Letter to the President's Office of Science of Technology: Net Neutrality and Copyright reform are key to 21st Century innovation

New Media Rights sent this letter to the President of the United States' Office of Science and Technology Policy in response to the White House's recent call for comments regarding updating the Strategy for American Innovation. We focus our comment on the importance of 1) protecting an open Internet through reclassification of broadband under Title II, and 2) copyright law reform for the 21st Century.


Dan Correa

Office of Science and Technology Policy

Eisenhower Executive Office Building

1650 Pennsylvania Ave NW.

Washington, DC 20504.


Dear Mr. Correa,

I am writing in response to the July 29, 2014 request for comment from  The Office of Science and Technology Policy and the National Economic Council regarding updating the Strategy for American Innovation.  Your call for responses indicated that the Strategy for American Innovation ”helps to guide the Administration's efforts to promote lasting economic growth and competitiveness through policies that support transformative American innovation in products, processes, and services and spur new fundamental discoveries that in the long run lead to growing economic prosperity and rising living standards.”

I submit these comments as Executive Director of New Media Rights.  New Media Rights is an independently funded, non-profit program of California Western School of Law (a 501(c)(3) non-profit) whose core service is providing one-to-one legal services to creators, innovators, and Internet users whose projects require specialized Intellectual Property, Internet, and media law expertise.  New Media Rights is known for our work providing preventative and transactional services on hundreds of cutting edge matters every year.  New Media Rights has created a system and process to efficiently handle a large number legal service inquiries, producing value for clients by quickly identifying their legal issues and finding a path to services. In addition to direct, one-to-one legal services, New Media Rights innovates by taking what we learn from individuals and turning it into hundreds of freely available videos and written legal education guides for creators and innovators.  This helps individual creators and innovators empower themselves.  New Media Rights also takes what we’re learning from clients and uses it bring underrepresented perspectives in regulatory proceedings at the Copyright Office, USPTO, FCC, and California Public Utilities Commission, including DMCA Anti-circumvention proceedings, Copyright Reform, and the Copyright small claims court proceedings.

New Media Rights is responding to this innovation inquiry, most specifically to your question 21 regarding Intellectual Property and Antitrust. (21)

(21) What new challenges and opportunities for intellectual property and competition policy are posed by the increasing diversity of models of innovation (including, e.g., through the growing use of open innovation, combinatorial innovation, user innovation, internet-enabled innovation, and big data-driven innovation)?


While there are obviously many tensions and interactions between innovation and existing intellectual property and competition policy, we wanted to share recent comments we’ve made at the Federal Communications Commission and the USPTO / Department of Commerce. These comments address two important aspects of competition and intellectual property policy, protecting and preserving an open Internet, and reforming copyright law for the Twenty-First Century.  We are attaching three comments in their entirety which address these issues, which I will summarize briefly below.

Comments and Reply Comments of New Media Rights in the FCC’s Protecting and Preserving the Open Internet proceeding.

In July and September, New Media Rights joined millions consumers, creators, and businesses in filing public comments about the future of Internet.  We argued that the Federal Communications Commission and the Administration now have an opportunity to choose a communications future of innovation, creative exchange, and consumer choice, rather than one where powerful broadband Internet companies can alter the Internet to support entrenched business models.

Specifically we are urging the FCC to reclassify broadband internet access providers as common carriers subject to Title II of the Telecommunications Act, and to reconsider its recently proposed Net Neutrality rules. Preserving an Open Internet is one of the most important social, economic, and legal issues of the twenty first century. It is critical that the FCC have the authority to protect it, and then that the FCC actually uses its authority to enact and enforce rules that uphold the tenets of an Open Internet for years to come.

In our filing, we stressed several important points:

• Broadband internet access speeds and quality in the United States are lagging behind the rest of the world and broadband internet access providers have no motivation to innovate and improve access because they do not compete. The FCC must have the authority to address issues raised by these powerful, entrenched broadband internet access providers.

