January 17, 2008 4:00 AM PST
Should AT&T police the Internet?
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AT&T considers filtering for pirated content
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Critics also say AT&T's moves could put it and other ISPs in a precarious legal situation by not only admitting that it can filter traffic, but also indicating that it has a responsibility to do so. That is exactly what has happened in Europe. A Belgian court last summer ordered an ISP to use filtering technology to keep pirated content off its network.
"I just think this exposes AT&T to some expensive liability," Wu said. "The fact is that it's not easy to figure out what infringes a copyright and what doesn't. It's difficult to believe that an algorithm could do this when the U.S. Supreme Court is often called upon to answer the same question. And when you're talking about copyright, the liability is huge."
This is exactly why AT&T along with Verizon lobbied Congress more than a decade ago to include a safe harbor in the 1998 Digital Millennium Copyright Act (DMCA) that essentially protects them from liability when their customers use their networks or search engines to illegally distribute copyrighted material.
These network operators won their fight by arguing that illegal content merely passes through their networks, and it is unreasonable to ask network operators to take on the task of filtering packets to see if they have violated copyright laws. As a result, most of the legal challenges since the DMCA was passed have fallen on peer-to-peer sharing sites and user-generated sites like YouTube and MySpace. YouTube--owned by Google--is currently fending off a $1 billion lawsuit from Viacom for copyright infringement.
But NBC's Cotton says that if operators work in good faith with content providers, legal issues could be avoided.
"We have agreed to put aside getting into an argument of legal responsibilities," Cotton said. "I think what everyone has come to realize is that the situation is not tenable. And if we can work out a set of reasonable steps to reduce the amount of pirated traffic, it's a win-win for their customers as well as for the content companies."
Cotton added that major steps have already been made between big media companies and some user-generated video sites. In October, media companies--including CBS, Fox Entertainment Group, NBC Universal, Viacom, and Disney along with Microsoft, News Corp.'s MySpace.com, and video-sharing sites Dailymotion and Veoh Networks-- agreed to a set of guidelines for using filtering technology and taking down copyrighted content. He also acknowledged that the content community doesn't expect these measures to be fool-proof.
"No one is looking for perfection," he said. "People are prepared to tolerate and accept that that's a reality. The fact is there is a great deal that can be done in various technology environments."
Still, Cotton and others in the entertainment industry believe that monitoring traffic at the network level is a necessity.
"The YouTubes and MySpaces of the world are obvious places to look for copyright infringement," said Steven Weinstein, president and CEO of MovieLabs, the research and development arm of the film industry. "But if we are talking about peer-to-peer traffic, which is how a lot of content is illegally distributed, there is no single entity where the content originates. So the only way to find it is at the ISP level."
But one lingering question remains. Does the technology exist to offer accurate content filtering at the network level? MovieLabs conducted tests last year of about a dozen "digital fingerprinting" technologies from companies such as Gracenote, Vobile, and Audible Magic. Certain products worked well in some environments, like on user-generated Web sites and on university networks, Weinstein said. But using the technology on a large-scale, high-speed carrier network has still not been proven.
That said, developers of this technology are confident it's ready for prime time. They say the bigger hurdle is allaying consumer fears that the technology invades privacy.
"We have the technology to filter traffic today," said Vance Ikezoye, CEO and co-founder of Audible Magic, whose solution is being used by MySpace. "What will take longer to work out are the larger political and public policy issues."
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