Comcast van. Source: Titanas on Flickr. License: CC BY-SA 2.0.

Ars Technica reports that Comcast has filed suit against the Federal Communications Commission over its ruling against the provider for Comcast’s use of throttling technology.

Almost a year ago, Comcast pledged that it would sue the Federal Communications Commission over its Order sanctioning the cable ISP for peer-to-peer throttling. Now, the company has filed its case with the United States Court of Appeals for the District of Columbia Circuit. Although Comcast’s legal arguments are complex, the crux is simple: there were and still are no statutes or credible regulations that support the Commission’s authority to act on this matter, the company says.

“For the FCC to conclude that an entity has acted in violation of federal law and to take enforcement action for such a violation, there must have been ‘law’ to violate,” Comcast’s Opening Brief to the court contends. “Here, no such law existed.”

Well, it certainly took them long enough.

• Ars Technica
• Slashdot

net neutrality... to the power of you - Credit: markrabo on Flickr (CC BY)

Once again Network Neutrality has been brought back to the table in Congress, this is already the third time. But since we now have  a new President and a new FCC chairman it seems more likely that there will be a different outcome this time.

The war over network neutrality has been fought in the last two Congresses, and last week’s introduction of the “Internet Freedom Preservation Act of 2009” (PDF) means that legislators will duke it out a third time. Should the bill pass, Internet service providers will not be able to “block, interfere with, discriminate against, impair, or degrade” access to any lawful content from any lawful application or device.

I’m not really sure how I feel about this. I definitely support net neutrality and I think it’s extremely important but maybe a better approach to insure net neutrality is to increase ISP competition.

• ars technica
• Slashdot

The Sydney Morning Herald reports that Australian ISP iiNet is challenging movie studios’ claims of copyright infringement on its network. One of their arguments is that, because BitTorrent peers shares bits rather than entire files, its users are not committing infringement.

In the Federal Court today, where iiNet is being sued in a landmark case by seven major movie studios and the Seven Network for allegedly permitting customers to download movies illegally, iiNet’s lawyers said they would clarify their position on the issue by next Wednesday.

However, they foreshadowed possible arguments that infringements did not occur, by questioning whether transferring files over BitTorrent on a “one-to-one” basis was equivalent to making them “available to the public” under copyright law.

They also claimed that, because files are broken up into tiny “packets” before being sent over BitTorrent, this may not be enough to suggest a “substantial portion” of a copyrighted file was distributed.

The movie studios also claim that iiNet is liable because it refuses to disconnect users accused of infringement.

The studios claim iiNet in effect “authorised” customers’ copyright infringement by failing to disconnect them when notified of the infringements by the movie studios.

iiNet’s barrister, Richard Cobden, SC, said the ISP was not required to act on a “mere allegation of copyright infringement” and used comments from former attorney-general Philip Ruddock that apparently back up this claim.

iiNet has previously said that the case was “like suing the electricity company for things people do with their electricity”.

I don’t think the “sharing bits” thing would work in the US, but it’s nice to see an ISP not cave into movie studio pressure, even if the consequence is possibly making itself liable. Why can’t we have more ISPs like this one, who won’t bend over merely because of accusations alone?

• Sydney Morning Herald [Print Version]
• Slashdot

The UK Intellectual Property Office has drafted proposals for dealing with “persistent” copyright infringers, particularly filesharers, as part of a discussion of the scope of a proposed UK Digital Rights Agency. The guidelines involve ISPs restricting the access of repeat infringers:

The new discussion piece, while not going into much detail, has proposed two potential example solutions to the problem. UK ISPs could employ protocol blocking or bandwidth restrictions, in relation to persistent infringers. In other words, P2P services could be blocked or users might find their service speeds seriously restricted[...]

One particularly interesting aspect of the new proposals is that it would not be limited to tackling unlawful peer to peer activity. Instead the DRA would be geared towards finding effective ways of reducing the overall levels of online copyright infringement over time, allowing for changing behaviours and technologies (i.e. it might tackle Newsgroups, FTP and other services where illegal usage takes place on a users account).

[...]

Typically all of these proposals rest on ISPs being able to reach some kind of agreement with the creative industry. Should that fail then the “less attractive” option would be for tougher measures to be introduced through legislation. “This would be necessary if there were little prospect of an effective rights agency,” says the paper.

So, essentially, the UK IPO wants to impose a kind of “three strikes lite” on their citizens. Never mind, of course, that a filesharer may want to download (or seed) a new version of Linux or talk with friends over Ekiga or something. She’s a *gasp* filthy filesharer! She’s not fit to interact with others online!

Imposing social rules through legislation rarely works out well.

• ISPreview article
• Link to paper (PDF, 448 kB)

Baseball - Credit: thebusybrain on Flickr (CC BY)

Italy plans on following the French model of dealing with p2p infringement.

According to a THR report, yesterday Italy’s Ministry of Culture signed an agreement with French officials to cooperate on anti-piracy issues. Furthermore, in an indication of how Italy sees its legislation progressing in the future, Minister of Culture Sandro Bondi said that Italian laws will “follow the French model” in providing strict protection and controls for copyright works.

