On December 21st the FCC approved new rules regarding Net Neutrality. Net Neutrality is the concept that all websites will be treated the same by ISPs (e.g. Verizon or Comcast), and ISPs will not be able to block websites that may compete with additional services the ISP may offer. For example, Comcast offers telephone services through their network, and so they would profit by banning (or charging an additional fee to) VOIP telephone services, such as Skype, from using Comcast’s transmission lines. Comcast might also charge websites to receive a faster loading, creating “fast lane” for high budget sites and discouraging users from visiting start-up sites with a slower load time. Net Neutrality would prevent Comcast from taking this action.
The rules set forth by the FCC sparked harsh criticism from people on both sides of the issue. FCC commissioner Robert McDowell claimed these rules were overly vague and intrusive regulation by the federal government over the internet. Senator Al Franken, a strong supporter of Net Neutrality, said he felt these regulations failed to provide the protections he was hoping for. Many free speech and internet advocacy groups claimed the FCC proposal is Net Neutrality in name only, and fails to meet the principles of Net Neutrality. The ISPs and wireless carriers themselves seem to be among the few organizations that are in support of the new plan. The simple fact that the industry being regulated is in favor of the new regulations is cause for worry for many Net Neutrality advocates.
There are two areas of contention about the new rules. The first is the FCC allowing ISPs to engage in “network management”, which will permit ISPs to slow internet connections and engage in “reasonable” activity to manage their network. Network Neutrality worries that this exception will become a loophole allowing ISPs to completely escape Network Neutrality restrictions. The other issue is with wireless carriers, which will be allowed to restrict the availability of applications on mobile phones, a violation of network neutrality principles. The FCC claims that smart phones are an emerging technology and need to be granted more leeway until the technology has had time to establish itself.
One thing most of the interested parties in these regulations agree on is that these regulations will be the subject of law suits in the near future. The FCC’s previous Net Neutrality regulations were held unenforceable in federal court when they were challenged by Comcast. The FCC claims that they have established these rules with solid legal grounding based on the 1996 Telecommunications Act, but the sufficiency of these claims is sure to be tested soon.
The Battle over Network Neutrality May Finally Be Hitting Your Monthly Bill as Comcast and Netflix Provider Spar
While many Internet denizens have been avidly following the ongoing controversy, the majority of Internet users don’t know about it, and frankly, don’t care. It’s hard to get people riled up over an issue that may, someday, be a problem. The only real sufferers of a disregard for Net Neutrality have been peer-2-peer file sharers in 2007, when Comcast began deliberately lowering their internet speeds. Finally, however, the debate may have entered an arena that hits close to home.
Netflix traffic currently takes up around 20% of all internet traffic, making it a giant in the field and a service near and dear to many internet users’ hearts. Comcast has recently forced Level 3 Communication, the major traffic supporter for Netflix, to pay an additional fee to the Internet Service Provider. Comcast claims that this fee is not a violation of Net Neutrality, but rather is being charged as a result of increases in Internet traffic. Level 3 Communications claims this type of fee is in violation of the Network Neutrality rules proposed by the FCC that are to be voted on later this December.
The central idea behind Network Neutrality is that ISPs may not restrict access to specific services, whether by slowing speeds or charging fees for access to specific sites. There is a growing concern that ISPs will team up with large entertainment companies and restrict their customers’ access to only their business partners websites and internet services. The proposed merger of Comcast and NBC that appears to be finalized soon is weighing heavy on the proponents of Net Neutrality.
Last fall the FCC issued a statement asserting that it would begin to enforce Net Neutrality regulation against broadband internet carriers (see article here). However, in April a Federal Court of Appeals issued a decision which struck down an FCC decision that enforced Net Neutrality, and made many question the ability of the FCC to enforce Net Neutrality without a specific mandate from congress. The FCC, however, still has a power play in reserve should they wish to reassert their dominance over broadband internet providers.
The Court Decision – Comcast Corp. v. FCC
In 2008 and earlier Comcast enacted a policy to slowdown the internet speeds for people who are they assumed were using peer-to-peer networks and were engaged in significant (presumably illegal) downloading. Their argument was essentially that these users were resource hogs and were slowing other customers’ connections. The problem was that Comcast targeted users accessing a particular service over the internet and slowed their protection, a direct violation of the concept of Net Neutrality, where a user will get equal access to different sites and internet services. The worry behind this is that in the future your ISP may charge you extra to use services like VoIP, or even email.
The FCC determined in August of 2008 that Comcast’s slowing of user’s connections in this manner was a violation of FCC policy, and ordered Comcast to cease this activity. Comcast appealed this decision and it made it all the way to Federal Court of Appeals. This court overturned the FCC decision and held that the FCC lacked the authority to enforce Net Neutrality rules. Despite this ruling, the FCC plans to move ahead with creating formalized Net Neutrality rules. It is unclear how the FCC will claim legal authority to create these rules in light of this decision.
Beefing up the FCC’s regulatory authority
At any time congress could pass a law granting the FCC the authority to enforce network neutrality. There has been mixed feelings towards network neutrality on Capitol Hill, and with everything else going on with Congress it is unlikely that Net Neutrality will make it to the top of the agenda any time soon.
