be the the bill of rights he imagines they should be. 

Sorry, Peter, but those TOS agreements exist more than anything else to protect the ISPs from a myriad of lawsuits, misunderstandings and abuses they would otherwise suffer at the hands of a tiny minority of litigation-minded users -- not to protect consumers from their ISPs.  Consumers are protected by thousands of pages of consumer laws and at least two full-time federal agencies, not to mention a couple of self-appointed "watchdog groups."

TOS Agreements are written in complicated legalese because in the real world they have to protect the ISPs in a court of law, not on the front pages of USA Today.  They are arcane in nature because in our litigation-minded society they have to be.  They are lengthy because you never know when some wacky consumer will cost you thousands or millions of dollars by finding a loophole in the TOS and launching a nuisance lawsuit in the hopes of getting rich quick.

If you read far enough down in Svensson's article -- past the part where all the progressive liberal pundits pontificate on how this demands government intervention and/or control of the Internet, he does actually point out that the real use of these agreements has been to stop spammers and other miscreants.  He actually notes how the TOS agreements have been used, and shows how they aren't nearly as vile in real life as his lead in to the story would lead the reader to believe.  (He might have also noted, but didn't, that the right of an ISP to remove objectionalbe content was specifically demanded in law by the Congress in 1996.) 

But let's face it, if the point of his article had been to show how effective these TOS agreements are in stopping the bad guys, he could have simply said that up front.   

And a memo to Mr. Svensson:  if you want to read some eye-watering legalese that leaves the average subscriber with little or no rights, take a gander at the legal agreements the Associated Press foists on you if you want to use their content on your web site or in your newsletter. 

For a far more human -- and interesting -- take on ISP Terms of Service Agreements, I really like Svensson's follow-on piece, which takes a lighter view of the TOS agreements and pokes a little fun at some of their more arcane provisions without stirring up unnecessary conflict.  I found it over on Yahoo.

As I've noted before, I spent more than a decade in Internet public policy fighting the RIAA and other content providers over file sharing, protecting the right of the technology to exist and opposing legislation that would have been detrimental to consumers.

But as we move forward, and more legitimate sources to buy music and video online make sharing it seem more like theft than sharing, I grow weary of all the debates over it.  If you are downloading to the point that you are violating a TOS agreement, you aren't just downloading security patches from Microsoft.  You aren't just downloading an occasional song or two, or even watching a lot of YouTube videos.

You are stealing.

And I'm content to let that be between you and the copyright holders, until it comes to you sucking up the bandwidth I pay for so you can have your bootleg music and videos.  When it comes to that, I hope my ISP invokes the TOS, hangs you by your thumbs, flogs you without mercy and lectures you sternly.  Then cuts off your access.

The Financial Times today reports that France is planning to take a hard line against downloaders of copyrighted materials - basically, a "three strikes and you're out" policy that will cut off Internet access for habitual offenders.

This news follows an op-ed by HDNet CEO and Dallas Mavericks owner Mark Cuban, who asks ISPs and networks to throttle back on Internet piracy because he doesn't want their illegal activities cutting into his bandwidth.  I agree.  In fact, had I had this blog up and running in time I would have beaten Cuban to the punch with my own support for Comcast and other networks that are managing traffic to keep all of us up and running.

For nearly two decades, I've defended file sharing for all of its legitimate purposes.  I have testified before Congress that those who would destroy a technology just to stop a few lawbreakers are wrong.  I have objected to characterizations of P2P as a tool of terrorism or a venue for child pornography.  And I have helped to unmask and criticize the tactics of the RIAA and MPAA as unwarranted and counter-productive.

I still support P2P as a technology, and still believe the RIAA and MPAA are being hysterically wrong.  But there is another side to this issue, and it needs to be said:  the dominant use of P2P file sharing is not the noble pursuit of science or the battle cry of freedom.  It is theft.

Early abusers of the P2P technology had a lot of ways to justify their theft - the arrogance and financial chicanery of the music industry; the fact that everyone else was doing it; the lack of legitimate online sources from which to buy music and video; and copyright laws that seemed to protect not the artists themselves but the selfish financial interests of their heirs and corporations. 

Still, it was and is stealing.  And it is made all the worse because today they are stealing from you and me.  It's not just a quick con to swindle some large corporation - it's more like Robin Hood deciding to steal from the poor.  These crooks are literally stealing the bandwidth I have paid for and that my family needs for our own uses.  Shame on them for doing so, and shame on those who wrap themselves in the banner of freedom to justify it.