News this week that a Belgian court has given a local ISP, six months to implement a copyright filtering system is perhaps the first reversal in five years for ISPs on piracy issues, since they were first taken to court in the US, and a famous decision was recorded that an ISP cannot be expected to police its lines.
While the US will have a problem trying the same thing, and it would need at least a Supreme Court challenge to change the law and override the precedents, or better still a new Act, in Belgium no such case was previously heard. So European judges have the luxury of looking at the decision in the light of a long and unrelenting obsession with free music by most young internet users.
The Brussels Court of First Instance ruled in favor of the Belgian Society of Authors, Composers and Publishers in a case brought against Scarlet, the local ISP that was once owned by Tiscali. But finding and implementing a filtering system in time might be something of a challenge. It has 6 months to do so, and thereafter will be subject to a fine of €2,500 ($3,444) each day.
It is interesting that only last month AT&T was suddenly very verbal on this subject, a new position that is seen as a Damascene conversion, due to its new relationship with Apple, the iPhone and iTunes. If handset owners can pirate music either to a PC or MAC and then copy it to a handset, then where is the logic in AT&T’s new found partnership with Apple?
But the problem is going to be almost impossible to fix. At present file sharing networks don’t encrypt music and so if a file is actually intercepted there is a good chance of checking a part of it against a musical fingerprint database. But they could encrypt it, and ISPs deal will every single message that a person sends or receives, and that means billions of messages not a few million which was the scale of P2P sites.
File size and data structures will give some clues, but even this can be got around. Files can be broken up and sent in pieces, data can be encrypted.
And if this ruling and rationale work for music, then doing the same for video will be even more difficult. Think how hard MySpace and YouTube had to work to find software to recognize pieces of video that were placed on their servers. AT&T will be sampling network traffic almost at the router or BRAS server level. And once AT&T has established that it is carrying video, and tested it to find that it fits a copyright profile, it will have to dig down into the transactional layer to make sure that this isn’t a legitimate DRM protected transaction. And if the system throws up false positives and denies legitimate transactions, or worse leads to civil abuses and censorship, there will be hell to pay with the public at large.
There is some belief that the Belgian ruling may extend into other European countries and become EU policy or law. IFPI was keen to celebrate and commented that this is exactly what it has been after for the past two years.
AT&T claimed to have reached the conclusion that the more flat rate services it has, and the more piracy there is, the more its network is clogged, costing it money. Well that may be true now, but what was AT&T doing back when its network was NOT clogged up, and piracy was ramping up? It seemed pretty happy to stand by at let it be the content industry’s problem.