Hance Haney

Should ISPs fingerprint?

Should Internet service providers block copyrighted material from their networks if “fingerprinting” technology allows them to easily identify it?

Bits, the New York Times’ technology blog, has an excellent copyright discussion featuring Columbia Law Professor Tim Wu and the general counsel of NBC Universal, Rick Cotton. One of the questions is whether ISPs should block copyrighted works? Wu makes a good point,

“Technologies designed to examine what kind of content is passing the network are technologies of censorship. Tolerating the routine inspection of all content, in the search for “forbidden” content, is a fast road to a private police state.”

But I think Wu is glossing over an important point here, i.e., there is a vast difference between a “private police state” and a real police state: Private entities are vassals of the state; the state answers to no one.


But, still, government can op-opt corporations to conduct surveillance for government.

Cotton is concerned about “wholesale reproduction of entire works (or even major portions)” and claims that: “as much as 50% of the carrying capacity of many, if not most, Internet service providers are being hijacked by a relatively small percentage of users to carry huge volumes of complete, unchanged pirated digital copies of films, games and software.”

There are a couple interesting questions here: One is whether common carriers have a right to block traffic? I think the answer is they can’t block lawful content, but audio and video files which violate copyright aren’t lawful.

Another interesting question is whether they can allow unlawful content if they have the technical means to block it? The Supreme Court has described a contributory infringer as one who “was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner.” A good argument could be made that fingerprinting technology could block traffic which violates copyright. The question is whether the technology would also inadvertently block substantial lawful content?

Cotton believes the answer is no, but others disagree:

“The problem, according to [Electronic Frontier Foundation senior staff attorney Fred] von Lohmann, is not that fingerprinting isn’t good at identifying copyrighted content but that it identifies too much, including instances where a copyrighted work is legitimately incorporated into a new creative context as allowed under the doctrine of fair use.”

Speaking of the “Fair Use” Doctrine, Wu claims it is too vague and recommends a simpler formulation: “work that adds to the value of the original, as opposed to substituting for the original, is fair use.”

Wu’s suggestion would mean you could add a song to the video you shoot of your dog jumping into a bathtub, and the song wouldn’t be protected by copyright because it is part of your home movie. It’s one of those exceptions that swallows the rule… It would be great in terms of protecting Google’s YouTube from copyright liability, but are the rights of the secondary artist more important than the rights of the primary artist?

Why couldn’t Google, who earns billions of dollars per quarter in advertising, just pay the copyright-holder a reasonable fee when a YouTube video expropriates their song? It would be easy to tally the number of times the video is viewed and base the fee accordingly. Apple iTunes charges only 99 cents to buy a song, so YouTube wouldn’t have to pay much when one of it’s users merely listens to a song.

January 19, 2008 | Comments |

Viewing 7 Comments

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    Private entities are vassals of the state; the state answers to no one.
    That one sentence just encapsulates the difference etween strict liertarians and the rest of us so well...
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    But I think Wu is glossing over an important point here, i.e., there is a vast difference between a “private police state” and a real police state: Private entities are vassals of the state; the state answers to no one.

    Hance, you've got reality exactly inverted: through democracy, enabled by a free press, the government ultimately answers to the people. Of course the system is far from perfect, but, by fits and starts, it works more often than not, at least in America.

    Private Companies, though do not answer to state to the extent they used to, and the ability of any state to control what any private company has been severely eroded due to many factors, primarily: globalisation. See the excellent movie "The Corporation", for starters.
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    There are a couple interesting questions here: One is whether common carriers have a right to block traffic? I think the answer is they can’t block lawful content, but audio and video files which violate copyright aren’t lawful.

    Therefore you were opposed to the indiscriminate blocking of a protocol, such as Comcast did when they blocked all Bit torrent traffic, whether it was legal or illegal, right?
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    "Fingerprinting" has numerous flaws. The most serious one being, who determines what is a valid copyright. Second, suppose the copyright is somehow invalid, how does one appeal this?

    Hance: The posts here recognize that government intrusion into our ability to transmit and receive data is by definition wrong. It seems to be considered a violation to our right of privacy. Quite understandable.

    What really amazes me here is that corporate intrusion into our right to transmit and receive information is given a free pass. Not only that, but the premises is that corporations can do whatever they want to promote their business without complying with due process.

    The consumer? The consumer simply has no rights. Under the rule of law it would seem that corporations and the consumer would stand equally before the law. Since the consumer is being deprived of rights, it seems that we have a case of selective reality.

    One of the tenets of Libertarian thought is that of private property. Wu wrote in the NY Times debate "What’s being eroded is our ownership over personal property.". So why is OK for a business to "protect" a so-called property right, but it is NOT OK for a consumer to protect their property right in copyrighted material that they have acquired? Again a double standard here.

    I find much of the anti-government rhetoric to be misplaced. The reality is that government, in many ways, has become a lackey of the corporation. The Sonny Bono Copyright Term Extension Act is an example of this. The DMCA further aggrandizes corporate power by granting corporations the power to unilaterally take action against anyone they choose to designate as a violator. Fingerprinting will be another nail in the growing power of corporations to act a police, to designate one a criminal, and to exact a punishment. All this without due process. And you are afraid of the government?
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    The the NY Times copyright debate Cotton accuses Wu of "He is simply changing the test." This is an appallingly disingenuous statement. Why?

    The content producers consistently assert that their so called rights are being diminished. The reality is that the content producers have been able to pass legislation that has given them increasing power over how content is being used by the consumer. This means that the consumer is losing their property right in how they can use content.

    Tom Bell has a very good graphic on how copyright has been expanded for the benefit of the copyright holder at the expense of the consumer. He has also has a series of posts on the TLF which add quite a bit of rationality to this discussion. Tom writes "Federal lawmakers have steadily increased copyright's duration, scope, power,
    and complexity. The Copyright Act's few, narrow, and judicially-created limitations
    have done very little to counteract that trend. Those facts alone, granted, do not suffice to
    show that copyright policy favors copyright holders' private interests over others' private
    and public ones."

    In conclusion Cotton's allegation against Wu is fallacious. It is the content industry that is "is changing the test." It is unfortunate that this grab for power by the content industry has more or less gone unnoticed by the populist media.
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    are the rights of the secondary artist more important than the rights of the primary artist?


    This is a fascinating question, well deserving of further investigation.


    Given the purpose of copyright in the US, encouraging the creation of two works (the primary and secondary) is clearly better than just encouraging the creation of the primary. So the ideal amount of copyright protection would reward the creator of the primary work just enough that the work does, in fact, get created, while giving the creator of the secondary work broad enough rights to ensure that that work gets created, too.


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    If this happens with every ISP, you can bet a revolution will start, with people starting their own internet and mini internets with wireless. You cannot stop people and freedom. People who defend anti-freedom technologies like fingerprinting and other snoop mech are the enemies of freedom. Be careful, if you think for yourself you're labelled a nut, lone wolf, or worse.

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