Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Net Neutrality Fight Brews

Composite sources by zmiter & maximmmmum

When the President of the United States disses fundamentals from climate science to the separation of powers, it is admittedly a very difficult time to debate any issue outside the gravitational pull of so much regressive momentum. Amid a flurry of truly dangerous policy reversals, the storm now brewing over the issue of Net Neutrality will doubtless be subsumed by the broader narrative of “Trump rollbacks,” but this generalization only clouds our ability to assess what’s actually happening in an already obscure area of cybernetic policy. Especially through the chaos of social media. (Add to this, the recent kerfuffle over the FCC possibly taking action against CBS for a joke made about Trump by Stephen Colbert, and we’ve got a whole circus, but we’ll stick with Net Neutrality for the moment.)

First, let us pause to acknowledge this dichotomy: the fact that we choose to interact in a walled garden like Facebook as complicit lab rats in that company’s grand data experiment while posting declarations that the web must remain “free” and “open” is a delusion that must be reconciled before considering an issue like Neutrality. Free and open are nice words and easy to support with a mouse click, but what’s really at stake here?

The order that FCC Chairman Ajit Pai proposes to reverse—for the moment anyway—is not actually Net Neutrality itself; and the real question before us is whether the chairman will merely deregulate or will instead live up to any of his prior testimony and help to shepherd a more effective and comprehensive policy aimed at achieving Neutrality principles. As noted in my last post on this subject, the FCC rules only affect ISPs, and if we truly want an internet that protects all parties great and small, then a coherent and consistent regulatory framework must be pursued for edge providers as well.

In practical terms, it seems to me that there is little value in saying that ISPs (AT&T, Comcast, etc.) may not discriminate via broadband while edge providers (Google, Facebook, etc.) are free to discriminate via algorithm. And in simple terms, this was the crux of Pai’s dissent in passing the 2015 order which placed ISPs under Title II of the Communications Act, giving the FCC power to regulate these providers as “utilities.”

It is important to remember that Net Neutrality is a goal and not a specific policy doctrine. Its principles go back to the days of dial-up, and as attorney and expert Mitchell Lazarus argues in his blog, regulating ISPs as “utilities” through the 1990s was a key reason why we had more competition among this class of providers than we do today—when most markets are served by a monopoly or duopoly at best. But, in an earlier post from October 2014, Lazarus also explains why placing ISPs under Title II of the Communications Act alone would not achieve Neutrality—partly because internet traffic simply does not ebb and flow like phone service for which Title II was designed. Lazarus writes …

“An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is ‘fair’. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.”

So, Chairman Pai’s plan to reverse the rule placing ISPs under Title II does not in itself “roll back Neutrality” because one cannot roll back what has not been achieved. Having said that, it seems that Lazarus would not endorse reversing the Title II status so much as adding to it “…a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs.” These competitors would pay to use the channels, and consumers would once again have options to switch ISPs if they become dissatisfied with the service, according to Lazarus’s assessment.

Whether or not the monopolistic state of the ISPs can be reversed or mitigated, the same problem exists on the edge provider side of the equation, with a company like Google owning most of search and advertising in the U.S. and Europe, along with one Amazon, one Facebook, etc. It seems to me, we consumers cannot expect an effective approach to the goals of Neutrality without meaningful and complementary regulation by both the FCC and the FTC of both ISPs and edge providers.

In a nutshell, the FCC’s job is to protect consumers vis-a-vis access to the web while the FTC’s job is to protect consumers as we interact with edge providers once we’re on the web. And it is unclear at the moment what happens when a company functions as both access and edge provider.

It’s mostly about corporate interests for now.

Be prepared for this fight to at least sound existential in the rhetoric to follow from places like the Electronic Frontier Foundation. Be prepared for the story to be positioned as an Obama-for-People v Trump-for-Corporations narrative—and for the Neutrality tornado to fling about all manner of unrelated topics (did someone say SOPA?). But for now, this battle seems to have more to do with very large corporations on both sides—and very little to do with consumers. Mostly it’s over the issue of who is going to pay for what.

