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How neutral can the FCC be about piracy?

January 15, 2010 |  6:43 pm

I must confess, I thought FCC Chairman Julius Genachowski had found a clever way to keep his bid for Net neutrality regulations from getting mired in the debate over online piracy. When the FCC agreed to start the rulemaking process in October, Genachowski made it clear that the regulations wouldn't apply only to the transmission of unlawful content. That's code for bootlegged copies of "Avatar" and "The Hangover."

And yet (he says, channeling Al Pacino as Michael Corleone), Genachowski can't help being pulled back into the issue. In their comments on the FCC's notice of proposed rulemaking, entertainment-industry groups argued that the rules at the very least shouldn't discourage Internet service providers from trying to stop pirated content. The RIAA urged the commission to go further:

ISPs are in a unique position to limit online theft.  They control the facilities over which infringement takes place and are singularly positioned to address it at the source.  Without ISP participation, it is extremely difficult to develop an effective prevention approach.  We thus urge the Commission to adopt rules that not only allow ISPs to address online theft, but actively encourage their efforts to do so. 

In a statement accompanying their joint filing, four entertainment-industry unions struck a similar note:

As Guilds and Unions representing more than 300,000 workers in the entertainment and media industries, we urge the FCC to ensure that any policies laid forth to preserve a free and open Internet also strengthen the distinction between the lawful and unlawful transmission of Internet content. We encourage the FCC to take all appropriate steps to keep the Internet from becoming a haven for the theft and illegal transmission of motion picture, audiovisual and sound recording works.

That seems more like a policy decision for Congress to make, not the FCC. Yet the FCC probably won't be able to dodge the issue of whether ISPs' efforts to detect and block infringing content constitute "reasonable network management." The entertainment trade groups and their unions say they do; Public Knowledge and five other public-interest groups say they don't. Why? Because ISPs are "poorly placed to determined whether or not transfers of content are infringing ... a task generally reserved to attorneys, courts and law enforcement," the groups argue:

The Commission should be extraordinarily reluctant to adopt any exception that permits
ISPs to block lawful activities as a side effect of efforts to block copyright infringement or
unlawful conduct.... An exception permitting overbroad mechanisms would encourage ISPs to use systems that would encourage more false positives -- and thus more blocking of lawful transfers of content -- than otherwise. Also, the exception is not needed -- both ISPs and content owners themselves (the entities better placed to determine infringement) already have a range of tools at their disposal to battle copyright infringement.

It's conceivable that the FCC finds a way to sidestep these questions. Nevertheless, the entertainment industry is signaling in this proceeding that it's not enough for Washington just to permit ISPs to block infringing content. The studios and labels persuaded Congress to force universities to take steps against piracy, and they're pushing lawmakers overseas to crack down on repeat infringers. Now, Hollywood may be done waiting for U.S. ISPs to voluntarily take aim at the piracy on their networks.

-- Jon Healey

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