An Internet where all file transmissions are treated equally while their legality is impossible to determine will continue to be a disaster for songwriters. The Internet as currently configured is not "neutral." Instead, it is a thieves' paradise.

Unfortunately, this is precisely the regulatory regime proposed this week by the Federal Communications Commission in its draft rules regarding "network neutrality," the principle that Internet users should be able to surf the Web free of any restrictions imposed by their Internet service provider (ISP).

The Songwriters Guild of America read with great interest the remarks of the participants at an earlier FCC-hosted workshop on the role of online content in the broadband ecosystem. Some participants expressed their fear that unless the commission imposed "net neutrality" by law, customer privacy and speech freedoms would be compromised. This isn¹t only inaccurate but also represents a back-door attempt by some technology companies to enhance their competitive positions while rationalizing the theft of private property for their own benefit.

The most prominent purveyor of this line of thinking was Gigi Sohn, co-founder/president of the advocacy group Public Knowledge, who tried to equate "net neutrality" with avoiding content regulation. But in order to make such an argument, Ms. Sohn needed to downplay the rampant looting of copyrighted works on broadband networks. She did so by stating that "claims of damage to the industry were suspect" and that there wasn¹t sufficient data on the topic.

Nothing could be further from the truth. According to the RIAA the value of U.S. recorded music shipments totaled $8.5 billion in 2008, down 18.2% from $10.4 billion in 2007 and down 41% from $14.3 billion in 2000. According to the Bureau of Labor Statistics, songwriter income dropped 32% between 2003 and 2006 alone. Every major music publisher I have contacted tells me they have laid off at least half, and sometimes all, of their songwriters in the ten years since piracy began to decimate the music industry. The level of damage is not "suspect."

The unfortunate reality of the digital world is that online piracy of music is rampant and has deeply and materially harmed the songwriter community. Yet Public Knowledge explicitly asks the FCC to prevent the companies that own these private networks from addressing the problem of piracy. Sohn's free speech and privacy arguments merely seek to intellectualize highway robbery.

Sohn did say that she thought pirates "stink" and "should be thrown in jail," but this came off as lip service considering that she continues to oppose proposals to enhance criminal liability or criminal penalties for copyright pirates. She even refuses to have the Internet service of persistent copyright infringers temporarily suspended. Instead she suggests that ISPs should "shame them" with warning letters. Songwriters believe it is foolhardy to trust the personal ethics of thieves to solve the persistent problem of illegal downloading.

Comments filed with the FCC note that more than half of the traffic on broadband networks stems from use of peer-to-peer networks by a small minority of users and that the overwhelming majority of P2P traffic represents the unlawful stealing of copyrighted works.

The current situation, which permits a small percentage of looters to control a vast majority of a communication network's bandwidth for the purpose of committing illegal acts, is simply unacceptable. Efforts to perpetuate this system, which incidentally is causing frequent and significant slowdowns in service to the law-abiding users she purports to represent, is difficult to fathom.

The greatest risk of harm to consumers comes from regulatory and legislative proposals to prevent responsible ISPs from managing their networks. At the moment, the free market is the best weapon we have to combating Internet piracy. Technology created the illegal file sharing monster, but more technology can detect and deter those practices that are illegal. In other words, we must fight technology with technology. Unfortunately, the current net neutrality regulatory proposals would smother this nascent technological counter-attack against Internet piracy.

The songwriting profession right now is like a person drowning in the quicksand of digital piracy. Of those whose heads remain above the surface, many are up to their armpits. There is a chance that some new technology will be the rope thrown to us before it is too late. But companies and entrepreneurs need an economic incentive to develop those anti-piracy technologies. Regulations restricting the ability of ISPs to manage their networks would discourage the development of these vital technologies and would eliminate the last bit of hope that songwriters have to survive the digital onslaught.

Rick Carnes is president of the Songwriters Build of America.

©2009, Further Communications