Interestingly, this issue has been pretty much absent from the discussion in recent months. This is curious as many activist groups, including the Electronic Frontier Foundation (EFF), protested heavily against the copyright loophole in the past, issuing warnings over massive collateral damage.
“Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design,” the EFF wrote at the time.
So why was there little outrage about the copyright loophole this time around? TF contacted EFF staff attorney Kit Walsh who admits that the issue didn’t get much attention, but that it’s certainly problematic.
“The language about ‘lawful’ content and applications creates a serious loophole that seems to leave it up to ISPs to make judgments about what content is lawful or infringes a copyright, subject to challenges after the fact about whether their conduct was ‘reasonable’,” Walsh says.
“It’s one thing to say that ISPs can block subject to a valid court order, quite another to let ISPs make decisions about the lawfulness of content for themselves,” he adds.