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American ISPs To Become Real Copyright Cops?

We live in a dangerous time when ISPs – largely to head off potential federal regulations – establish private arrangements with copyright holders to disrupt Internet subscribers from accessing certain content. Sandoval notes that,

Last July, Comcast, Cablevision, Verizon, and Time Warner Cable and other bandwidth providers announced that they had agreed to adopt policies designed to discourage customers from pirating music, movies and software over the Web. Since then, the ISPs have been very quiet about their antipiracy measures.

But during a panel discussion here at a gathering of U.S. publishers, Cary Sherman, CEO of the Recording Industry Association of America, said most of the participating ISPs are on track to begin implementing the program by July 12.

[Subscribers] will also be informed of the risks they incur if they don’t stop pirating material. The ISP then can ratchet up the pressure. The ISPs can choose from a list of penalties or what the RIAA calls “mitigation measures” that include throttling down the customer’s connection speed to suspending Web access until the subscriber agrees to stop pirating. The ISPs can waive the mitigation measure if they choose.

This isn’t a small matter: rights holders regularly make errors when they assert that a person is engaging in infringing behaviour. Rights holders assume that taking ISP subscribers hostage – by throttling or otherwise impacting their online behaviours – will (a) cause subscribers to cease potentially infringing behaviour; (b) lead subscribers to acquire content in non-infringing ways. I suspect that, instead, we’ll witness a ratcheting up of anonymization and encryption schemas to limit file sharing surveillance practices.

Many will say that ISP collaboration is just the next stage of an ongoing cat-and-mouse game but, in so saying this, may fail so see the larger implications of this game. In the UK, worries that the content industry might get powerful new legal capabilities via the Digital Economy Act led the security and intelligence services to protest a copyright-related bill. It wasn’t that the services were supportive of infringement but instead that, by encouraging regular citizens to evade and hide their online actions online for consumer gain, the services’ capabilities to monitor for threats to national security would be degraded.

That’s not a small matter. You may be pleased – or not – that the security and intelligence services’ operations might be hindered. Regardless, your stance doesn’t mitigate the fact that copyright legislation threatens to have far reaching impacts. Using ISPs as traffic cops that establish antagonistic relationships with their subscribers is poor business for the ISPs and potentially makes national security issues more challenging to combat. We need to have a far more holistic accounting of what new copyright capacities and actions mean for society generally and, in the process, get away from narrowed discussions that obfuscate or externalize the full potentialities that accompany the (prospective) criminalization broad swathes of the population.