IP Democracy: Is the RIAA Leaning in Favor of Net Neutrality Regs?

The House Subcommittee on Telecommunications and the Internet will hold a hearing tomorrow on H.R. 5353, the Internet Freedom Preservation Act of 2008, also known as the Markey-Pickering net neutrality bill. In looking over the written testimony of the witnesses (not yet posted online), the most intriguing is the written statement of RIAA CEO Mitch Bainwol (PDF.)

First, the RIAA seems to be wavering in its traditional opposition to network neutrality regulations. Even though the record industry still doesn't like net neutrality regulations, Bainwol seemed to leave open the idea that if ISPs won't do something about music piracy, the RIAA might switch sides.

We continue to believe, at least right now, [italics added] that a marketplace solution with the ISPs to the piracy problem is viable, and certainly such a solution could be devised and implemented far more quickly than a regulatory proceeding. As the numbers tell you, however, the state of our industry requires action. If we cannot resolve this problem quickly in the private sector, regulation may be a necessary alternative.

The record companies seemed to have rallied around the legislation because it makes a distinction between "lawful" and "unlawful" content, thereby forcing ISPs to focus on the issue of piracy. Not that the RIAA hasn't been busy trying to get broadband service providers to otherwise pay attention.

Bainwol says that negotiations with ISPs have been underway for months, with varying degrees of success.

RIAA and our member companies have been engaged in constructive discussions with a number of ISPs about ways to address the piracy problem, including mechanisms like graduated response policies, longer-range technological approaches, and business solutions through negotiations between individual music companies and ISPs that can capture the value of the music being consumed by subscribers.

These discussions aren't always as fruitful as the RIAA would like, a fact that might be the motivation behind the record industry's seeming, subtle shift on network neutrality.

At the same time, however, we note that too many ISPs have turned a blind eye to online theft, all the while benefiting from the many subscribers who pay for broadband access primarily to steal music and other content. These ISPs would just as soon pretend that congestion was not fundamentally a problem directly connected to theft. And some prefer to cure congestion with greater efficiency – solving their problem but compounding ours.

What seems to particularly irk the RIAA is that network management practices, such as P2P throttling by Comcast, seem solely aimed at video content, with the implication that cable operators are less concerned by pirated music because web-based video -- but not web-based audio -- is a competitive threat.

At the same time, however, actions taken by the ISPs to deter piracy should be applied evenly over all types of pirated content to the extent technologically feasible. Just as ISPs should not unfairly discriminate against lawful traffic for anticompetitive purposes, ISPs should not be able to target only certain forms of piracy that may compete with their legitimate content offerings and not other forms of piracy.

Other written testimony from tomorrow's hearing seems par for the course. Aside from Bainwol, the witnesses include:

Ben Scott, policy director, Free Press (PDF)

Scott Savitz, CEO and founder, Shoebuy.com (DOC)

Steve Peterman, executive producer, Hannah Montana, representing Writers Guild of America, West (DOC)

Kyle McSlarrow, president and CEO, National Cable and Telecommunications Association (PDF)

Michele Combs, vice president for communications, Christian Coalition of America (PDF)

Walter McCormick, president and CEO, US Telecom Association (DOC)

Christopher Yoo, Professor of Law and Communication, University of Pennsylvania (DOC)

Posted by Cynthia Brumfield on May 5, 2008 8:26 PM to IP Democracy