My weekly technology law column (Toronto Star version, Ottawa Citizen version, BBC version, homepage version) focuses on the failure of the DRM, content-locking strategy and the move toward locking down the Internet. I note that this approach envisions requiring Internet service providers to install filtering and content monitoring technologies within their networks. ISPs would then become private network police, actively monitoring for content that might infringe copyright and stopping it from reaching subscribers' computers.
The support for locking down the Internet revives an old debate – the appropriate role and responsibility of ISPs for the activities that take place on their networks.
As the content owners were promoting legal protection for digital locks in the 1990s, the ISPs were supporting legal frameworks that treated them as the equivalent of common carriers that transferred data across their networks without regard for the content itself. While that approach ensured that ISPs did not take an active role in monitoring or filtering Internet-based activity, the recent move toward a two-tiered Internet – one in which the ISPs themselves dream of distinguishing between different content as a new revenue source – revived the notion that ISPs could be called upon to play a more active role in monitoring and blocking content.
With content owners frustrated at the failure of digital locks, last year they seized on this by renewing their focus on the role of the ISP. This movement has been most prominent in Europe, where last summer a Belgian court ordered an ISP to block access to a site alleged to contain copyright infringing materials. More recently, French President Nicolas Sarkozy unveiled a plan that would experiment with ISP filtering of copyright infringing content. Although a similar pan-European proposal was defeated earlier this month, few believe that the issue is dead, particularly given the International Federation of the Phonographic Industry's claim last Thursday that 2008 will be the year of greater ISP responsibility.
Content filtering plans have also begun to emerge in North America. Large U.S. ISPs such as AT&T have inexplicably promised to develop new content filters on their networks and are discussing an implementation plan with content owners. I argue that this could wind its way to Canada. Late last week, the Canadian Recording Industry Association stated that it presently is not seeking provisions "related to content filtering or termination of repeat offenders." That provides a measure of reassurance, yet some cultural groups are openly eyeing content filters as a mechanism to adapt Canadian content rules to the online environment, while others have expressed strong support for legal rules that force ISPs to accept heightened "responsibility" for the conduct of their subscribers.