For a decade, thinking about protection of creative content has focused on encryption and digital rights management. But this approach has always been subject to problems: (1) What one mind can encrypt, another can decrypt; (2) Rules to prevent decryption, such as the DMCA, are lightening rods for political attack; (3) To be perceived by an audience, digital content must eventually be turned into analog, at which point it can be captured and redigitized.

So attention is turning to an alternative. If copyrighted works could be reliably identified as they stream through the cybersphere -- if they could be DNA tested -- then it would be possible to prevent their transmission by filtering them out.

True to the maxim of the Internet that technology both giveth and taketh away, it appears that such filtering may indeed be possible. (The name most often heard is Audible Magic, but there may be other technologies as well.)

If the idea proves out, then the P2P software providers and ISPs will come under heavy pressure in two ways, as the content providers argue to the courts that failure to include filters in P2P software or to apply them to Internet transmissions makes the software provider or the ISP liable under the legal theory of contributory infringement, and argue to Congress that filtering technology should be mandated.

The P2P companies are not happy over this possibility, to put it gently, and they charge that they have not been able to test the technology and that it is unlikely to work. It is safe to assume that ISPs would not be happy, since the DMCA already immunizes them from liability. Schools might be happy, because they are paying for serious bandwidth used by students to download music and movies, not educational materials; some are already experimenting with the technology.

Imposing legal requirements on P2P software providers and ISPs would indeed raise serious issues. We should be wary of putting costs on Party B (such as an ISP) to protect the property of Party A (a content provider), because the natural tendency of such rules is for Party A to keep demanding more. On the other hand, one of the good features of filtering software is its requirement that the content owner provide precise information. (It is not like anti-porn filters, which tend to zap any recipe that refers to chicken breasts.) So there should be a check on inordinate demands.

In any event, cost allocation issues may be difficult, but they can usually be solved when the stakes are high enough. And the possibility of successful filtering is one of the most promising developments in many a moon for anyone who believes:
(a) that the road to a Golconda of creative riches lies through the successful transplantation of the organs of property rights and markets to the Internet, and
(b) that the existence of this Golconda will reinvigerate the investment necessary for the deployment of really fast broadband connections,

posted by James DeLong @ 1:38 PM | General

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