What would a Judiciary Committee bill be without an attempt by Hollywood and/or the recording industry to impose some sort of technology mandate? We have heard that pro-content industry members may introduce an amendment to the Sensenbrenner-Conyers Net Neutrality bill at Thursday's Subcommittee mark-up that would do just that. The proposed amendment states:
“Nothing in this section shall be construed–(A) to enlarge or to diminish the ability of a broadband network provider to utilize filtering or similar technologies, or to require subscribers to utilize technologies or devices, that are intended to prevent violations of title 17 of the United States Code; or (B) to impair the ability of a broadband network provider to prevent subscribers from utilizing technologies designed to facilitate such violations.”
Specifically, this language would allow content providers to dictate that copy control devices or filters are used on networks. Even more importantly for supporters of net neutrality, this amendment would allow any content provider to evade the net neutrality obligation by claiming it is acting to protect or enforce its rights under Title 17. For example, say a content provider doesn't like a particular music service. Under this provision, it can claim the service hasn't cleared rights to a small percentage of its songs and that it therefore can block access to protect its Title 17 rights. To the extent language is needed to preserve the rights of copyright owners to fight actual copyright infringment, the amendment should simply state that “nothing in this section shall enlarge or diminish any rights of a copyright owner under title 17 of the United States Code.”
Needless to say, the broadband network providers are not happy with the proposed amendment, because it is an invitation for the content industry to pressure them to filter and/or copyprotect copyrighted works. But by opposing net neutrality, the network providers have put themselves in a bind – whereas previously they invoked their status as mere “common carriers” to insulate themselves from copyright liability, they are now insisting on the ability to inspect bits and distinguish among them for a variety of purposes. As the content industry has recognized and will certainly exploit, broadband network providers cannot say that they are not common carriers for the purposes of providing priority services but are common carriers for purposes of enforcing copyrights.