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January 23, 2008 9:06 AM

No New Traffic Filters! The Ill-Advised Fight Against Piracy...

One of the biggest issues in telecom these past few months has been the proper role of network operators in policing the delivery of illegal content across their pipes.

The MPAA has been pushing to require all universities and colleges to take more aggressive approaches to ferreting out and punishing the illegal distribution of content by students on their networks.

Last fall they began pushing the message in DC that federal funding of postsecondary institutions should be tied to their willingness to take on the challenge of hunting down pirates.

But then yesterday this story took on a new wrinkle as the MPAA admitted that their 2005 report, which showed college campuses accounting for 44% of illegal P2P filesharing, was wrong due to a human error, and that the real number is closer to 15%, though even that number has been called into question by some as over-inflated.

The other main component to this thread is the noise AT&T; has been making recently about the possibility of more aggressively filtering their network to identify and capture content pirates.

While to some degree, I think AT&T; should be commended for at least be willing to openly talk about this possibility--unlike the BitTorrent/Comcast fiasco of '07--at the same time it raises a lot of questions.

These issues are probably best summed up in this Slate article by Tim Wu, in which he looks at the potential liability AT&T; may incur if it moves forward with these plans. '

The gist of his comments are that under current common carrier protection, AT&T; is not liable for what bits run over its network. The issue is that if they start looking more closely at those bits, they may render that protection void, and therefore be open to lawsuits of all sorts, plus stronger mandates to try and fight this piracy in more aggressive ways.

While the legal outcome of this question of liability is not yet firmly defined, I do wonder what might happen once AT&T; starts looking more closely.

On the one hand, what if they looked and found that piracy isn't near as rampant as the MPAA makes it out to be? That could actually produce some tremendous insight for this debate.

On the other, what happens if their network is saturated with piracy? Will they then have to pursue a campaign of locking up paying customers? And again, there's potential for huge liability.

At the same time, it makes sense why they'd be making moves in this direction. AT&T; wants a strong relationship with content owners, especially as it's trying to break into the video market. In fact, they may even be a little stuck now as once you start down this road of discussing possibilities to cater to the content people it's likely hard to step back from that table without engendering resentment and potentially harming relationships, an especially dangerous proposition during these early days of U-Verse when, despite AT&T;'s overall size, they only have a relative handful of TV customers.

But the point I wanted to make here doesn't have anything to do with AT&T; specifically. Instead I think it's important to acknowledge the incredible amount of uncertainty in this space before diving into any form of mandates on how network operators should be joining the fight against piracy.

The biggest reason I believe that isn't even the consumer protection/privacy aspect of this. Instead, it's the fear that welled up in me when I read in Wu's piece that any form of filtering will have an adverse affect on network performance.

This is simply an unacceptable reality to me. We already live in a country with strained broadband capacity, and now we're talking about enacting a regime of content filtering that may lower the performance of consumer broadband connections based on data that's already been proven faulty more than once?

And on top of that, there's not really any good technological solution to this problem yet. It's not like we can say that if you just drop this magic box into your network you can catch every last bit of illegal content on your network without--and this is the important part--snaring perfectly legal content at the same time.

I mean, think about this: we're going to sacrifice broadband performance to satisfy the interests of content owners who have only recently engaged with legal online distribution, and in doing so potentially sweep up law-abiding users in these drag nets while opening up network operators to all sorts of potential litigation.

To me, this is just about the definition of insanity.

That being said I do believe that content piracy is a big, big problem. We've got far more video being downloaded illegally than legally. And the average consumer, especially younger ones, don't seem to pay any thought to the fact that downloading pirated movies is illegal, that they're stealing something.

But the thing is, my solution to these problems is entirely different from filtering and making criminals out of consumers.

If I'm a content owner, then if I saw my videos being downloaded illegally, I'd first ask myself, "Well, people obviously want my content, but they're turning to piracy to get it. Maybe I'm not doing enough to make my content easily available online."

I generally don't think that the average consumer wants to be a pirate, they just want to watch specific pieces of content. (Though I will admit there's a significant issue of convincing people to pay when they're to getting it all for free.)

The biggest problem I have in all this is that it seems like the consumer is being portrayed as the evil party, as the one that needs to be punished. I just don't see how making criminals of your customers is sound business. Instead what I'm desperate to see more of is how can the system be adjusted to cater to the needs of consumers, as ultimately it's their dollars that can make this work.

So in the near-term, content owners or the government requiring any network operator to filter through all the traffic going through their pipes for piracy seems like a misguided and ultimately ineffective way to stop the spread of illegal content distribution.

Instead, let's focus on how we can tune the system to provide a better experience for consumers, and in doing so entice them to leave their illegal content days behind and join in on the legal online video revolution.

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