I decided to look into this topic after our animated in-class discussion about whether the ISPs are the best people to keep a check on infringement occurring on their networks. I know this has been an argument for sometime now but I feel that with recent case that happened in Australia which I have spoken about later, has helped answer some of the issues in that field effectively.
This comic strip below gives a funny account of the war that the RIAA has been fighting.
The RIAA says that ISPs should have authority to block subscribers from sharing files on their network which might be violating copyrights without permission of the copyright owner. They also emphasize that the ISPs are in a unique position to limit online theft as they control the facilities over which infringement takes place and are well positioned to address it at the source. Without ISP participation, it is extremely difficult to develop an effective prevention approach.” This was what was said by the RIAA to the FCC as of the 15th of January 2010. But many of the bigger ISPs have opposed it and said that they won’t follow the three strikes rule. Comcast however, has done some filtering of its traffic who indulged in Peer to Peer sharing. Though Comcast said its reason was related to network congestion, not illegal file trading.
The FCC however is in favor of its Net Neutrality principle which proposed for user access networks participating in the Internet that advocates no restrictions on content, sites, or platforms, on the kinds of equipment that may be attached, and on the modes of communication allowed, as well as communication that is not unreasonably degraded by other traffic. The FCC emphasizes how difficult a job it would be to control copyright infringement without the help of the ISPs.
However, I feel that the verdict given by an Australian judge for the case of infringement brought up by many Hollywood studios against an ISP in Australia has gone a long way towards cementing that ISP’s should not be made responsible or should not be made the copyright cops. The judge in Australia ruled in favor of the ISP iiNet saying that there was no fault of their’s in the unauthorized downloads of movies that were happening using their network. This case was filed by a group of studios including Universal Pictures, Warner Brothers, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney.
According to the reports, the judge took the time to understand the actual issues, and understand how BitTorrent works, how the internet functions, and making sure that he didn’t cut corners and assume that things in the digital world were exactly analogous to the physical world. The judge raised some very interesting arguments that go a long way towards putting the topic of the three strikes issue to a rest and also to the fact that whether ISP’s should be responsible or not for copyright violations done using their networks. Looking at the following excerpt from the statement from the judge,
“Regardless of the actual quality of the evidence gathering of DtecNet,copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.”
Furthermore, the court found that it’s troubling to have ISPs cutting off users based on accusations, without a court weighing in on the actual details:
“One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of ‘repeat infringer’, are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so.”
Thus I certainly feel that we must stop pointing fingers at the ISPs every time an infringement like this happens. Once in for all a decision needs to be taken that such cases be dealt only in courts leaving them to decide the fate and not ISPs. As mentioned by the judge copyright infringement is not a simple issue to deal with. It needs a lot of thorough analysis and so something like the ISP’s quickly deciding and then implementing the three strikes rule on it wouldn’t be the best move for both the ISP and their customers. Thus in concurring with the judge’s verdict I certainly feel that the ISPs should not be made the Copyright Cops and that it should be let to courts to decide if anyone does challenge someone. This also goes in favor of the FCC’s net neutrality principle which I think is certainly justified.
http://news.bbc.co.uk/2/hi/technology/8498100.stm
http://www.techdirt.com/articles/20100204/0103238038.shtml
http://www.nytimes.com/2010/02/05/movies/05arts-STUDIOSLOSEA_BRF.html
http://www.pcworld.com/article/187000/riaa_tells_fcc_isps_need_to_be_copyright_cops.html
{ 4 } Comments
oh man, I love that comic. Seriously, all this copyright stuff is getting seriously out of line. I value the protection of intellectual property, but let’s get realistic about this. I don’t think mix tapes and happy birthday are really hurting anyone. And more to the real point, who’s rights are we protecting anyway. These IA conglomerates like the RIAA and ASCAP (ass caps) are doing far more harm than good.
What role should the FCC play in enforcing net neutrality?
Are their any harms to having the FCC regulate this?
I feel that the FCC should work with the ISP’s to ensure the enforcement of net neutrality. They should try and ensure that everyone has access to the content available online without any discrimination made against them. The FCC should set basic guidelines and get all the ISP’s to follow them uniformly. Also like their chairman has been trying to get the net-neutrality principles to be incorporated.
http://www.pcworld.com/article/172371/fccs_net_neutrality_plan_draws_fast_fire.html
Though they should not have the rights to ban anyone because as my case highlights they alone aren’t in the best position to answer the question of whether a certain individual violated any principles of copyrights while accessing data. Thus the only harm in allowing only the FCC to do this would be people not getting a just decision made.
Should ISPs be forced to police the internet? NO
Should ISPs be allowed to police the internet? Depends on the circumstance..
I agree that ISPs should work together with the FCC on enforcing net neutrality but ISPs should have every right to cut people off the internet especially if that user has been shown to generate abnormal amount of traffic due to their downloading habits and it effects the performance of the network and other users.
The reason I argue this is from personal experience being a Comcast user in a neigborhood in which certain people were causing the degradation of the network performance because of their activities.
Upholding net neutrality in this case would due harm to the company and other consumers.
Companies invest huge amounts of $$$ in their network and so they must have a right to protect it and ensure quality of service for other users.
I just wanted to point this out because we have focused greatly on anti-policing and at times view ISPs as bad people but there are certain circumstance where they need to do what they need to do.