Filtering Out Copyright Infringement: Possibilities, Practicalities, and Legalities
The debate over online copyright infringement has a new face: network filtering for infringing material. Such programs are being advocated before ISPs and governments alike by the content industries. Are they feasible with our current technology and laws? What implications do they have for user privacy and ISP liability?
Recently, a number of voices in the content industry have been calling for ISPs to filter their networks for copyright infringement. In its comments to the FCC on net neutrality, NBC Universal asked the Commission to require broadband providers to âuse readily available means to prevent the use of their broadband networks to transfer pirated content.â The European Commission has recently requested comments on proposals to curb online infringement, including the use of âfiltering measures.â
The response from major ISPs has been mixed. Earlier this year, James Cicconi of AT&T indicated that his company may be working on a network filtering system. In contrast, Tom Tauke of Verizon has stated that his company has no intention of filtering its networks for infringement.
One pragmatic reason for ISPs to avoid network filtering is the risk that doing so might forfeit their safe harbor under the DMCA, which limits the liability of mere conduits for data. Does filtering at the network level place an ISP outside of this protected space, exposing them to more liability?
Another point of debate intertwined with those already being argued is the effect on user privacy. To what extent would network filtering require the interpretation and analysis of communications content, and how will this potential risk to privacy be interpreted under privacy laws?
Underpinning all of these legal controversies is the technical infrastructure of the networks, and the capabilities of the various types of filtering software that proponents seek to impose upon it. Certain techniques for identifying infringing content may sacrifice user privacy in the interest of increased accuracy. Other methods may be defeated by using encryption, anonymizing networks, or other techniques. However, the existence of these techniques have not been lost on filtering proponents, leading to talk of an encryption arms race, or banning encrypted peer-to-peer traffic.
The panel will include:
Paul Ohm, Associate Professor of Law, University of Colorado Law School
Michael McKeehan, Executive Director, Internet & Technology Policy, Verizon
Steven Worona, of Policy & Networking Programs, EDUCAUSE
Brad Biddle, Lead counsel, Systems Technology Lab, Intel Corp.