Follow Up: Net Neutrality and the DMCA

Yesterday’s post about the DMCA and how it might apply to net neutrality seems to have sparked some interest. It has received several comments, had at least two posts linking to it and generated a modest amount of email.

I wanted to clear up some of the common questions/problems people have had with the article, largely due to the fact I omitted a few points on accident.

First off, this isn’t necessarily about people suing ISPs for copyright infringement or anything else. While that could happen very easily, it is easily more likely that they would be put in a situation on par with Web hosts, having to respond to DMCA notices and having to actively filter out infringing material.

While lawsuits would be a great way to enforce net neutrality, forcing them to filter out infringing material would work almost as well. Since they can’t simply remove the content, they have to actively filter it at their end. This would require them to invest in new equipment, new personnel, including people to respond to the DMCA notices, and it would result in a very negative customer experience.

All that would happen, realistically, is that they would lose their protection under the safe harbor provision of the DMCA. A new role would have to be carved out for them, either by judges or lawmakers, what that role would be is very unclear.

However, the whole reason that ISPs were given a walk on copyright infringement in the DMCA was because they had no control over the data and no ability to filter it. Once they take control of it, it seems highly unlikely get away without taking at least some responsibility for it.

After all, in matters of law, control and responsibility usually go hand in hand. If you control the car, you are responsible for what it does. If you control the data over your network, you are at least partially responsible for it.

Exactly how this would shake out is undetermined and that is what is so scary to the ISPs, the unknown. It’s very likely that it will be better, easier and cheaper for them to remain neutral rather than carry even a small part of the burden for what travels over their lines.

Simply put, the ISPs can’t have it both ways. Even Spiderman understands that with great power comes great responsibility. They will have to, at some point, own up to the other half of the equation.


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