Comcast is publicly proposing a “P2P Bill of Rights and
Responsibilities,” which would apparently define certain obligations of peer to
peer application users on the Comcast data network. Reports indicate that the
“Bill of Rights” would align itself with “self–regulation” standards as to
content, such as movie and television ratings, which Comcast asserts would help
to curb copyright infringement. Critics say that the proposal is an attempt by
Comcast to justify its reported practices of throttling or blocking traffic
arising from use of P2P applications. Critics say this violates the idea of
“net neutrality,” that is, the idea that once you have access to a resource,
you may use it as you see fit.
Both Comcast and the critics have their strong points.
Comcast is correct that P2P can be used for copyright infringement. Comcast is
also correct that P2P applications tend to be resource drains. Critics are correct
that Comcast ignores that P2P can also be used for perfectly lawful purposes as
well. Critics are also correct that Comcast’s attempts to limit certain content
and applications is a slippery slope when it comes to freedoms of speech and
expression. These competing viewpoints have been well-developed over the years.
The real issue here is the “path” that Comcast is
considering taking in attempting to “lawfully” limit P2P bandwidth. Comcast
seems to want to use the decision in MGM
Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), as a weapon to limit
bandwidth. This is a very expansive reading of the courts holding that, in a
nutshell, holds that one that promotes the ease of infringing on copyrights can
be sued for inducing copyright infringement committed by their users.
That Comcast would be considered to “induce” copyright
infringement by simply providing Internet access to P2P applications is a very
broad reading of the Grokster holing.
Copyright infringement can occur in numerous ways, including FTP and simple
copying of images from websites via a web browser. Comcast provides access to web
browsing and file transfer applications to customers, yet those methods of
copyright infringement are ignored by the proposed Bill of Rights.
This is not to say that Comcast does not have a case here.
Its argument is at least colorable. The reality, though, is that Comcast’s
ultimate goal is to limit excessive bandwidth drains on their network, not
protect copyright infringement. The suggestion that the “P2P Bill of Rights and
Responsibilities” is primarily a copyright issue, particularly given Comcast’s
prior blocking of P2P applications, is simply a difficult argument to accept.