Last month, Public Knowledge submitted comments to the European Commission in response to this communication on online creative content. The Commission was asking for input about a variety of topics, including making DRM interoperable, creating licenses that would work across national boundaries within the EU, and how to deal with online piracy.
PK's comments focused on just two of the 11 separate questions put for the by the Commission, about potential enforcement mechanisms against online infringement. Those questions were:
10) Do you consider the Memorandum of Understanding, recently adopted in France, as
an example to followed?11) Do you consider that applying filtering measures would be an effective way to
prevent online copyright infringements?
The “memorandum of understanding” is the French “three-strikes proposal,” also called the “Olivennes Report.” This proposal</a. would set up a system by which accused copyright infringers would, after two warnings, be kicked off of the Internet and blacklisted, so as to prevent them from using the Internet again.
PK's comments advocate against both proposals. The French plan, as I've noted before, not only creates an administrative nightmare for someone who is wrongfully blacklisted, it also is a disproportionate punishment even for those who are infringing. It’s removing a vital communication and free speech tool in the interests of creating a more favorable market situation for content providers. Infringers should pay for their infringement, but in terms of what's been lost—some money—not, Little Mermaid-like, with their online voices.
As for the filtering proposal, we've said a fair bit about that before the FCC. Basically, if networks attempt to block particular applications or protocols, they're preventing any legitimate users from using those protocols. If they start analyzing the content of packets in order to find just the copyrighted stuff, even the best machine intelligence won't be able to distinguish a legitimate use from an infringing one without the larger context. And none of this even touches upon the privacy implications of deep packet inspection.