Large users of broadband—Netflix is the world’s leader—are not the companies that invest in the physical hardware to expand access, speed, and reliability. And there is an extent to which the ISPs, which do make these investments, see Neutrality regulations as keeping the access prices paid by these huge edge-provider services artificially low. There is more to learn on this subject as the story unfolds; but this follow-the-money line of inquiry is likely more accurate than taking at face value the story that the Obama-era rules were providing meaningful consumer protections.

Net Neutrality & Copyright

In both real and fictitious ways, the Neutrality fight is likely to implicate copyright and the interests of rights holders. Because Neutrality principles are based on the premise that universal access to the web is a civil right, remedies for online infringement like throttling speeds or account termination become unavoidably intertwined in the public debate over Neutrality. This may foster exaggerated and misleading headlines claiming that major rights holders (i.e. Hollywood) are against Neutrality. But there is no underlying reason why copyright enforcement cannot coexist with Neutrality principles, and I worry that persistent confusion will rally creators to lobby against their own self-interests.

In this guest post, for Hypebot, No Internet, No Music: Why Musicians Should Care About Net Neutrality, Will Meyer has the right spirit but is making an important error in my view. The understandable instinct to assume that President Trump wants to gut protections for independent creators obscures the fallacy in which Meyer seems to conflate edge provider Facebook with the ISPs affected by FCC rules. He writes, “… the truth is Facebook isn’t free. We pay with our data and we must pay with our dollars if we want the algorithm to take our bands seriously.” Absolutely right. And, in a slightly different context, Ajit Pai said essentially the same thing in his dissent over former Chairman Wheeler’s proposal to place ISPs under Title II.

More relevant to Meyers’s concerns is the fact that Pai specifically noted that having two separate regulatory regimes for ISPs and edge providers only entrenched the market advantage of the latter, which goes directly to the heart of some of Meyers’s observations about using Facebook for promotion of his band. This does not mean Pai gets a free pass; it means creators need to look way beyond the rhetoric to follow how the policy will affect them.

Evolving Neutrality policies in both the U.S. and abroad should be closely watched by copyright interests because the statutory frameworks can make a difference with regard to enforcement. Neutrality is meant to protect access and dissemination of legal activity online, and there is an extent to which the public debate becomes mangled by those who view both broadband and access to unlicensed content (i.e. piracy) as interrelated “rights.”

As indicated in previous posts, I advocate a wait-and-see approach to Chairman Pai’s policies, not because I inherently trust his view; but because the 2015 framework for ISPs doesn’t really seem to achieve the consumer-facing goals that people think it does. Unfortunately, this probably won’t stop the hyperbole from flying in every direction, which is unlikely to help the development of a more coherent policy.

Is IP Utilitarian or a Natural Right?

Usually, when we talk about copyright or patents, we focus on the utilitarian aspects of the law.  We generally discuss the merits of specific arguments in a case or the need of the author or inventor to earn a living from her work relative to the social and economic value of that work to the market.  But an ongoing debate among academics, which occasionally seeps into the blogosphere and general reportage, is the question of whether IP law is grounded in natural rights or based exclusively on utility.  Is there a natural right of ownership in the “fruits of labor” that produces a photograph or a photographic invention? Or are copyrights and patents a purely functional bargain between the state and the author or inventor in order to reap the benefits of individual genius?

It would be a mistake to assume that everyone who takes a utilitarian view of IP is an IP critic and that everyone who takes a natural rights view is an IP advocate. I know at least a few colleagues who passionately defend IP but who are skeptical of a natural rights foundation. Among utilitarians, however, there are those who consider the IP bargain a “necessary evil” that should not extend one iota beyond the achievement of the desired outcome (i.e. the delivery of works into the market), and there are utilitarians who espouse a more elastic (and perhaps less cynical) view of these laws. Suffice to say, those who hold the “necessary evil” view are unlikely even to entertain a natural rights perspective of IP and are the ones most insistent upon seeking empirical evidence of IP’s presumed value.

