The eminent copyright scholar William Patry serves as Senior Copyright Counsel at Google, but in his blog does not write on behalf of the company. His latest missive is a broadside against the Copyright Alliance, a coalition representing copyright holders. Patry takes them to task for characterizing government involvement in copyright matters as unwarranted meddling in the rights of copyright holders. According to Patry, this misses a fundamental truth:
One thing should be beyond dispute, and that is copyright is always an act of government intervention. Without Congress enacting title 17, there would be no (federal) law at all, as the Supreme Court held in its very first (1834) opinion in a copyright case, Wheaton v. Peters. Copyright in the U.S. is, therefore, in its very essence, an act by Congress interfering with an inherent lack of rights: every grant of rights represents government intervention.
This brings to mind a Heather Greenfield article in the September 10 issue of the National Journal’s Technology Daily (paid subscription required), which painted a fairly rosy picture of the status of the Net Neutrality debate. According the article, moderates on both sides of the debate are in agreement that America needs a real policy for broadband, and real competition in the marketplace. As Comcast Vice President Joe Waz put it:
There are no facts, no record of abuse, that would warrant a government role beyond watchful vigilance, coupled with continued efforts to break down barriers to expanded broadband competition.
One wonders how the government is supposed to break down barriers to expanded broadband competition. After all, the access provisions of the 1996 Telecommunications Act were gutted by the Brand X decision and the FCC’s 2005 Wireless Broadband Report and Order (PDF). Incumbent carriers no longer have to provide line access to new competitors, so presumably Waz was referring to wireless broadband. But how is the government supposed to spur competition in wireless broadband? Perhaps Waz feels that the FCC should bake open network access principles into the 700 MHz spectrum auction, specifically enforcement of reasonable wholesale pricing. That way the federal government would be promoting broadband competition without interfering with the existing balance of power in the wireline broadband world, where the former Baby Bells cover the low end with DSL and the cable companies cover the high end. OK, I’m only joking. Of course the wireline broadband goliaths don’t like Google’s open access proposal. Maybe Waz actually means that the government should spur competition by doing nothing. But like copyright, the 700MHz spectrum auction is an inherently governmental activity. The 700MHz spectrum will only “belong” to a particular company because the federal government has decided to sell to corporate actors something that is held in common by all Americans. Is the American public supposed to unilaterally limit its freedom to contract, while extending an unrestricted ability to contract to broadband carriers? Patry’s assessment of how to analyze the pros and cons of government involvement in copyright may be applicable here. He writes:
Lets skip the flatulent rhetoric about government intervention and get down to the real issue: finding the policy that does the most good for the most people; and when we do weÃ¢â?¬â?¢ll be thankful to have the government intervene.
Like copyright, the history of telecommunications is one of active government involvement, whether to protect monopolies or cut them down. Perhaps the question we must ask in formulating better broadband policy is which of those two types of engagement we want our government to pursue.