23 January 2011

Why Net Neutrality Matters


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Do you support the view that all content flowing through the Internet should be treated equally?

If yes, you are certainly familiar with the ongoing net neutrality debate in the United States. For those that have never heard of it, I recommend to have a butcher’s at this primer written by Rich Greenfield. You see, the issue goes back to as early as 1996, but appears to have attracted a huge medial attention in the last couple of months. Why?

That is what I asked myself and went through some reads, the most of which available online. So, I would like to share the information I gained with you.

It appears that net neutrality has a twofold characteristic: it is about quantity and quality. The qualitative aspect would regard the content and the quantitative – the service availability in terms of speed, performance and pricing.

In the US, net neutrality is commonly defined as “the notion that broadband Internet service providers should not be allowed to show preferences to certain providers of content or types of content by supplying them with faster service” (Ashley Packard, Digital Media Law, 67). This definition covers rather the qualitative aspects and corresponds to the common standards established in the European Union. Europe is known to have put much effort in regulating both, the quantitative and the qualitative aspect. These are the standards I grew up with, so, initially I could not really figure out the controversy so arising.

Well, the key might lie in that in the 1990s the Federal Communications Commission (FCC) began to treat broadband Internet service providers (ISP) favourably in comparison to, say, common carriers. In the result, such ISP have been under no obligation to share their conduits with competitors and have thus benefited from the lack of quantitative regulation. The US Supreme Court’s ruling in Brand X is considered to have cemented that state of affairs.

Besides, ISP had begun to also determine whether or not to convey certain content through their networks. They had, so to say, entered the area of the qualitative net neutrality. Having gained certain advantages by virtue of the missing quantitative regulation, they might have been willing to shape their service also in qualitative terms.

That seems to have been the point where the ball got really rolling. And when customers complained that Comcast secretly blocked their access to BitTorrent, the FCC decided to act and sanctioned Comcast. FCC grounded its order in the Internet Policy Statement it had issued already in 2005 in order to guarantee consumers unfettered access to all legal Web content, applications, and services. Comcast argued FCC would not have authority to regulate an ISP’s network management practices and eventually won before the U.S. Court of Appeals for the D.C. Circuit.

However, FCC did not give up and adopted new rules thereby claiming “an important step to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression.” How dou you think did the ISP community perceive this act? Well, not necessarily in the affirmative. This time it was Verizon that undertook to challenge the newly issued rules, thereby applying  the successful recipe of the overstepped authority.

Having read that far, what do you think? What might be ISPs arguments to oppose net neutrality? I doubt they would claim changes merely in quantitative terms. Would the assumption that ISP attempt to limit the freedom and openness of the Internet be permissible? I could not figure it out why they should do so. Otherwise Verizon seems very reluctant to provide for cogent reasons why they oppose net neutrality.

For the time being and in contrast to the development in the US, the European Union Commission has managed to defend the concept of net neutrality. They have recognized that there is one Internet and that it should remain open and interconnected regardless of the technologies and services users rely on to access it.

While I understand that quantitative shaping network management might even be necessary, I would never accept a qualitative one. An ISP would then be in charge as to what content I would access. Such an effect would be even fortified by the fact that the market is likely to fail curing discrepancies so arising. You remember – many ISP are not obliged to share their networks with competitors. I could not just walk away from my ISP and sign with another.

Therefore I care for net neutrality. Actually, anyone using the Internet must care about net neutrality.

Otherwise there is a fair chance that we cede ground to persons like Mr Neil Berkett, the CEO of Virgin Media and they make the decisions on our behalf. And, believe me, that will not be necessarily to users’ benefit. Why? I guess that if you ask them, he will say “this net neutrality thing is a load of b****cks!”

 

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13 February 2010

Will Verizon adopt a "three strikes and you are out" policy?


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Verizon was once acclaimed for its firm standing in opposing copyright holders’ attempts to access the personal data of subscribers who had allegedly infringed copyrights by means of peer-to-peer file sharing platforms. That was 2003 and, no doubt, everything flows, but same company’s newer policy nearly condemns those glory days to oblivion.

CNET as well as Wired have recently reported that Verizon has begun terminating some subscribers’ Internet access due to said subscribers’ alleged copyright infringing dealings.

According to FindLaw columnist Anita Ramasastry this is to be viewed as the result of RIAA’s “alternative approach” to work with ISPs to police illegal downloading, instead of – after having lessons learned – suing the downloaders themselves. In this respect a crucial question is awaiting an answer – does RIAA by any means “support” Verizon or how does Verizon learn of its subscribers’ alleged copyright infringement at all? In the state of such intransparent policies, I personally could only encourage subscribers to Internet services to play question-and-answer games with their ISPs, and with Verizon in particular, in order to gain as much information thereon as just possible.

While Canadian law professor Michael Geist blogs that Verizon’s actions are not exactly “three strikes and you are out”, as concerned subscribers still can go to another ISP, he nevertheless points out that the lack of due process is very disturbing.

It is hard to predict as to whether Verizon will introduce a zero tolerance three strikes policy, it is nonetheless just pity that one of America’s major ISPs has yielded to copyright holders’ and their representatives’ demands by thus demonstrating readiness to sacrifice its customers’ fundamental rights in the information society.

27 October 2009

Making ringtones available to customers does not infringe public performance right


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This is the outcome of an opinion & order issued by the District Court for the Southern District of New York in Verizon v. American Society of Composers, Authors, and Publishers (ASCAP).

ASCAP is a membership association of more than 360,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. ASCAP licenses the public performance right in musical works established in 17 U.S.C. § 106(4).

ASCAP argued that

Verizon Engaged in Public Performances

of musical works when it made ringtones available to its customers. ASCAP contended that Verizon’s transmission of a ringtone to a customer’s cellular telephone was a public performance and thus required a public performance license. In addition, ASCAP argued that Verizon was both directly and secondarily liable for public performances of musical works when customers played ringtones on their telephones.

With respect to the transmission of ringtones to customers, the court found that even while the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance. Regarding Verizon’s liability for its customers’ behaviour, the court opined that, besides the lack of a connection between Verizon’s sales and customers’ use of ringtones,

ASCAP Had Failed

to show any infringement of its members’ rights by the playing of ringtones in public from Verizon’s customers’ telephones. Thus the customers were not liable for copyright infringement, and neither was Verizon.

This court’s order & opinion is of interest and importance when dealing with digitised works. They make fine distinctions in terms of exercising exclusive rights under copyright law and set boundaries  for the infringement thereof.

In my view a very good guidance to practitioners.