Should ISPs be barred under net neutrality from discriminating against illegal content? Not according to the FCC’s draft net neutrality rule, which defines efforts by ISPs to curb the “transfer of unlawful content” as reasonable network management. This exemption is meant to ensure providers have the freedom to filter or block unlawful content like malicious traffic, obscene files, and copyright-infringing data.
EFF and Public Knowledge (PK), both strong advocates of net neutrality, are not happy about the copyright infringement exemption. The groups have urged the FCC to reconsider what they describe as the “copyright loophole,” arguing that copyright filters amount to “poorly designed fishing nets.”
EFF’s and PK’s concerns about copyright filtering aren’t unreasonable. While filtering technology has come a long way over the last few years, it remains a fairly crude instrument for curbing piracy and suffers from false positives. That’s because it’s remarkably difficult to accurately distinguish between unauthorized copyrighted works and similar non-infringing files. And because filters generally flag unauthorized copies on an automated basis without human intervention, even when filters get it right, they often disrupt legal, non-infringing uses of copyrighted material like fair use.
Despite copyright filtering technology’s imperfections, however, outlawing it is the wrong approach. At its core, ISP copyright filtering represents a purely private, voluntary method of dealing with the great intellectual property challenge. This is exactly the sort of approach advocates of limited government should embrace. As Adam and Wayne argued back in 2001:
To lessen the reliance on traditional copyright protections, policymakers should ensure that government regulations don’t stand in the way of private efforts to protect intellectual property.
That’s exactly right. As digital technology evolves, effectively enforcing intellectual property privileges will grow increasingly difficult for content creators. The traditional model for financing content creation — direct payments from consumers to producers — will remain viable only if there’s an economic incentive for consumers to fork over money in exchange for content. Voluntary filtering arrangements between network providers and content owners may prove valuable to this end because they discourage the unauthorized transfer of copyrighted files.
The best part about copyright filtering? It doesn’t necessitate the exercise of the state’s coercive power. In this way, it has the potential to help us move gradually toward a regime of intellectual property protection that’s reliant on the force of the market rather than the force of government.
Of course, there’s no guarantee that attempts to filter copyrighted content at the ISP level will turn out to be effective. That’s because end-to-end encryption, which enjoys growing popularity among savvy users, renders traffic impossible to digitally “fingerprint.” It amounts to a near-perfect foil to deep-packet filtering technologies. There are alternative methods of identifying infringing files — IP address blacklisting, for instance — but such methods tend to be notoriously imprecise and as such are unlikely to be met with acceptance by consumers.
As with all kinds of unsavory ISP behavior, in the long run, overly blunt copyright filtering is simply not a sustainable business practice. Users tend to expect the Internet will “just work,” and attempts by providers to interfere with access to content are invariably met with swift resistance. Consider the recent 4chan blockages by AT&T and Verizon, both of which lasted for mere hours but immediately sparked outrage that reverberated throughout the tech world.
To be sure, some providers may experiment with ineffective, overly aggressive copyright filters. But this sort of experimentation, while painful for those involved, is crucial if providers are to learn the valuable lessons that will signal to the market how to properly balance consumer interests with content creators’ interests. And since ISP competition is on the rise, as Obama’s Department of Justice recently explained, even in relatively uncompetitive markets like Rochester, New York it’s only a matter of time before some 4G LTE carrier deploys residential-grade broadband and shakes things up.
As I’ve argued before, the best way government can serve consumers in DRM disputes is by steering clear of them entirely. Markets may not be perfect, but they tend to efficiently balance competing concerns in a way government regulators simply cannot. In the same way, network-level copyright filtering should succeed or fail based on its own merits and how it impacts consumer welfare, not on how well it meets the invariably vague criteria of the FCC. If net neutrality rules are enshrined into law — and for the record, I hope they aren’t — regulating ISP efforts to curb illegal content should be off the table.