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Neutral on piracy? - April 18, 2008

Piracy was the rarely mentioned elephant in the Dinkelspiel Auditorium at Stanford University yesterday, where the FCC held its second public en banc hearing on network management practices. Most of the discussion concerned such technical exotica as the use of TCP reset packets to inhibit peer-to-peer traffic, deep-packet inspection and the capabilities of network routers in coping with congestion. Relatively little attention was paid to the fact that much of the congestion at issue--and with which Comcast was attempting to cope when it got pulled over--is caused by the use of peer-to-peer applications to trade large media files the large majority of which are currently unlicensed.

To a degree, that reticence was appropriate for the FCC, whose authority from Congress does not reach matters related to copyright. But it doesn't strike me as obvious that the two issues can, as a practical matter, be separated. Like it or not, whatever action the FCC takes at this point--or for that matter doesn't take--holds implications for the use of the Internet to swap unlicensed copies of music and video files.

To some extent, this has already occurred even before the commission completes its investigation of Comcast's inhibiting of BitTorrent traffic, ostensibly to reduce congestion on its network. Under pressure of the investigation, Comcast has announced agreements with BitTorrent and Pando Networks to take steps to develop "application-agnostic" approaches to managing congestion, which presumably means no more targeting of the BitTorrent protocol. Given the ineluctable preponderance of unlicensed material on most BitTorrent sites, however, an application-neutral approach to managing the traffic they generate is no longer a content-neutral approach.

Blocking or throttling an entire application, of course, would hardly be a reasonable response to piracy. But prohibiting network operators from making any distinctions among applications could certainly complicate efforts to implement any sort of network-level filtering of unlicensed copyrighted content. Rather than looking in the most likely places, to be effective a network filter would essentially have to inspect the content of every packet to determine what rules to apply. That, of course, would inevitably raise questions of privacy and the First Amendment.

Then again, some degree of packet inspection is likely to get mandated at some point, if not by the FCC then by Congress, given the strong support in both for filtering out child pornography and other sorts of unsavory and illegal material. Law enforcement agencies are also likely to demand the ability to inspect the content of packets when given authority by a court, meaning networks will need to have the capability in place. With the capability in place, private interests such as copyright owners, inevitably will seek to use it for their own purposes, either through private negotiations with network operators, or, failing that, by government mandate.

Try as it might, it will be exceedingly difficult at this point for the FCC to promulgate any regulation or policy regarding the exchange of information over digital networks that does not implicate content. It might as well start talking about the elephant.

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