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Filtering and Section 512 - January 17, 2008

Columbia University Law School professor Timothy Wu has been carrying on a debate this week in the NYTimes Bits blog with NBC Universal general counsel Rick Cotton over filtering, fair use and related issues. Their posts are worth reading, along with the many comments from readers, including from some prominent voices in the ongoing digital copyright controversies.

In a separate piece on filtering posted this week on Slate, however, Wu raises a point that Media Wonk hasn't seen discussed much (which is not the same as saying people haven't been discussing it). To wit, if AT&T and similarly situated network operators were to go ahead with plans to filter copyrighted content from their pipes, they could be putting at risk their "safe-harbor" protections under Section 512 of the DMCA, ironically leaving themselves potentially more vulnerable to copyright liability than the statute currently protects them against.

Section 512 was added to the law largely at the behest of the telcos to shield them from liability for copyright infringement committed by users of their networks. In order to claim the safe harbor, however, the statute requires that network operators act as neutral conveyors of bits:

SS.512 (a)(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(snip)
(a)(5) the material is transmitted through the system or network without modification of its content [Emphasis added].

Much would depend on how the filtering technology actually worked, of course. But Wu's point could add an interesting new wrinkle to the filtering debate, especially if copyright owners who were not part of any quid pro quo between the big media companies and AT&T were to decide that, if you're going to filter you can't select the material to filter based on who you have a deal with and still claim the safe harbor for the rest (Perfect 10, anyone?).
Meanwhile...Time Warner Cable may have come up with a cleaner approach to "network management" than filtering: tiered pricing. The company said Wednesday that it is planning a trial in its Beaumont, Texas, system to bill subscribers according to the amount of bandwidth they use, rather than charging everyone the same flat fee.

In principle, the idea could offer a market-based solution to keeping bandwidth-heavy applications like BitTorrent from burdening everyone on the network. Rather than throttling Torrent traffic, as Comcast is accused of doing, and which the FCC is now investigating, those who do a lot of downloading would have to pay the freight for the bandwidth they use, allowing lighter users to be charged less.

In a statement Thursday, Public Knowledge, one of the interest groups whose petition triggered the FCC's investigation of Comcast, offered tentative praise for Time Warner's approach.

"Time Warner’s pricing test could be a welcome development for consumers and for the cable industry," PK president Gigi Sohn said. "Consumers will have a better idea of how they are using their Internet connections and will have the flexibility to adjust according to the rates. Cable companies could be able to better manage their networks and costs, so they won’t have to resort to cutting off customers for exceeding phantom usage levels or throttling some applications."

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