Forcing the Net Through a Sieve: Why Copyright Filtering is Not a Viable Solution for U.S. ISPs

July 22, 2009 , , , ,

Yesterday, as part of our reply comments in the FCC’s National Broadband Plan proceeding, we released our latest whitepaper, “Forcing the Net Through a Sieve: Why Copyright Filtering is not a Viable Solution for U.S. ISPs” (PDF link). Recently, the content industry has been ramping up its efforts to promote ISP-level copyright filtering as a practical solution to the problem of unlawful online filesharing. Given the imperfect, controversial nature of filtering technology, we thought it was time to take a close look at copyright filtering and the effects that it might have on the Internet ecosystem. What did we discover? As our report states, not only will copyright filtering be ineffective–it will cause a great deal of harm to users, creators, innovators, businesses and the economy and will undermine the goals of the National Broadband Plan.

Deep Packet Inspection (DPI), the core technology behind copyright filtering, is a relatively new technology and comes bundled with serious limitations and caveats. For the technology analysis section of “Forcing the Net Through a Sieve,” we brought in Robb Topolski, an experienced network engineer and DPI expert (see his previous report on DPI, “NebuAd and Partner ISPs: Wiretapping, Forgery and Browser Hijacking,” here), to analyze the merits and limitations of a DPI-based copyright filtering system. Topolski found that no matter how advanced filtering systems become, they will always be both underinclusive and overinclusive. Filters will be underinclusive because they will never be able to detect all unlawful uses of content online–a shortcoming that will be amplified as users work to actively circumvent the filter. Copyright filters will also be overinclusive, as they will block all uses of copyrighted content, including those fair, unlicensed uses (parody, satire, etc.) that are protected under the law. In short, copyright filters will be ineffective and will have a chilling effect on free speech and free expression online.

Those, however, aren’t the only technological drawbacks involved in copyright filtering. The process of inspecting every bit that travels over an ISP’s network will add latency, slowing down the network appreciably and resulting in a decrease in the quality of the user experience. What’s more, copyright filtering is likely to result in an unwinnable technological arms race, where the increased use of encryption and protocol obfuscation slows the network and bleeds resources out of the service provider, resulting in higher costs for consumers.

Speaking of costs, copyright filtering also makes little sense from an economic point of view. The costs involved with filtering–hardware, software, training, maintenance, ongoing development costs–far outweigh any perceived benefits. This balance is further tilted if we add to the list of costs the damage that will be done to businesses, innovators and our economy. It is often said that a delay of 500 milliseconds results in a 20 percent drop in Google’s search traffic and revenue. In this light, it should be clear that the delay induced by copyright filtering–not to mention the false positives–will have a crippling effect on innovation as well as our long-term economic competitiveness.

Finally, we take a close look at the legal questions that surround copyright filtering. Not only will copyright filtering harm free speech, it could also undermine the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions. The importance of these provisions cannot be overstated–were it not for safe harbors, user-generated content sites like YouTube, Facebook and Twitter probably wouldn’t exist and most, if not all, ISPs would likely offer severely restricted access to the Internet. On the legal side of things, there’s also the matter of the Electronic Privacy and Communications Act (ECPA), which seems to prohibit private parties like ISPs from intercepting communications in the manner that copyright filtering would require–what’s usually referred to as “wiretapping” in the telephony context.

Ultimately, we conclude that copyright filtering at the ISP level would essentially amount to a massive invasion of the privacy of all Internet users, at the behest of one industry. Given the potential harms to free speech, the Internet ecosystem, user privacy and the American economy, allowing, encouraging or mandating the use of copyright filters on U.S. ISPs isn’t just a bad idea–it’s a dangerous one.

For an in-depth analysis of copyright filtering, be sure to read our whitepaper, “Forcing the Net Through a Sieve: Why Copyright Filtering is Not a Viable Solution for U.S. ISPs” (PDF link). To see our reply comments regarding the National Broadband Plan, click here (PDF link).