Professor Robert P. Merges of Berkeley Law recently published a paper entitled Against Utilitarian Fundamentalism. It is primarily a work of self-defense in response to a paper written by Professor Mark A. Lemley of Stanford Law entitled Faith-Based Intellectual Property. Lemley had proposed that some advocates of IP law’s status quo are apt to turn a blind eye to empirical data regarding efficacy, clinging instead to “faith” in IP akin to religious zealotry.  This accusation takes direct aim at Merges’s book Justifying IP, in which the author does use the word faith to affirm his belief in the purpose of IP law despite finding no conclusive evidence of its utility that would satisfy, as he says, “an unbiased jury of hardheaded social scientists.”

Of course, one problem with empiricists is that they often don’t admit to their own biases, or to the biases inherent in data (e.g., the overemphasis on standardized testing in American education); and this flaw is central to Merges’s rebuttal—that Lemley is guilty of exactly the same narrow-mindedness of which he accuses his colleague. Beginning with the premise noted above that IP law is a “necessary evil” with the purpose of producing a measurable outcome, Lemley makes a case for an empirical approach to potentially reshaping IP law as minimally as possible to achieve its utilitarian ends. He then accuses Merges (and others) of ignoring empirical evidence as follows:

“Merges refers to his ‘faith’ in IP law, and that is exactly the right word. I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP.”

Careful not to accuse all religious people of being irrational, Lemley labels Merges and colleagues as irrational in a religion v. science context. Merges counters thus:

“To compare nonconsequentialist IP theories to irrational, unscientific beliefs is to commit two very large errors. The first is to collapse all ‘opposing’ theories—all those not empiricist/utilitarian—into a single derogatory category. The second and larger error is to raise the empirical/utilitarian theory to the status of the one and only true path, the sole road to enlightenment.”

Lemley’s paper reflects the view that there is no natural rights (pre-political) basis for IP, which means that there is something inherently immoral about departing from utility backed by evidence. He writes…

“If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.”

Children painting.

To this, Merges cites empirical research into the ethical psychology of even very young children who reveal an understanding that the first “author” of some work or possessor of some object is indeed its “owner.” He quotes one study from 2008, which says, “[C]hildren (6–8 years old) determine ownership of both objects and ideas based on who first establishes possession of the object or idea.”

Photo by nullplus

Can any natural right be “proven” by science?

My own response would be to ask Lemley, or anyone, to provide “evidence” that the free speech, which he identifies as being in conflict with IP, is a natural right itself. Should we conclude that those Framers who initially considered the Bill of Rights to be redundant did not believe in the right of speech? Or is it more accurate to say that the First Amendment is not evidence of this right so much as it is a written affirmation of what we, the descendants of western civilization, innately feel to be a natural right?

Similarly, John Locke’s 17th-century reflections on property are not evidence that modern IP should exist; they are one very smart guy’s articulation of a sensibility felt by many people other than Locke himself.  Coincidentally, Locke’s Two Treatises of Government are also a rebuttal—in that case to Robert Filmer’s over-reliance on the Bible as empirical “evidence” for the divine right of the monarch.

So, is Lemley being fair when he contrasts a “strictly utilitarian” legal principle (which he asserts IP is) with an “obvious” natural rights legal principle like free speech? I’m not sure he is because neither IP nor speech can easily claim anything but a natural right foundation, depending on how far back one is willing to look for written precedent. And one need not go back very far before both IP and speech disappear from the record as protected rights in any modern sense. So, is it not reasonable to consider that the predicate for IP may be just as natural-rights based as free speech, even if we generally prioritize the importance of the latter over the former?

This line of inquiry inspires me to ask a broader question that applies not only to IP law, but to all law:  Is it a science? Yes, law is practical and must rely substantially on relevant data; but unlike one aim of science, which is to discover origins, I would argue that it can be impossible to trace evidence back to the original rationale for a law unless one is willing to admit that the answer may be no more evidentiary than this:  because that’s how we feel about it.

Just because the application of law must stand up to the scrutiny of logic, that does not mean its predicate may not be emotion—or to use Merges’s more accurate word, deontological.* Legal scholarship looks for precedent, which even looks to Scripture in some cases. But there has to be a point at which precedent is unavailable, and the scholar, or legislator for that matter, is striving to intellectualize emotion rather than admit that collective emotion can be a perfectly valid rationale for creating a law.