The FCC, however, has the ability to give itself more regulatory power. In the late 1990’s the FCC mandated that companies who operate phone lines (referred to as telecommunication services) allow third parties to use their lines to provide internet access. It essentially disconnected the company who owned the phone lines from the company who provided the internet access. The FCC’s ability to enforce these mandates was limited to companies that provided a “telecommunications service.” In 2002 the FCC issued a ruling stating that cable companies were not a “telecommunications service”, but rather an “information service”, and thus are not subject to the same level of heavy regulation that the phone companies are subjected to.
This classification of cable companies as “information service” providers was made internally by the FCC, and thus can be overturned on their own authority. Reclassifying cable companies as “telecommunication service” providers will give the FCC an ample amount of power to enforce Network Neutrality rules on cable companies as well as much more extensive regulation, generally. There is concern, however, that reclassifying cable companies will stifle investment in the industry. This is a concern that may trump Net Neutrality for the FCC, as the US lags behind many advanced nations in terms of access to broadband. If the FCC doesn’t reclassify cable companies it is unclear how they will be able to enforce Network Neutrality, or if the effort will be abandoned altogether until congress can grant express authority.
Unfortunately, just like last time I discussed Network Neutrality, there are still more questions than answers and this debate is far from finished.
Filed under: Business, Copyright Articles, Inventor & Entrepreneur Updates, Online Privacy
Countries around the world are negotiating the terms to a new treaty, the ACTA, which is expected to have a profound international impact on the enforcement of copyright law
By Ed Nunes
Since the middle of 2008 forty countries from around the globe are negotiating the terms of the Anti-Counterfeiting Trade Agreement (ACTA). Despite its name, the treaty will include a very important portion that will focus on the enforcement of copyrights violated via the internet. There has been much public opinion stated about what the content of this “Internet Chapter” ought to contain.
One of the major criticisms of this treaty process is that it is going on behind closed doors, with no access being given to the public about the contents of the international policy decisions that are being made on their behalf. Many internet advocacy groups are complaining loudly to the Obama administration about their lack of access and their inability to provide input into the treaty making process. These organizations are further outraged by what they view is undeserved deference to the input large media corporations and their lobbyists.
Even though there has been lots of criticism about the secret nature of the meetings and what the ultimate contents of the treaty will include, there are some positive things that are likely to come out of this effort.
First, right now it is somewhat difficult to pursue copyright infringers in other countries. One of the major barriers is finding someone who understands the copyright law of that particular country and the procedures for confronting infringers. There are already treaties in place for honoring copyrights from other countries, like those formed under WIPO. The ACTA will (hopefully) provide more depth explaining countries obligations as well as more uniformity in copyright law across the member nations. It is the uniformity that is truly valuable. If a person in the US is having her copyright infringed by a person in an ACTA member nation it will make it much easier for the copyright holder to pursue the infringer and protect her rights.
Second, according to a leaked version of the proposed contents of the “Internet Chapter” of the ACTA, the substance of this treaty is markedly similar to the copyright laws already enacted in the US. The ACTA is looking like it might turn out to be an international version of the Digital Millennium Copyright Act (DMCA). This is beneficial to US copyright holders, as it makes other countries follow the same digital copyright laws and procedures that people in the US already adhere to.
There does appear to be one significant divergence in the language of the ACTA from current US law, however. There is a proposed provision in the ACTA that will require ISPs to institute what is often referred to as a ‘three strike rule’ for accused infringers. The three strikes rule, simply put, is a requirement that ISPs ban users after three instances of copyright infringement. While this law seems reasonable, there are two significant problems.
First, the US has not implemented this law, and so if and when Congress ratifies this treaty it will create new law that was not first proposed by a legislator. Internet advocacy groups claim that this is a circumvention of the law-making process and will grant greater rights for the entertainment industry without proper input from the American populace.
Secondly, the problem with this rule is in determining what constitutes a copyright violation. Copyright is a complex area of law, and while copyright owners often assert infringement claims to ISPs via the DMCA, the supposed violators often can fall under exceptions to copyright law like the Fair Use doctrine. It seems patently unfair if at all it takes is three accusations to cancel your home internet access. On the other hand, however, requiring three court convictions for copyright infringement would make the law so rare in its use that it should hardly be on the books at all.
How this law would be implemented is yet to be seen, but it seems like there are some difficult pragmatic issues to be overcome for the law to be a just enforcement of digital copyrights.
As the world moves towards a more global economy it makes sense to conform laws in different nations so as to lower transaction costs between parties in different countries and allow for easy commerce across borders. The ACTA is a positive step towards greater globalization and provides real benefit for copyright holders trying to enforce their legitimate rights internationally. At the same time there is the concern about the balance of power that always exists in copyright law between the power of the copyright holders and the public who wish to use other people’s intellectual property. All we can do for now is hope that when the ACTA is finalized in January of 2010 the member nations are able to strike a proper balance for the effective use of copyright law.
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