What follows is a piece that I wrote for Internet Law class in the Fall semester of 2011 at Brooklyn Law School on the importance of maintaining net neutrality to protect independent content creators' methods of distribution. I enjoyed writing it and still think that the discussion is timely today, so I decided to re-post it here. Enjoy!
There seems to be a general consensus that file sharing is bad. It deprives intellectual property rights holders of revenue that they would otherwise be entitled to under the law. It arguably has created a culture in which young people, weaned on Napster and other P2P programs, see movies and music as disposable commodities that should be available for free, rather than the fruits of many individuals’ collective intellectual labor. It can also bog down networks, degrading service quality for other users who may thereby struggle to perform legitimate tasks. As a result of these factors, particularly the final one, Internet service providers often throttle traffic of file sharing programs or prohibit their use altogether by blocking ports necessary for the programs to function.
However, these negative assumptions about file sharing can and should be challenged, at least in some cases. While most file sharing concededly involves swapping of copyrighted material, it does not follow that all file sharing traffic is necessarily so. In fact, file sharing services, particularly BitTorrent, have the ability to act as forces for good, allowing independent content producers to circumvent traditional barriers to distribution and reach many more viewers than they would otherwise be able to. Video sharing sites such as YouTube exist to allow users to upload self-created video clips, but they tend to be limited by caps on file size and run time. What about independent filmmakers that want to upload high-definition files attaining two hours of run time, multiple gigabytes of file size, or more?
Josh Bernhard is an independent filmmaker and the creator of the film The Lionshare and the sci-fi series Pioneer One, and much of his success can be attributed to his innovative distribution tactics. He has partnered with VODO, a site that promotes BitTorrent as an ideal way to distribute independent content, and his work is available there free of charge under an “Attribution-NonCommercial-Sharealike” Creative Commons License. Episodes of Pioneer One have been downloaded over 3.2 million times on VODO, and Bernhard has been able to raise significant amounts of money through Kickstarter for production because his show has reached so many people and created so many new fans - fans that he would not have without BitTorrent.
The critical role of BitTorrent in facilitating the success of the series is obvious, and Bernhard is rightly concerned that a knee-jerk reaction to the download protocol due to copyright infringement issues could prevent the next Pioneer One from happening. Could a future series distributed over BitTorrent manage to reach 3.2 million viewers again if ISPs start throttling BitTorrent download speeds to a crawl or block that traffic altogether?
“I think an over-reaction to dealing with the technology creates a baby and the bathwater situation and it's dangerous to work like mine,” says Bernhard. “There's nothing inherent about the technology that makes it illicit or illegal, and by throttling traffic ISPs are essentially making a value judgement about one kind of traffic versus another.”
Moreover, as ISPs increasingly become content providers themselves, a perverse disincentive arises to throttle or block file sharing - even of legitimate, purposefully freely distributed files such as Bernhard’s work. The ISPs’ content competes directly for eyeballs with this independent media - the more that users are watching freely available programs and using P2P to discover new fare, the less movies on demand or expensive programming packages they will order, giving incentive to the ISPs to hamstring the competition. The same is true for competing paid media, as well. This is dangerous particularly because it can be done under the guise of “decreasing network load,” allowing ISPs to use their own limited infrastructure as an excuse. Netflix traffic already accounts for more evening Internet use in the US than web browsing. Why wouldn’t Verizon want to throttle Netflix, perhaps enough so that its users can’t watch films in HD, for example, and then offer HD videos through its own on-demand service? It would be easy to justify this because of the high bandwidth demand while masking the true motive. The only real thing stopping these large companies is consumer rage, in my opinion.
To be sure, there is the potential for the market to ameliorate the problem and act as an outlet for that rage. A new ISP could market itself as a “throttling free” or “completely neutral” ISP committed to neutrality and handle the demand from consumers who will not put up with interference with their access. However, the relatively small number of extant ISPs and their resulting staggering financial and political clout make new market entry difficult or nearly impossible, even if a newcomer has an innovative service to offer.
Legislation is the perhaps the most obvious remedy to the problem. Says Bernhard, “I think legislation against traffic discrimination is probably the most straightforward response at this moment in time... if there are no laws preventing it, and [ISPs] have an incentive, [throttling] is almost inevitable.” Users would suffer greatly if access to diverse content on the Internet is thereby limited, because, in the words of Bernhard, “[the public is] much more reliant on Internet access than we ever were on access to cable television.” It is a much more critical part of people’s daily lives.
For combating the long-term problem of illicit file sharing while doing the least harm to the good aspects of it, I believe that shaping public opinion may be the answer to getting effective, narrowly drawn legislation passed. Right now, I would assume that many are of the false impression that BitTorrent exists only to rip off Hollywood. Organizations such as VODO need to be vocal in showing that P2P is instrumental in independent content creators’ ability to reach the public, and that blocking BitTorrent traffic at their expense would harm everyone through reduced consumer choice.