What authority really dictates that “all men are created equal”? The American Declaration of Independence? Written long before all people in this country were remotely treated as equals? The Bible? Hardly. At this point in history, equality for all persons is an innate core value that is felt by hundreds of millions of people regardless of how diverse their religious, cultural, economic, and social views may be. And it is absolutely possible to feel a moral sense about such things without knowledge of any particular doctrine of record. Conversely, what if one were to assemble empirical data to reveal certain social benefits of inequality? We have citizens who think this way, so why not follow their rationales? To quote Merges …

“There are ways of reasoning that are not based on strictly empirical data. And belief in these forms of rationality does not equate to ‘faith’ in the pejorative sense. People reason in nonstrictly empirical ways about what is right, and what is wrong, and have done so for a very long time.”

Even the most mundane, utilitarian law can reflect some underlying moral principle. A local ordinance passed to install a traffic light at an intersection can begin with a communal agreement that safety, usually of children, overrides whatever inconvenience or cost will be incurred by the addition of the light. Does the community, in this case, search for empirical evidence that supporting the safety of its children achieves a broader utilitarian end in the national interest? Probably not.

The traffic light is clearly utilitarian, but the underlying rationale for installing it is a mutually-felt sense of the right thing to do for its own sake. And, as Merges points out in regard to IP law, it doesn’t actually matter if some people in the town council meeting have a completely different rationale for installing the traffic light, because they can still discuss and debate the best approach to installation with their neighbors.

Referring to what he calls “midlevel principles,” Merges uses two examples in which two IP attorneys, scholars, or legislators can easily debate and discuss all of the salient aspects of applying IP law—statutes, caselaw, etc.—without agreeing on the underlying rationale for IP’s existence in the first place. “People with divergent foundational beliefs can and do engage each other in spirited and productive policy debates. They have, in other words, much to say to each other,” Merges writes in direct response to the following statement by Lemley:

“If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.”

Aside from provoking the above question as to what extent law can fairly be called a science, Lemley’s exclusionary statement seems to assume that the “evidence” that IP “reduces creativity by others” is conclusive. Given that scholars of equal merit passionately debate this very topic, how is Lemley’s view not a leap of faith in its own right?  Like religious scripture or artistic expression, the truth in empirical study is often in the eye of the beholder; and Merges’s point is based on his observation that the evidence to-date is “inconclusive,” which is not the same as rejecting data that points in a clear direction.

With regard to IP law, as with many areas of policy, there is always a danger in going too far in any one ideological direction. Taking an overly-utilitarian view of IP can sap the spirit of the principle by treating the author or inventor as a machine to be tweaked and maximized toward his/her greatest efficiency of output. Likewise, an overemphasis of the natural right principle without empiricism could produce a kind of self-fulfilling maximalist framework—though I don’t know anybody who advocates such an approach.

Meanwhile, in the casual, public debate, people who are not trained in the law transition between the natural right and utilitarian perspective all the time without really noticing. For instance, when fans show support for a musician who doesn’t want a politician using his songs, they’re reflecting a natural rights sensibility, and one that is—ironically enough—not generally supported by copyright’s utility. This suggests that even people who don’t give IP much thought innately feel that the author or inventor is indeed the natural “owner” of a work; and to Merges’s point, this in itself does not preclude reasonable debate on the application of IP law as a matter of utility.

*Deontic – of or relating to duty and obligation as ethical concepts.

CORRECTION:  This post as originally published mistakenly identified Mr. Lemley as a professor at UCLA. His paper was published in the UCLA Law Review.

Image by ivelinradkov

Reality Check – H.R. 1695

Photo by stefanocarocci

H.R. 1695, The Register of Copyrights Selection and Accountability Act, passed in the House of Representatives last week with a vote of 378-48.  As the bill moves to the Senate, many of the usual suspects in anti-copyright circles have vowed to fight its full passage into law. By “fight,” I assume these groups will repeat a bit louder the same fictions they began saying when the bill was introduced.  I have already responded to the assertion that this organization change will adversely politicize the role of Register; but there is also at least a muttering insinuation out there that 1695 is somehow a rebuke of Librarian Hayden herself.  And because politics breeds narratives that often have little to do with the issues or the record, I thought a review of the record as a simple timeline might be helpful.

