Life in the Fast Lane

Musicians Fight for Network Neutrality

originally published July 30, 2008

Although the phrase network neutrality sounds about as sexy as binary code, it covers a subject crucially important to the continued viability of the Internet. While the Internet is currently a global phenomenon infamous for the range of content available through its virtual pipes, there are some who would restrict that content as well as the applications many of us use to access and interact with the Internet. The fear of such restrictions has created bedfellows as strange as the American Civil Liberties Union and the Christian Coalition of America, who have formed an uncomfortable alliance with one another in support of legislation codifying network neutrality principles and providing for their enforcement.

Musicians - always quick to band together (pun intended) for a cause - have also tossed their collective hat into the ring, at least to the extent that the Future of Music Coalition (FMC) represents their interests. FMC is a national non-profit organization that deals with the policy issues that affect artists’ ability to earn a living. It's also the organization behind Rock the Net: Musicians for Network Neutrality, a compilation CD featuring contributions from the usual suspects - Bright Eyes, Wilco and Aimee Mann, among others - which seeks to raise awareness about the importance of network neutrality and how close we are to losing it.

What Is Network Neutrality?

According to Casey Rae-Hunter, Communications Director of FMC, network neutrality is, at its most basic level, the set of principles that protects the open Internet we all have come to know and love; these informal principles are why the Internet is innovative instead of staid and corporate-controlled like modern radio.

“[Network neutrality] means that artists, content owners and creators can use the Internet to distribute their work in any way they want by whatever means they want,” says Rae-Hunter. “The Internet was built on this concept, but this system is threatened by a few powerful cable and telecommunications corporations.”

The Threat of Discrimination

Those corporations - also known as independent Internet service providers (ISPs) - have invested significant capital in laying the pipes (e.g., telephone wires and fiber optic cables) we all use to access the Internet. The problem is that now ISPs are fighting for control of the content transmitted via those cables and the applications used to access that content.

Naturally, ISPs could make a lot more money with this kind of control. For example, ISPs theoretically could create a tiered Internet in which companies could pay extra for quality of service assurances (in other words, for quicker loading Web pages). One possible result of such a system is that users would gravitate towards Web pages that load faster, while spurning those Web sites that could not pay the higher toll. In most cases, the entities that might not be able to pay the higher toll would be upstart companies and individuals, including artists.

Another possibility is that ISPs might discriminate against what they perceive to be illegal activity on their networks - i.e., copyright infringement. Although it might seem reasonable to screen for illegal content, some public interest groups are against filtering the Internet to protect copyrights. Those who might raise objections to such filtering might point out that - besides the fact that it constitutes a form of censorship - it also would be extremely difficult to affect only illegal content; it would be much easier to discriminate against any packet that looks like it is carrying copyright protected material. Under such a regime, it is likely that legal content also would be ensnared.

In fact, such an incident has already happened and is the subject of current litigation involving Comcast. In that matter, Comcast throttled traffic that came from Bit Torrent sharing, which has perfectly legal uses. In discriminating against Bit Torrent traffic, Comcast may have engaged in anti-network neutrality to the extent that its conduct disrupted users’ ability to run the legal applications of their choice. However, even pending legislation on network neutrality does not prevent the exploration of ways to protect copyrighted content.

Network Neutrality and the Artist

The Internet has allowed artists to promote themselves and distribute their own music all without succumbing to major label control. Imagine if artists lost this freedom and were forced to sign a record deal in order to promote their music online. Rae-Hunter uses the analogy of a highway to illustrate how anti-neutrality practices might adversely affect musicians.

“[Network neutrality] is the on-ramp to a legitimate digital music marketplace where the smallest bedroom recording artist can exist on an equal technological playing field with the biggest label,” says Rae-Hunter. “What we’re trying to avoid is a situation where ISPs charge content providers - artists, musicians, filmmakers, studios and labels - a higher fee for the faster delivery of their sites and services. Those who couldn’t afford to… pay a toll and would be forced into the slow lane. This would have a hugely negative impact on both commerce and culture.”

Without network neutrality, control of the Internet might shift to big companies able to pay for better service. If these scenarios occurred, the Internet as we currently know it would cease to exist; innovation would chill, and a single tear would roll down Al Gore’s cheek.

In the worst-case scenario, the Internet would go the way of the radio. In radio’s Golden Age, content was decided by DJs and regional directors which made for more varied playlists and local interest programming. However, the deregulation inspired by the 1996 Telecommunication Act left commercial radio in the hands of corporations like Clear Channel.

And we all know how that worked out.

Network Neutrality and the RIAA

The Recording Industry Association of America (RIAA) is the trade group that represents the major labels of the recording industry. The RIAA’s singular goal at the moment is curtailing the illegal sharing of copyright protected material owned or licensed by the record companies it represents. The RIAA could use network discrimination to its advantage. For example, it might be in the RIAA’s best interests if peer-to-peer sites were discriminated against. This would greatly help the RIAA police the web for the illegal downloading of copyright protected material.

In recent statements, RIAA chairman and CEO Mitch Bainwol seemed to straddle the fence on the issue of network neutrality. For example, with regard to a recent network neutrality bill (discussed below), Bainwol said he was “heartened” to see that the bill recognized “that Internet freedom isn't synonymous with a Wild West in which the taking of our property is accepted or, at best, ignored.” Bainwol’s assertion is correct: network neutrality does only preserve access to lawful content and applications. However, in its role as Internet sheriff, the RIAA would need to proceed carefully, lest it find itself in the same quandary as Comcast currently is in; that is, in stamping out piracy, it must be careful not to discriminate against lawful content and programs.

Whichever side of the debate the RIAA ultimately falls on, Rae-Hunter says, “What’s important to remember is that even the big labels could get hurt if we lose [network] neutrality. What if they develop some new content delivery system that competes with the ISP’s own application? If there’s nothing preventing the ISPs from discriminating, it’s a good bet they will.”

The Future of the Internet

With parties like the Christian Coalition of America and NARAL Pro-Choice America both on board, as well as groups like FMC, you would think that the passing of a network neutrality bill would be a foregone conclusion. However, in recent years multiple bills have come before Congress to codify network neutrality principles and so far none have passed. Representatives Ed Markey and Chip Pickering currently have a bill before a House subcommittee that sets forth broad guidelines for the open Internet and compels the FCC to hold hearings, gather public opinions and report its findings back to Congress. The bill is heroically titled the Internet Preservation Act of 2008, and although there so far have been a few subcommittee hearings regarding it, the bill has yet to pass the House. Although FMC endorses no specific legislation, Rae-Hunter believes that action is needed.

“First, we need to make sure we have an Internet where creators are free to use whatever delivery methods they want, and fans can access legal content in the way that works for them,” he says. “We also need to leave room for innovation: the guys in the garage coding the future. We recognize the need for Congress and the FCC to affirm some basic principles to preserve network neutrality.”

The battle over network neutrality is a battle for control of the Internet. At its most basic level, either the Internet remains free and open, or it turns into the equivalent of a strip-mall: a controlled environment where choice is an illusion and access is severely limited. Although artists have only been marginally successful in the past when they band together to raise awareness over an issue, one hopes that the Rock the Net movement will raise public awareness and put everyone on notice that the Internet is not something to be taken for granted.

Says Rae-Hunter: “It’s definitely encouraging to know that decision makers in Congress and the FCC are getting clued into the importance of this issue, and with more and more artists and creators joining the cause, we think all the effort will pay off.”

John Seay