Non-Discrimination Rules Could Discourage Creative Industry Professionals

The FCC’s proposed network neutrality rules could have a negative effect on journalists, musicians, actors and others in creative industries, some attorneys said during a panel at an American Bar Association event. “The non-discrimination rules the FCC has proposed by their terms and on their face only apply to lawful content or lawfully distributed content,” said Markham Erickson of Holch and Erickson. If the content is unlawful, then the rules wouldn’t apply in the first place, he said. His clients think it potentially means “to either allow or mandate an ISP to block lawful content as long as it’s reasonable,” he said.

It’s at odds with the Copyright Act and the Digital Millennium Copyright Act (DMCA), Erickson said. “We don’t want to see the FCC be the arbiter by somehow trying to figure out whether blocking lawful content is reasonable or unreasonable based on some fair use analysis.” The DMCA “provides for how ISPs are to deal with digitally distributed copyright,” and “we wouldn’t want to see the FCC create some sort of competing framework.” The possibility of “somebody doing something to the fair use defense at this point in time I don’t think is a luxury that our creative industries can afford,” said attorney Chris Castle.

In comments filed on the rulemaking on preserving an open Internet, Erickson said his clients expressed concerns about tools that ISPs could use to develop a filtering mechanism. Some filers have suggested that ISPs use routers in the networks “to review the entire content of the user’s communications in real time.” This is a privacy concern, he said: “Once we start using them to inspect content for copyright infringement, it raises a lot of user privacy issues” and there’s potential for violation of federal wiretapping laws.

"The voluminous comments that were filed only reinforce in my mind that the proposed rules are unwarranted, unwise and unlawful,” said Verizon General Counsel Randy Milch. The rules “will have a direct effect, if implemented, on investment and innovation in the Internet space.” If there is a set of rules, “they ought to apply across the ecosystem,” he said. “People who have search engines prioritize the order in which the searches come up.” There will never be a neutral Internet, he said.