Technical measures (part VI): conclusions

In the past few days, several technical measures to combat piracy have been discussed. Even though none of these measures is 100 percent effective, implementation is expected to result in a significant decrease in piracy.

Site blocking

Blocking access to websites is understandably the most controversial measure of all because it is infringes upon the freedom of expression and information. Professor Egbert Dommering (Information Law, University of Amsterdam) has stated that this method of filtering is tantamount to censorship. Blocking access to websites is obviously rather heavy-handed, since it also shuts down access to files that are neither illegal nor copyrighted.

Blocking websites should only occur by court order and judges should take the interests of both copyright owners and website owners into account when making a ruling. Possible starting points for deliberation are the actual damages suffered by rightholders, the interests associated with freedom of speech and information, the proportion of legal versus illegal content and the manner in which website owners respond to Notice and Takedown requests.

Port and protocol blocking  

Port and protocol blocking is an equally heavy-handed course of action, since it also blocks the transfer of legal files. Raising such blockades stunts the development of new business models, impedes innovation in the field of distribution and affects legitimate users and illegal file-sharers alike. Blocking individual users is a viable option, but it should be regarded as a last resort in a graduated response procedure.

Bandwidth management

As a measure to combat piracy, managing bandwidth is a touch more refined. Decreasing connection speed can be targeted specifically at users that exceed download limits or persist in downloading and uploading illegal material. This measure hardly infringes upon freedom of speech, since the transfer of information is slowed down rather than blocked altogether. However, bandwidth management is at odds with the principle of net neutrality that states that all Internet traffic should be deemed equal. However, in view of the exponential growth in P2P traffic, which currently uses some 50 percent of the available bandwidth worldwide, it seems doubtful whether ISPs will be able to uphold this principle for long.  

Content recognition

Content recognition can help create finely meshed systems to combat piracy. These systems would be capable of blocking illegally distributed content without causing disruptions in regular P2P traffic. Possible drawbacks of content recognition are the relatively high costs associated with implementation and the fact that the technology is still being developed. A further concern is that examining content may possibly constitute an invasion of privacy.

All of this shows that implementing technical measures needs to be done with diligence. Technical applications might well be at odds with freedom of speech, the privacy of Internet users and the principles of net neutrality. This creates the need for checks and balances, transparency and effective arbitration mechanisms.  

Not only the users' interests should be taken into consideration, however. Ideally, ISPs should never have to find themselves in the judge's seat, but it seems inevitable that they, too, will have to make choices: either to respond to a court order, to protect their own networks or in consultation with copyright owners.