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Connor Tomshack

Dr. McLaughlin

WR 13300

30 March 2015

Internet Regulation and Progress

Legislation has historically always had trouble keeping up with new technological

developments. A new medium will often go unregulated for a time until the proper regulatory

legislation goes through to give laws over how a medium should be dealt with. However, with

technology advancing at an increasingly fast rate, laws have fallen farther behind than ever. This

could be said of the Internet. The Internet has long eclipsed legislation, and many of the laws that

govern the use of the Internet are now long obsolete. This has made it difficult to govern not only

how Internet service providers (ISPs) should operate and deliver content, but also to deal with

the rising threat of online piracy. From the beginning of the Internet’s inclusion in regulatory

legislation, it was ambiguous how to deal with it. At first, Internet was largely ignored in

regulatory legislation. Even in 1996, when Congress passed the Telecommunications Law of

1996, the Internet was mostly ignored, being mentioned only a handful of times (Clemmitt 388).

The law set up different levels of regulation, one of which was ‘telecommunications carrier,’ and

another was ‘information service.’ Telecommunications carriers, such as cable­TV and landline

phone services had tighter regulation, whereas information services were only loosely regulated

(Clemmitt 388). This left broadband Internet and ISPs largely unregulated.

As the Internet grew in popularity, calls for ‘net neutrality’ laws to enacted began to

spring up. Net neutrality is the idea that ISPs should treat all digital traffic equally, regardless of

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the source or the destination, or the content of the traffic. In this essay, I will argue that net

neutrality is the best course of action for Internet regulation, as it promotes and ensures freedom

of speech, innovation, and technological progress. I will first give arguments in favor of net

neutrality and attempt to refute potential counterarguments against it. Online piracy is closely

linked to Internet regulation, and I will consider the consequences of anti­piracy laws such as the

Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), how they could

be misused, and why they may not actually be effective at preventing piracy. Net neutrality,

although it does not deal with the threat of rising piracy rates, ensures that the rights of the

consumers will remain in tact.

According to Clemmitt, the fight for control over communications and media businesses

have always been “among the most intense in economic history” (334). Older, more stable

communications companies have always fought to keep newer technologies that challenge their

authority in check. This occurred, for example, when Western Union tried to prevent

development on the telephone in order to prevent it from replacing the telegraph (Clemmitt 334).

There is a fear that ISPs could similar censor the Internet in a way that protects their own

business interests, but slows development of innovations. Although it seems unlikely that this

has happened yet, net neutrality would ensure that ISPs do not selfishly throttle content to

competitors in order to further their own business interests. In this way, net neutrality is

primarily preemptive, but it is an essential policy to have in order to deal with future conflicts

that may arise between competitors. One common argument against net neutrality is that it is

simply not necessary; some ISPs have said that it is against their business model and not in their

best interest to throttle user traffic. However, there have been a few cases where ISPs have

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discriminated against certain data because of its source, and it will surely happen again at some

point in the future. Net neutrality legislation is necessary to ensure that this does not happen.

One way in which net neutrality allows the Internet to thrive is through the distribution of

fan­created art and creativity, which bases itself on others’ creations. Clemmitt describes this as a

“remix culture,” which is described as “the creation of new art by copying and manipulation the

old” (336). This is a common form of art and expression since technology has made it easier to

manipulate previous forms of art, and this artform has boomed due to the exchange of

information over the Internet. However, many companies that hold copyright over certain

content have tried to stifle this activity in an attempt to maximize profits from that copyright.

These are cases where not only is there no infringement of copyright, and prohibiting people

from posting this sort of art is effectively an infringement on the artists’ right to free speech. If

implemented properly, net neutrality would allow the Internet to continue to thrive as a place of

cultural and creative development, preventing any ISPs and copyright holders from interfering

unless copyright has actually been violated.

Online piracy has been a problem since the Internet became popular, and its threat to

copyright holders only rises as the Internet becomes more widespread and faster. The last major

law passed in order to help prevent piracy was the 1998 Digital Millennium Copyright Act

(DMCA). However, this law is ill­equipped to fight online piracy, because it focuses more on

individual copyright infringers than the websites where this content is posted; in other words, it

is relatively difficult to punish and remove the sources of piracy (Clemmitt 340). This matter is

complicated by the fact the piracy is almost always an international issue. Someone from one

country may upload copyrighted content to servers in another country, which may then be

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downloaded by someone in a third country. Because of this, any single nation’s laws are difficult

to enact in any particular case, especially since some countries are much more lax in their

anti­piracy laws than other country. To address this, in 2012 Congress attempted to pass two

laws, SOPA and PIPA, to fight against piracy. They were intended to “to help copyright owners

fight media piracy that websites such as the Swedish site The Pirate Bay facilitate” (Clemmitt

340). SOPA allows the government to quickly order advertising networks and online­payment

companies to cut off service to websites where copyright infringement is alleged to occur

(Clemmitt 340). It would also prevent search engines from linking to those sites and require ISPs

to block them. The owners of copyright could also order advertising and payment companies to

stop business to these websites. PIPA differs from SOPA only in a few particulars (Clemmitt

340). The response to these proposed laws was overwhelmingly negative. Protests were held

throughout the country, many major websites, Wikipedia among them, shut down for a day of

protest on January 18 of that year. SOPA and PIPA were both taken back to undergo revision in

response to the protests, and they have still not been made into law. The main critiques of the

bills were that the wording was too broad and that they gave too much power to copyright

holders. It could allow ISPs to arbitrarily block a website without any official decision having

been reached first, or likewise allow copyright holders to force content taken down if they

accused the content of being an infringement of copyright, or even have the entire site taken

down.

