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Net Neutrality Won't Save Us if DRM is Baked Into the Web

DEEPLINKS BLOG
July 13, 2017

Yesterday's record-smashing Net Neutrality day of action showed that the Internet's users care about an open playing field and don't want a handful of companies to decide what we can and can't do online.

Today, we should also think about other ways in which small numbers of companies, including net neutrality's biggest foes, are trying to gain the same kinds of control, with the same grave consequences for the open web. Exhibit A is baking digital rights management (DRM) into the web's standards.

ISPs that oppose effective net neutrality protections say that they've got the right to earn as much money as they can from their networks, and if people don't like it, they can just get their internet somewhere else. But of course, the lack of competition in network service means that most people can't do this.

Big entertainment companies -- some of whom are owned by big ISPs! -- say that because they can make more money if they can control your computer and get it to disobey you, they should be able to team up with browser vendors and standards bodies to make that a reality. If you don't like it, you can watch someone else's movies.

Like ISPs, entertainment companies think they can get away with this because they too have a kind of monopoly --copyright, which gives rightsholders the power to control many uses of their creative works. But just like the current FCC Title II rules that stop ISPs from flexing their muscle to the detriment of web users, copyright law places limits on the powers of copyright holders.

Copyright can stop you from starting a business to sell unlicensed copies of the studios' movies, but it couldn't stop Netflix from starting a business that mailed DVDs around for money; it couldn't stop Apple from selling you a computer that would "Rip, Mix, Burn" your copyrighted music, and it couldn't stop cable companies from starting businesses that retransmitted broadcasters' signals.

That competitive balance makes an important distinction between "breaking the law" (not allowed) and "rocking the boat" (totally allowed). Companies that want to rock the boat are allowed to enter the market with new, competitive offerings that go places the existing industry fears to tread, and so they discover new, unmapped and fertile territory for services and products that we come to love and depend on.

But overbroad and badly written laws like Section 1201 of the 1998 Digital Millennium Copyright Act (DMCA) upset this balance. DMCA 1201 bans tampering with DRM, even if you're only doing so to exercise the rights that Congress gave you as a user of copyrighted works. This means that media companies that bake DRM into the standards of the web get to decide what kinds of new products and services are allowed to enter the market, effectively banning others from adding new features to our media, even when those features have been declared legal by Congress.

ISPs are only profitable because there was an open Internet where new services could pop up, transforming the Internet from a technological curiosity into a necessity of life that hundreds of millions of Americans pay for. Now that the ISPs get steady revenue from our use of the net, they want network discrimination, which, like the discrimination used by DRM advocates, is an attempt to change "don't break the law" into "don't rock the boat" -- to force would-be competitors to play by the rules set by the cozy old guard.

For decades, activists struggled to get people to care about net neutrality, and their opponents from big telecom companies said, "people don't care, all they want is to get online, and that's what we give them." The once-quiet voices of net neutrality wonks have swelled into a chorus of people who realize that an open web was important to their future. As we saw yesterday, the public broadly demands protection for the open Internet.

Today, advocates for DRM say that "People don't care, all they want is to watch movies, and that's what we deliver." But there is an increasing realization that letting major movie studios tilt the playing field toward them and their preferred partners also endangers the web's future.

Don't take our word for it: last April, Professor Tim Wu, who coined the term "net neutrality" and is one of the world's foremost advocates for a neutral web, published an open letter to Tim Berners-Lee, inventor of the web and Director of the World Wide Web Consortium (W3C), where there is an ongoing effort to standardize DRM for the web.

In that letter, Wu wrote:

I think more thinking need be done about EME’s potential consequences for competition, both as between browsers, the major applications, and in ways unexpected. Control of chokepoints has always and will always be a fundamental challenge facing the Internet as we both know. That’s the principal concern of net neutrality, and has been a concern when it comes to browsers and their associated standards. It is not hard to recall how close Microsoft came, in the late 1990s and early 2000s, to gaining de facto control over the future of the web (and, frankly, the future) in its effort to gain an unsupervised monopoly over the browser market.

EME, of course, brings the anti-circumvention laws into play, and as you may know anti-circumvention laws have a history of being used for purposes different than the original intent (i.e., protecting content). For example, soon after it was released, the U.S. anti-circumvention law was quickly by manufacturers of inkjet printers and garage-door openers to try and block out aftermarket competitors (generic ink, and generic remote controls). The question is whether the W3C standard with an embedded DRM standard, EME, becomes a tool for suppressing competition in ways not expected.

This week, Berners-Lee made important and stirring contributions to the net neutrality debate, appearing in this outstanding Web Foundation video and explaining how anti-competitive actions by ISPs endanger the things that made the web so precious and transformative.

Last week, Berners-Lee disappointed activists who'd asked for a modest compromise on DRM at the W3C, one that would protect competition and use standards to promote the same level playing field we seek in our Net Neutrality campaigns. Yesterday, EFF announced that it would formally appeal Berners-Lee's decision to standardize DRM for the web without any protection for its neutrality. In the decades of the W3C's existence, there has never been a successful appeal to one of Berners-Lee's decisions.

The odds are long here -- the same massive corporations that oppose effective net neutrality protections also oppose protections against monopolization of the web through DRM, and they can outspend us by orders of magnitude. But we're doing it, and we're fighting to win. That's because, like Tim Berners-Lee, we love the web and believe it can only continue as a force for good if giant corporations don't get to decide what we can and can't do with it.

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