If you want to picture how the Internet should work, think of the Sydney, Australia sewer system, or at least the way it was depicted in Finding Nemo. If you recall, little Nemo got himself flushed down the dentist’s spit sink and slipped through to Sydney Harbour without running into a single screen, filter, barrier or gate. In the movie the sewer system was a dumb water carrier. It just conveyed the liquid to its destination without concern for its content, in this case, a little clown fish.

Now, replace Nemo with a YouTube clip and the sewer pipes with copper and fibre optic cables owned by cable and telephone companies and leased by Internet Service Providers (ISPs). Ideally, the cables should convey the clip without friction or inspection from YouTube to you. In other words, the Internet should be a dumb traffic carrier, without concern for content, for, in this case, a video file.

That’s the way things should work. As I’ve discussed before, this makes the net neutral, and net neutrality is a good thing for consumers. It’s also been good for ISPs because, as long as they keep a hands-off approach to the data they deliver to you and me, they are above liability if the content is hate speech, copyright material or, say, child pornography.

In fact, U.S. carriers spent six years prior to 1998 fighting for just this sort of federal no-fault legislation, a part of U.S. copyright law called Transitory Digital Network Communications. It kept them safe when record companies hunted down Napster, Grokster and hapless teens and grandmothers with large digital music collections.

But, lately, some Internet providers are taking the perverse position that they want to start inserting screens, filters, barriers and gates into the system. They want to start sniffing at that YouTube video to see if it contains copyright material. They want to play content cops.

News of this odd about face first showed up at last month’s Consumer Electronics Show (CES). According to The New York Times, during a discussion at NBC’s booth at the trade fair, James Cicconi, senior vice president, external & legal affairs for AT&T said his company has been “talking to technology companies, and members of the M.P.A.A. and R.I.A.A., for the last six months about carrying out digital fingerprinting techniques on the network level.”

That means looking inside data packets that pass through the AT&T systems in search of material that contravenes U.S. intellectual property laws. That means spying on you. Not that AT&T is totally averse to helping out with spying. It’s already shown its willingness to help the N.S.A. keep tabs on Americans’ phone calls, but this is a different level of craziness. So, why is AT&T opening itself up to consumer backlash and potential litigation? Because it has concluded that digital rights management (DRM) at the file level has failed to prevent file sharing of copyright materials like movies and music. And carriers in the U.S. (and as we’ll see, in Canada too) want to stop that sharing. Why? Two reasons.

First, they claim that peer-to-peer file sharing of pirated content is clogging the Internet and making it harder for law-abiding folks to get the Internet speed they’ve signed up for. As I’ve discussed before, this is a weak argument. When the carriers themselves start delivering lots of broadband content, they’ll find the room and, besides, they’ve been given lots of government money to provide that room and haven’t bothered.

Second, and more importantly, the carriers want to start carrying TV shows, films and music from content providers who are less likely to make good deals, or any deals, if the same carriers are acting like open sewer pipes for pirated goods.

This idea isn’t just made in the USA. Belgium and France are trying to mandate ISP-filtering. Similar proposals elsewhere in the EU and the UK where struck down, but are expected to rise again.

And, on January 21, representatives of the Canadian music and movie industries met with the editorial board of The Ottawa Citizen. During the exchange, which you can hear here, the group was asked, in regards to upcoming changes to Canada’s copyright laws, “What would you like to see in this legislation, what are you hoping for, if it was the dream legislation?”

Duncan McKie, the president and executive director of the Canadian Independent Record Production Association (CIRPA) responded, “ISP liability. Belgium has led the way with recognizing ISP liability so eventually the file sharing issue will go away there and the ISPs will take down the people.”

They would “take down the people” by sniffing at their passing packets like drug dogs at an airport. This is bad craziness. First the technology, like DRM, is doomed to fail. Consider how many false positives your spam filter generates, to get an idea of the problem. Second, it will be a consumer rights and civil rights nightmare. Third, it makes no sense that the infrastructure of the Internet should be tailored to prop up the movie and music industries’ old business models. Finally, it will just lead to more strong encryption of peer-to-peer data that will lead to deeper packet sniffing, more encryption and the whole silly cat-and-mouse game we saw with DRM will start again.

I spoke with McKie by phone earlier this week and he agrees that the “watermarking” of digital data is prone to hacking and he doesn’t know how that will be technically solved. He also doesn’t understand why people are so concerned about ISPs taking responsibility for content.

“People buy software from Adobe and have to register that, or they can’t use it after 30 days,” he said. He clarified that he’s not looking for ISP liability in the changes to the Copyright Act, he just wants ratification of the W.I.P.O. (World Intellectual Property Organization) treaty “as a first step.” But, he’s not ruling out a call for ISP filtering down the road, even though he knows that will be a tough fight with the ISPs, and the public. McKie also thinks it’s in the ISP’s best interest to filter, especially if they want to sell music in the future, especially to mobile devices. “They can’t suck and blow at the same time,” he said.

I feel for McKie. He’s trying to make sure musicians get treated fairly, and good on him. But the fact that his organization would even contemplate ISP filtering as a solution is a sad testament to threat it faces from an Internet which is, really, a giant Xerox machine that can’t be packed back into the box. This is an industry that, south of the border, got lambasted in the press for suing fans. Advocating ISP filtering in Canada is a PR move that would make that coverage look like coverage of the Mayor’s pancake breakfast in the Gull’s Tickle Tribune.

I’m not the only one who feels that way. As Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, reported on his blog yesterday, the Business Coalition for Balanced Copyright has told Ottawa it is does not support ISP liability. And, that group is made up of heavy hitters like the Canadian Association of Broadcasters, the Retail Council of Canada, major ISPs and Google and Yahoo!

Do I think ISP filtering will ever happen? No, it’s impractical, unconstitutional nonsense. But I do think the industry folks who think it’s a beacon of hope should just stay home with their 45s. Otherwise, they’ll wind up looking like a school of clown fish, and, as we contemplate getting our packets sniffed, that spit sink will seem like a really good idea.

wayne

Wayne MacPhail

Wayne MacPhail has been a print and online journalist for 25 years. He was the managing editor of Hamilton Magazine and was a reporter and editor at The Hamilton Spectator until he founded Southam InfoLab,...