• American innovators, creators, and consumers need world class internet speeds and quality at affordable prices or their ability to do business and compete in the global online marketplace will be severely limited.

• Broadband internet access providers have already taken actions that violate accepted tenets of an Open Internet (Transparency, No Blocking, No Discrimination), such as Comcast’s throttling of Bittorrent data, and AT&T’s sponsored data plans for mobile broadband.

• The FCC must reclassify broadband internet access providers as common carriers if it is to have any hope of having the authority to pass the kind of rules necessary to protect Net Neutrality.

• Reclassification of broadband internet access providers as common carriers, and consequently reclassification of broadband internet access as a “telecommunications service” as opposed to an “information service” (which it is currently classified as), is necessary because internet access is a distinctly different service from other “information services”. Broadband internet access has been wrongly grouped together with services that like Facebook, Twitter, Pinterest, and others and have thus been able to maintain enormous market power while being subject to very little oversight.

• The FCC must reconsider its proposed rules, because do not adequately protect key tenets of Net Neutrality. The “No Commercially Unreasonable Practices” rule in particular must be revisited in order to bring it more in line with its much more effective 2010 version – “No Unreasonable Discrimination” – in order to ensure that broadband internet access providers cannot abuse their power by discriminating between those who are willing or able to pay for faster access to end users and those who are not.

Again, New Media Rights urges the FCC to take advantage of this important opportunity to ensure that America’s internet ecosystem will remain free to create, innovate, and thrive long into the future, rather than captured by business practices of entrenched broadband internet access providers.

New Media Rights’ USPTO / Department of Commerce Green Paper Comments on Copyright Reform

On July 31, 2013 The United States Department of Commerce, United States Patent and Trademark Office and National Telecommunications and Information Administration released a Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy.  On September 30, 2013 they released a request for comments on that paper. All three offices were particularly interested in how copyright law could be reformed to better promote the growing digital economy.  The request for comments was incredibly broad and ranged from questions about the first sale doctrine as it relates to digital goods to the role of fair use in remix culture.

In our November 13, 2013 comment New Media Rights sought to address three of the most critical issues that affect the remixers, entrepreneurs, creators and internet users we work with every day. First, our comments addressed five key copyright law problems that need to be solved to help remix creators spend their time creating rather than fighting legal disputes including the current failure of 17 USC §512(f) to protect creators from content bullying. Second, we discourage the widespread implementation of intermediary licensing modeled off YouTube’s Content ID system because it is not, in fact, an intermediary licensing system. We also explain the implementation of such a system could be incredibly detrimental to users’ rights largely due to the lack of an effective appeals process and various design challenges in the system. Finally, we address the Department of Commerce’s question regarding how best to go about fashioning a multi stakeholder process that would create a working set of best practices for the DMCA. We hope that our comments in these three areas will spark discussion and encourage badly needed copyright reform for the digital age.  Our full comments are below.

Above all we hope our comment will spark discussion and encourage badly needed copyright reform for the digital age.  This reform need not, and should not, take the form of any radical evisceration of copyright. At the same time, reform should not be used as an opportunity to continue unreasonable expansion of copyright law without concern for the collateral damage it causes to artistic progress, freedom of speech, and the intellectual enrichment of the public.  Rather, much like one would tend to a garden, it is time we examine our current copyright law, remove the old weeds of law that no longer serve us, and plant the seeds of new law that will help to foster  a new generation of artists and creators.


We hope the attached comments are informative regarding the impact protecting the open internet, as well as reforming copyright law has upon independent creators, early-stage innovators, and consumers.  As you update the Strategy for American Innovation, please realize that these groups, often under-represented in policy debates, are the fuel for the kind transformative innovation you seek to promote.  If you have any other questions about our work, or would like any more insights from our work with over 1000 creators and innovators, please do not hesitate to contact me at your convenience.  Thank you for your time and consideration of these comments.


Art Neill, Esq.

Founder / Executive Director

New Media Rights

1855 1st Ave., Suite B

San Diego, CA 92101




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