[Manila Principles] Re Online Retransmission Consent and DMCA Liability Protections

[Seth Johnson]

On Sun, Mar 22, 2015 at 1:25 AM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Hi all -- Please see the following.  Jeremy, I ask that you relay this
> to your group discussing this this afternoon (1:30 in Manila).  Or
> rather, I'll reply to this message with some notes that reflect some
> important points that you heard from me yesterday, and including a
> perhaps practical suggestion that you might be able to accomplish in
> the space of your gathering, that could help rectify the concerns I
> have.  I urge you to forward that to the Manila Principles folks so
> they can consider it and maybe address it tonight or tomorrow.


And here are my comments:


My main practical suggestion is:

I suggest drafting a framing letter that states the intent as
encouraging a liability protection regime in which policy discussion
and development can proceed surrounding a network in which everyone
participates freely as peers, not as offering a set of principles that
a community of civil society advocates endorse that would enable
incumbent providers or even prominent application providers to serve
as "legitimate" intermediaries instead.  2) It should state that the
intent is to open up a space for having the full policy discussion
about how to adjust to the Internet.

Some Elaboration:

1) Not Accommodating/Rationalizing Incumbent Intermediaries:

I have some great concerns regarding this statement of principles as
suggesting a set of principles that the established incumbents might
use (or begin a policy debate that settles somewhere on a continuum to
the same effect) to set themselves up as "legitimate" intermediaries.

We are all intermediaries online.  We can become peers and relay
packets.  We can all open a port and start a service we download or
develop ourselves.  Everyone runs a server if they run instant
messenger.

It's not like there are intermediaries, and then everybody else.
That's not a technical or policy distinction that actually makes sense
in the end.

We're in a situation, especially in the US where we don't have a
network of networks, but closed infrastructure in most of the country,
making it possible for Comcast and Verizon to strong arm Netflix --
*because* we don't have lots of peers to get the packets through.  So
it *looks* like a real Internet, and it *looks* like *they're* the
intermediary.  So you risk accommodating that, providing a tool for
rationalizing the role they'd like to play more.

(Though Title II provides a legal basis for fixing this, though the
FCC isn't doing it -- as yet, or if ever)


2) Stress Liability Protection as Opening Space for the Policy
Discussion re the Internet

Another very important point to stress here, is to emphasize liability
protection on the Internet as a measure that opens up a space for
policy discussion regarding how we should adapt to the Internet.  Make
it less about the specific policy(ies) (though you articulate some
good points) (though yet again, for me however good they are, they are
interim measures and can only be), than about how the Internet
environment creates new issues and we need to begin a proper, brass
tacks examination of the policy areas in light of the capacities
brought to us all by the Internet.  Intermediary liability protection
is not an end in itself -- it's just something we have to do because
the world sucks so far.


3) Technology Neutrality and Trade Treaties

I also think you're in trouble with your references to technology
neutrality.  A lot of folks seem to think it savvy to play that game,
articulate an argument for technology neutrality in support of their
position.  Here's the problem with TN: if you are actually a treaty
negotiator, at the table devising the policy in its technical nature,
then you can talk about technology neutrality -- because you are
empowered to have the *policy* discussion, and not just the
*harmonization* discussion.  *Everywhere else,* if you echo the
"technology neutrality" language, you're just in the position of
trying to convince the administration or *others* who can actually do
technology neutrality right (as a last draft, after figuring out how
it works), that either 1) your proposal *doesn't change* the policy,
just makes it even more non-tech-specific (and thus "stable" blah blah
blah); or 2) they need to convince all the countries who have come
together on harmonized "technology neutral" terms, that *your change*
in the policy is worth messing all that up and trying to pull other
countries (and your own country) to a whole new position, that then
would be last-draft-edited to be technology neutral.

Another thing to remember is the US constantly recommends "no change"
to international instruments on the basis of "technology neutrality,"
with reasoning that if you look at it is really a form of what I said
above: not being neutral stirs up the harmonized consensus and gosh
what a bother that would be.  But when you look at what the US says
don't change, you find it's language that's written really generally,
that already accords the wrong powers, and in the meantime they get to
say they averted "expansions" in powers, when in fact that means
nothing if the powers have already been claimed.  :-P

You do not want to get on the technology neutrality bandwagon.  You
always want to say you want to have the *policy* discussion, not the
*harmonization* discussion.  This is, incidentally, another reason for
stressing that setting up liability protection regimes is to create
the space for a policy discussion that will get better and better
adjusted to the Internet.  It's where you need to be in the face of
international sophisticated ops (re "technology neutrality" and etc.).
As well as to set up the liability protection principles as not an end
in themselves that can be coopted by the incumbents.

