Common carriers, hotels, and pimps, oh my! Net neutrality and the law

Link: The Spacey Gracey Review: The Magna Carta of Web 2.0.

Thanks to Spacey Gracey for the tip to check out this Slate article that really piles on the metaphors (except for Common Carrier, where'd it go?) for thinking about copyright issues, YouTube, Napster, and Net Neutrality.

Here we go! Let's take the plunge with Mr. Tim Wu. My comments interspersed among key excerpts below.

Link: How the Bell Lobby helped midwife YouTube. - By Tim Wu - Slate Magazine.

Does YouTube Really Have Legal Problems? How the Bell Lobby helped midwife YouTube.

By Tim Wu
Posted Thursday, Oct. 26, 2006, at 4:28 PM ET

When Google bought YouTube, the conventional wisdom—expressed in op-eds, newspaper articles, and scary editorial cartoons—was that they'd also bought themselves a whole heap of copyright trouble. The New York Times used the phrase "litigation-laden landmine." Part-time copyright theorist Mark Cuban warned that YouTube would face the same copyright fate as Napster.

There's only one problem with these theories: the copyright law itself. Under the copyright code, YouTube is in much better legal shape than anyone seems to want to accept. The site enjoys a strong legal "safe harbor," a law largely respected by the television and film industries for the choices it gives them.

But the most interesting thing is where all this legal armor protecting YouTube—and most of the Web 2.0 (user-generated content) industry—comes from. It's the product of the Bell lobby—Google's bitter opponent in the ongoing Net Neutrality debates. So, while YouTube may be the creative child of Silicon Valley, it is also, as much, the offspring of Bell lobbying power.

Back in the early 1990s, when the "information highway" was the talk of the town, Hollywood and the recording industry worked hard to make Internet companies responsible for any and all copyright infringement that happened via the Internet. Jack Valenti, Hollywood's chief lobbyist, warned that without congressional action, "the information superhighway … will collapse the great wonder of intellectual property." The recording industry, for its part, dispatched Johnny Cash to rhetorically link Internet piracy and, yes, a "ring of fire."

[Heh. I remember that debate. I could never wrap my mind around it, because the Sony VHS decision MADE those Hollywood folks, but schizophrenic law that can't be consistently applied is really nothing more than protectionism. Basically, I figure Hollywood will lobby for anything that appears to protect its interests, even if there's no way the law can be consistently applied without more protectionist exemptions and loopholes.

That would be the point: make laws that only protect me, and only persecute those I don't like, even if we are both engaged in identical behavior.

The biggest irony in all the copyright debate, I think, goes back to a decision made by Marc Andreessen with Mosaic: for a graphic to display on a browser, a copyright violation MUST take place as that image is copied to the machine with the browser. That is the illusion of browsers: that you aren't stealing because it doesn't LOOK like you're taking something that isn't yours. Browsers hide the invisible FTP thingie behind http.

Just like magic! You'll notice that at no time do my hands leave my arms!]

[...]

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those "tubes" over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood's reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. The Bells quickly put holds on all the legislation the content industries wanted. Telecom lobbyists like Roy Neel, a close friend of Al Gore (and later Howard Dean's campaign manager), went to Congress and began saying things like, the "copyright law threatens to put a damper on the expression of ideas on the Internet."

Facing stalemate, in 1997 the industries settled on a compromise: something called the Online Copyright Liability Limitation Act, which became Title II of the Digital Millennium Copyright Act of 1998 (§512 of the Copyright Code). It is this law that makes YouTube worth paying more than what you pay for its videos. And its long-term effects have been enormous—you might call §512 the Magna Carta for Web 2.0.

Why? Section 512(c) of the law applies to "Information Residing on Systems or Networks At Direction of Users." In 1998, that meant Geocities and AOL user pages. But in 2006, that means Blogger, Wikipedia, Flickr, Facebook, MySpace, and, yes, YouTube—all the companies whose shtick is "user-generated content."

Thanks to the Bells, all these companies are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down. Then, so long as YouTube acts "expeditiously" and so long as YouTube wasn't already aware that the material was there, YouTube is in the clear. In legal jargon, YouTube is in a "safe harbor." Earlier this week, when YouTube took down 30,000 files after requests from a Japanese authors' group, that was §512(c) in action.

