Demythologizing Net Neutrality

by Rick Carnes

By now most of us have heard all the Net Neutrality soundbytes. The blogosphere is awash in doomsday scenarios about the threat of the ISPs destroying the Internet with tiered systems of service, unequal access to music sites, and the establishment of new 'Gatekeepers'to frustrate the delivery of music.

Against this backdrop I have testified about Net Neutrality twice in the last few months (once before Congress and once before the FCC). My message has been that there is nothing 'Neutral' about the way the Internet is now organized. Every day it facilitates the most massive intellectual property theft in all of history. As currently configured, the Internet is anti-copyright and anti-creator, and the system needs to be fixed, not enshrined in Net Neutrality legislation or regulation.

In talking to the 'Net Neuters' I keep encountering the same set of myths over and over. They all seem to be plagiarizing each other's blogs! So I thought this month it would be helpful to do some blogging of my own. Let’s start with a little 'Demythologizing’ of Net Neutrality.

Myth #1

The MYTH is that the 'Bad Old Past', in which a few huge record labels controlled all the outlets for music distribution, has been replaced by the "level playing field" of the Internet, and if Congress doesn't pass a Net Neutrality Bill immediately then your ISP will become the new 'Gate Keeper' and control all Internet music distribution.

The FACT is that conservatively speaking, more than 85% of music distribution online is now in the hands of music pirates, and a huge bulk of the rest is controlled by iTunes. Is this the 'Level Playing field’ that the Net Neuters are trying to protect? A music delivery system without any 'Gate Keepers' works only for gate crashers, free loaders, and people giving away music to sell something else like advertising or MP3 players. The Internet has not done away with the Giant corporations that once controlled music distribution, it has merely replaced them with other Giant corporations that have anti-copyright agendas. ISPs can actively help make MORE legal music available through more channels than we have today because intelligent networks can both help curb the tide of piracy and enable new ways to deliver legal music.

Myth #2

The MYTH is that Net Neutrality will ensure that the smallest bedroom recording artist and the biggest superstars will compete on an equal technological playing field, and that this will somehow make the world safe for the small indie artist. The fear is that the Superstars will be able to afford faster websites than the small indie artists, and that this will destroy the 'perfect democracy' that technology has created on the web, where the little guy can take on the giants and have a fair chance of winning. (Note that this imbalance scenario has never actually happened, but the Net Neuters are asking for legislation against the mere possibility that it MIGHT happen! Piracy, however, is happening everywhere constantly and the Neuters are demanding nothing to stop it.)

The FACT is money will always buy more access to the public. Net Neutrality will do nothing to stop American Idol from creating next year's Superstar. Moreover, equal access to bad music will not sell more downloads. Music of quality has nothing to fear from technology. Great new artists such as OK GO, who have achieved success through legal alternative outlets like YouTube, have nothing to fear from ISP management of their networks. In fact OK GO fans have more to fear that they won’t be able to view their videos if an ISPs network is congested with illegal file sharing. On the other hand, even music of quality cannot survive without economic incentive. Equal access to a market that has been destroyed by music piracy is equally worthless to all. Let's worry first about establishing a Legal Net where piracy is reigned in, and then we can worry about a Neutral one. There is always reason to be concerned about issues of fairness and equal access, but these issues are most definitely secondary to the issue of outright theft. C'mon Net Neuters, get your priorities straight!

Myth # 3

The latest MYTH is that Net Neutrality has nothing to do with piracy. The response to my testimony has been to claim that nothing in Net Neutrality will stop internet service providers (ISPs) from helping to curb the distribution of illegal content. This is also incorrect. What will stop the ISPs from helping to curb the distribution of illegal content under a Net Neutrality regime is the total lack of economic incentive to deploy new equipment that can do so.

Unless the ISPs have a hope of earning returns on their investments in intelligent networks, there is no reason for ISPs to voluntarily threaten their ‘safe harbor’ protections under the Digital Millennium Copyright Act (DMCA). On the other hand, if there are new market-based opportunities to use music as a method to distinguish their services from a competitor’s or to create new simplified and innovative delivery mechanisms for distributing legal music, then ISPs would have a direct stake in fighting online piracy. Otherwise why bother? There has to be an upside/downside ratio, not just a downside/downside.

The very good news is that some of the ISPs are dabbling with the idea of delivering content of all sorts over cell phones. This might be our last best hope of sweeping the network of illegal content and reestablishing a legal market for music. But this market will require the delivery of content over an intelligent private network engineered by the best and brightest specifically for the task. Net Neutrality is aimed directly at stopping this from happening. Any time that an ISP has even considered examining the feasibility of stemming the tide of online piracy, it has been excoriated by the Net Neuters and hauled before Congress and the FCC to explain its actions. Net Neutrality envisions the Internet as a set of 'dumb pipes' through which billions of anonymous, unidentified bits of information flow freely, and if 70% of those bits are stolen copyrighted files, they claim it is nobody's business. Sound familiar? Well it should, because that is the current system they are seeking to preserve, and we have seen the consequences of this in lost songs and destroyed songwriting careers. If that is the 'level playing field' that the Net Neuters are trying to preserve I say, "No Thanks!"

The hard truth here is that in the last ten years, the US government has done virtually nothing to stop illegal downloading, and it is now impossible for individual copyright owners to enforce their rights on the Internet. We have had ten years of destruction of our livelihoods, during which time the Songwriters Guild has constantly called for regulation of unfettered illegal downloading. Today, for the first time, it appears there is hope that new technology might actually be the cure for the scourge of Internet piracy and that ISPs may be looking for new ways to cooperate in this effort. But the Net Neuters are calling for 'immediate' relief from overzealous use of technology which has not yet been invented, let alone implemented in any kind of reckless fashion! All that has been invented so far is this weird ‘ISPs as Big Brother’ doomsday scenario that the Net Neuters are using to frighten the uninitiated into supporting their cause. This scenario is based on fear mongering rather than hard evidence. The fact of the matter is that ISPs should not only be ‘permitted' but encouraged by the music community to deploy new technologies, including ways to curb piracy, and to improve the services they offer today and to help drive innovation on the Internet. Government regulation has already failed songwriters. Innovation is now our best hope. For that innovation to happen, we need to give technological solutions a chance to develop.

The Net Neuters need to understand that fighting the future is the way of the past!