ISPs Face New Role in Network Control

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.


  1. vincent clement says:

    What excuse will organizations such as the RIAA, MPAA and IFPI use when content filters will not lead to an increase in sales or revenue?

    Really, they are running out of excuses. p2p. College students. Canadian camcorders. No levy on mp3 players. Pirates in Asia. On and on and on. Maybe they will finally blame their failure to change with the times?

  2. With great responsibility comes great liability.

  3. But… BUt… It’s completely impossible! A huge, industry wide effort costing billions of dollars can be thwarted with existing software that doesn’t cost a cent. I’m sure some people will be happy just to see something being done, and Sandvine and Nortel will be utterly thrilled with the spike in income, but it’s just a huge con. What am I missing here?

  4. It isn’t inexplicable that they have agreed to content filter. It is simply that right now the RIAA and MPAA are willing to be the bad guy.

    Reports suggest that at least 53% of bandwidth usage is bittorrent, internet research firms suggest that anywhere from 65% to 85% of the internets bandwidth is eaten by P2P (bittorrent, eMule, blah, blah, blah). Further, following the 80/20 rule, only about 20% of the subscribers use up that 65-85% of the bandwidth.

    They want that bandwidth back. Increasingly TV and Phone are being sent on the same pipe as the internet and there is a huge bandwidth crunch in these areas (especially TV, where cable operators are having a hard time finding the bandwidth to offer HD channels).

    Imagine all the big ISPs standing in a circle western style. They all want to totally cut off bittorrent traffic and take that bandwidth back but they know they will lose a lot of customers, not just the 20% but also the ones that “just don’t like the idea of being restricted” which they think is significant number. So there they stand, staring at each other under the desert sun.

    Now, someone else has stepped up and said: “We will take the heat” so AT&T can start dropping bittorrent while pointing their finger at the RIAA/MPAA and saying “they made me do it”. The wrench in the gears to totally cutting of bittorrent completely is companies like Blizzard, which uses bittorrent to distribute patches (2.5million US active users). So the next best thing is to drop bittorrent connections with keywords that look like it could be copyrighted material.

    The move is definitely self motivated, just now they have someone to hide behind while doing it.

  5. Darryl Moore says:

    Doug, uhhh, no.

    If they wanted the bandwidth back they could get the bandwidth back. Nobody needs to be the “bad guy” they just need to start charging for the band width used. You pay your long distance phone bill based on how you use it. You only pay for the gas you use when you fuel up your car. Nobody would get upset with the ISPs if they started charging $x for every GB of bandwidth you used.

    No they want a tiered system so they can start charging based on the protocol you use and they can start charing content providers.

  6. Policing is not a job for the private sector. The last group I want determining my rights is one whose decisions are guided by share price.

  7. Impossible
    Everything on the internet is copyrighted. If you thought that Intellectual Property was unenforcable on the internet (which it is)… wow.

    All rights reserved 2008(c). This post is not authorized for digital distribution over the internet without express written permission, which will be denied in all cases. Any ISP whom infringes on my copyrights will be contacted by my lawyers with a takedown notice.

  8. Farrell J. McGovern says:

    Not Wise
    They can’t have it both ways…either ISPs filter…that includes not just copyright material, but slanderous/libelous postings, chain letters, illegal pornographic photos & movies, postings that promote hate speech, and everything else that is against the law or actionable in Canada…or they operate as “common carriers” and stop doing things like filtering Bit Torrent transfers.


  9. One other issue
    If my ISP is using Rogers as the Canadian backbone, and Rogers is using Sprint as thee U.S. backbone, I guess that could mean I could face filtering from all three carriers! So not only do I have to complain to my ISP, but I also have to complain to Rogers and Sprint which is a lot harder. Think of all the false positives! Oh the headaches.

  10. Big shock the RIAA/MPAA demanding that ISPs fork over private info so they can make a quick buck suing anyone and everyone they can. And they wonder why their sales of CDs and DVDs decline when they treat their customers like criminals instead of adapting to a reasonable universal model of business(in the information/virtual age) that doesn’t use DRM to screw one over of their fair use. Gee big shock people not wanting to pay for a music dl that they cant use on their ipod because its not downloaded from Itunes.

    Its funny cause recently the RIAA says the 9000 or so bucks per illegal DLed music file(when they cost a dollar to download)is not enough
    [ link ]
    clearly they need 1.5 mill per cd copied so they can make up for their lack of good music that is worth buying… But ya lets follow the lead of corporate America and the mogul CEOs that need to earn their millions by increasing revenue to get their bonuses, cause thats what is clearly more important than providing a quality service model/product worth paying for.

    So ya lets all just fall over like dominoes and submit to whatever the corporations that lobby the most want. Instead of the people cause thats what is truely important to a democracy.

  11. Doug, I’ve seen similar numbers floated around for spam email as for torrents. It is unfortunate that the conditions under which the studies were undertaken are not published. Not sure who isn’t publishing, it could be the media, or the research firm. But it makes it difficult to assess the validity of the research.

