Nicholas Weaver speculated that what AT&T planned to do to stop copyrighted material from crossing its network was to farm the work out to the MPAA & others:
All that is necessary is that the MPAA or their contractor automatically spiders for torrents. When it finds torrents, it connects to each torrent with manipulated clients. The client would first transfer enough content to verify copyright, and then attempt to map the participants in the Torrent.
Now the MPAA has a “map” of the participants, a graph of all clients of a particular stream. Simply send this as an automated message to the ISP saying “This current graph is bad, block it”. All the ISP has to do is put in a set of short lived (10 minute) router ACLs which block all pairs that cross its network, killing all traffic for that torrent on the ISP’s network. By continuing to spider the Torrent, the MPAA can find new users as they are added and dropped, updating the map to the ISP in near-real-time.
Which garnered this response from Richard Bennett:
Is there any reason that such an automated system should not be used, or does Net Neutrality now connote a license to steal?
Ignoring the intentionally inflammatory wording of the choice, I’d like to present an argument for why it should not beyond the privacy, free speech, and common carrier arguments I’ve read: such a system will inevitably be used for evil.
The only question if it’ll be immediately, after a few months, or if they’ll wait for everything to be settle down. How can we be so sure of that? It is, after all, a legal system designed to a good end.
History provides copious examples of power granted for innocent purposes abused, but I want to focus on one that involves the players here who would be tasked with not abusing their position.
A long time ago, when the DVD standard was designed, they put in something that took control away from the consumer for the consumer’s presumed good: the Prohibited User Operation (PUO). This was supposedly there so that people couldn’t skip the FBI anti-copying warning and such good stuff, which everyone fast-forwarded through on VHS. In authoring a DVD, they could set the FBI warning to play for 20s or 20m and disable the controls to force you to stare at it. They took the user’s ability to use the object in certain ways in order to show those dumb warnings. The warnings, of course, did nothing to reduce piracy, and soon, the PUOs were being used for evil: forcing people to watch a preview, or an ad, or three previews, or something ridiculous — Disney probably being the worst of these offenders. By controlling technology designed to take away control from the end user to promote a larger goal, they were able to force a horrible consumer experience on everyone who bought the DVDs and do it without consequence, because there was no recourse.
Now take the legal state of copyright today. Fair use is frequently decided not on the merits of the case but on the inability of single artists to fight those suing them, and even more frequently isn’t decided at all, because no one tests it. Danger Mouse can’t mix Beatles samples with Jay-Z vocals and create the Grey Album without having EMI and Sony/ATV try to stamp him out. Labels are aggressively pursuing P2P lawsuits against single users, often with scant evidence of wrongdoing, and against even Google for linking to something that links to a potentially illegal download. SFWA issued blanket DMCA notices against people hosting suspected science fiction works — and nailed people publishing critical essays, stuff licensed under Creative Commons, you name it.
What happens to the next Danger Mouse in this new world?
1) DJ Example uses 2,000 1-second samples to record a mind-blowingly cool version of “Sympathy for the Devil”
2) Puts it up on his website as a torrent
3) MPAA, representing the Rolling Stones, joins the torrent and shuts down everyone attempting to distribute it
4) DJ Example briefly considers suing for restraint of trade, gives up, becomes a quality assurance specialist at the toothpaste factory
5) DJ Example is poisoned by tainted flouride, dies
That’s a significant harm to freedom of expression.
What we’ll see, beyond that, is the kind of over-reaching we see today. The copyright holders will pursue the most profitable copyright law interpretation possible, and continue to stretch the limits of what they claim infringes until
Take a film like “This Film is Not Yet Rated” which embarrasses the MPAA. If that came out under a Creative Commons license, distributed by torrent, its spread would depend not on whether clips it uses are fair use but whether anyone of the potential claim-holders is particularly angered by its message, at which point they shut it down. Commentary could be entirely destroyed.
Further, consider for a minute the distribution of documents that offend a particular party and are subject to frequent legal fights — for instance, the Scientology documents that came out in court, are public, but may still get you sued if you post them. Will they be allowed to use this auto-spigot?
What then — can anyone who wishes to stop the spread of any document they don’t like simply hit the big switch and stop all trade in it?
Is that really what anyone wants for a future?