Your materials also reference Trade treaty activities (without
looking, I think I'm only referring to the supplemental extensive
commentary document, but maybe this is in the principles themselves).
I think you are setting a trap for yourselves by talking technology
neutrality along with that.  I'd want you to not include either
technology neutrality language or references to trade treaties
*except* if you always claim the need to have the policy discussion,
not the harmonization discussion.  :-)


Reiterating:

Anyway, I suggest drafting a framing letter that states the intent as
encouraging a liability protection regime in which policy discussion
and development can proceed surrounding a network in which everyone
participates freely as peers, not as offering a set of principles that
a community of civil society advocates endorse that would enable
incumbent providers or even prominent application providers to serve
as "legitimate" intermediaries instead.  2) It should state that the
intent is to open up a space for having the full policy discussion
about how to adjust to the Internet.  I urge you to revise so you'r
not trying to claim the flag of technology neutrality so much as the
need to have the policy discussion.  It would be great if you also
said that in the end everyone's an intermediary, or that we need open
infrastructure to really have the discussion on the right terms.  But
my main suggestion which seems practical enough, is that you folks
could consider a sort of intro to the principles, or frame a letter to
supplement them, that says 1) you are intending to foster policy
discussion about a network in which everybody can become a peer in an
interoperating network of networks, not to enable dominant incumbents
to use the principles to shore up the incumbents as legitimate.


Seth




> ---------- Forwarded message ----------
> From: Seth Johnson <seth.p.johnson at gmail.com>
> Date: Sat, Mar 21, 2015 at 11:53 PM
> Subject: Online Retransmission Consent and DMCA Liability Protections
> To: internetpolicy <internetpolicy at elists.isoc.org>
>
>
> Hello all, at the following link you will find the FCC's NPRM for
> establishing a "retransmission consent" regime online for a specific
> class of online services called Multichannel Video Programming
> Distributors. It addresses all services that make multiple linear
> video programming streams available online on a subscription basis:
>> https://www.federalregister.gov/articles/2015/01/15/2014-30777/promoting-innovation-and-competition-in-the-provision-of-multichannel-video-programming-distribution
>
> It would establish the first formal exception to the broad protections
> against copyright infringement liability provided to online service
> providers under the DMCA's Notice and Takedown procedures -- and it is
> being proposed by the FCC, not by Congress.
>
> In addition, I was informed in an email exchange a week before this
> NPRM was initiated that the US sees retransmission consent as a basis
> for the national implementation that would be required for the
> Broadcaster's Treaty, a treaty proposing to establish a new
> international layer of rights for broadcasters online that is not yet
> formalized or ratified, but which has been regularly resurrected
> despite ongoing opposition and concern voiced by many organizations.
> With the national implementation already in place, treaty negotiators
> could readily ratify and implement the Broadcaster's Treaty without
> the domestic public and legislative debate that it warrants.  The FCC
> makes no mention in this NPRM of this relationship between
> establishing retransmission consent online under domestic law and the
> Broadcaster's Treaty.
>
> Here's my submission, submitted on the final day of the Reply Comments
> period (They were extended to this past Wednesday):
>> http://apps.fcc.gov/ecfs/comment/view?id=60001027037
>
> It encourages the FCC to recognize this as a proposition that should
> be taken up through legislative channels that hold the power to
> address, as a matter of copyright, the scope of the DMCA's liability
> protections, and to be forthright about the implication of this
> regulatory act serving as a national implementation, before the fact,
> of the Broadcaster's Treaty.
>
> Most of you know that we not only rely on our telecommunications
> environment to assure our ability to to freely enter the network of
> networks, peer among ourselves and offer services online, but we also
> benefit from protection from copyright liability which would otherwise
> hamper our ability to make the most effective and valuable use of the
> Internet's potential, as we act as intermediaries.  Otherwise we would
> all become liable as soon as we open a port and run a server of nearly
> any kind that involves users exchanging information.
>
> While the online safe harbor the DMCA created in 1998 might have
> served to provide a space in which we could deliberate the types of
> policies that are appropriate for the new medium, this is not how
> things have developed.  It would seem to me to that now, when we are
> in the midst of a process of contemplating a transition to new modes
> of stewardship and governance for the Internet, that we should make
> sure that actions like this don't occur without our making sure we
> have the opportunity to address them properly.
>
> I encourage everyone to ask the FCC, the State Department, various
> relevant agencies and Congress to open up the discourse on the full
> implications of the proposal to establish retransmission consent on
> the Internet.