  12. Death of the Internet
    Content filtering will be the death of the internet as we know it. But something will fall back in its place. Some new form of communication using satellites as backbones or something. This is a war that can’t be won, the Sooner these people realize that the better it will be for them.

  13. A Telco Security Dweeb says:

    A Telco Security Dweeb
    Let me again bring a little clarity into this debate, speaking from the perspective of someone who has to deal with network- and application- level security at a major Canadian telco and ISP, every day.

    Implicit in much of the discussion about “ISP-based content filtering” is the assumption — a very incorrect one (as a few of the previous posters have hinted at) — that there is some “magic box” that you can put on an ISP’s network communications channels, that can somehow distinguish between “nice” (“legal”) content, and “naughty” (“illegal”, at least under someone’s definition of what should and should not be illegal) content. NOTHING COULD BE FURTHER FROM THE TRUTH. THERE IS NO SUCH DEVICE AND THERE NEVER WILL BE. THERE NEVER CAN BE.

    To illustrate the reason why, let’s consider the much more well-known situation of “static” content, for example someone creating an ISP-hosted Website with some kind of controversial content, anything from some kinds of pornography to BitTorrent links, etc..

    In a case like this, at least all of the allegedly “infringing” or “illegal” content is there at one place and at one time; its nature and purpose can be reasonably well understood by just looking at it; and there is a substantial body of prior legal case law, applicable legislation, etc., by which the material could be assessed by an ISP’s legal and regulatory staff to decide if the ISP can sustain the risk entailed by allowing the material to continue to be hosted.

    Now try to imagine the same content but in a network filtering context. Each part of it is in a separate little TCP/IP packet, which may be routed differently according to various Internet-based factors — in other words the packets may not even all cross the path of the same network segment or router. And the content comes and goes so fast that it would be completely impossible for human decision making to keep up (not even the Chinese, with their immense, totalitarian surveillance infrastructure, can do this with any reasonable degree of success.) Any decision about whether the content is “legal” or “illegal” would have to be made by AI-based algorithms in real time by some kind of an IPS (Intrusion Protection System) type of box and there is a huge chance that the box will frequently identify “false positives”, in otherwords arbitrarily denying traffic that is in fact perfectly legitimate.

    Now let’s consider the impact of this kind of insane scheme on a typical ISP’s network: Let’s assume — and this assumption is perfectly in keeping with the stated intentions of the recording industry — that ISP’s are supposed to set up their “magic box” to deny network access to unencrypted multimedia content (e.g. content with out “approved” Digital Rights Management keys being embedded in it… ignoring for the moment that the “magic box” would have to be aware of all the competing DRM systems and their constantly changing encryption methodologies). The most frequently encountered format for such content is .MP3. So, by inference, the ISP would have to block all MP3 transfers, particularly if it detected that they were coming from one consumer endpoint to another.

    However, MP3s are used for a vast array of purposes other than the transmission of “pirated” music, including but not limited to transmission of legally purchased music (that is, from the same digital music stores that the recording industry itself is trying to set up, so the RIAA would in effect be crippling its own attempts to set up on-line music sales… maybe that’s what they secretly want to do?), Podcasts of freely available radio shows and retrieval of voice messages from business communications systems such as VOIP voice mail boxes.

    So when we look at the guaranteed effect of trying to “filter” just this one multimedia format we can instantly see that any ISP who did that, would completely destroy its own business value proposition. Half to three quarters of the “cutting-edge” integrated voice / data services that the ISP would be trying to sell to its business customers as an added-value service would simply stop working, leaving that ISP at a huge competitive disadvantage, not only against other Canadian ISPs but, significantly, against ANY OTHER ISP, ANYWHERE — specifically meaning ISPs outside the reach of any Canadian regulatory agency stupid enough to try to make us engage in this futile, Canute-like effort on behalf of the whining, spoiled recording industry.

    We’d get creamed. We couldn’t do this and still make our networks, work. If Mssrs. Prentice and Harper have any interest in not totally shutting down Canada’s data communications infrastructure to placate a few multinational (e.g. American) recording labels, they’d better pay attention to what I wrote above.


    A Telco Security Dweeb

  14. Well said, Telco Security Dweeb!!!

  15. Totally
    Totally agree,
    The vast majority of this so called “pirated music” in its own is created by copyrighted software with sophisticated algorithms that can keep the time base and allow for pre-recorded drums or sounds to be dubbed over. Ex. 50 Cent – “Make Money By Any Means” has a looped sound of a drum and has prerecorded samples which at one time were copyrighted, the video camera that was used to record the video was someone’s intellectual property, and to sequence it all together he would use an assortment others software, intellectual property. The last time I checked the mayor of NY, Ran NY? (IN THE LYRICS) If this is the only thing that he claims to be his own intellectual property than shouldn’t we let him? So you think you are running NY? OK then tell me due to the attempt at counteracting recession in the country what would his high and mighty like us to do? Well we could all get shot in the face and then complain to the RIAA? Pphhf… I guess your 50 cents is worth less and less in the global market place… hey look there goes 48 and a half….