A Copyfighter’s Musings

Not even a week after AT&T announced plans to adopt undefined technical measures to stop “piracy,” NBC-Universal has asked [PDF] the FCC to declare that “broadband service providers have an obligation to use readily available means” (emphasis added) to stop copyright infringement. On the unintentionally funny-and-scary scale of one to ten, this is easily an 11.

The comments were submitted as part of the FCC’s Notice of Inquiry about broadband policy. Most of the debate in this inquiry has focused around imposing “network neutrality” rules and limiting ISPs’ ability to break the Internet as an open platform for innovation by discriminating against particular content and application providers.

Remarkably, NBC’s not just asking for an exception in any neutrality regime to let ISPs block unlawful uses. And it’s not even asking for a loophole that would, for instance, let ISPs block or degrade a disruptive innovator like YouTube that has both unlawful and lawful uses. Instead, NBC is asking for mandatory discrimination.

In turn, NBC is essentially asking for the FCC to make copyright policy. The DMCA safe harbors clearly protect ISPs from liability for copyright infringement engaged in by users, subject to certain narrow limitations and without any obligation to monitor their networks for infringement.

Subverting Congress’ copyright policy would be inappropriate but not unheard of for the FCC. That’s exactly what it did — and what the courts smacked down — in the broadcast flag fight. Let’s hope the FCC simply disregards this outlandish, hail mary request from the content industry.

(Cross-posted at Deep Links)

Filed by Derek Slater at 3:35 pm under Uncategorized
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AT&T has announced plans to sell out its customers.

No, this time we’re not talking about spying on telephone and Internet communications on the government’s behalf. AT&T is now kowtowing to the entertainment industry and jointly developing undisclosed technical measures in yet another desperate attempt to stop “piracy.”

On its face, this may seem reasonable, but problems arise once you start to ask hard questions about exactly what AT&T’s up to.

AT&T’s plan is currently pure vaporware, and it has stated that “once a technology was chosen, the company would look at privacy and other legal issues.” In other words, the AT&T Internet traffic cop appears poised to shoot first, and ask questions about the impact on your civil liberties and ability to access lawful content and applications later.

There are plenty of ways that an “anti-piracy” technology could do damage to online freedom. Innovation and free speech flourish online precisely because ISPs have traditionally routed all traffic neutrally, without discriminating in favor or against particular content or applications. Will AT&T arbitrarily degrade traffic from certain applications with lawful uses (a la the Canadian ISP Rogers)? Will AT&T start peaking into its customers’ packets with filtering technology that’s bound to haphazardly restrict legitimate, lawful traffic (a la Audible Magic)? For example, will users be able to use me-to-me services and send copyrighted files to themselves, such as by uploading them to a music locker service like MP3Tunes or streaming video via the Slingbox?

And will whatever measures the telco takes meaningfully reduce “piracy”? There’s scant evidence that filtering will make a dent, AT&T’s actions will inevitably spur countermeasures, and changes in technology are making it increasingly cheap and easy to copy data in a variety of ways, both online and offline.

The bottom line is that the telco giant appears ready to serve big entertainment companies’ interests regardless of its customers’ wishes. Instead, it ought to be pushing the entertainment companies towards a better way forward that lets fans keep sharing and gets artists paid.

See also Alex Curtis’ commentary on Public Knowledge’s blog.

(Cross-posted at DeepLinks)

Filed by Derek Slater at 3:47 pm under Uncategorized
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