ISPs do need to step up to the plate to take some degree of affirmative action to reduce easy distribution of pirated content, but with a variety of approaches being open to ISPs to accomplish that goal.
What are examples of the ways ISPs could accomplish this?
There are three that get the most attention. The first is the graduated response, notice-sending approach [often referred to as "Three Strikes"].
There's also a discussion about site blocking by ISPs, meaning sites that are overwhelmingly engaged in trafficking or supporting the trafficking of illegal or pirated content.
There are some kind of technological application of content recognition capabilities like the video sharing sites have adopted.
What do you think is most effective?
I think this is a question of starting down the road. What we've seen in the video sharing site context is responsible companies stepping up and recognizing, whether you choose to call it best practice or an obligation, that there is a need for them to take action to prevent... their infrastructure from facilitating the wholesale theft of copyrighted content.
That's really what we're talking about. To the extent the broadband Internet becomes a pillar of 21st century society, it just has to be rule of law. It cannot be the wild west. It cannot be that anything goes. The enterprises that operate within the framework of broadband Internet cannot have a hear-no-evil-see-no-evil, take the money and run, attitude.
What we're seeing over time is that various sectors of the broadband Internet is stepping up and accepting that responsibility. You've seen that with video sharing sites that employ content recognition technology so individuals are not able to upload entire episodes of TV shows or entire movies and facilitate redistribution of that pirated content.
You see efforts in the same direction, on part of auction sites. With the sales of stolen material or counterfeit goods, they have the obligation to take steps to reduce the easy use of their infrastructure.
YouTube was launched by the Saturday Night Live skit called "Lazy Sunday." It was the first viral video on YouTube that launched its popularity. YouTube [became] awash in pirated content driving its traffic. Then the video sharing sites including YouTube adopted content recognition software.
NBC launched NBC.com and Hulu.com with Fox. In the 2008 election campaign, the Tina Fey/Sarah Palin skits become enormously popular, all viewed more than 10 million times online. The overwhelming majority of those views are from NBC.com and Hulu.com on a legitimate basis because its difficult to find those clips on YouTube because of the content recognition.
It's a sea change [since] video sharing sites stepped up and made it difficult and inconvenient to access pirated content. Content owners have taken steps to make legitimate access to them online easy, convenient and high quality.
So let's talk more about what ISPs can do.
Now we're at the point in the conversation where the question is what steps do the ISPs take. If you look at the proposed net neutrality rules proposed by the FCC, there's an explicit recognition in that proposal that it's appropriate for ISPs to engage in network management practices aimed at preventing the illegal distribution of infringing contet.
I think it is clear right now that the ISPs have the authority to take steps. What the proposed rules go out of their way to make clear is that there is no intent on the part of these new rules to prohibit the ISPs from taking these steps as part of their regular network management practices.
That has been the distinction the FCC proposal draws. Their effort to restrict certain actions of the ISP is aimed only at lawful content and not attempting to restrict the ability in ISPs to restrict ...illegal content.
Do ISPs already have this authority without FCC action?
I would say in general, yes, ISPs already have the authority. One would have to look at it on a case-by-case basis [regarding techniques used].
Are there privacy concerns with any of these methods?
The techniques we are talking about can be clearly constructed in ways that do not in any way invade individuals' privacy rights.
What the YouTube example proves is that technology absolutely has the capacity to simultaneously protect the interests of millions of workers that depend on creative industries for their livelihood by reducing piracy, at the same time they deliver value to consumers, at the same time they respect the rights of everyone involved.
YouTube content recognition technology is not aimed at any individual. It is not interested in who is trying to upload. Look at a virus filter. It doesn't care who sent the virus, who was receiving the virus, what material the virus was in. The point is to just look and identify a digital pattern which represents the effort to upload an extended version of copyrighted content. Where is the privacy issue?
I think all the approaches we're talking about need to be carefully designed but they are perfectly capable of being deployed in effective and responsible ways.
If Comcast succeeds in acquiring NBC Universal, would it be easier for the combined company's ISP to protect content?
Given all of the legal constraints surrounding the transaction, I'd rather not comment on this issue in the context of what Comcast could or couldn't do going forward.
What i would say is, the big picture issue here is the intermediary issue. In terms of protecting U.S. jobs that are driven by the true engines of growth--innovation, technical invention and creativity--what we need across the board, with respect to digital products and digital theft, is to have intermediary sectors of the economy take steps to prevent their infrastructure from being used to facilitate the redistribution of counterfeit goods and digital pirated content.
ISPs are only one example in terms of the distribution sectors that need to step forward and be part of the solution. That includes physical shippers, auction sites, financial intermediaries, advertising networks that place ads on web sites where those ads should not be supporting sites that are overwhelmingly dealing with pirated content.
No one is asking everyone to take unreasonable steps. The only thing that doesn't work is no action.
How likely is it that Congress and the administration will be able to devote resources to an effective IP plan this year?
To the extent that governmental action is helpful or required, we've seen a coming together of organized labor and business and bipartisan support in Congress for strong action to cut down on flood of counterfeit goods and pirated content that kill U.S. jobs. That is really a very strong unifying thread.
It is what resulted in the Pro IP Act [of 2008] and appropriations to support strategic policy development. I think the combination of business and labor support and bipartisan support for what is a critical set of jobs policies that happen to involve IP enforcement can continue.