Moses Avalon is one of the nation’s leading music-business consultants and artists’-rights advocates and is the author of a top-selling music business reference, Confessions of a Record Producer. More of his articles can be found at www.mosesavalon.com.
The Google-Verizon deal (abbreviated “G/V” in this article) has been on countless front pages, blogs, and RSS feeds in the still-free Internet. Panic and anger are settling in as people in coffee shops everywhere are afraid that they will have to get real jobs and find dates by developing their human-interaction skills.
The G/V deal has also come to symbolize the very essence of an elusive term, “net neutrality,” and completely confused what little many of us did understand about the issue. We hate government regulation, but we want a free net, but to have a free net, it must be regulated. Since when does free equal regulated? I thought regulation made things less free. Can anybody explain this issue to me like I’m a five-year-old, and tell me what side, as a music professional, I should be on?
Yes. I’m going to do just that right now. Get some coffee and free wi-fi (while you can) and kick back. It’s not a short read, but you know me; I’ll make it as entertaining as possible. (If you just want the answers and not my fun jokes, pokes, and theory, skip to the last section.)
What the Heck is Net Neutrality?
Short answer: no one person can say because it depends on who you ask. If you ask Google, they will say that it means “whatever we damn well want it to mean, and today it means that we’re not responsible for how people behave when online. People are free to do what they want, and we remain neutral about that.”
But if you ask most content creators and the FCC, it means keeping the Internet free from toll-keepers who would charge for “premium access.” Every URL and data dump should be neutral in the eyes of the net. Notice how both philosophies employ a component of “free” and “neutral”?
The second answer is the one used most for the G/V discussions; currently, there is only one data stream, and everyone travels at the same speed on a one-lane freeway. The G/V deal (and the other deals it would inspire) will create a net where some “premium” data / content gets to travel on a priority road with higher speed limits, if the content distributor wants to pay the ISP.
What will “premium” content be? No one knows that yet, but you can be sure that it’s the content that turns the most cash (or cache): movies, music, etc. And that means it’s going to affect the music space in a big way.
Critics of the G/V deal say this “tiering” of the Net would amount to high-tech censorship gamed only by those who can pay fees to ISPs. The FCC agrees, and they want to stop the G/V deal and keep the net a neutral, one-lane road. Proponents of the G/V deal say that regulation, or net neutrality, will stifle innovation and that this is patently unfair under the rules of free enterprise. Why shouldn’t there be a way for the rich to have a better Internet experience?
But all this is theory. The key question for us today is, as a songwriter or artist or someone who services them, which side of this issue should you be on. To understand that, we need to look at bit of history, because there isn’t just one answer to that question either. It really depends on your situation and your politics.
What They Used To Say
From 1999 to 2005, ISPs like Verizon argued to Congress that they could not stop P2P theft of music because their technology did not allow them to differentiate between a music file and anything else, like an E-mail. Data was data and they were, to use their expression, “dumb pipes” — like the electric company that has no way of knowing if you’re using the voltage that they supply to turn on a light or power a bomb. Likewise, ISPs can not be held responsible for the criminal actions derived from their service.
This argument worked, and one key result is the “safe-harbor” provision in the DMCA that disallows anyone to sue an ISP for copyright infringement. Would you hold the telephone company responsible if two people planned a crime using the phone? No.
So this safe-harbor provision is why the RIAA was left with no other recourse but to sue the individual users of P2P instead of going after the big guns; ISPs were exempt from law suites of this kind. All this because they claimed under oath to the government that they did not have the ability to discriminate between different types of files that use their “pipes.” (This was not the fault of the Bush administration, as a Huffington Post writer claimed. The safe-harbor provision was a leftover from Clinton.)
What They Say Now
Starting in about the middle of 2008, you could see it coming, but by 2009, it was completely in our face: not only can ISPs tell the difference between different types of data, but they want to charge accordingly. Media files, they claim, take up a great deal of bandwidth, and it should come with a premium charge.
Content companies were quick to respond. They said, “well, if you can tell the difference, and you are a gatekeeper and not just a dumb pipe, then what about blocking illegal P2P?”
Oops. ISPs got caught in a lie and had to backpedal a bit.
No, say the ISPs, that would not be constitutional because of freedom of speech and privacy issues. Suddenly, they were defenders of liberty. But besides, they said, P2P makes up such a significant portion of the Internet traffic that shutting it down just because a few people (might be) stealing music (depending on how you define the word “steal”) seems extreme, compared to the millions that don’t. And also, we don’t have to because we were given safe harbor. Remember, you agreed to it? So let us charge what we want to whom we want.
ISPs, now rich from their decade of success due to safe harbor, want to end all this crazy net socialism and get into the capitalist distribution business, making themselves not just super-smart highways but toll keepers for the faster roads.
But a cause set in motion can be a difficult thing to change when it comes to government policy. The US Supreme Court and Congress really bought the dumb-pipes argument, and now the FCC says, “You said you were dumb, and dumb you shall stay.” ISPs are fighting back with claims of overreaching.
So it’s clear that what would make ISPs happy is if they got to be neutral when it comes to protecting copyrights, but selective when it comes to charging for delivery of them. Can ISPs have it both ways? And should an artist side with them? We’ll see in a second.