Why Digital Copyright and Net Neutrality Should Matter to Open Access Advocates

It is highly unlikely that open access would have emerged if the Internet did not exist. The Internet makes the low-cost worldwide distribution of e-prints and other digital documents through institutional and disciplinary repositories possible, and it significantly lowers the cost of publishing, which makes open access journals possible. Open access in a print-only or proprietary network environment would require significant subsidies. The relative cost of providing open access on the Internet is trivial.

It would be a mistake to assume that the Internet will remain as we know it. With the rise of digital media, powerful interests in the music and film/television industries have become alarmed about file sharing of their content, and they have lobbied legislatures across the globe to stop it through restrictive copyright legislation and technological measures.

Since open access doesn't deal with popular music, film, or television, why should open access advocates care? The answer is simple: restrictive measures are unlikely to make fine-grained distinctions about content. New copyright measures won't exempt scholarly material, and new Internet traffic shaping or filtering technologies won't either.

Open access materials won't be limited to simple text documents forever: digital media and data sets will become increasingly important. These files can be large and increase network load. Digital media files may include excerpts from third-party copyrighted material, which are utilized under fair use provisions. Will filtering and traffic shaping technologies exclude them or will they be the inadvertent victims of systems designed for an entirely different purpose?

Even simple text documents will be governed by restrictive copyright laws and subject to potential copyright filtering mechanisms.

For example, the Tennessee State Senate is considering a bill (SB 3974) that would require every higher education institution to "thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works" and to "take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school's computer and network resources, including over local area and internal networks."

You'll note that the bill says "transmit copyrighted works" not "transmit digital music and video works." Does this mean that every digital work, including e-prints and e-books, must be scanned and cleared for copyright compliance? That is unlikely to be the real intent of the bill, but, if passed, it will be the letter of the law. Why couldn't academic publishers insist that digital articles and books be vetted as well?

Net neutrality and digital copyright legislation are issues that should be of concern to open access advocates. To ignore them is to potentially win the battle, but lose the war, blind-sided by developments that will ensnare open access materials in legal and technological traps.

Comcast's P2P Traffic Management Practices Probed at FCC Hearing

Comcast's peer-to-peer traffic management practices were probed at an FCC hearing at the Harvard Law School as it answered tough questions from the FCC and squared off against net neutrality advocates.

Read more about it at "Comcast, Net Neutrality Advocates Clash at FCC Hearing," "Comcast Slams Critics, Denies Blocking BitTorrent," "FCC Chief Grills Comcast on BitTorrent Blocking," "FCC Head Says Action Possible on Web Limits," and"Net Neutrality Hearing: When Is an Internet Traffic Delay O.K.?"

Net Neutrality Is Back: The Internet Freedom Preservation Act of 2008

Rep. Ed Markey (D-MA) and Chip Pickering (R-MS) have introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353) in the House.

Here's an excerpt from the press release:

The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers.

Read more about it at "Lawmakers Introduce New Net Neutrality Bill," "New Net Neutrality Bill Frowns on ISP 'Favoritism'," "New Net Neutrality Bill Surfaces in House (Updated)," and "Net Neutrality Returns To Top Of Washington's Agenda."

Just Say No: Verizon Won't Filter the Internet

At the recent State of the Net conference, Tom Tauke, Verizon's Executive Vice President, told participants that Verizon did not intend to filter the Internet to enforce copyright compliance.

Here's an excerpt from "Verizon: No Thank You on Copyright Filtering":

He [Tauke] said that it would be 1) a bad business decision "to assume the role of being police on the Internet;" 2) a likely invasion of privacy; and 3) would open the door to requests from others to filter out other objectionable material, like indecency and online gambling.

Read more about it at "Verizon: We Don't Want to Play Copyright Cop on Our Network."

Cultural Industries in Europe Committee Votes Down Copyright Filtering and Term Extension Amendments

The European Parliament's Cultural Industries in Europe Committee has voted against amendments to the Cultural industries in the Context of the Lisbon Strategy report that would have filtered the Internet, removed or blocked infringing content, terminated the connectivity of infringers, and extended the term of copyright protection. The report will next be voted on in a European Parliament plenary meeting.

Read more about it at "Filtering and Copyright Extension Fail to Find a Home in EU" and "Proposed EU ISP Filtering and Copyright Extension Shot Down."

