[Infowarrior] - Big Content to FCC: don't kill our ISP filtering dream!

[Richard Forno]

http://arstechnica.com/tech-policy/news/2009/09/big-content-still-cant-compete-with-free.ars

Big Content to FCC: don't kill our ISP filtering dream!
Content industry lobbyists told the FCC today that they still can't  
"compete with free," then later in the proceeding listed all the  
innovative ways in which they were doing just that. Turns out that "we  
can't compete" is really just code for "please allow ISP content  
filtering and more DRM."

By Nate Anderson | Last updated September 18, 2009 8:10 AM CT

In the debate over DRM and online copyright infringement, there may be  
no hoary chestnut hoarier than the claim that "no industry can compete  
with free." This is such an old argument that we would be shocked (and  
a bit disappointed) if any of our readers made it this far without  
thinking, "But what about bottled water! Oxygen bars! The iTunes  
store!" Over the last decade, it has been addressed almost ad nauseum,  
the latest installment of the nauseum coming courtesy of the hugely  
promoted book Free! by Wired editor-in-chief Chris Anderson.
But Big Content's lobbyists either 1) haven't gotten the memo or 2)  
don't care about the memo, because the claim about competing with free  
remains one of the central talking points when lobbying government  
officials, as they did today.

We can't compete with free
The FCC held another of its broadband workshops today to take input on  
the national broadband plan it needs to come up with by early next  
year. Today's topic was "content," which predictably turned into a  
rather tedious debate rehashing all the old arguments and taking place  
between all the same players who always show up at these hearings, all  
attempting to bend the FCC to their will.

Today's bit of will-bending was focused in large part on DRM, content  
filtering, and related technologies. The motion picture business was  
on hand to ask the FCC not to "tolerate a whole vast culture of  
illegality"; it wants to ensure that content filtering and related  
tools are not outlawed at the ISP level. When the FCC submits its  
broadband plan to Congress, it should tell that august body that it's  
OK for content owners and ISPs to use "innovation" to deal with  
copyright infringement.

"There are some who don't trust the movement of technology to deal  
with these problems," said MPAA boss Dan Glickman. People love tech  
innovation everywhere else—so why do they distrust it when it comes to  
dealing with copyright infringement?

It's an old argument, as was just about everything else said by both  
sides on this topic. But what was most interesting about the  
proceedings was that when discussion got a bit heated, one lobbyist  
for the big content owners burst out with the oldest argument of all:  
"No industry can compete with free!"

This, it was clear, was the basic issue, the problem at the root of  
the entire discussion—and it drew a quick response. Gigi Sohn from  
Public Knowledge raised the bottled water comparison; law professor  
Michael Carroll asked how it might possibly be, then, that iTunes had  
succeeded?

That such an outmoded claim could still be made by someone whose full- 
time job it is to lobby on behalf of just these issues is a reminder  
that the argument still has enough apparent traction in Washington to  
be deployed when Big Content is being criticised repeatedly by groups  
like Public Knowledge.

A more charitable interpretation might be that the claim was simply  
shorthand for a more accurate way of putting it—"we should not have to  
compete with free when the free product isn't a legal one." Putting it  
this way means that the comparison to bottled water is moot (the  
"free" water here is not generally from an illegal tap, and it's not  
really "free," either). It does nothing to address the iTunes  
comparison, though, in which iTunes has sold a gazillion tracks to  
people who could grab them all (illegally, in many cases) for free.  
There was no response to these two objections, and the discussion  
moved on to other matters.

Yes we can! (compete with free)
The music and movie businesses, in particular, truly hate being told  
that their business models alone are at fault, and that the only way  
to address piracy is to deal with the business models. They would  
prefer to do both, though of course the innovation they are now trying  
to make a reality would have come even slower without the competition  
of piracy. Legal or not, it's real competition, and what was truly  
ironic about today's hearing was that the content industries have  
already managed to compete with free and continue to do so.

That's why, later in the hearing, making a different point, another  
lobbyist talked up the industry's successes in new business models.  
The idea here is to point out that Big Content can innovate, doesn't  
hate its customers, and isn't merely holding people hostage to high- 
margin CDs and DVDs (anymore). Hulu is mentioned. So is Netflix, then  
Amazon. Look at how the industry has addressed its critics who say it  
can't or won't innovate!

Of course, this undercuts the entire "we can't compete with free"  
premise of the earlier comment. "Can't compete with free" is trotted  
out whenever the content industries want more Internet restrictions  
and more DRM; "look how well we innovate" is trotted out, often in the  
same sessions, whenever the argument shifts to dated industry business  
models.

The government folks in the room were canvassing opinions, not making  
recommendations, but several of them seemed skeptical of the  
industry's preferred tech approaches to dealing with infringement.  
Phil Weiser at the Department of Justice was an academic at the  
University of Colorado earlier this year, and he's an expert in many  
of these IP issues. He accepted that infringement rates need to drop,  
but he was more interested in creating a "greater sense of shame" in  
people who might infringe copyright, something far short of more DRM.  
The idea is to make people feel the sorts of things that operate in  
the real world—shame or guilt over doing something illegal, not the  
totally anonymous impunity that many online users appear to feel.  
Technology alone can't solve that problem.

Another FCC official later wanted to know more about the "education"  
campaigns that the industry is always talking up. While it's fine to  
educate people about the law and about copyright and about  
infringement, shouldn't digital media buyers also be "educated" about  
the restrictions imposed by DRM when they purchase media?

We'll see what emerges from all of this, but the fact that Big Content  
was asking for the FCC not to block ISP filtering schemes and other  
"innovations" rather than asking the agency to impose them makes it  
clear where things are headed. Such measures, if they come into  
effect, will be voluntary agreements between content owners and ISPs,  
though as the RIAA can tell you, it's not easy to sign ISPs up to  
voluntary schemes that will lead them to their losing customers.