Although online piracy has been on the rise, it is difficult to say just how big of an impact

it has had on the entertainment industry, and also how effective legislation has been as a

deterrent. “Constantly changing technology makes data on piracy unreliable,” and one study

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found that there is little evidence “that enforcement efforts to date have had any impact

whatsoever on the overall supply [of pirated media]” (“Online Piracy: Rights and Wronged”).

This suggests that legislation against piracy, at least in its current form, is ineffective to slow

down piracy. Some estimates for the amount of money lost to TV and recording industries due to

piracy amounted to at least $23.5 billion, and retailers by those estimates lost another $2.5

billion, according to the Institute for Policy Innovation (Clemmitt 329). They also estimated that

piracy lost the US the ability to add 373,375 jobs to the economy. However, there is much

skepticism to how accurate these estimates are, with the Government Accountability Office

concluding that “no existing estimates can be trusted” (Clemmitt 330). Also, it is impossible to

tell exactly how many people who, for instance, illegally downloaded a song, would have

actually bought and paid for the song if piracy had not been an option. Furthermore, a decent

amount of piracy comes in the form of older material that is no longer on the market, and so

there is no easy way of obtaining it except through piracy. Because the material is no longer on

the market, this form of piracy, while still illegal, essentially constitutes no economic harm to the

copyright holder. Additionally, the popularity of legal distributors of music and film, such as

Spotify and Netflix, suggest that people are willing to pay for these media even when they could

be pirated for free, but at a greater hassle, demonstrating that consumers are willing to pay for a

convenient and easy­to­use platform for streaming content. If these considerations are not taken

into account, any estimates about monetary losses due to piracy are skewed, and since these

considerations are difficult to quantify, it is consequently difficult to form an estimate of

economic losses. One of the major arguments against net neutrality is that it does not do anything

to try and stop online piracy, but that is not within the purpose or the scope of net neutrality.

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Regardless, estimates of the amount of money lost to piracy are much higher than in reality,

making a large problem like piracy sound even more monumental than it already is.

Net neutrality also ensures that ISPs will treat content fairly, which is crucial due to the

fact that there are such limited number of ISPs to choose from. Ideally in an industry, a consumer

would have a number of competing companies to choose from, and if the consumer is unhappy

with one company, he or she can switch to one of its competitors. This competition is necessary

for a healthy economic environment. However, due to the limited number of ISPs, this is not the

case with the distribution of broadband Internet. According to Clemmit, 13 percent of Americans

have only one broadband Internet access provider, and 78 percent of Americans have only two

broadband Internet access providers (341). Because there is such little competition, it is essential

that legislation ensure the ISPs maintain honest business practices and treat their consumers

fairly.

The Federal Communications Committee (FCC) and other analysts have suggested the

adoption of net neutrality policy since 2011 to ensure open access to the Internet and to prevent

access to websites from being up to arbitrary decisions by communications companies

(Gargano). More recently, late in 2014, Obama called the FCC to regulate broadband Internet

similar to a utility; however, it is unlikely that any sort of decision will be made any time soon

(“Internet Regulation: Not Neutral about Net Neutrality”). Congress is currently in a lock about

how to regulate the Internet. Both sides, those in favor of net neutrality and those against, include

large companies who have the budget to carry out and fund large scale advertising campaigns to

garner support for their position. Those in favor of net neutrality are mainly Internet companies

such as Google and Wikipedia that would benefit greatly from a free and open Internet, and

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those against are mainly ISPs and other communications companies that do not want to lose the

power to conduct their business how they see fit. As it stands, since both sides have comparably

money and influence, neither side seems to make any progress.

Overall, net neutrality is a necessary policy to ensure that the Internet remains open to the

free distribution and sharing of information, and that individual rights to freedom of speech are

not infringed upon. There is simply not enough competition in the industry of broadband Internet

access distribution for net neutrality to not be necessary. Without it, ISPs could take advantage of

their monopoly or duopoly in order to arbitrarily discriminate against certain websites or services

that would support their competitors. A problem with net neutrality, as previously mentioned, is

that it does not address the growing problem of online piracy. There is yet to be a policy of any

kind that has been effective at reducing piracy. As described in the article “Online Piracy: Rights

and Wronged,” the fight against piracy is similar to the fight on illegal drugs: shut down one

source, and another source will pop up in its place. Likewise, it is fairly ineffective to focus on

individuals, because their are so many individuals involved, and because this has been shown to

fail to deter others from participating. Thus, it is unfair to expect net neutrality to address this

problem. Ultimately, it is a policy net neutrality that is most likely to promote progress and

innovation through the free exchange of information, and to ensure the right to free speech of

individuals.

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Works Cited

Clemmitt, Marcia. "Internet Regulation." CQ Researcher 22.14 (2012): 325­348. Web. 4 Apr.

2015.

Cooper, Mark. “The Importance of Open Networks in Sustaining the Digital Revolution.” Net

Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? Eds.

Thomas M. Lenard and Randolph J. May. New York: Springer, 2006. 109­161. Web. 4

Apr. 2015.

Gargano, Anthony R. “Net Neutrality.” Broadcast Engineering 53.2 (2011). Web. 4 Apr. 2015.

“Internet Regulation: Not Neutral about Net Neutrality.” The Economist. 15 Nov. 2014. Web. 4

Apr. 2015.

“Online Piracy: Rights and Wronged.” The Economist. 26 Nov. 2011. Web. 4 Apr. 2015.

Zelnick, Bob, and Eva Zelnick. The Illusion of Net Neutrality. Stanford: Hoover Institution

Press, 2013. Web. 4 Apr. 2015.