Copy Belgium: Canadian Recording Industry Association Asks for Copyright Filtering of the Internet

According to "Canadian Copyright Lobby Seeking Mandated ISP Filtering," the Canadian Recording Industry Association is asking the Canadian government to consider copyright filtering of the Internet.

Here's an excerpt:

[CRIA's] Henderson cites with approval several initiatives to move toward ISP filtering of content, pointing to a French report, comments from the UK that such legislation could be forthcoming, and the AT&T negotiations in the U.S. Later in the conversation, the group is asked what their dream legislation would look like. The first response? ISP liability, with the respondent pointing to Belgium as an example of an ideal model ("the file sharing issue will go away there as ISPs take down people"). Last summer, a Belgian court ordered an ISP to install filtering software to identify and block copyrighted content (the decision is currently being appealed).

If this reflects the current strategy—and there is reason to believe it does—it marks a dramatic change in the lobbying efforts. It suggests that not only are these groups seeking a Canadian DMCA, but they would like Industry Minister Jim Prentice to go even further by enacting constitutionally-dubious legislation requiring ISPs to identify and filter out content that is alleged to infringe copyright.

British MEP Asks European Parliament to Filter Internet, Remove/Block Infringing Content, and Terminate Connectivity of Infringers

Chris Heaton-Harris, a British Member of European Parliament (MEP), has proposed an amendment to the draft Cultural industries in the Context of the Lisbon Strategy report that asks the EP to filter infringing content from the Internet, to remove or block infringing content, and to terminate the connectivity of infringers.

Urges the Commission to oblige all those active in the sector to join forces and seek solutions equitable to all with the aim to develop the offer of legitimate online content and to make sure that all the involved stakeholders act responsibly. In the event that adequate solutions have not been found within a reasonable period of time that should not exceed 1 year, calls on the Commission and the Member States to adopt legislative measures obliging Internet service providers to cooperate in the fight against online piracy. This cooperation of Internet service providers should include the use of filtering technologies to prevent their networks being used to infringe intellectual property, the removal from the networks or the blocking of content that infringes intellectual property, and the enforcement of their contractual terms and conditions, which permit them to suspend or terminate their contracts with those subscribers who repeatedly or on a wide scale infringe intellectual property; draws Member States’ attention on this point to the fact that legislative measures which oblige Internet services providers to cooperate in the fight against online piracy would be more effective than the legal pursuit of users who infringe intellectual property;

Read more about it at "Copyright Extensions and ISP Filtering: Breaking EU Culture, One Amendment at a Time" and "MEP Says Providers Should Cut the Line If Copyright Is Infringed."

Hello Internet Meter: Time Warner Cable to Test Usage-Based Internet Fees

The number two ISP in the U.S., Time Warner Cable, will test charging Beaumont, Texas users based on the level of their downloading activity.

Read more about it at "Time Warner: Download Too Much and You Might Pay $30 a Movie," "Time Warner Links Web Prices with Usage," "Time Warner Metered Pricing: Not the Solution," and "Time Warner to Test Metered Web Use."

AT&T, Microsoft, and NBC: It's Time to Filter the Internet

In "AT&T and Other ISPs May Be Getting Ready to Filter," The New York Times reports that AT&T, Microsoft, and NBC are lining up in support of filtering the Internet to cope with digital copyright infringement problems.

On December 31, 2007, the Australian Telecommunications Minister announced that there would be mandatory Internet filtering for "inappropriate" material, and a posting about that decision, "Australian Filtering Announcement Raises Questions and Ire," provides a good overview of national-level filtering issues.

Read more about it at "Is AT&T Siding With NBC To Get Rid Of Neutrality?"

IFPI Wants European ISPs to Filter/Block the Internet

The International Federation of Phonographic Industries has sent a letter to European ISPs asking them to filter unlicensed audio files based on digital fingerprints, to block "objectionable" peer-to-peer downloading services, and to block "infringing" Websites.

Read more about it at "IFPI's European Christmas List: Content Filtering and P2P Blocking" and "Music Industry Pressures EU Politicians for Filtered Internet."

Free Press, Public Knowledge Project, and Others Ask FCC to Stop ISP P2P Blocking

Free Press, Public Knowledge, and others (Media Access Project, Consumer Federation of America, Consumers Union, the Information Society Project at Yale Law School, Charles Nesson of Harvard Law School and the Berkman Center for Internet & Society, and Barbara van Schewick of Stanford Law School and the Stanford Center for Internet & Society) have filed a Petition for Declaratory Ruling with the FCC in order to stop ISPs from blocking peer-to-peer Internet traffic from services such as BitTorrent and Gnutella.

