DMCA Safe Harbor, Net Neutrality, and the COICA Bill

This article is a rewrite of a previous article which was originally posted by myself at another site. This rewrite introduces information that was not part of the original article.

After reading an article on Net Neutrality, which is no longer available to cite, and some old but relevant news about the COICA Bill (which never became law), I was caught by the clash between the attempted censorship of the Internet by ISPs and the DMCA’s Safe Harbor provision. That’s the provision that allows ISPs and web hosting companies to remain unharmed if a user posts copyright-infringing material on a network or web hosting service provided by them. The idea behind this is that it’s the user, not the company, who is responsible for the copyright infringement. The ISP or web host (the provider) is just a conduit and is not responsible for the user’s infringing material.

The important point to note is that there are very specific conditions to the DMCA Safe Harbor provisions that strongly support the position of net neutrality, one of which is 17 U.S.C. Sec. 512 (b)(2)(C):

the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology –

  • (i) does not significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material;
  • (ii) is consistent with generally accepted industry standard communications protocols; and
  • (iii) does not extract information from the provider’s system or network other than the information that would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access to the material directly from that person;

So what does this mean? A service provider cannot interfere with the transmission of a protocol or data that (i) does not signifigantly impact the performace of their network, (ii) follows accepted Internet technology protocols, and (iii) does not affect the privacy or their users/customers. If a service provider violates these terms, they cannot expect to be protected under DMCA Safe Harbor.

That said, proponents of net neutrality have a really big card in their pocket with 17 USC 512, and should be using it as leverage in the fight for net neutrality.

What are your thoughts on this?