Stretching The FCC's Mandate: FCC Should Not Be Involved In Copyright Enforcement
from the beyond-the-mandate dept
We were a bit concerned last year when the FCC held hearings which were technically about the national broadband policy, but instead focused on copyright, something that is clearly well outside the FCC’s mandate — something the FCC already got in trouble for a few years back with its attempt to mandate a “broadcast flag.” However, there are now some additional concerns that this administration is ignoring the limits of the FCC’s mandate. As you may recall, a few weeks back, the Justice Department — at the urging of the entertainment industry — set up a special IP task force to deal with “the rise of intellectual property crime.” However, some are quite worried about how this task force intends to go about this.
Copycense points us to a letter sent to the Justice Department by the Center for Democracy and Technology, which noticed that, in the announcement of this new task force, the Justice Department said it intends to work with the FCC on intellectual property enforcement. That’s a problem:
What’s wrong with that? It’s an invitation to major mission creep. The FCC’s job is to execute and enforce federal communications law. It has no authority and no role in enforcing other laws. Lots of unlawful activity — from intellectual property infringement to racketeering to securities fraud to deceptive advertising — may occur over or using communications networks. But that doesn’t make it the FCC’s job to police such activity. The FCC’s focus is, and should remain, promoting the availability of high quality communications capabilities in the United States — not policing what users do with those capabilities.
In addition, the only reason to involve the FCC would be to force the entities the FCC regulates — communications providers, and in particular ISPs — to start actively policing I.P. infringement. Having government force ISPs to take on this new role should raise serious red flags. The idea that ISPs don’t serve as gatekeepers or content censors, and aren’t themselves responsible for what users do on the network, has been a bedrock principle that underpins the Internet’s open and innovative nature. Casting it aside would be a serious mistake and a radical departure from U.S. communications policy.