Does more broadband mean more piracy?

In the $787-billion economic stimulus package enacted in February, Congress told the Federal Communications Commission to create a plan for extending broadband service to all Americans and increasing broadband speeds. It's an apple-pie, chicken-in-every-pot goal -- at least until people see the price tag. Nevertheless, there are plenty of disagreements over the details of the plan. One is a battle between copyright holders and consumer advocates over what to do about all the content that broadband users download or stream illegally. The former want Internet service providers to use technology to filter out unauthorized content flowing over their networks; the latter argue that filters won't work as advertised and will inflict an unacceptable amount of collateral damage on lawful Internet uses. I sympathize with the copyright holders' concerns about rampant unauthorized copying, but I'm not persuaded that filtering is the solution -- or that this proceeding is the place to have that debate.

Gigi Sohn, president of Public Knowledge, laid out the case against filters ...

... at a commission workshop in September. Among other things, Sohn said:

Copyright filtering will also alter the behavior of data networks on a fundamental level, slowing down traffic, impeding the operation of high-latency applications and compromising the privacy of all Internet users. In so doing, copyright filters will discourage investment in the Internet ecosystem, prevent innovators from developing exciting new applications, dissuade users from fully utilizing their broadband connections and raise the cost of access for consumers -- all the while undermining some of the most important goals of the National Broadband Plan.

Late last week the Motion Picture Assn. of America responded (get the .pdf here) by calling on the FCC to "encourage" ISPs to adopt technological barriers against illegal copying. It also urged the FCC to push Congress to do the same. Blocking the unauthorized bits won't slow down the Net, the MPAA claimed -- on the contrary, it will free up bandwidth for legal uses:

Given that a substantial amount of Internet traffic today is comprised of infringing material, it is apparent that unless checked, the tidal wave of unlawful online content will overwhelm the Internet and degrade the consumer experience. Connections rendered sluggish by the transmission of vast amounts of stolen content will only thwart broadband development and discourage consumer confidence in the Internet experience, directly undermining the Commission’s, Congress’ and the Administration’s goals. Furthermore, ceding half or more of the available bandwidth to thieves will result in huge sums of government and private money being wasted on network expansion. On the other hand, innovative technologies and bandwidth management tools, if permitted and encouraged to develop, can lead to sophisticated new methods that can combat theft, ensure that bandwidth is utilized efficiently, provide a smooth and safe online experience for consumers, and protect the enormous public and private investment in our nation’s broadband networks.

I concede the MPAA's point about the volume of unauthorized content flowing through the Net, but I wonder how ISPs could effectively police encrypted transmissions. I also am troubled by the entertainment industry's enthusiasm for "graduated response" (also known as "three strikes") policies. That's not because it's a bad idea to tell people they've been detected downloading "Astro Boy" and that they need to stop violating the law -- no, that's a great idea. The problem is, it's not possible to know who's sitting at the computer downloading "Bruno." In fact, it may not be possible to know which computer is doing the downloading. The only thing that ISPs may be able to detect with reasonable certainty is whose account is being used for that purpose. Before ISPs impose a penalty, they should have to prove that the customer whose account is targeted really was at fault.

Then there's the question of how the filters would be triggered. How much copyrighted material would be enough to block a transmission? How would fair uses be accommodated? What about uses that copyright holders don't like, but have yet to be found illegal by any court (the Slingbox comes to mind)?

Verizon, AT&T and the major cable operators all have to negotiate with the studios for the programming that powers their pay TV services so that they're motivated to work with Hollywood on the piracy issue. Yet their own engineers have noted how hard it would be to examine all the traffic flowing over their networks, as the studios seem to desire. That may explain why ISPs haven't jumped on the filtering bandwagon despite years of supplication from the entertainment industry. Well, that plus the fear that their customers would rebel if they knew their broadband provider was examining all the bits they were uploading and downloading.

Clearly, these are tough issues. And the better way to resolve them, I think, is to let ISPs and content providers negotiate an approach that's consistent with the FCC's forthcoming Net neutrality rules, rather than shoehorning them into the plan for making broadband services available to more people. Those rules wouldn't stop ISPs from interfering with copyright infringements or other illegal acts, but they would discourage broad-brush approaches that impede legal transmissions alongside unauthorized ones.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division. Follow him on Twitter: @jcahealey