Net Neutrality Rules Shouldn’t Bar Copyright Filters Even If They’re Ineffective

by on March 9, 2010 · 17 comments

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.

  • john b.

    Great post–I disagree, but I see where you're coming from. I have a few points.

    One, I worry that ISPs won't turn to “IP blacklisting,” but to outright blocking of p2p protocols (which have many legit uses), degrading of all encrypted traffic, or interfering with all but *whitelisted* large file transfers. In short, attempts to curb copyright infringement, if escalated, could have severe consequences and lock in dumb behaviors. Advocates of filtering don't realize they're playing with fire. I'd rather we just avoid an unwinnable arms race–I'm not so convinced that the market will correct for the kinds of harms to the Internet experience caused by over-broad filtering, esp. not if they're implemented by the major ISPs who serve nearly all customers.

    Two, if ISPs filter some material, good for them for deciding to take on liability for all the copyright infringement that happens over their networks that they could have stopped, but didn't. Carrier/service provider immunity isn't free and it seems like they'd be opening up a new avenue for their own “negligence” to be held against them.

    Three, EFF is not a “strong advocate” of net neutrality, having filing against it, only arguing the position you attribute to them in the alternative.

    Special bonus point: Your position on DRM, while admirably principled, is unrealistic. The anti-cirumvention law is a terrible idea that is not going away any time soon. In this environment, opposing even “voluntary” efforts to use DRM are necessary, as the next best alternative to repealing anti-circumvention. It's good to have your “ideal world” under your hat, but you also need to have incremental, next-best alternatives. That is, it seems like you're opposed even to regulations that are primarily designed to mitigate the effect of other, bad regulations, on the basis that they're “regulations,” even in situations where repeal of the bad regulations is not politically achievable.

  • billrosenblatt

    Thanks for pinging back to my Copyright and Technology post. While I am also not a fan of government intervention in this area, for the reasons you state, I think there's one major flaw in your reasoning: you are assuming that ISPs have incentives to filter their networks for potential copyright violations. They don't really.

    AT&T has been experimenting with Vobile's fingerprinting technology, presumably in exchange for favorable treatment from the movie studios in licensing their content to AT&T's broadband network. But they're the exception that proves the rule. Verizon is adamantly opposed to copyright filtering. The only copyright filtering that is likely to remain in operation worldwide is that which is imposed by a legal authority, such as in France and possibly Belgium. European ISP (through their trade association, EuroISPA) are fighting this tooth and nail.

    Why should an ISP spend money to make its network possibly less efficient and restrict what may be legitimate user behavior? That's the issue that you aren't taking into account here. I'm in favor of market-based solutions, but I'm hard pressed to think of one that makes sense unless it takes the cost issues into account.

    This is, in fact, the nub of the case that Viacom is pressing against YouTube. They would like to see the law changed so that website operators have a legal duty to proactively guard against infringement — and pay the cost of doing so.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Indeed, to be fair to EFF, they've been very careful on the net neutrality issue, asking Is Net Neutrality a FCC Trojan Horse?

    If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC “Internet Decency Statement.” After all, outgoing FCC Chairman Martin was a crusader against “indecency” on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC “Internet Lawful Use Policy,” created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge — ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement — that we defeated the FCC's “broadcast flag” mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

    EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.

  • Ryan Radia

    1) I'm sympathetic to your concerns about providers curbing P2P protocols and encrypted traffic. A few Canadian ISPs currently engage in both of these practices. But as I explained above, I'm skeptical that such behaviors are sustainable because they fly in the face of modern consumer expectations. Many U.S. broadband users connect to VPNs at home for telecommuting, among other reasons, so it's hard to see how providers could get away with blocking or degrading encrypted traffic without spurring mass revolt. I suppose some providers could start offering unfettered encrypted transfers only to users on a premium access tier, but that's about it.

    2) As I understand the DMCA Safe Harbor, it grants immunity from copyright infringement liability to service providers regardless of whether they attempt to identify and block infringing files. Providers lose their immunity only if they have (or should have) actual knowledge of infringing activity and do nothing. Copyright filters will likely fail to identify some infringing files, but since providers presumably wouldn't have actual knowledge of such files, the Safe Harbor protections should remain intact.

    3) Good point. While EFF does appear to be a strong advocate of net neutrality in one sense, they oppose the FCC's proposed neutrality rules. I struck the term “regulation” above so as not to wrongly suggest that EFF supports the net neutrality NPRM. From what I've read, EFF does favor net neutrality as a general principle and would support action by Congress to apply net neutrality rules to ISPs, including wireless providers. Is that accurate?

