Walter McDonough General Counsel of the Future of Music Coalition

Walter McDonough General Counsel of the Future of Music Coalition
A professor of copyright law at Suffolk University Law School, Walter McDonough also serves as a board member on the American performing rights society SoundExchange, the Alliance of Artist and Recording Companies, and is a frequent speaker at music conferences worldwide. In 2000, Walter co-founded (along with Michael Bracy, Jenny Toomey and Brian Zisk) the Future of Music Coalition, a U.S.-based non-profit education, research and advocacy organisation that identifies, examines, interprets and translates the challenging issues at the intersection of music, law, technology and policy (www.futureofmusic.org). The FMC’s Rock the Net currently has 875 bands and 175 labels campaigning for net neutrality.

What is net neutrality?
There are four principles you want to keep in mind. The first is that consumers can access any legal content that they want; second, that consumers can run any legal application that they want; that consumers can connect to the network via any legal device that they want; and last that consumers are entitled to competition among network providers. You want to treat everyone basically the same notwithstanding that the ISPs are going to have some control over the way traffic goes through their networks. Certain content providers can’t negotiate a better agreement for themselves at the expense of other people, nor can certain content providers be denied access to the network or be forced to operate at a degraded level of service in comparison to their competitors.

Why is this a hot issue now?
The U.S. is unique in the world because the Bush administration has deregulated the regulation of broadband, and I think we’re the only country in the world that has that problem. So unfortunately, unless Congress steps in or a subsequent administration steps in, it’s freed the IPS to be able to do things that they’re not able to do in other countries. And there are no guarantees that they’re going to treat everyone the same. Everyone else including Canada still has a regulatory framework in place that the U.S. really doesn’t have. So the situation is a lot more acute in the U.S. than it is anywhere else. With massive amounts of video coming on to their network, the ISPs want to control their traffic more efficiently until they are able to rebuild the networks in order to increase the bit rates. For the time being the ISPs are worried that all this video is going to overwhelm their network. On the other hand, consumers are afraid that if the ISPs have complete control over traffic in the U.S., they can discriminate against various people. They could enter into agreements with some content providers at the expense of other ones.

What’s at stake for independent musicians?
Independent musicians can be discriminated against. Independent musicians can have their content degraded at the expense of others — they may not be on equal footing with other people on the network. We want to make sure that independent musicians who have their own sites, who offer their own content are not put in an inferior position to other people. You could have a nightmare scenario where people are simply excluded from the network by the ISPs.

How will traffic throttling affect blanket licensing?
You can’t have blanket licensing without net neutrality. Unless there is net neutrality you can exclude certain content from the network. They walk hand in hand.

What has been the response from the mainstream music business in dealing with this issue?
I think the position of RIAA (Recording Industry Association of America) and IFPI (International Federation of the Phonographic Industry) is that they want to negotiate private deals with the ISPs, and I think that they recognise that it’s a problem but it’s not a priority for them.

If RIAA is doing private deals with the ISPs, won’t that automatically lead to gating out independent competitors?
Yes, that’s a problem. I think you’re making a deal with the devil if you think that private agreements are going to solve this because if you don’t open up the network to everybody — notwithstanding that you’re going to have issues with people who are involved in unauthorized P2P file sharing — a network that can use discrimination can also censor things. That’s a problem. If you give somebody absolute control over the network they can censor what they don’t like.