As we previously reported, plans for a “3 strikes” regime had already been touted in Italy by the movie industry during meetings in Venice, with the MPAA’s President Robert Pisano stating: “Maybe the first couple of times they get a warning e-mail, then perhaps the speed on their account is reduced, and if they keep doing it then maybe their account is closed.”

It’s like digital baseball!

• TorrentFreak

Warner Music Group

The EFF Deeplinks blog (along with many other sources) reports about a proposed licensing scheme devised by Warner Music that would allow university students to be immune from lawsuits from sharing music in violation of copyright, provided that they pay for a license first.

Here’s what we know so far. Apparently Warner Music opened this discussion with universities some months ago. There is no concrete plan yet, but EMI and Sony-BMG are apparently open to the general idea (leaving Universal Music as the hold-out, which is no surprise, given their reputation as the most backward of the major labels). It’s not clear whether or to what extent independent labels have been involved. And the project has a name—Choruss. The chief negotiator for Warner appears to be Jim Griffin, who is a long-time advocate of collective licensing (and member of EFF’s advisory board).

Universities would pay Choruss, a new nonprofit collecting society, in exchange for an end to the “John Doe” subpoenas seeking student identities, DMCA notices, lawsuits against students, and legislation mandating copyright surveillance of campus networks. Students who pay will be free to download whatever they like, using whatever software they like, in whatever format they like (and presumably keep it all when they graduate, since there would be no way to claw back DRM-free MP3s). The monies collected would be divided up among artists and rightsholders, based on relative popularity. The rest of the details are still to be determined, including whether it would be a mandatory fee for all students, or an opt-in fee (complete with continued lawsuits for those who fail to pay?). It’s also not clear what the fee would be, although those familiar with the talks suggest less than $5 per student per month.

In a rare moment of disagreement, I’m going to side with TechDirt on this and not with the EFF. While at first glance this seems like a logical solution, I can come up with several questions about this idea. First of all, how is the decision of royalty payments made? I don’t want my money going to artists that I do not listen to, even if everyone else listens to them. Second, how will the RIAA and the universities know who is licensed and who isn’t without using the same invasive techniques that they are using now? The only way I can think of to verify that users are licensed would be to verify the account holder against a whitelist of subscribers, which would either require the same subpoenas as before or require that universities hand over this information immediately and without hesitation (or even worse, have the account broadcast it publicly). Yes, there are already services like BigChampagne that monitor P2P networks, but I’m pretty sure that they don’t offer very detailed and personalized results beyond a public IP address. Third, and perhaps most importantly, music is not the only thing that is being traded illegally over the Internet. What stops other media conglomerates from demanding licenses as well?

• Electronic Frontier Foundation
• Techdirt
• Wired
• Ars Technica

TorrentFreak reports that Quote Unquote Records has had their site pulled because their ISP demanded copyright registration forms for their music.

Around a week ago, the label was notified by its webhost that it had some copyright music files on its server, which was no surprise to them since they were tracks by Arrogant Sons of Bitches, one of the label’s bands. The tracks the webhost referred to were actually written by Jeff himself. Jeff spoke with someone at the host on the telephone, explained that they were his own tracks and was informed this wasn’t a problem.

Three days later the labels site went down completely, due to Jeff hosting his own copyright files on his own site – a claimed violation of the hosting company’s Terms of Service. In order to solve the problem, Jeff would have to send his copyright registration forms to the host by mail, to prove he held the copyright, a problem in itself, explains Jeff:

“I called the company to explain that a lot of this material was NOT in fact registered with the US copyright office, instead we did the ol’ poor man’s copyright. The music that was copyrighted was done so under a Creative Commons License, which is a digital copyright that cannot be viewed if the website where the files are posted is down.”

I can imagine their ISP potentially losing their immunity in copyright lawsuits for preemptive strikes like this,.  I’m pretty sure the DMCA says that ISPs are to act only when notified of infringements on their services, not before.

• TorrentFreak
• Slashdot

Comcast has sued the FCC and wants the p2p throttling ruling overturned.

As the legal process plays itself out, Comcast has pledged to abide by the order and continue its work to move towards a protocol-agnostic throttling system that could slow “heavy users” down to DSL levels for 20 minutes at a time (another piece of the bandwidth management puzzle, hard bandwidth caps, were also announced last month).

“Although we are seeking review and reversal of the Commission’s network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission’s Internet Policy Statement,” said David Cohen, Comcast’s executive vice president.

“Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year.”

With Comcast pledging to abide by the FCC’s decision, what’s the point of the lawsuit? The FCC’s finding and order are precedent setting, in that the Commission has rendered a decision on how far ISPs can go in managing their networks for the first time. That’s a precedent Comcast and its cable and telecom brethren would rather not have, as they would prefer to manage their networks in any manner they see fit without directives from the FCC covering what kinds of management techniques are over the line.

I agree with the analysis at the end there.  What do they want out of this other than the last word?

• Ars Technica