The Motion Picture Distributor’s Association (India) Pvt. Ltd. (MPDA) sent its comments on the TRAI consultation paper on Net Neutrality. Prior to delving into the content of MPDA’s comment, let us quickly acquaint ourselves with some basic information.
This is more of a detailed report, rather than an analytical piece.
TRAI released a “Consultation Paper on Net Neutrality” on 4th January 2017.
The paper, essentially, discusses the possible policy regarding management of data flow over the internet. Until recently, data has been allowed to flow through the internet without any interference. The paper considers the viability of using technical measures to manage and regulate data traffic.
Let us not get too bogged down with technicalities.
All you need to know for the purpose of this piece is that the paper talks about the viability of allowing for easier passage of certain types of information, while blocking or throttling other kinds of information. Again, this is a very basic overview and I chose to only provide you with the bare minimum required to understand the rest of this piece.
Anyway, the paper, while outlining a few questions (discussed later), courted comments. It is in response to these questions that MPDA sent in its comment.
Prior to delving into the comment, we need to look at one final piece of information.
What is the MPDA and why does it care about the internet regulation policy?
MPDA is, effectively, the Indian representative of the Motion Picture Association (MPA), as MPA owns the entirety of MPDA. The MPA is a trade association consisting of Paramount, Sony, Twentieth Century Fox, Universal, Disney and Warner Bros.
Once you realize the composition of the body, the intention behind its interest in regulating internet data flow becomes quite evident. Given that film producers are largely involved in err… producing films, they would naturally be interested in protecting against infringement of their copyright via the internet. To rephrase, they would be in favour of inhibiting information (data) flow that infringes upon their copyright.
With the above information in mind, let us (at last!) delve into the comment.
The MPDA chose to respond to three of the many questions raised in the aforementioned TRAI consultation paper.
Let us have a look at the questions and MPDA’s response to each of them.
The relevant abbreviations to note are:
TMPs: Traffic Management Practices.
TSPs: Telecom Service Provider/ Internet Service Providers.
Should the following be treated as exceptions to any regulation on TMPs?
(a) Emergency situations and services;
(b) Restrictions on unlawful content;
(c) Maintaining security and integrity of the network;
(d) Services that may be notified in public interest by the Government/Authority, based on certain criteria; or (e) Any other services. Please elaborate.”
MPDA argued for restrictions on illegal data (copyright infringing data) to be excluded from the purview of the general regulations concerning traffic management, that otherwise, prohibit content based restrictions on data flow. So basically, MPDA is hoping for greater regulation of traffic that infringes upon copyrights.
Additionally, the MPDA suggested determination of the above mentioned “illegal data” on the basis of “legally promulgated and transparently communicated rules“.
In this section, the MPDA was rather vague and therefore, instead of discussing any issues here, I shall discuss it in the subsequent section, where the comment gets far more controversial.
How should the following practices be defined and what are the tests, thresholds and technical tools that can be adopted to detect their deployment
(b) Throttling (for example, how can it be established that a particular application is being throttled?);
(c) Preferential treatment (for example, how can it be established that preferential treatment is being provided to a particular application?)”
As stated earlier, this part of the comment is quite controversial.
I shall reproduce MPDA’s suggestion verbatim and then subsequently discuss it.
“We respectfully urge TRAI, when setting regulatory policy related to unlawful content, that it:
(i) encourage TSPs to work with content owners to employ the best available tools and technologies to combat online content theft;
(ii) affirm that TSPs’ use of reasonable TMPs includes the right to use tools and technologies to address the flow of stolen content on their networks;
(iii) specify that TSPs engaged in network management are entitled to a presumption that good faith efforts to manage networks to deal with online theft are reasonable; and
(iv) clearly state that the use of reasonable TMPs to deter online content theft should not depend on an advance judicial or regulatory determination of “lawfulness” prior to every use.”
I believe we need to wary of the above suggestions on two accounts:
a. Extent of reliance on TSPs.
TSPs are far more likely to base their decisions on a cold hearted cost-benefit analysis, as opposed to an impassioned philosophical analysis concerning societal values. Hence, we need to be wary of the possibility of cherished values being made subservient to such cost-benefit analyses.
b. Restrictions on flow of data without the requirement of an advance determination.
Rebecca MacKinnon, in her book “Consent of the Networked“, discussed the adverse effects of a post-facto determination (as suggested) on political speech. Political speech’s ability to influence is heavily dependent on it’s topicality. For instance, a stirring piece urging workers to protest layoffs would be a lot more potent if published on the day of the layoffs, rather than two months after them. So, even if such content is blocked temporarily, until the post-facto determination, the damage would already have been done. If you are wondering how enforcement of copyright can constrain political speech, let me point your attention to one of MacKinnon’s specific examples, wherein political videos were blocked on account of copyrighted music playing in the background.
Can we consider adopting a collaborative mechanism, with representation from TSPs, content providers, consumer groups and other stakeholders, for managing the operational aspects of any NN framework?
(a) What should be its design and functions?
(b) What role should the Authority play in its functioning?”
The MPDA’s response, in this case, wasn’t as contentious. In one sentence, it called for clear identification of rightholders for the purposes of inclusion in the deliberative process, as opposed to simply assuming that they would be included on account of the catch-all term “other stakeholders” .
Lastly, the comment concludes with a suggestion to make sure TRAI’s regulatory policy didn’t overflow into the domain of copyright law and consequently, hurt the protected rights of copyright holders.
MPDA’s Comment, Rebecca MacKinnon’s Consent of the Networked.
Cover Image from here.