[...]

Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don't ask, don't tell," you're getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build.

[This is the concept the NYTimes for some reason couldn't grasp in creating its locked stable of Times Select columnists. Some of my favorite columnists ever, but I refuse to read them now. Why? Because the Times chose to limit the influence of those influential voices, by removing them from the public sphere.

The Times chose financial reward over significant public influence (and abdicated any real effort to use those columnists to contribute to the national conversation on behalf of the public good). The Times didn't just act to jeopardize its own private interests. It also deprived the Commons of those columnists' ideas in the sense of a Jeffersonian "free exchange of ideas." To my mind, that means the Times is basically saying, "Screw the quality of national debate. We have no interest in contributing to the larger public good." I should note that official Times editorials are still freely available for all. The public presence of the monolithic Times "Editorial We" is probably how it rationalizes the TimesSelect abdication of public responsibility.]

But what about Mark Cuban's copyright argument? Why isn't YouTube in trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the §512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that's the law and why YouTube should really, really thank its friends at Bell.

[Now this part appears to me to be a big pile of crap. Nothing against Tim Wu. I mean the argument distinguishing YouTube and Napster, because of hosting vs. directing. There's something more afoot here.

Ultimately FTP was the first real file-sharing program. Nobody wanted to go after FTP. Back in the BBS days of the dial-up walled garden Net (remember Pine?!), I knew entire BBS's devoted to trading photos, which were then zapped out to floppies that had to be hand-carried around. This was about 1990, when I observed this. I had a bunch of students who taught me how to find the BBS's. So much is made of Internet porn and naughty chat rooms now, but there was an entire network of those spaces in BBS land, far from the searching eyes of Archie and gopher. They worked out their hook-ups with a private BBS dialer, then used FTP for trades.

Napster was attacked legally because of its success, not because of its central architecture. Gnutella was just a semantic work-around because the legal heads wanted to make the central direction point (for non-hosted material) the deciding factor. To my mind, the common carrier argument should have been harped on to the wall with Napster.

I mean, can you imagine how the phone companies would scream if they were held accountable because copyrighted Musak fed over your phone line while you were put on hold, and you could make copies of it?

Or if phone companies and beeper companies could be held legally accountable because drug dealers use telephones to make their drug deals?!

I never could see why the FILE-sharing aspect of Napster was not the deciding factor in making good law. Instead, the Napster decision had no consistency, because it only applied to a company doing X on every second Tuesday while hopping on one foot, if wearing green shoes. I can't STAND inconsistent law that is not broadly applicable.]

There may also be deeper differences. If the Internet were not a bookstore, or tubes, but rather a red-light district, YouTube would best be imagined as the hotel, and Napster, well, the pimp. YouTube, like a hotel, provides space for people to do things, legal or not. It's not doing anything illegal itself, but its visitors may be. But Napster, everyone more or less now admits, was cast as the pimp: It was mainly a means of getting illegal stuff. Right or wrong, we seem to accept the benign vision of YouTube as an entity which, unlike Napster, was basically born as a place to showcase stupid human tricks.

[This is my favorite paragraph in the whole story. Attack of the Metaphors!

Or as my witty friend in upstate NY used to put as his email sig:

May the metaphors be with you.

No really, I'm loving the hotel metaphor. The truth is, Internet law could not exist without metaphors, but we run into trouble when many metaphors apply at the same time. What to do, what to do? I've already shown my bias. I like law that looks at the FUNCTION of what is happening, and applies itself consistently across all different instances of that function. I'm making a MEANS argument.

What this article seems to indicate is that Internet law primarily uses an ENDS argument, with 800-pound gorillas as primary (and perhaps corrupt?) influencers of which ends shall be rewarded, which ends shall be punished. Napster was punished because it created a very successful end point that the powerful music industry didn't like. FTP has never been punished even tho it accomplishes similar functions as any other common carrier, because it was never so wildly successful as to threaten any deeply entrenched interests who demanded protectionist law.

And as it says above, YouTube seems to have a "Get Out of Jail Free" card, simply because it isn't bit-torrenting entire feature-length films that threaten entrenched interests. There's something to be said about flying under the radar, but it wouldn't be necessary if the law were actually consistent, and not applied in a biased fashion.]