    4) Thanks. I agree that the copyright status-quo is seriously flawed, but as you anticipate, I generally oppose regulations designed to mitigate the effects of other, bad regulations. I hold this view not only because I oppose regulation on principle, but also (and perhaps more importantly) because I've witnessed countless instances of regulations initially enacted in good faith persisting for years or even decades after their logical expiration. Look at how the FCC regulates broadcast media — consumers are still suffering on account of “public interest” rules initially conceived in order to compensate for government-granted monopoly (or oligopoly) over airwaves. If the FCC were to bar network operators from engaging in copyright filtering, it would hardly be surprising for such a rule to remain on the books long after the repeal of the DMCA anti-circumvention clause. I'm well aware that the repeal of the anti-circumvention clause is a long shot, but I haven't given up hope because I think the law's harms will only grow more apparent to policymakers as digital media proliferates.

  • Ryan Radia

    Short of a government mandate, which I would oppose, the only reason a provider would engage in copyright filtering is if doing so made sense economically. Content companies could offer to pay ISPs to adopt filtering technology. ISPs would likely accept such an arrangement as long as the payout exceeded the costs of irritating some users. Alternatively, content companies could offer special privileges to an ISPs' users in exchange for filtering. Viacom, for instance, could make high-quality content available for free to AT&T broadband users, contingent on AT&T's implementation of filtering.

    I'm somewhat skeptical of copyright filtering, as I said earlier, and I really don't know if any of these provider-content owner arrangements will ever be feasible. But I'm loathe to rule them out entirely at this point.

  • http://srynas.blogspot.com/ Steve R.

    As billrosenblatt noted, the ISP have no incentive to filter. We need to go a step further in our analysis, the ISP user is paying for internet access. So where does content producer XX obtain a right to interfere with the user's content flow?

    You even wrote “Content companies could offer to pay ISPs to adopt filtering technology.” By that logic, the consumer could offer to pay ISP not to interfere.

    Lets assume that an ISP accepts an offer by a content producer to filter content. Are we going to see a real disclosure notice? I assume that the ISP will not make a public disclosure. Hypothetically, “Great news to provide you with the best quality service we have now entered into a contract with ZZ to prevent you from using service XXX. We hope you enjoy this new service”.

    If that is the case, the consumer is once again not being told the truth which would be inconsistent with the concept of transparency. We can go even further with this analysis, another additional implication is that an ISP can make all sorts of “deals”. How can two entities collude through a contract to deprive an ISP user of his/her contractual rights with the ISP. Given that situation – the contract that the customer has with the ISP would be a joke.

    The ISPs obtain their income by providing a service to the users. The users have rights too. These rights must be recognized in the net-neutrality debate. I agree with your assessment that the feasibility of provider-content owner arrangements would be suspect.

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  • http://enigmafoundry.wordpress.com eee_eff

    “Content companies could offer to pay ISPs to adopt filtering technology. ISPs would likely accept such an arrangement as long as the payout exceeded the costs of irritating some users.”

    Basically people would lose the ability to freely participate in the internet, and become subject to arbitrary rules put in place by the content owners.

    Getting past the fact that this is not 'government' blocking of internet access (that would be bad bad bad!) how does an average Joe experience any differently than the loss of internet access that takes place in China now? How would people be able to appeal the decision of an ISP that they did not think was fair?

    This proposal is so very very heavy handed and lopsided towards the content owners, it has no place in a free society.

  • http://enigmafoundry.wordpress.com eee_eff

    “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.”

    The market is out of balance–it provides way too much leverage to content owners. So when are you going to have a post that describes how to balance consumer interests with content creator's interests?

  • Ryan Radia

    Steve, you're absolutely right that from a business standpoint, ISP-level copyright filtering is pretty risky. That's one of several reasons why I'm skeptical that it will ever become commonplace. Also, if an ISP were to engage in copyright filtering without notifying its users or mentioning the filters in in its terms, the ISP would risk running afoul of federal wiretapping laws and could even face a class action civil claim from its customers.

  • Ryan Radia

    If the market's out of balance (for the record I don't think it is) it's content creators that are getting the short end of the stick! In many major media markets such as newspapers and music, industry revenues have been stagnant or declining for quite some time. Of course, many other forms of media have taken off lately, largely thanks to the Internet, but that's also meant that content creators no longer enjoy the communications scarcity which until recently enabled them to consistently high profits from print and broadcast media.

    I do think copyright law is out of whack in several key respects — the term of copyright is way too long, penalties for non-commercial infringement are often grossly excessive, and the ban on anti-circumvention technology is just plain wrong. But the solution to these problems isn't to impose new regulations on network operators, but rather to fix copyright laws through legislation!

  • john b.

    Hey Ryan, I think lots of people agree that a neutral network is good, disagreeing only on the best means of getting there. I'm not sure of the EFF's position; I only know they're uncomfortable with broad FCC jurisdiction generally.

