Preface: As always, I am not a lawyer. This is a theory and nothing more. I know little about the legality of net neutrality but I know a great deal about the DMCA. Still, I am looking for the opinions of lawyers and others with more knowledge than me on these issues. I might be wrong, but then again, I might not.
With all of the excitement over net neutrality and the heated exchange between both sides of the issue, it is very easy to get caught up in the law that may or may not be coming. Whether you believe that net neutrality is about "the First Amendment of the Internet" or ensuring "the broadest possible range of choices for consumers", it's tempting to look to the future and not to the past.
However, the law has already spoken on the issue net neutrality, albeit in a very roundabout way. Buried deep within the legalese and copyright mumbo jumbo of the DMCA is a single but little read clause that could, in theory, have a dramatic impact on the net neutrality fight, especially if net neutrality never passes.
Net Neutrality in Brief
The idea behind network neutrality is fairly simple. On the Web right now, all data travels at roughly the same speed. Though servers and networks are slower and faster depending on connection, hardware and other factors, all data, more or less, is treated the same.
This means that your ISP has no control over what comes into your machine. You receive the data you request and, barring any problems on the other end, you receive it in the order that you requested it. No site and no content is given preferential treatment.
Some major telecoms want to change that. They want to be able to charge larger sites for access to "fast lanes" on the Web. Sites that can't pay up are, theoretically, relegated to "slower roads". This means that data from companies that can afford to pay the toll are given preferential treatment over those that can not.
Telecoms say that this is necessary to pay for upgrades to the existing network and to continue the spread of broadband, Web companies worry that this will amount to a tax on their sites and will tip the playing field in favor of large sites that can afford to pay up.
However, this kind of discrimination based upon content is a lot less likely than many people think. If telecoms suddenly decide to discriminate Internet traffic on the basis of content, they could find themselves in trouble, even if Congress fails to pass a bill enforcing net neutrality.
When the DMCA (PDF) became law in 1998, telecoms breathed a sigh of relief. After years of uncertainty, it was revealed that they could not be held liable for any copyright infringement that passed through their network. As a "transitory communications" provider, all they had to do was meet a few simple requirements and they never had to worry about being held accountable.
However, it's one of those requirements that may now prove to be a sticking point. The second requirement for a "transitory communications" provider reads as follows (emphasis added):
"The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the service provider."
In short, the DMCA gave telecoms a pass on copyright infringement suits so long as they didn't make any selection of the content that passed through their service. As long as telecoms are blindly routing requested content to its end destination, they could not be held accountable for that material.
However, the minute they start intelligently discriminating one type of material from another, their situation becomes in doubt. They no longer meet the qualifications of "transitory communications" provider and now have no clear status under the DMCA.
Essentially, they are back to square one. Though not condemned, they are no longer protected.
What This Means
The exact meaning of this is, quite frankly, wide open. It could be that telecoms would be able to get themselves reclassified as "transitory communications" providers or that they might never really lose that classification. However, it could also mean that they find themselves in a very scary copyright limbo, simply waiting for infringement suits to start flying at them with no idea how the courts will treat them.
What is clear is that they are leaving behind the safe shell that the DMCA provided them. They will either have to change the law, reinterpret it or face the consequences.
It seems unlikely to me that telecoms are going to take on this kind of risk lightly. The can neither afford to be slammed with an endless streams of lawsuits nor do they have the ability to be a perpetual "net nanny" constantly filtering out and blocking offending content. The only way that they can ensure their own safety is to keep their hands off of the Web and keep the filtering to a minimum.
Now, it's important to note that this doesn't mean that they can't filter traffic at all. They can't filter based upon material, but they can filter based upon format, or at least they have been. Disputes between ISPs and providers of VOIP and Bittorrent users are unrelated. They are blocking the format, not the content. It's the difference between blocking all Skype clients and blocking or reducing access to only a few because they didn't pay the toll.
The difference seems slight, but the law is clear that it must be based upon the material that's transmitted, not the format it is transmitted in. Google, Yahoo and Microsoft Web traffic all arrive the same way, if the ISP filters or reroutes based upon that, the equation is different.
However, the difference may be enough to enforce a form of pseudo-net neutrality, a means by which providers don't discriminate on content because of the potential legal consequences in a seemingly unrelated arena.
It is not the intended consequence of the DMCA, but a potentially positive one nonetheless.
Large companies, like telecoms, hate risk. They hate anything that can severely impact their company and they hedge their bets against such threats.
The DMCA, in this case, is just such a risk.
Can ISPs be sued for copyright infringement if they stop being "mere conduits" for data? Will they be forced to respond to DMCA notices much like Web hosts do? Will they find themselves at the heart of other legal issues such as illegal pornography and hate speech? I don't know. These are issues for lawyers and judges to sort out.
But that's what is likely to keep telecoms away from this, the unknown. The risks are great, but the potential rewards are dubious at best.
Simply put, the telecoms wants to control the routing of the data, but they do not want to be responsible for it. I'm sure that most would be very happy to take their hands off of the Web so long as the alternative was taking even partial responsibility for what passes through its servers.
There are just too many risks to ignore and the telecoms know that. Though they are fighting net neutrality tooth and nail, it may be a dead end.
They might already be operating under it, like it or not.
Special Thanks: A special thanks goes to this User Friendly comic strip for giving me the idea to look at the DMCA in this light.