College filtering
We've reported before on a Congressional bill that would force US colleges and universities to plan for network filtering and for alternative music and movie download services or face the loss of federal funds. The College Opportunity and Affordability Act of 2007 passed a House committee back in November and could be coming to a vote in the next couple of months. According to the EFF, it could even come to a vote in February.
Under the bill, schools would need to "develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity."
There's no requirement that schools implement such a plan, but it's not hard to see how the requirement could become law in a future education bill (after all, content owners want more than a "plan," they want action).
For schools that don't want to spend their budget dollars coming up with expensive plans to monitor student traffic, the MPAA stepped in last December like a Christmas angel with an offer of free monitoring software. Called (ambiguously) the "University Toolkit," the software showed that even Big Content has a special place in its Grinchy heart for open-source software... but not so special a place that it knows how to comply with the terms of open-source license agreements.
The software was pulled after an Ubuntu technical board member pointed out that the MPAA was violating the GPL by not making code available. Seth Oster, executive VP and chief communications officer of the MPAA, told Ars at the time that the MPAA was quick to respond because "we take copyright very seriously at the MPAA." The software remains unavailable today.
While the situation was humorous, all it mean is that if the bill passes, universities will need to spend more time and effort evaluating other (paid) solutions in order to comply with the law.
Coming to an ISP near you
Making inroads at colleges and universities would be a big step for groups like the MPAA, but filtering on a truly national level would be far preferable. The MPAA has made no secret of its desire that ISPs take part, and rather amazingly, one of the nation's largest ISPs is interested. In fact, AT&T seems downright enthusiastic about the prospect of sniffing for copyright violations.
While AT&T has yet to reveal how such a filtering regime would function, it has repeatedly confirmed that it is going forward with the technology. Confirmation of those plans at CES made news, and it thrilled people like NBC's Rick Cotton, a lawyer who has led NBC's push for such filtering.
As a sign of just how mainstream the entire debate has become, Cotton and Columbia law professor Tim Wu are squaring off this week in a New York Times blog. In his first post, Cotton argued that technology can actually do a superb job of filtering. Those problems you've heard so much about? Solved. "Digital technology is also capable of great exactitude and flexibility in identifying copyrighted content and targeting infringements with no more intrusiveness than when it screens out viruses and hacker attacks," he wrote.
We may find out if he's right later this year. AT&T has been talking up its plans for some time and sounds ready to pull the trigger soon, though the FCC's new interest in traffic-shaping and monitoring at Comcast might make AT&T proceed with caution.
Filters, filters everywhere
Colleges and consumers are both likely to kick back hard against these sorts of measures, and that could be enough to knock both of them off track. But it won't necessarily do so; both filtering proposals have years of effort behind them, some Congressional support, and the buy-in of major corporations like AT&T. 2008 could be the year that both kinds of filtering become regular features of the Internet landscape in the US.
If a couple of national ISPs and even a minority of universities start filtering this year or the next, the filters could probably examine much of the peer-to-peer traffic passing through the country. If effective, such filters could do much to slow the spread of copyrighted material (for a time), but based on the filtering technology we've seen in the past, we remain skeptical.
Mistakes are bound to occur; as more companies use the Internet and P2P to distribute legitimate content, even a few of these mistakes could lead to charges of anticompetitive behavior and requests for FCC investigations. The blocking of even a few homemade videos sent to friends could run afoul of FCC guidance that suggests all consumers have a right to use their Internet connections for lawful purposes and to run their choice of applications over the network.
The pro-filtering lobby is playing a dangerous game by pushing its way into the ISP space. While sites like YouTube have launched filtering technology of their own, privately-owned sites are generally allowed to run their own operations. Network operators face far more government scrutiny.
2008 might well be the Year of the Filter, but who knows? It might also be the Year of Filtergate. A single major fiasco could even revive the simmering debate over network neutrality regulation and legislation. Stay tuned; it should be quite a spectacle.
Update: A House staffer from the Committee on Education and Labor contacted us to point out that the bill will not jeopardize federal funds for those schools that don't plan for using filtering and for P2P alternatives. The bill says that "each eligible institution participating in any program under this title shall to the extent practicable" do the planning. We're told that despite this requirement, the bill doesn't back it up with any penalties.
"Neither of these two provisions is tied to a school's participation in the federal student aid programs in any way," we're told. "In other words, no school and no student will ever lose funding if a school doesn't make plans to address IP theft, or purchase any programs to do it. And no school will ever lose any federal aid because its students engage in illegal downloading or file-sharing, period."
But schools will face problems with the Department of Education unless they "inform their students about their campus policies on copyright infringement and illegal downloading" and "report their campus policies and procedures for addressing these violations once a year."
So, bottom line: the bill still directs colleges and universities to make plans for playing the filter game, but doesn't penalize them if they don't.
