Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of )
)
Framework for Broadband Internet Services ) GN Docket No. 10-127
)

Reply Comments of the Writers Guild of America, West, Inc. (WGAW)

David J. Young
Executive Director
Writers Guild of America, West, Inc.
7000 West Third Street
Los Angeles, CA 90048
(323) 782-4689

August 12, 2010

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Introduction

Writers Guild of America, West, Inc. (WGAW or Guild) submits the following reply

comments in response to issues raised by other filers in the matter of the Federal

Communications Commission’s (FCC) June 17, 2010 Notice of Inquiry (NOI), GN Docket No.

10-127. The WGAW would like to take this opportunity to respond to arguments raised by the

Motion Picture Association of America (MPAA), and a group of entertainment industry unions

including the American Federation of Television and Radio Artists (AFTRA), the Screen Actors

Guild (SAG), the Directors Guild of America (DGA) and the International Alliance of Theatrical

Stage Employees (IATSE, collectively, “Industry Guilds”).

The WGAW is a labor organization representing 8,000 professional writers of television,

film, news, and new media productions and has a collective bargaining relationship with the

member companies of the MPAA. AFTRA, SAG, IATSE and DGA are also labor organizations

that have collective bargaining relationships with the employer members of the MPAA.

Protecting a Free and Open Internet is Critical to the Promotion of Diverse and

Independent Content

As the WGAW has stated in earlier filings with the Commission on the National

Broadband Plan and Preserving an Open Internet/Broadband Industry Practices, network

neutrality is essential to our democratic society. As the Internet has become the town square of

the 21st century, nondiscriminatory access to diverse and independent news, information and

entertainment sources on this platform is necessary for the free exchange of ideas. In addition,

the low barriers of entry online and limitless distribution opportunities of the Internet promise to

spur competition across many industries, including entertainment. The result is a diverse and

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growing range of services, content and applications. Consumers benefit from the increased

choice created by the competitive forces of an open Internet.

Guild members benefit from an open Internet both as content creators and consumers,

who write and view news, commentary and entertainment, and participate in social networking.

In addition to the benefits Internet freedom offers to our society, for content creators the Internet

also represents an independent and competitive distribution platform. While television and film

distribution is controlled by a handful of powerful media companies, the Internet offers a

medium through which anyone with a story can find an audience. An open Internet protected by

net neutrality will enhance job opportunities for Guild members and expand content offerings to

consumers.

Opposition to Common Carrier Status, is, in Effect, Opposition to Net Neutrality

As outlined in our initial comments on this NOI and discussed in the separate submission

of the Open Internet Coalition, the recent DC Circuit decision Comcast v. FCC makes clear that

the Commission will be unable to protect a free and open Internet by relying on Title I ancillary

authority. It is therefore necessary for the FCC to reclassify broadband transmission as a

“telecommunications service” subject to regulation under Title II in order to enforce net

neutrality. We respectfully disagree with the Industry Guilds that a “non-common carrier

approach” will allow the Internet to remain “a free and open platform that promotes innovation,

investment, competition, and users’ interests.”1 Further attempts by the Commission to rely on

ancillary authority under Title I to protect a free and open Internet will inevitably be met with

continued legal resistance and will prolong regulatory uncertainty.

1
See Comments of AFTRA, et al., In the Matter of a Framework for Broadband Internet Services, GN Docket No.
10-127, p. 9.

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 The WGAW rejects the argument that the exercise of regulatory authority under Title II

will inhibit efforts to control piracy and other illegal behavior online. Reclassification of the

broadband transmission component under Title II and application of the principle of

nondiscrimination embodied in Section 202 will not hinder efforts to address unlawful content or

the unlawful transmission of content online. As the FCC has made clear in the six principles it

outlined in the Notice of Proposed Rulemaking (NPRM) on Preserving the Open Internet, net

neutrality rules will only apply to lawful content, applications and services. While the trafficking

of pirated content online is of vital concern to all who work in the entertainment industry, piracy

can and must be addressed while still protecting net neutrality.

Preventing Piracy is Necessary to Protect the Jobs and Income of WGAW Members

In comments filed with the Commission, the Industry Guilds and the MPAA have

elaborated on the impact of Internet piracy on the health of the entertainment industry. The

Guild concurs on the importance of protecting intellectual property, and has said so publically.2

Like the other Industry Guilds, the WGAW has a substantial interest in the protection of

copyrighted works. Guild members rely on residuals – deferred compensation based on the

continuing use of creative works – as a form of compensation. In 2008, professional writers

represented by the WGAW received over $1 billion in income. Of this total, $286 million came

in the form of residual payments for the reuse of original material on DVD, in international sales,

syndicated on broadcast and cable channels, sold on iTunes, streamed online and viewed in many

other markets. These residual payments constitute approximately 25% of total writer

compensation. Residual payments have continued to grow, increasing approximately 5% per

2
See Comments of WGAW In the Matter of Preserving an Open Internet (GN Docket No 09-191) /Broadband
Industry Practices (WC Docket No 07-52), pp. 9-10.

