A cast that can be imprisoning

There's a new restriction on content waiting in the wings--a "webcaster's right" that allows websites to control the dissemination of content they put up. With this new privilege, they'll be able to prevent retransmission even if the copyright on that content is owned by somebody else--even, in fact, if that content was in the public domain.

What is webcasting, and what will be the effects of this restriction? Nobody knows--except, one supposes, the large web portals pursuing the webcaster's right. I will try to ferret out what they want to do in the course of this article.

First Came the Broadcaster's Right

Unbeknownst to most Americans, in many European countries, TV and radio stations for some time had a "right" to control dissemination of their broadcasts. A U.S. delegation to the World Intellectual Property Organization, (peopled by members of the Copyright Office and the U.S. Patent and Trademark Office), wants to bring these restrictions home.

The harm this could do to public discourse hit me just recently when I attended a forum on wiretapping, where several TV clips of George W. Bush's speeches were aired. The value of seeing these excerpts was incalculable. But if we had to adhere to the broadcasters' treaty, showing them would have been illegal. By copyright law, showing them in a non-profit educational setting was probably fair use--but it's not clear how any concept of fair use would apply to a broadcasters' treaty.

Because it's often impossible to contact the original copyright holder, the right to retransmit broadcasts is essential to public discourse. Copyright is motivated by the laudable goal of encouraging authors' creativity and productivity--but what value do broadcasters add? There's precious little creativity involved in sending out a broadcast. Nevertheless, broadcasters are claiming an extra layer of rights--which adds an extra barrier to reuse.

It's important to note that this legal maneuvering goes on in the context of publishers' growing technical restrictions on dissemination through digital rights management, and their attempts to plug the "analog hole" so that no rebroadcasts could take place anyway. But now we face the prospects of new barriers that have existed nowhere before now.

Then Came the Webcaster's Right

The U.S. WIPO delegation is also pushing for an extension of the broadcasters' control to the Web. The European broadcast laws don't cover the Web (although a European Union representative recently endorsed the U.S. proposal), so this is a new threat to the public domain.

What would a webcaster's right mean? It would mean you couldn't retransmit content put up by someone else on the Web without permission. The proposal tries to indicate that the restriction covers only images and sound, but it's not clear that a line can be drawn between such content and other things, including text. At any rate, the idea of extending the broadcaster's right to the Web is bizarre and fundamentally out of sync with how the Web works. The whole basis of the Web is making links; people don't normally copy and retransmit material.

I take it back. Copying and retransmission happens on the Web all the time. It's call caching, and it's crucial to the efficient operation of the Web. Even if the webcasting treaty leaves a loophole to allow caching, the treaty may hamper another promising way of reducing the load on servers: chained downloads that piggyback on intermediate nodes, the basis for useful protocols such as BitTorrent.

The U.S. delegation is pushing for this strange new right under the catch-all rubric of "harmonizing" the Web with broadcasting, and, of course, that shibboleth of regulators, "technological neutrality." But because equating Web distribution with broadcasting is absurd on the face of it, one has to wonder what is really on the minds of the large portals who put so much energy into forcing this radical change on the public.

The light went off in my head after hearing about plans by telephone companies to reserve parts of their internet bandwidth for premium content, rather like cable TV. This has been widely reported, and I blogged about it last December in an article titled "Can We Still Say that Nobody Owns the Internet?"

Since then, on January 6, the Wall Street Journal reported that the carriers are trying to enter into special deals with major sites such as Google to offer those sites faster downloads for a price--and the websites are responding positively. Depending on your point of view, this is the natural next step in what you could either regard as:

1. A fair way to fund expensive network upgrades (except that phone companies have already won major pricing concessions from regulators, supposedly to fund those upgrades).
2. Or, an unprecedented coup by those who own the pipes to control what flows over those pipes.

So the telephone companies, which have also become major internet providers, think they can intensify the commercial use of their internet connections by providing their own content (or content licensed from partners) at higher cost. Would it be too far-fetched to think that web portals have a similar idea? If they had their own premium content, they could essentially become like cable TV satellite radio companies. On January 9, the Wall Street Journal reported the next brick laid on the edifice, as Google announced it would offer TV shows and videos for a fee (restricted, to boot, by a DRM scheme).

I don't mind premium content at special prices (hey, O'Reilly Media itself started a subscription service called Safari), but I don't see why a special webcaster's right is needed to provide it.

Somebody is whispering poisonous thoughts in the ears of the portal owners. Suppose the next Wizard of Oz type of blockbuster goes over your wires ... You could get out of the nerve-wracking business of constant innovation and start to make an easy living off of cash cows ... Just imagine millions of captive viewers coming back to view your ads month after month. Expect to see a further proliferation of DRM systems and the erosion of fair use in the near future.

I believe that the resurgence of internet entrepreneurialism--the wave of creative guys in lofts being bought out by the likes of Google, Yahoo, and America Online--shows that innovation has not run its course yet, and that we should keep competition vibrant. That means no new, artificial monopolies on content.

The publishers who fund Safari are creating a successful business with a modest investment and a legal foundation in standard copyright. Other writers and artists may try to create their own online businesses with even smaller investments, and may therefore depend more on portals or "webcasters" for dissemination. In the balance of control between artists and portals, I vote for the current legal system that favors artists.

I recently sent the U.S. delegates to WIPO the following document in a bid to ward off the webcaster's right--through the mechanism of throwing the matter before Congress.

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