August is traditionally a slow time in D.C., with Congress out of session and most policymakers looking to escape town for some vacation. But the early part of the month has already seen some significant developments for Internet policy.
First, on August 1, the FCC voted 3-2 to adopt a controversial enforcement action against Comcast for interfering with BitTorrent traffic. As I noted in July, CDT has reservations about the legal basis for the FCC's assertion of authority to engage in such enforcement. But the kind of tactics Comcast was using pose a real threat to the openness of the Internet, and the FCC's decision marks the first time the government has stepped in to impose some concrete limits. It's too early to judge the full impact — in part because the agency has not yet released the actual text of the order — but clearly this is a landmark development in the public debate over Internet neutrality and network management.
Second, on August 4, the 2nd U.S. Circuit Court of Appeals issued an important decision in the case involving Cablevision's proposed "remote storage" digital video recorder (DVR). CDT helped organize an amicus brief in the case back in 2007, because the lower court ruling that the DVR would infringe copyright threatened to cast a major cloud of copyright risk over services that provide data storage remotely.
Fortunately, the Appeals Court strongly rejected the lower court's flawed reasoning, which dangerously blurred the line between direct and secondary liability in an attempt to do an end run around the principles established in the 1984 Sony Betamax decision. The Appeals Court decision also sets significant precedent regarding the status of buffer copies, by squarely holding that transitory and fleeting data in buffers (here, data held for only 1.2 seconds) are not sufficiently fixed to constitute "copies" for purposes of copyright law. That's an important ruling; in a digital and networked world, any transmission of data from point A to point B is likely to involve momentary data storage in various intermediate buffers, so the added legal complexity of treating every fleeting tidbit of data as a potentially infringing copy could be huge. Some prior court opinions arguably supported the idea that even momentary technical storage of data counts as a copy, so it was good to see the court forcefully state otherwise. The court noted that its duration analysis was "necessarily fact-specific," which seems appropriate — the duration requirement may vary some depending on the circumstances, but a rule that everything counts as a copy is clearly overbroad.
Meanwhile, CDT has filed briefs in the Lori Drew case, arguing that failing to comply with a private Terms of Service cannot be the basis for criminal liability under the Computer Fraud and Abuse Act, and in the fleeting expletives case before the Supreme Court, questioning the constitutional basis for the FCC's censorship of one-time utterances of profanity on broadcast television.
Finally, the Higher Education Act reauthorization bill currently awaiting the President's signature contains a provision effectively requiring universities to develop plans to combat illegal file sharing by students, "including through the use of a variety of technology-based deterrents." This may lead to difficult questions down the road concerning just how much effort and expense universities should have to go through, how closely they should monitor the activities of users of their networks, and what kinds of technical means should be considered. CDT certainly believes it would be a serious mistake to move in the direction of specific technology mandates or detailed government oversight of the technical choices of universities (as well as other network providers).