Here's an excerpt from the press release:

In the "most drastic example yet of data discrimination," the Associated Press recently exposed that Comcast, the nation's largest cable company and second-largest Internet service provider, is actively interfering with its users' ability to access legal content. The company is cutting off legal peer-to-peer file-sharing networks such as BitTorrent and Gnutella, as well as business applications such as Lotus Notes. Comcast has claimed its actions were "reasonable network management."

"Comcast's defense is bogus," said Ben Scott policy director of Free Press. "The FCC needs to take immediate action to put an end to this harmful practice. Comcast's blatant and deceptive BitTorrent blocking is exactly the type of problem advocates warned would occur without Net Neutrality laws. Our message to both the FCC and Congress is simple: We told you so, now do something about it."

The "Petition for Declaratory Ruling" presses the FCC to establish that blocking peer-to-peer communications like BitTorrent violates the agency's "Internet Policy Statement"—four principles issued in 2005 that are supposed to guarantee consumers competition among providers and access to all content, applications and services.

"Last year, FCC Chairman Kevin Martin and opponents of Net Neutrality told Congress that the FCC has all the authority it needs to prevent exactly this sort of customer abuse by a major provider," said Harold Feld, senior vice president of Media Access Project. "Now we come to the acid test. Will the FCC, which vowed to protect our freedom to run the applications of our choice, stand up for citizens in the face of Comcast?"

The FCC issued its policy after dismantling longstanding "open access" requirements that had protected Net Neutrality since the birth of the Internet. Millions of concerned citizens and hundreds of organizations from across the political spectrum have urged Congress and the FCC to reinstate and enforce Net Neutrality laws to prevent discrimination by cable and phone companies, which dominate nearly 95 percent of the broadband market.

"The Commission has a choice," said Gigi B. Sohn, president and co-founder of Public Knowledge. "It can either protect consumers from the abuses of telephone and cable companies, or it can walk away and let the telephone and cable companies chip away at the free and open Internet little by little until they can control consumer use of the network as they please. We will see how serious the Commission is about preserving the neutral, non-discriminatory Internet that encourages innovation without permission.". . .

Free Press and Public Knowledge also filed a complaint against Comcast, asking the FCC to stop Comcast from interfering with Internet traffic and rule that the cable giant's actions directly violate the agency's Internet Policy Statement. The groups proposed fines to deter future violations by Comcast and other Internet service providers.

Just When You Thought Net Neutrality Was Dead

Recent actions by AT&T, Comcast, and Verizon have rekindled the net neutrality debate, and Senators Byron Dorgan and Olympia Snowe are asking for a Senate Commerce Committee investigation into net neutrality issues.

Here's an excerpt from "Once Thought Dead, Net Neutrality Roars Back to Center Stage":

And then came the bad behavior, the litany of minor cases, dropping like early Christmas gifts into the laps of net neutrality advocates across the country. AT&T censored political lyrics in a Pearl Jam webcast (then apologized). Verizon initially blocked a mass text message from NARAL Pro-Choice America (then apologized). Comcast was found to be delaying BitTorrent and Lotus Notes traffic (and remains unapologetic). AT&T's new terms of service appeared to prohibit criticism of the company (the company apologized and changed the terms).

Read more about it at "Comcast's Internet 'Throttling' Exposes Tip of the Iceberg," "Comcast Needs to Come Clean," "Obama Promises to Reinstate Net Neutrality during First Year in Office," and "Recent Neutrality Scuffles Highlight Need for Transparency."

Will ISP's Filter the Internet for Media Companies?

It appears that some major ISP's, such as AT&T, may filter the traffic that passes through their networks in order to eliminate illegal file-sharing.

Here's an excerpt from "MPAA Head Wants Deeper Relationship (Read: Content Filtering) with ISPs":

Rather amazingly, given the money and time that will be required to implement such a system, AT&T has agreed to start filtering content at some mysterious point in the future. Other ISPs could well follow suit, as most of the major networks are owned by or affiliated with companies that also have a voracious need for content (just think of how both cable companies and telcos like AT&T and Verizon need access to channels for their various TV offerings, if you need an example). The companies want to keep on good terms with content owners, but there may also be some legitimate concern about the impact illicit traffic has on their networks. Cracking down on illegal file-sharing—should that prove to be technically possible—could help with both of these issues.

