The ArtLab

Testimony of Gordon Chambers
Before the New York City Council
In Opposition to Proposed Net Neutrality Regulations
November 20, 2009

Mr. Chairman, and Members of the Council, thank you for this opportunity to testify in opposition to current proposals by the Federal Communications Commission (FCC) to expand and codify certain "Network Neutrality" principals.  Digital piracy has almost completely destroyed the profession of songwriting, and is slowly destroying the music industry.  Because the FCC proposed regulation would enshrine the very rules that allowed this destruction of a valuable American cultural prize -- music -- I strongly encourage the Council to avoid endorsing its enactment.

I would like to provide some specific examples of how digital piracy, facilitated by the Internet, has decimated the music industry and the songwriting profession.

According to the International Federation of Phonographic Industries (IFPI), in 2000, global recorded music sales were $30 billion.  By 2008, these same global sales had fallen precipitously to $18.4 billion.   This eight-year period coincides with the rapid expansion of unlawful file sharing.  According to the Bureau of Labor Statistics, songwriter income dropped 32% between 2003 and 2006 alone (for the lucky few who still had jobs).  Every major music publisher has laid off at least half, and sometimes all, of their songwriters in the ten years since piracy began to decimate the music industry. 

The unfortunate reality of the current situation in the digital world is that online piracy of  music is rampant and undeniable.  Such piracy has deeply and materially harmed the songwriter community.  Yet certain organizations specifically ask the FCC to prevent the companies that own these private networks from addressing the problem of piracy.

Network neutrality supporters claim to want to fight piracy yet they do not propose a viable alternative to the current legal regime that would curb the massive looting that has decimated the artistic community.  Most oppose proposals to enhance criminal liability or criminal penalties for copyright pirates and even refuse to have the internet service of pirates temporarily suspended.  Instead they suggest that ISPs should "shame them" with warning letters.  Songwriters believe it is foolhardy to trust the personal ethics of thieves to solve the persistent problem of illegal downloading.

I and many of my fellow songwriters have chosen to live and work in New York because it is the center of great American culture.  Some of the best songs in the American Songbook were first written or first performed in New York.  I ask every Member of this Council to pay attention to what truly makes New York unique and a world-class city:  it is not the silicon-chip technology born out West that makes New York great.  Rather, it is the artists who live and work here who have made and will continue to make New York all that it is.  Please, don't sell us out.

Testimony of Phillip Galdston
Before the New York City Council
In Opposition to Proposed Net Neutrality Regulations
November 20, 2009

Mr. Chairman, and Members of the Council, thank you for this opportunity to testify in opposition to current proposals by the Federal Communications Commission (FCC) to expand and codify certain "Network Neutrality" principals.  Given the poor policy choices made by the FCC in its current proposed regulation, I strongly urge the Council to avoid any endorsement of this flawed proposal.

My songwriter colleague has testified about how digital piracy has decimated the music industry, and the songwriting profession in particular.  Now let me tell you how the current FCC proposed rule would:  (1) create a legal safe harbor for pirates to continue to loot valuable intellectual property, and (2) prevent network operators from taking actions to prevent such misconduct from occurring on the networks they actually own.

The FCC is proposing to enshrine forever the rules on the internet that are responsible for the devastation described by Gordon.  The proposed rule prevents any form of discrimination on the Internet even discrimination of users who are clearly abusing their access to the Internet.  In comments to the FCC, it has been illustrated that 70% of the volume of traffic on broadband networks is Peer to Peer (P2P) file sharing generated by just 5% of the networks' users, and that an astonishing 90% or more of such traffic represents unlawful stealing of copyrighted works.   The current situation, which permits a small percentage of looters to control a vast majority of a communication network's bandwidth for the purpose of committing illegal acts, is simply unacceptable.  The FCC's efforts to perpetuate this system, which incidentally is causing frequent and significant slowdowns in service to the law-abiding users they purport to represent, is difficult to fathom.

Songwriters are looking to anyone they can to combat the problem of piracy.  Right now the people most concerned are network owners, but unfortunately the FCC proposal could easily discourage network providers to invest in systems.

The greatest risk of harm to consumers comes from regulatory and legislative proposals - such as those of the FCC -- to prevent responsible ISPs from managing their networks.  At the moment, the free market is the best weapon we have to combating Internet piracy.  Technology created the illegal file sharing monster, but more technology can detect and deter those practices that are illegal.  In other words, we must fight technology with technology.  Unfortunately, the current net neutrality regulatory proposals would smother this nascent technological counter-attack against Internet piracy.

If the FCC wants to make broadband access affordable, then the network operators must be allowed to engage in reasonable network management.  For example, without reasonable network management, the small number of users of inordinate amounts of bandwidth could not be held accountable for monopolizing access in certain areas.  To ensure equal access to all, as the FCC wishes to do, network providers would be forced to provide higher bandwidth than otherwise necessary to accommodate a few abusive users.  This would clearly drive up the costs for users. In addition, this very same small percentage of users is among the most egregious offenders of copyrighted content on the Internet.  The adverse consequences of imposition of many of the Network Neutrality principles would likely be significant, all to the detriment of the Commission's broadband access goals.

The FCC's regulatory proposals are adverse to the music industry in general and to the songwriting profession in particular and we strongly recommend that the council not endorse them.