What the Net Neutrality Loss Has in Common With the Dreadful SOPA

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Feb. 12 2014 3:36 PM

The Net Neutrality Loss Is as Bad as the SOPA Bill

And we can do something about it, too.

Wikipedia blacked out its English-language site for a day in protest against proposed U.S. anti-piracy legislation.SOPA/WIKIPEDIA
Wikipedia blacked out its English-language site for a day in protest against SOPA.

Photo by Gary Cameron/Reuters

Life before the Internet sucked. My life as a kid growing up in suburban Michigan consisted of urban sprawl, shopping malls, and bad television (except 30 minutes of Seinfeld every Thursday). Adults told you that educated people followed the news, but most small towns had one mediocre newspaper, and local TV news had cats stuck in trees and house fires. (Thanks, adults.) To learn anything, you had to drive to a bookstore; subscribe to a stack of magazines; or schlep to a library, go through a card catalog, discover a book that someone had already checked out and was overdue, request the book back from that person or order it through interlibrary loan, and wait a few more weeks for the book to come while watching bad sitcoms (Seinfeld notwithstanding) with loud commercials.

It was barbaric.

Then everything changed. With the Internet, anyone could create any website or digital technology, or spread any message—without having to hire a lawyer, negotiate a deal, or beg to get an editor or TV producer’s attention.

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From the beginning, the open Internet has had its enemies. Phone companies wanted to impose long-distance charges on dial-up, but the Federal Communications Commission stopped them. Later, cable companies imposed limits on streaming video. Hollywood studios and record labels just wanted to keep selling you overpriced CDs and DVDs while lobbying for jail time and thousand-dollar fines for “pirates.”

A few weeks ago, an appellate court ruled that the FCC didn’t have the power to stop phone and cable companies from blocking websites or, the more obvious scenario, from treating some sites worse than others. (It was actually a legalistic loss: The FCC can regain its power simply by writing its opinion differently. It will just take some political courage, as I wrote for Slate.) This decision meant that the phone and cable companies now control your access to the heavenly wonders on the Internet: They can decide what you watch, share, and buy online through your desktop, laptop, or tablet. They are like St. Peter determining who comes in and out of heaven’s gate, except they are less likable, less wise, and have a profit motive.

I have spent the past 10 years working on Internet freedom issues, including the 2011 and 2012 fight against SOPA, the Stop Online Piracy Act, and its companion bill PIPA, the Protect IP Act—a fight that ended in Wikipedia, Reddit, and other sites blacking out their sites for one day in protest. The net neutrality loss reminds me of the proposed SOPA legislation in three important ways.  

1. Same economics: “All your base are belong to us.”

Both SOPA and network neutrality’s loss would enable big companies—the studios and Internet service providers—essentially to extort the Internet companies of most of their profits. This is because both would put Internet companies under threat of being inaccessible, because of either a movie studio’s lawsuit or a major ISP’s technical discrimination. To avoid that, the companies would fork over much of their money.

SOPA would have handed copyright holders a powerful threat: a court order blocking a website’s domain name, payments, and advertising. Armed with that threat, the copyright holders could attempt to extract every spare penny from a site accused of hosting or linking to pirated content. For example, if SOPA had passed and then users illegally shared movies on Tumblr or Google Plus, a copyright holder could threaten those companies with orders that would shut down their businesses. Tumblr and Google would have to pay almost any sum to stay in business—all the profit that Google would have made off of Google Plus would go to, for example, AT&T. The record labels and movie studios would probably think this was completely fair: They suggest that they provide nearly all of the value to YouTube, Netflix, iTunes, and the Internet at large. In their view, people go online for the studios’ amazing content, and they deserve a cut of it all.

Similarly, without net neutrality, phone and cable companies with tens of millions of users would be able to threaten to block a website. That threat puts the phone and cable companies in a plum negotiating position to ask for most everything, leaving just enough for a company to continue covering costs. The carriers also seem to think that would be fair: To hear the carriers talk about the Internet, you’d think they, and not Google, Netflix, or Facebook, provide all the value because they provide the “pipes.”

Money paid for net neutrality violations would eventually go to the "Comcast" half of Comcast-NBC; for SOPA, it would have gone to the "NBC" half.