ISP liability is all the rage these days, from the UK's Department for Business, Enterprise and Regulatory Reform to the Japanese legislature to the Australian parliament to the US Trade Representative. Everyone who hates something about the internet has worked out that if you can force internet service providers to police their networks, you can spare yourself the expense and burden of making your personal bugaboo vanish.
Weirdly, the biggest and most powerful ISPs seem eager to be roped into the enforcer role. Take Japan: earlier this month, the four largest ISPs on the island announced that they would henceforth terminate the account of any customer that the entertainment industry fingered as a repeat copyright infringer. The ISPs' deal with copyright holders is this: tell us the IP address of a customer who is infringing your copyrights and we'll send them a threatening email. If you complain about the user a second time, we'll snip the line.
In Canada, the national telco, Bell Canada, is doing one better: it is simply throwing away some or all of the BitTorrent packets generated by its customers. And not just those of retail home-broadband customers: Bell has been caught chucking out the BitTorrent packets generated by ISPs that get their feed from Bell. The ISP is like a freight shipper that has paid Bell to put a container on one of its steamers. Then Bell has gone into that container and tossed a bunch of the packages inside overboard, without saying a word to its customer. Bell's largest competitor, Rogers, also throws away many of the encrypted packets its customers send. On the Rogers freighter, any container with a padlocked door is presumed guilty and heaved into the sea.
Deny everything
Notoriously, the US ISP giant Comcast has an on-again/off-again, deny-everything approach to filtering BitTorrent, repeatedly changing its story about whether, and how much, and why, it is filtering BitTorrent connections that its customers initiate (as of a few weeks ago, Comcast was promising that it no longer filters BitTorrent. Not that it ever did. And it's not doing it anymore. Promise.)
In the UK, the regulators at the Department for Business, Enterprise and Regulatory Reform are pondering a three-strikes-and-you're-out approach to being naughty on the internet: after three complaints, ISPs would be forced to cut off their customers. If the department rejects this policy, the next step would be to make it a "voluntary code of conduct" that achieves what a rule could not.
Even if you believe that copyright infringement is grounds for severing someone's connection from a network that also provides freedom of the press, freedom of assembly and freedom of speech, all down one wire, this is not about punishing copyright infringers. This is about punishing people who have been accused of copyright infringement. No evidence required, no judge, no jury, no right to face your accuser and present your side.
Indeed, in the case of blind BitTorrent throttling, it's not even about being accused of copyright infringement — BitTorrent is well suited to transferring large files of any description. The operating system I'm using to write this column arrived on my computer via BitTorrent (legally: I'm running Ubuntu, an excellent flavour of the free and open GNU/Linux operating system).
Also on this computer is a program called Miro Internet TV that lets me subscribe to any of several thousand channels' worth of authorised, noninfringing video that comes in via BitTorrent. To extend the container ship analogy, these ISPs aren't just throwing infringing containers overboard: they're throwing any container that's the same colour as some infringing containers overboard, regardless of the contents.
Greed and indifference
In years gone by, large ISPs were a major force for keeping burdensome filtering rules at bay. But today's ISP giants are also giant phone companies, each of them less a company than a regulatory monopoly wrapped around a dense core of greed and indifference. (No language on Earth contains the phrase "As wonderful as a telephone company".)
The 1996 WIPO Copyright Treaty exempts ISPs from liability for hosting customer files that infringe copyright, and all around the world, the powerful behemoths of the telecoms industry have held the line there. So why are they now lining up to adopt these measures voluntarily? Well, for once, the interests of giant entertainment companies and giant phone companies are aligned.
The phone companies have been pushing their ISP businesses by promising customers unlimited services, access to rich media, voice-over-IP service, podcasts, and other high-bandwidth applications (if all you want is email and web-browsing, you could just stick to dialup — we're talking broadband here). However, these companies don't actually have the infrastructure to live up to their promises. Like the gym that sells you a membership that they hope you'll never use, the telcos want you to sign up for all-you-can-eat bandwidth and then go on a diet.
The ISPs have had little luck in asking their customers not to use the service they're paying for, so now they've changed tactics, blocking high-bandwidth transfers under the rubric of being good corporate citizens helping to combat the scourge of piracy.
Costly extras
This is a deadly turn of events. The telecoms sector has always taken the position that networks are best run as an a-la-carte proposition where everything from custom ringtones to caller ID requires an additional payment, preferably a recurring monthly charge (imagine if the phone companies had invented email; you'd have to pay extra to see the "From:" line on incoming messages as part of a "premium sender ID" programme).
This is the exact opposite of the internet's status quo: when Tim Berners-Lee invented the world wide web, he didn't have to deploy an army of smarmy suits to inveigle every phone company in the world to include "web" in the "basic tier" internet package — even though web-browsing increased the amount of bandwidth consumed by ISPs' customers by several orders of magnitude.
In a world where new protocols have to be approved or face the piracy-throttle-of-death, the internet turns back into cable TV. There's nothing special about BitTorrent that makes it more infringing than any other protocol: there are assuredly more acts of copyright infringement committed with IM, email and the web than with relatively esoteric protocols like BitTorrent. What makes BitTorrent an attractive target is that it costs the ISPs a lot of money, in the same way that hungry people cost buffet owners money.
And here's the rub: the entertainment industry won't get an end to piracy — or even a respite — by convincing the ISPs to stop BitTorrent. Just as the WIPO Copyright Treaty's "expeditious action" clause totally failed to stop or even slow web-based infringement, this will likewise totally fail to stop the transfer of large files, which will continue happily using other protocols, from Gmail's unlimited mailboxes to Amazon S3's dirt-cheap hosting.
The entertainment industry won't figure this out, though, until they launch their own video-on-demand services on the public internet and find the ISPs ready to throttle them unless they pay extra for the "premium service".