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year over the last five years. The growth in residuals demonstrates the long term value that

copyrighted works create and the importance that preventing copyright theft has for the entire

entertainment community.

Residual payments derived from the reuse of content sustain careers and support industry

health and pension plans. These payments in effect serve as R&D for the entertainment industry,

allowing writers to develop new material while waiting for their next employment opportunity.

Any devaluation of copyrighted content could significantly diminish the ability of writers to

spend time developing new content. Strong enforcement of copyright law benefits society as

well. The ability to generate revenue through the exploitation of intellectual property provides

funds that can be reinvested and fuel further innovation in many industries, including

entertainment. Piracy threatens the ability to sustain and develop content.

Preservation of the Open Internet and Copyright Protection are Both Essential Objectives;

Neither Can Be Sacrificed to Achieve the Other

While we agree about the importance of copyright protection and the need to prevent piracy,

we differ from the MPAA and Industry Guilds about solutions. The WGAW firmly believes in

the need to balance these solutions with the preservation of an open, competitive Internet and

protection of consumers’ right to access the lawful content, services and applications of their

choice. Achieving this balance requires the creation of guiding principles for the development of

piracy detection and prevention tools that do not infringe on free speech and the right to privacy.

Specifically, piracy detection and prevention tools must be carefully designed to respect both the

First and Fourth Amendments and not be used as a means for effectively creating an unfair

advantage for large media companies.

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Network Management Practices Must Be Carefully Balanced, Transparent and

Constitutional

The WGAW, along with the MPAA and the Industry Guilds, has supported the FCC’s

proposal to allow ISPs to address unlawful content through reasonable network management

practices. The question of what constitutes a reasonable practice, however, is where the debate

lies.

The Industry Guilds have advocated a rule that allows for comprehensive screening for

unlawful content. They define screening as “the deployment of technologies to detect, monitor

and filter traffic or specific files based on analysis of information such as protocols, file types,

text descriptions, metadata, file size and other “external” information.3 While the WGAW

supports the denial of access to infringers, any rule permitting screening must (1) be carefully

crafted to balance the interests of all Internet stakeholders, not just major content producers or

ISPs; (2) be consistent with Constitutional norms; and (3) require transparency and public

disclosure of all network management practices.

We are particularly concerned with the effects of unregulated content screening. There is

a danger that content from unknown sources, while still being legal, may be slowed or blocked

by such a filtering process. The result could be that Hulu.com or other sites programmed by

media companies load quickly while new sites created by independent producers are caught by

this filtering system. Some may argue that this delay is a necessary step in addressing piracy, but

it creates a significant competitive disadvantage for new entrants. Legitimate sites will lose

viewers if content buffers or refuses to load because it is being screened.

3
See Comments of AFTRA et al. In the Matter of Preserving the Open Internet, GN Docket No. 09-191, Broadband
Industry Practices, WC Docket No. 07-52, pp. 6.

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 Network management practices should not be allowed to create a de facto fast lane for

large content producers. Tools like Deep Packet Inspection (DPI), which allow ISPs to look into

packets to identify the data being transmitted, raise both privacy concerns and the potential for

abuse. DPI would enable ISPs to favor certain content and frustrate other content, all in real

time. Under the guise of network management, we could experience commercially motivated

censorship. We must look to other tools to address piracy rather than choose ones that eliminate

privacy and permit ISPs to provide preferential treatment to the content it chooses.

A Fair Graduated Response Policy Would Address Piracy Without Interfering With

Internet Traffic

In its previous filings with the Commission, the WGAW has supported a graduated

response regime as a means of combating piracy. Anecdotally, the WGAW has heard from at

least one American ISP that the current graduated response techniques provided for in the Digital

Millennium Copyright Act (DMCA) have proved effective in stopping piracy. During an FCC

Workshop on the Role of Content in the Broadband Ecosystem, a representative for the advocacy

organization Public Knowledge cited a February 2009 presentation by Preston Padden of

ABC/Disney at the Silicon Flatirons Conference in Colorado where Mr. Padden said “that eighty

percent of the time when people get notices from ISPs saying ‘I know what you’re doing, stop it’

they stop it.”4

Graduated response is an effective tool because it gives rights holders remedies against

those who pirate content and mandates strong penalties for habitual lawbreakers without

interfering with the flow of traffic over the Internet. A mature graduated response regime should

4
See Transcript, Federal Communications Commission Workshop on the Role of Content in the Broadband
Ecosystem, p. 65.

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be characterized by fair and efficient adjudicative processes, accompanied by escalating

penalties. Strong measures, such as terminating the Internet connections of chronic thieves,

would seriously diminish the amount of pirated content on American networks. Critical to these

measures is the need for due process to ensure that legal rights are protected. Similar to the

Notice and Takedown procedure of the DMCA, there must be means for those accused of piracy

to respond. In accordance with an open and transparent Internet, ISPs should be required to

inform the FCC and consumers when they engage in graduated response. This will create a

system of accountability for ISPs, providing a check against abusive behavior.

