Hello Federal Communications Commission, My Authorship on The

Hello Federal Communications Commission, My authorship on the overlap between copyright secondary liability and net neutrality rules in Choosing an Internet Shaped by Freedom: A Rationale to Rein in Copyright Gatekeeping should be adopted (see http://scholarship.law.berkeley.edu/bjesl/vol2/iss1/4/). I also include it below. I advance two arguments here: (1) that shaping net neutrality rules around copyright infringement will keep massive internet carriers on a binge of multibillion dollar purchases of copyright portfolios such as Comcast’s recent purchase of NBC instead of investing in the last mile; and (2) that shaping net neutrality rules around copyright infringement is unconstitutional because it undermines copyright law, common law secondary liability, and FCC net neutrality itself. To persuade the FCC to change its course I also include a second articles I authored entitled Bringing America Back to the Future: Reclaiming a Principle of Honesty in Property and IP Law. Both argue that FCC rules and fundamental Constitutional underpinnings of Copyright Law are being actively circumvented by major telecommunications companies using copyright law. Instead of outrage at the blatant flouting of the public’s interest in a free and open internet by telecommunication companies, the FCC has now chosen the wording of “commercially unreasonable practices” and the limiting of the no blocking provision to “lawful” sites and content which will make the circumvention of FCC rules and copyright law even easier than it was under the previous net neutrality regime. In fact in order to avoid judicial oversight and to maximize profits major internet providers and major copyright owners have resorted to self-help measures by launching the Center for Copyright Infringement (see http://www.copyrightinformation.org/about-cci/). This collusion of massive corporate interests allows copyright owners and internet providers to punish internet users and middle class copyright owners without going to court and without the force of law even when the Digital Millennium Copyright Act specifically prescribes copyright takedown methods that were properly balanced against the First Amendment rights by Congress. Moreover, it should be an affront to the American Government that developed internet companies are using self-help measures. Are we not a First World nation? Is the United States a mature democracy? One sign of our development is that we no longer follow the American rule for real property that required a new buyer or lessor of property to load up the shotguns and force any holdover tenants. So why should we allow self-help for intangible property rights? It makes no logical sense in a developed society. The fundamental misunderstanding here comes from the fact that copyright law infers secondary infringement from the common law. For example the Comcast subsidiary Xfinity is a secondary infringer when it knowingly allows one of its users to post infringing content onto its website. However because secondary infringement over the internet is inferred from common law and is not statutory, the FCC rules take precedent over copyright secondary infringement common law. So, if the FCC shirks its responsibility to define what “commercially unreasonable” means or what “lawful” means exactly other than just flippantly referring to copyright law (as the proposed rule does) it is specifically opening the door for these companies to expand vague terms provided by the FCC to override copyright secondary infringement common law itself. This spells the destruction of copyright common law, guarded by the Judicial Branch, by Executive Branch agency rule. Senator Dianne Feinstein has already announced that the Central Intelligence Agency (CIA) has breached the Separation of Powers by cyber attacking Congress’ computer systems. The FCC should not allow itself to join the CIA’s ranks. Furthermore the FCC proposed rule will just hand internet legislation to major telecoms to fill in without balancing the public interest that the FCC is avowed to protect. Congress had specifically included the common law traditional contours of copyright law into the Copyright Act in order to safeguard First Amendment rights. Since these safeguards, such as fair use, the originality requirement, first sale doctrine, and the idea/expression dichotomy only get raised in the context of a law suit the FCC cannot possibly insert itself as the definer of unlawful copyright infringement. Thus the proposed rule will land the FCC in an unresolvable quagmire with long standing First Amendment safeguards. The branch of the government that is charged with caretaking property jurisprudence, that is the Judicial Branch, has emphatically not applied clear property principles to intellectual property or even the broader class of intangible property. Therefore the FCC cannot rely on judicial findings that could fill in the gaps, because there are none. In fact, the Supreme Court recently decided in Kirtsaeng v. John Wiley & Sons, Inc. (2013) that the common law property right to alienate property overrides some copyright privileges in an international context. The FCC should not intrude on the ongoing Judicial development of the contours between intangible and tangible property. Instead, the FCC should focus its energies on the significant project of updating the last mile, universal service, and the significant privacy issues revealed by investigative reporters. The fact that under this FCC’s watch the internet was used by the CIA to attack Congress should be a significant source of shame. The FCC is mistaken to assume that the government interest in curbing other forms of illegal activity online such as child pornography would support their limitation on the no blocking provision to only legal content or websites. The Communication Decency Act of 1996 (CDA) (which was Title V of the Telecommunications Act) preempts state laws that seek to prevent secondary gate keeping and require the direct pursuit of criminals.1 Also the landmark Supreme Court decision Reno v. ACLU struck down the anti-indecency provisions of the CDA based on the First Amendment. Thus the proposed rule will likely also run afoul the delicate balance of free speech struck by the CDA and its progeny of case law by handing discretion for blocking to internet providers. The arguments of many major copyright holders are absurd. They conjure up magical tales about the internet being a Wild West or an ocean full of pirates. But as the FCC well knows the telephone and cable networks that make up the “internet” are in fact just networks. They were set up long ago to facilitate public communication, and the technology that transformed these networks into the “internet” boosted the efficiency of those existing networks. It was once lauded as a triumph for the public good and it was then assumed that the natural effect of the internet on the marketplace should be embraced. According to the very laissez faire and capitalist values espoused by Comcast and Verizon if a company begins describing the internet like a shark tank that they can’t survive in that just means they should go extinct. The use of hypocritical capitalist and free market arguments to artificially hold a higher position above the common American innovator using the FCC to undermine copyright law, judicial common law, and the U.S. Constitution cannot stand. Due to the proposed FCC usurpation of legislative and judicial power the FCC must remove copyright law considerations from its rule making. In adopting the proposed rule the FCC will undoubtedly open the door to internet providers to claim quasi-governmental status. They will pursue public policy without even engaging with the American People by underwriting the highly 1 Jonathan Zittrain, A History of Online Gatekeeping, 19 HARV.J.L.&TECH. 253, 262 (2006). unconstitutional and insulting activities of the Center for Copyright Infringement (see http://www.copyrightinformation.org/about-cci/). They have already announced their intentions. The Digital Millennium Copyright Act’s takedown regime is to be completely circumvented by their activities. This is a violation of free speech and a usurpation of government power by powerful corporations that the FCC should address carefully. Copyright law contains important Free Speech limitations that will never be weighed and balanced by private companies seeking to maximize copyright monetization through self-help measures. The FCC should take swift action to remedy this by removing their proposed rule. In its place the FCC should create a robust net neutrality that defines “lawful” in the Digital Millennium Copyright Act (DMCA) Section 512(c)(1)(c) using its power to protect the privacy of communications. The DMCA limits copyright takedowns to “lawful” takedowns referring to privacy law. The most robust privacy law still exists in the Telecommunications Act of 1934 and the FCC has been empowered to protect this public interest. This comment prays that the FCC begin to define the debate on internet neutrality with the American values of liberty and privacy by abandoning its dangerous foray into intangible property enforcement. Both the internet and information are inherently public goods as defined by Carol Rose in her work The Comedy of the Commons (see http://digitalcommons.law.yale.edu/fss_papers/1828/). As an inherently public good, shaping policy around private property ownership leads to perilous contradictions and destructive law. Warm regards, Joshua J. Schroeder, Esq. Portland,

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