Internet Packet Sniffing and Its Impact on the Balance of Power

Robert M. Frieden, Penn State University

Abstract

Internet Packet Sniffing and Its Impact on the Balance of Power

Between Intellectual Property Creators and Consumers

Rob Frieden

Professor, Penn State University

102 Carnegie Building

University Park, Pennsylvania 16802

(814) 863-7996; rmf5@psu.edu

web site: http://www.personal.psu.edu/faculty/r/m/rmf5/

Previously Internet Service Providers (“ISPs”) had little incentive or technological capability to deviate from plain vanilla best efforts routing for content without examining the nature and type of traffic. Serving as a neutral conduit also provided the means to qualify for a safe harbor exemption from liability for carrying copyright infringing traffic provided by Section 512 of the Digital Millennium Copyright Act.

Operators of next generation Internet networks will have the technological capability and commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. Additionally the ability to “sniff” and inspect specific packet streams to identify type and routing priority also provides ISPs with greater ability to determine whether the traffic they carry respects all intellectual property rights.

The potential exists for carriers operating the major networks used to switch and route Internet bitstreams to go beyond satisfying diverse requirements of content provider and endusers. Advocates for nondiscrimination, commonly referred to as network neutrality, worry that major ISPs have both the wherewithal and incentive to bifurcate the Internet into one medium increasingly prone to congestion and declining reliability and one offering superior performance and potential competitive advantages to users able and willing to pay, or affiliated with an ISP operating a major bitstream transmission network such as AT&T, Verizon and Comcast. Opponents refuse to see a current or prospective problem and worry that network neutrality requirements legitimize common carrier regulation of the Internet, a regulatory regime heretofore limited to telecommunications services operating in a less than fully competitive environment.

The network neutrality debate has largely ignored whether and how packet inspection by ISPs impacts the balance of power between consumers and creators of intellectual property. Arguably ISPs will have much greater capability to protect intellectual property rights in light of enhanced knowledge of the nature and type of the traffic that traverses their networks. Such technological capability may further condition or eliminate the DMCA safe harbor, because ISPs may no longer claim the lack of “actual knowledge that the material or an activity using the material on the system or network is infringing.”

This article will examine the current debate about Internet neutrality in terms of its impact on intellectual property rights, including consumers’ fair use opportunities. The article will assess whether and how ISPs might lose their safe harbor for copyright infringement liability based on new technological means to know about the content they carry. Additionally the article will consider whether ISPs have an affirmative duty to conduct packet inspection absent a legislative mandate. The article also will examine litigation over mandatory processing of broadcast television “flags,” which specify consumer use options, but which require equipment processing on user premises. The article concludes that ISPs regulatory status as information service providers does not provide an absolute exemption from responsibilities to examine the content they carry and to provide reasonable safeguards for protecting copyrights. However such affirmative efforts to operate a non-neutral network may impose greater burdens on ISPs to protect creators’ intellectual property rights with the likely reduction of consumers’ fair use opportunities.