ISP Surveillance of All Internet Traffic Cannot Be Justified in Light of the Availability of

Less Intrusive Means to Combat Piracy

The WGAW is confident that a free and open Internet, governed by net neutrality principles,

can coexist alongside strong copyright enforcement. We are actively involved through the

Copyright Alliance and other efforts in supporting both governmental and nongovernmental

efforts to reduce copyright infringement. The Obama Administration has made clear the

importance of protecting intellectual property and has initiated a vigorous and extensive program

to prevent and punish online piracy. The WGAW supports the Intellectual Property Enforcement

Coordinator’s (IPEC) multifaceted Joint Strategic Plan to combat online piracy. The Plan

advocates transparency in developing and implementing policies; ensuring coordination among

the private sector and enforcement agencies at the state, federal and international levels; and

collecting data to understand the full extent of intellectual property infringement. The IPEC plan

is of critical importance because of its ability to address the international scope of piracy, where

a significant portion of offending businesses and websites operate.

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 One of the IPEC’s objectives is to strengthen U.S. intellectual property law enforcement.

Just last month, U.S. Immigration and Customs Enforcement (ICE) officials disabled nine

websites that hosted infringing content as part of a new initiative—“Operation In Our Sites”—to

combat Internet counterfeiting and piracy. Authorities executed seizure warrants against nine

domain names that offer illegal versions of newly released feature films, including

TVSHACK.NET, MOVIES-LINKS.TV, FILESPUMP.COM, NOW-MOVIES.COM,

PLANETMOVIEZ.COM, THEPIRATECITY.ORG, and ZML.COM, many of which generate

revenue from donations and advertising. Agents from ICE's Homeland Security Investigations

(HSI) were also able to seize the criminal’s assets from 15 bank, Paypal, investment and

advertising accounts, and executed four residential search warrants in several states. The

WGAW supports the strengthening of U.S. enforcement agencies that engage in thorough and

transparent investigations to combat online piracy. These actions raise the profile of copyright

enforcement without sacrificing Internet freedom.

Another important component of the IPEC plan is coordination of anti-piracy efforts. The

plan encourages content owners, ISPs, advertising brokers, payment processors and search

engines to collaborate on efforts to combat piracy. The WGAW supports the inclusion of ad

brokers and payment processors such as credit card companies in anti-piracy efforts. Many sites

that stream illegal content rely on revenue from advertisers and payment processors. In fact,

many consumers cannot differentiate between legal and illegal sites because they can purchase

the infringing content using a credit card. If these revenue sources were cut off, many of these

sites would cease to exist. The IPEC’s effort to include these entities in its voluntary anti-piracy

response represents a creative development in the war against copyright infringement, but

legislation may be required to compel participation by these entities.

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The MPAA’s Proposed “Innovative Business Arrangements” Threaten to Undermine Net

Neutrality and Disadvantage Competition

In its comments to the FCC, the MPAA has repeatedly advocated what could amount to a

blanket dispensation from net neutrality rules. The MPAA has asked the Commission to “make

clear that content owners will have the flexibility to enter into innovative business arrangements

with broadband providers.”5 While it is not clear what kind of “innovative” arrangements the

MPAA is talking about, we are concerned that, under the guise of providing high quality of

service to consumers, the dominant media companies want the ability to create a preferential lane

for Internet traffic, in derogation of the most basic net neutrality principles. The ability to

negotiate for preferential treatment is inimical to the free movement of Internet traffic.

According to Morgan Stanley Research, 82 percent of the 2009 prime time 18-49 ratings share is

controlled by 7 companies.6 These companies seek to replicate a similar level of control on the

Internet and may well use these “business arrangements” to achieve this goal. While much of

the content that the MPAA would exhibit using these business arrangements would be written by

WGAW members, we oppose providing an unfair competitive advantage to the major media

companies over independent producers.

Conclusion

Content is why the Internet matters. The open and free flow of content on the Internet must

be preserved to protect the public interest in free speech, privacy and fair competition. But

piracy threatens the availability and viability of that content. However, to meet that threat with a

solution that itself threatens the free flow of content is to prescribe a cure worse than the disease.

5
See Comments of The Motion Picture Association of America, In the Matter of a Framework for Broadband
Internet Services, GN Docket No. 10-127, pp. 6.
6
Morgan Stanley Research, “Nice View from the Couch: 2Q10 Preview,” July 26, 2010, pp.3.

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The FCC should therefore craft rules that require ISPs to police piracy, but with techniques that

do not infringe on openness, do not create barriers to entry, and do not disadvantage independent

producers as they compete for viewers with billion-dollar companies. We are confident that

reclassification of broadband transmission under Title II will allow the FCC to institute network

neutrality rules. In addition, the six net neutrality principles outlined by the FCC protect only

lawful content, which will allow the government, private industry and Guilds to work

collaboratively to develop tools to address piracy.

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