Source: Anderson, Nate. "MPAA Head Wants Deeper Relationship (Read: Content Filtering) with ISPs." Ars Technica, 19 September 2007.

Is Net Neutrality Dead?: Ten Reasons That It Might Be

In "Ten Things That Finally Killed Net Neutrality," Declan McCullagh examines why the Net Neutrality movement has failed.

The culprits? The AT&T merger, the Bush administration, Congressional gridlock, the decline of the It's Our Net coalition, the FCC, lack of evidence of wrongdoing by broadband providers, and Nancy Pelosi, among others.

Source: McCullagh, Declan. "Ten Things That Finally Killed Net Neutrality." CNET News.Com, 6 September 2007.

"Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Postprint

The "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" postprint is now available.

The abstract is below:

Three critical issues—dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of Digital Rights Management (DRM) systems to lock-down digital content in an unprecedented fashion; and the erosion of Net neutrality, which ensures that all Internet traffic is treated equally—are examined in detail and their potential impact on libraries is assessed. How legislatures, the courts, and the commercial marketplace treat these issues will strongly influence the future of digital information for good or ill.

If you would like a more detailed description, see my posting about the preprint.

Top Five Technology Trends

As usual, the LITA top 10 technology trends session at ALA produced some thought-provoking results. And, as usual, I have a somewhat different take on this question.

I’ll whittle my list down to five.

  • Digital Copyright Wars: Big media and publishers are far from finished changing copyright laws to broaden, strengthen, and lengthen the rights of copyright holders. And they are not yet done protecting their digital turf with punitive lawsuits either. One big copyright impact on libraries is digitization: you can only safely digitize what’s in the public domain or what you have permission for (and the permission process can be difficult or impossible). There’s always fair use of course, if you have the deep pockets and institutional backing needed to defend yourself (like Google does) or if your efforts are tolerated (like e-reserves has been so far, except for a few sub rosa publisher objections). In opposition to this trend is a movement by the Creative Commons and others to persuade authors, musicians, and other copyright holders to license their works in ways that permit liberal use and reuse of them.
  • DRM: The Sony BMG rootkit fiasco was a blow, but think again if you believe that this will stop DRM from controlling your digital content in the future. The trick is to get DRM embedded in your operating system, and to have every piece of computer hardware and every consumer digital device that can access and/or manipulate content to support it (or to refuse access to material protected by unsupported DRM schemes). That’s a tall order, but incremental progress is likely to continue to be made towards this goal. Big media will continue to try to pass laws that mandate certain types of DRM and, like the DMCA, protect its use.
  • Internet Privacy: If you believe this still exists on the Internet, you are either using anonymous surfing services or you haven’t been paying attention. Net monitoring will become far more effective if ISPs can be persuaded or required to retain user-specific Internet activity logs. Would you be upset if every licensed e-document that your library users read could be traced back to them? Unless you still offer unauthenticated Internet access in your library, that may depend upon your retention of login records and whether you are legally compelled to reveal them.
  • Net Neutrality: If ISPs can create Internet speed lanes, you don’t want your library or digital content provider to be in the slow one. Hope you (or they) can pay for the fast one. But Net neutrality issues don’t end there: there are issues of content/service blockage and differential service based on fees as well.
  • Open Access: If there is a glimmer of hope on the horizon for the scholarly communication crisis, it’s open access. Efforts to produce alternative low-cost journals are important and deserve full support, but the open access movement’s impact is far greater, and it offers global access to scholars whose institutions may not be able to pay even modest subscription fees and to unaffiliated individuals.

"Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Preprint

A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available.

It will appear in Information Technology and Libraries 25, no. 3 (2006).

This quote from the paper’s conclusion sums it up:

What this paper has said is simply this: three issues—a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality—bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past.

For those who want a longer preview of the paper, here’s the introduction:

Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers.

Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology.

It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances.

When did this metamorphosis begin? It depends on who you ask. Let’s say the late 1980’s, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred.

In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital.

Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary.

High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn’t, they hold the copyrights to a significant chunk of our cultural heritage.

Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper—and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so.

The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works.

This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works.

A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it.

The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn’t. One type of content was not blocked (at least by the network) while another wasn’t. In recent years, "network neutrality" has come under attack.

The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it’s outcome will determine what the future of digital culture looks like.

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