Two Wrongs Don't Make a Right

The United States government took two wrong turns this week in its stewardship of the Internet. Both will have long-term negative impact on the Internet's value here in the United States and around the world, and both could easily have been avoided.

The first was the Supreme Court's regrettable decision in MGM vs. Grokster.

The second, and arguably more serious, misstep was the Bush administration's announcement that it had changed its mind about turning over control of the DNS root servers to an international body.

On MGM vs. Grokster let me be as clear about this as I can: I am not in favor of the piracy of content. The people who steal music on Grokster are exactly like people who shoplift CDs in music stores. But instead of holding the person guilty the Supreme Court decision held technology guilty.This makes it easy for the entertainment industry, which as a whole has been either too greedy or too lazy -- or both -- to devise new business models that would accommodate both its needs and its customers' needs in the new technological environment of the Internet. I wish the Supreme Court had instead had the guts to throw MGM vs. Grokster out of court, because it might have forced the entertainment industry to recognize what technology can do and craft an equitable arrangement under which users of Grokster and similar services could share copyrighted content legally. It doesn't take much imagination to come up with one -- can you say "universal licensing"? The entertainment industry can't, or won't.

The irony is that the industry eventually will be killed by the government's kindness. There are precedents. In 1982, for example, Jack Valenti, then president of the Motion Picture Association of America, had the unmitigated stupidity to tell a a House Judiciary subcommittee, " I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Fortunately for Valenti, the Supreme Court ruled in favor of the VCR in the Sony Betamax case. The movie-rental industry that resulted directly from that decision now provides the lion's share of movie studio profits. The Supreme Court absolutely blew a chance to uphold its own precedent and demonstrate similar vision -- and perhaps save the entertainment industry from itself once again.

Vision is exactly what the Bush administration lacked in its announcement on the DNS system, as well. The National Telecommunications and Information Administration, which is a Commerce Department agency, said on its Web site on Thursday that it the United States government would "maintain its historical role in authorizing changes or modifications" to the DNS root servers, which would remain under the technical oversight of the Internet Corporation for Assigned Names and Numbers (ICANN). What it seemed to forget was that the government had previously agreed that ICANN would become independent of the Commerce Department by 2006.

The Internet community outside the United States is understandably unhappy about this and views U.S. control of the Internet as a sort of cybercolonialism. For me, the key issue is more closely related to the Grokster case -- the U.S. government's increasing willingness to sell itself to the highest bidder. The Desktop Pipeline story underscores this, quoting a Japanese government official, Masahiko Fujimoto: "When the Internet is being increasingly utilized for private use, by businesses and so forth, there is a societal debate about whether it's befitting to have one country maintaining checks on that."

The current government in Washington identifies its own interests very closely with the interests of private business, especially the big corporations that are large donors to its coffers. (It was surely no coincidence that immediately following the Grokster decision the Justice Department launched a major initiative to spend taxpayer dollars to protect entertainment industry profits by going after major illegal traffickers in first-run movies, video games, and other copyrighted materials. Is it campaign fund-raising season already?) Whatever the next Grokster is called, there will be one. And when this Nexter starts up in Sweden or Brazil or China and somebody like Jack Valenti calls the White House to say the check is in the mail, will the government have the courage to resist a friendly request for a small "mistake" that knocks Nexter out of the DNS routing tables?

DNS routing, like liberty and freedom, has to be for everybody or it's not for anybody. And absolute adherence to that principle has to be completely transparent. Otherwise the world will begin devising alternatives to DNS and the Bush administration may find itself in the ridiculous position of having to behave like a cyber-terrorist, threatening to launch denial-of-service attacks against foreign entities that dare to distribute information without its permission.