Net Neutrality, Copyright Spoiling for a Fight

Net neutrality advocates scored some recent victories with language in the broadband stimulus package, giving their efforts fresh momentum. But their ideal may be facing an even tougher opponent — content filtering — when Congress takes up the issue again.

In its ongoing effort to combat online piracy, the association representing the recording industry recently dropped its policy of filing lawsuits against individual infringers in favor of partnering with Internet service providers to filter for unlawful content.

The issue of ISPs filtering content that passes over their networks touches on a variety of flashpoints in tech policy, including privacy, copyright in a Web 2.0 era, as well as non-discriminatory network management — a principle at the core of Net neutrality.

“Filtering to me means that you’re looking at everyone’s bits — and you’ve got to have a pretty good reason to do that,” Art Brodsky, a spokesman for the digital rights group Public Knowledge, told “You don’t go searching through every bit on the Internet without probable cause.”

Most recently, the issue cropped up in the debate over the economic stimulus bill. In allocating $7.2 billion for new broadband networks, the bill included language about non-discrimination, which won plaudits from Net neutrality supporters.

But at a late stage in the negotiations, Sen. Dianne Feinstein, D-Calif., introduced an amendment that would have allowed for “reasonable network management practices such as deterring unlawful activity, including child pornography and copyright infringement.”

Feinstein has previously taken a tough stance on intellectual property rights, cosponsoring the recently enacted PRO IP Act, which stiffened penalties for infringers and called for the formation of a federal intellectual property enforcement office.

In an e-mail to, Feinstein downplayed the scope of the amendment she attempted to add to the Net neutrality provisions in the stimulus bill.

“There are numerous positive benefits to the Internet. Unfortunately there are a lot of bad actors out there who, if given the chance, will exploit children and conduct illegal activity,” she wrote.

“During the stimulus debate, I introduced an amendment that would merely give Internet service providers that receive government grants the ability to deter child pornography, copyright infringement and other unlawful activity. This amendment did not mandate any actions by the ISPs and was simply a modest solution to ensure that we continue to expand access to the Internet while trying to curb illegal activity.”

Through a spokesman, Feinstein declined to comment on the intersection of copyright infringement and Net neutrality, but that issue can be expected to come to the fore as key senators refresh their efforts to make an open Internet the law of the land.

“There is a need to efficiently and effectively combat piracy,” an aide to Sen. Olympia Snowe, R-Maine, told At the same time, the staffer added, “We don’t want to do anything that would hamper the creative or innovative environment that the internet has fostered.”

Snowe has been one of the few voices in the Republican Party championing Net neutrality. She is currently working with Byron Dorgan, a North Dakota Democrat she serves with on the Commerce Committee, to update their Net neutrality bill from last session.

The confluence of IP enforcement and Net neutrality could invite a legislative turf war, with the former being the province of the Judiciary Committee, where Feinstein serves, and the latter traditionally falling under the purview of Commerce.

In a practical sense, Feinstein’s amendment would have meant ISPs filtering content, which groups like Brodsky’s oppose as a threat to privacy and Net neutrality, and criticize as a wrongheaded approach that fails to keep pace with the innovative (and legal) ways that people are accessing copyrighted content on the Web.

But the entertainment industry claims that piracy accounts for tens of billions of dollars in lost revenue every year. In fierce defense of intellectual property, industry groups have been exploring technical methods to combat piracy. The industry has traditionally been opposed to Net neutrality, in part because it threatens to defang content filtering efforts.

“We don’t want Net neutrality to mean piracy is equal to legitimate commerce,” Daryl Friedman, vice president of the National Academy of Recording Arts and Sciences, said at a recent discussion on copyright policy. “If that’s the definition of neutrality, then that’s not good for our guys.”

Brodsky argues that content owners already have legal mechanisms to combat piracy under the Digital Millennium Copyright Act. Filtering technologies, he warns, are not sophisticated enough to determine whether a transmission of a copyrighted work is legal or not. Technologies such as digital fingerprints and watermarking can identify a piece of content as copyrighted, but that could block transmissions from a service like Slingbox, which enables people to watch their home television remotely over the Web.

Then there are also concerns that even the most intelligent filtering technology will still carry a margin of error, blocking transmissions of other types of lawful content, potentially raising free speech concerns.

Given the mad scrabble to nurse the economy back to health, issues such as Net neutrality are not top-tier priorities in Washington these days.

“It’s a little bit of a question mark there,” Snowe’s aide said. “Obviously with the economic stimulus and the budget, that’s kind of been the high priority with the Senate.”

Nevertheless, the aide said that Snowe and Dorgan plan to bring forward their Net neutrality bill in the next few months.

Given the overlapping jurisdictions of the congressional committees that deal with IP and Internet issues, the fight over Internet freedom and copyright in a digital era could flare up even sooner.

“There’s lots of opportunities for mischief,” Brodsky said.

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