‘Copyright Loophole’ Rankles Internet Activists

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Peter Fricke Contributor
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The FCC claims its new Internet regulations will ensure equal treatment of all content, but some net neutrality advocates are upset that the rules will contain a “copyright loophole.”

Torrent Freak reported on Sunday that while the new rules take “a huge step forward” by prohibiting paid prioritization of content, “they do very little to prevent BitTorrent blocking, the very issue that got the net neutrality debate started.”

In 2007, the website revealed that Comcast was “systematically slowing down BitTorrent traffic to ease the load on its network,” which the article claims was “the first [case] to ignite a broad discussion about Net Neutrality.” Activists argued, and the FCC agreed, that Internet service providers (ISP’s) should be prohibited from blocking or throttling content delivered over their networks, as well as from charging content providers for faster delivery speeds.

The FCC’s two previous attempts to issue net neutrality rules were struck down in court, but the agency recently made yet another effort, this time reclassifying as ISP’s as “common carriers” under the same regulations that apply to landline telephones. (RELATED: FCC Votes in Favor of Net Neutrality)

However, each time the FCC has issued net neutrality rules, including the most recent iteration, they have included an exception for “reasonable network management,” which allows “reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.”

Net neutrality activists such as Torrent Freak and the Electronic Frontier Foundation have consistently opposed what they call the “copyright loophole,” claiming the language is overly broad and could lead to “massive collateral damage.” (RELATED: Obama’s Move to Regulate Internet has Activists’ ‘Fingerprints All Over it’)

“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’,” EFF staff attorney Kit Walsh told Torrent Freak.

“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 added.

Other experts, though, say the loophole is perfectly reasonable, and suggest opponents are actually more concerned that it would threaten their ability to download illegal content without restriction.

Geoffrey Manne, executive director of the International Center for Law and Economics and a senior fellow at TechFreedom, told The Daily Caller News Foundation that, “I think it’s very clear from the language that the FCC is aware of the risk of ISP’s claiming the copyright exception as an excuse to block legitimate content.” (RELATED: A Leading Net Neutrality Activist’s Neo-Marxist Views)

“Someone who really wants to use this rule to prevent ISP’s from blocking even illegal content, they’re going to have some trouble with these rules, because the exception is there,” he noted, but added that the FCC could “enforce this in such a way that it could make it very difficult for an ISP to take advantage of that loophole.”

Manne explained that, “Bit Torrent implicitly condones the downloading of copyrighted content,” with over 90 percent of the site’s traffic infringing on copyrights, and predicted that under more-ambiguous circumstances, “I don’t think the ISP’s would risk widespread blocking … it’s bad PR.”

Besides, he added, “There’s a remedy.” BitTorrent “could go to the ISP and offer to help identify infringing content, or take steps to remove illegal content,” thereby undermining the rationale for blocking the site’s content.

“If anyone is taking the rules on their face to mean there will be blocking of legitimate content, I think there’s no evidence to suggest that’s actually true,” Manne concluded, pointing out that so far, “we haven’t seen much blocking of any content.”

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