    You're right on the Good Samaritan provisions generally–there's a lot of detail with regard to actual knowledge and “willful ignorance” etc. I think the neutrality/immunity tradeoff is very important–for example, an ISP that chose to favor one video service over another would have the same legal relationship to the content on that service as a newspaper to its columns, or a cable system to its content.

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  • http://enigmafoundry.wordpress.com eee_eff

    Ryan when you say “If the market's out of balance (for the record I don't think it is) it's content creators that are getting the short end of the stick!” I think we need to open up a discussion about the metrics we use. You may be entirely correct if you are measuring by how much the current technical/legal environment disrupts (older) business models. I reject that metric for two reasons.

    The First (and least important) reason is because although the current environment does disrupt old business models (e.g., the recorded music business) it favors innovative companies (e.g. Google) But it far much too favors and coodles and protects those older business models; my exhibit no. 1 in this regard is the DMCA.

    But the second reason (and it is much more important than the first) is that the over-strong protection of copyrights is a threat to individual liberty, particularly the First Amendment. Even without the economic argument above, the freedom argument outweighs any possible benefit of giving content owners any stronger legal tools (see for example the ACTA) to enforce copyrights. Our freedoms should not be for sale.

    Thirdly, precisely because the content owners have sought such expended rights under the DMCA (and now the ACTA) I perceive that they are threats to my freedoms, and because of this I very much want to see their economic clout great diminished. But they have only themselves to blame–they have opposed basic human rights–and therefore should not be surprised in the least to find they are also despised.

  • http://srynas.blogspot.com/ Steve R.

    To continue, too many people seem to consider “public rights” as being non-existent and something “free” for the taking (privatization). For example when copyright was first recognized it was a limited privilege for an initial period of 14 years. Now it is for the life of the author plus seventy years. So content that would have fallen into the public domain no longer does. Not satisfied, the content producers continue to shrill ever louder about the supposed “theft”. It seems that no matter how “strong” copyright law has become, it is still remains too lenient from the perspective of the content producers. Even more egregious; the fact that increasing the time span and scope of copyright seldom surfaces in the public debate concerning the limits of copyright law. The evermore expansive nature of stronger copyright law has had the effect of “stealing” the content from the public domain. Imagine the howls of “theft” from the content producers should the time span of copyright laws be restored to 14 years. The public has rights too.

    Second, there is the issue of technological progress. The content owners claim that each occurrence of technological progress (video playback, CDs) somehow entitles them to a new revenue toll-booth. This “right” is a fiction that was bought at the Congressional supermarket. Once again few speak of the rights that the public should have to use content. It should be acknowledged that once a member of the public buys content they acquire a right to use that content. Instead of acknowledging this right, the content holders have sought to limit and criminalize that behavior.

    The continued attempts by the content industry to increase the time, the scope, and the activities subject to criminal action (including demands for warrantless inspection), are, as eee_eff writes, a threat to our individual liberties. Content producers do not have right to deprive someone of their rights in the unreasonable quest of “protecting” their business model. If a company can't compete in the free-market, to bad, they go out of business.

  • http://srynas.blogspot.com/ Steve R.

    To continue, too many people seem to consider “public rights” as being non-existent and something “free” for the taking (privatization). For example when copyright was first recognized it was a limited privilege for an initial period of 14 years. Now it is for the life of the author plus seventy years. So content that would have fallen into the public domain no longer does. Not satisfied, the content producers continue to shrill ever louder about the supposed “theft”. It seems that no matter how “strong” copyright law has become, it is still remains too lenient from the perspective of the content producers. Even more egregious; the fact that increasing the time span and scope of copyright seldom surfaces in the public debate concerning the limits of copyright law. The evermore expansive nature of stronger copyright law has had the effect of “stealing” the content from the public domain. Imagine the howls of “theft” from the content producers should the time span of copyright laws be restored to 14 years. The public has rights too.

    Second, there is the issue of technological progress. The content owners claim that each occurrence of technological progress (video playback, CDs) somehow entitles them to a new revenue toll-booth. This “right” is a fiction that was bought at the Congressional supermarket. Once again few speak of the rights that the public should have to use content. It should be acknowledged that once a member of the public buys content they acquire a right to use that content. Instead of acknowledging this right, the content holders have sought to limit and criminalize that behavior.

    The continued attempts by the content industry to increase the time, the scope, and the activities subject to criminal action (including demands for warrantless inspection), are, as eee_eff writes, a threat to our individual liberties. Content producers do not have right to deprive someone of their rights in the unreasonable quest of “protecting” their business model. If a company can't compete in the free-market, to bad, they go out of business.

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