Content and Its Discontents

Public Knowledge recently celebrated its 8th birthday of defending citizens' rights in the digital culture. Unlike any other public interest group in Washington or elsewhere, we are dedicated to ensuring openness at every layer of our communication system, and that includes the content layer. That's why our work to ensure balanced copyright is so important - we cannot have an open Internet if large corporate copyright holders can exploit overly burdensome copyright laws to sacrifice legitimate speech at the altar of trying to stop piracy.

I discussed the clash of copyright and an open Internet at a talk that I gave to the Yale Law School Information and Society Project last week. Some in Hollywood, like Disney, were in favor of net neutrality in the late 90's because they knew well the powers that the network owner has. More recently, they changed course, believing that net neutrality would somehow prevent them from enforcing their copyrights.

Copyright enforcement and net neutrality can co-exist, unless one seeks to enforce their copyrights through network level filtering. As Public Knowledge discusses in its recently released white paper entitled "Forcing the Net Through a Sieve," there is no copyright filter that can distinguish the transfer of unlawful content from the transfer of lawful content, and because such filters will necessarily block lawful content, they violate the FCC's express prohibition against doing so.

But "reasonable network management" is the exception to net neutrality, and even though we here at Public Knowledge argue that copyright filtering is not network management but is content management, it is apparent that even if one concedes that copyright filtering is network management, it would not be considered "reasonable" under the test laid out in the FCC's Comcast decision. For those of you that haven't followed this issue closely, that is the August 2008 decision whereby the FCC found that Comcast's blocking of the Bit Torrent protocol was not reasonable network management because there wasn't a "tight fit between" Comcast's "chosen practices and a significant goal." The FCC said there that a network provider's

practice should further a critically important interest and be narrowly or carefully tailored to serve that interest.

Because copyright filtering is a blunt instrument, blocking lawful and unlawful content, it is unlikely that under this standard the FCC would find filtering to be "narrowly or carefully tailored" to serve the content industry's goals, whether or not one agrees that copyright enforcement is a "critically important interest."

The content industry apparently agrees, because it has tried unsuccessfully in the context of the economic stimulus bill and the Broadband Technology Opportunities Program rules to ensure that filtering is considered reasonable network management, and is trying again in the context of the national broadband plan. Witness this doozy of a filing by MPAA in response to the FCC workshop on the Role of Content in the Broadband Ecosystem.

Unfortunately, Hollywood may get its wish in the upcoming net neutrality rulemaking. There, the FCC concludes that the Comcast reasonable network management standard is "unnecessarily restrictive" and proposes to replace it with a much weaker standard:

Reasonable network management consists of (a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content and (b) other reasonable network management practices.

This standard has many flaws, among it completely undermining the six net neutrality rules the FCC seeks to adopt, since reasonable network management is the exception to each of the rules. But there is little doubt in my mind that taken alone, the proposed standard opens the door wide for network level filtering, since a "tight fit" or "careful tailor[ing]" between the practice undertaken and a significant goal is no longer necessary. In fact, under the proposed standard, a network provider no longer has to show that its network management practice advances an important or significant goal.

Ensuring that the reasonable network management exception doesn't swallow the net neutrality rules will be job one for Public Knowledge and its allies over the next six months. Ensuring that there is a strong correlation between a network provider's network management practices and an important network management goal will be vital to ensuring an open Internet free of both network and Hollywood gatekeepers.

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