Mortal Wombat

Last week the FCC issued an order demanding that Comcast stop degrading the performance of BitTorrent over their network. Importantly, the FCC is indicating that ISPs cannot block or degrade the performance of legal applications or network services.¹

To quote Lessig, “the Commission has clearly recognized the importance of the Internet as a platform for technological growth and innovation.” To me this reads as the FCC recognizing at least to some extent that ISPs should be regulated more like utilities than like entertainment providers. The order does not establish law requiring network neutrality, but it establishes FCC jurisdiction over ISPs, and it shows that the FCC intends to enforce its 2005 non-binding Internet Policy Statement — which states that the FCC doesn’t want companies to interfere with access to content or competing services. Furthermore, as Harold Feld points out, the FCC clearly states its belief that government regulation to protect the open and vibrant character of the Internet furthers First Amendment values.

This is a Very Good Thing.

Further analysis:
/ Lessig’s letter to the FCC
/ Harold Feld — ‘Why This is A Huge Win’

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¹An exception exists if an ISP must target an application or network service for “network management” purposes. However, the FCC’s order makes clear that an ISP cannot run everything through this exception. If an ISP does contend targeting is necessary for network management, the ISP must inform customers of what they are doing rather than secretly degrading customers’ Internet.

Not everything is depressing in the world of civil liberties & Internet politics. I came across some tentatively good news today! We’ll see how it is applied as the case continues.

Someone actually decided to test the underused ‘misrepresentations’ section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren’t actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it’s not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying “oops.”

The part of Wired’s article that I found most galling though was this:
“Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices.” Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.

AT&T recently made clear that their customers are not permitted to use BitTorrent or other P2P apps on the company’s 3G high-speed wireless data network. This is significant because in the future most people will be using high-speed wireless data networks for a significant part of their Internet usage. Given that AT&T & Verizon may eventually be the only companies providing such access in the U.S., their choices about what protocols and parts of the Net customers can access will carry a great deal of weight. Even if people maintain unfettered, neutral connections at home (a questionable assumption, given Comcast’s actions), a non-neutral wireless Net could significantly hamper the continued ability of the Net to foster innovation & level playing fields.