1897 —  As indicated in at least two posts, the creation of the Copyright Office within the Library of Congress dates back 120 years and was predicated on a function very different from the role of the office in a modern—let alone digital—world.

1970s—Present — Unofficial discussions among policymakers and copyright experts about the proper structure and location of the USCO have been happening for decades.

Summer 2013 — The House Judiciary Committee begins preliminary hearings as part of its comprehensive review of copyright in the United States.

Fall 2014 — The Committee accepts recommendations on restructuring the Copyright Office, and among these are proposals to make the Register a presidential appointee just like the Librarian.

June 4, 2015 — Representatives Judy Chu (D-CA) and Tom Marino (R-PA) present a discussion draft of the CODE Act, which includes a provision to make the Register a presidential appointee.

June 10, 2015 — The LOC announces that Librarian James A. Billington will step down as of January 1, 2016.

February 24, 2016 — President Obama announces his intention to nominate Dr. Carla Hayden as Librarian of Congress. Anti-copyright voices respond almost immediately with ebullient expectations that Hayden might reshape copyright policy.

August 2016 — Anti-copyright organizations declare that the FCC’s “Set-Top” Box proposal has “nothing to do with copyright.” Because this view does not square with Register Pallante’s testimony on the matter, these groups cite this difference of opinion as “more evidence” that Pallante is beholden to corporate rights holders.  Neither Pallante’s remarks on the FCC proposal nor her official testimony on a wide range of issues supports these criticisms.

September 2016 — Dr. Hayden assumes her position as Librarian of Congress. In that same month, Public Knowledge appears to be leveraging the FCC-related momentum when they release a “report” comprising innuendo, anecdote, and opinion to accuse Pallante and the entire USCO of “regulatory capture” by major rights holders.

October 2016 — Register Pallante is effectively fired by Dr. Hayden, sparking much speculation in the blogosphere. Regardless of what really occurred at the LOC, Pallante’s ouster is portrayed by anti-copyright organizations and pundits as Dr. Hayden “cleaning house.”

December 2016 — Dr. Hayden announces plans to use Survey Monkey to crowdsource input regarding the next Register of Copyrights. In all likelihood, this move is not well-received by Congress in light of the fact that the House Judiciary Committee had begun to consider making the Register a presidential appointee at least sixteen months prior to Dr. Hayden’s nomination.

March 23, 2017 — Co-sponsors Rep. Bob Goodlatte (R-VA) and Rep. John Conyers (D-MI) along with 29 bi-partisan cosponsors introduce H.R. 1695.  The bill passes out of committee with a vote of 27-1 then passes the full House 378-48 on April 26, 2017.

Following their standard MO, institutions and individuals opposed to copyright—and who might have been hoping that Dr. Hayden would reshape policy—have tried to portray 1695 as a fast-track, Trumpian power-grab from the new Librarian. This false narrative is further distorted by the optics—namely that Dr. Hayden is the first African American woman to hold the position.

But the record is what it is. There is nothing fast-track about reorganizing an office that opened more than a century ago under radically different circumstances.  And the on-record discussions and plans now manifest as H.R. 1695 predate by more than a year both the nomination of Dr. Hayden and any clear expectation that Donald Trump would become President.

The bill was introduced by a 26-term Representative who was present at Selma, was a founder of the Congressional Black Caucus, and who introduced the legislation to make Martin Luther King, Jr’s birthday a national holiday; so any implications of racism in some kind of Trump v Hayden story are as ideologically absurd as they are chronologically impossible.

Finally, the primary motivation for making the USCO independent of the LOC is that they simply perform two distinct functions.  Any hope on the part of anti-copyright interests that Dr. Hayden–or any Librarian–would dramatically reshape copyright policy solely by virtue of the organization chart, is whimsical at best.  Such an incoherent approach would undermine both the Copyright Office and the Library of Congress.