January 20, 2010 | By Fred von Lohmann

MPAA and RIAA Seek Net Neutrality Copyright Loophole

Last week the MPAA and RIAA submitted their comments in the FCC's net neutrality proceeding. As anticipated in EFF's comments, the big media companies are pushing for a copyright loophole to net neutrality. They want to be able to pressure ISPs to block, interfere with, or otherwise discriminate against your perfectly lawful activities in the course of implementing online copyright enforcement measures.

Of course, the MPAA and RIAA couch this in language intended to sound inoffensive. The RIAA says "the perfect should not be the enemy of the good" and "justice often takes too long." The MPAA chimes in that "it is essential that government policies explicitly permit—and encourage—ISPs to work with content creators to utilize the best available tools and technologies to combat online content theft."

But here's how it would work in practice. The proposed FCC net neutrality principles include a loophole for "reasonable network management," which is defined to include "reasonable practices employed by a provider of broadband Internet access service to...(iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content." That means that so long as your ISP claims that it's trying to prevent copyright infringement, it's exempted from the net neutrality principles and can interfere with your ability to access lawful content, use lawful devices, run lawful applications, or access lawful services.

This is not about protecting copyright infringers—the FCC's proposed net neutrality principles expressly do not apply to unlawful content or unlawful transmissions. So you don't need a "reasonable network management" loophole to go after illegal conduct. The loophole that the RIAA and MPAA are after is about giving the green light to overbroad copyright enforcement measures that inflict collateral damage on innocent conduct.

The proposed copyright loophole is reminiscent of the RIAA's response when asked about innocent people mistakenly sued for file sharing: "When you go fishing with a driftnet, sometimes you catch a dolphin." Unlike the MPAA and RIAA, EFF doesn't think that ISPs should get a free pass for sideswiping innocent activities if they implement shoddy copyright enforcement systems. And neither do Public Knowledge, the Consumer Electronics Association, CCIA, NetCoalition, or the Home Recording Rights Coalition.

Allowing ISPs to jeopardize perfectly legal activities in the name of "copyright enforcement" is a bad idea. Let the FCC know that you oppose any copyright loophole that would allow the RIAA and MPAA to pressure ISPs into catching your "dolphins" in their poorly designed fishing nets.


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