But now censorship is moving to the domain of the content distributors — those who control the on-ramps and off-ramps of the Information Superhighway. AT&T is essentially threatening to construct a censorship toll booth on every off-ramp, deciding what content may or may not be downloaded to your computer or mobile device.
While the announcement clearly focused on illegal content, the problem is that copyrighted content is often mixed with new material in ways that protect the user. When a media creator uses copyrighted works as part of a parody, for example, or when the original copyrighted material is changed so dramatically as to create a new work (as in rap sampling), the new work is not a violation of copyright. It is transformative. It is new, and can itself be copyrighted.
So, why would AT&T be so eager to publicly announce its new censorship initiative?
First, the new AT&T is a content creator. They are not just passing along content created by other media companies, they now create their own, most notably in digital television.
Mostly though, this censorship stance protects them from liability.
In a series of recent cases, the Supreme Court decided that internet companies whose sole goal is to facilitate illegal activity (the aiding and abetting of copyright infringement), could be held liable for that infringement. But, hey, the primary business of AT&T isn’t illegal downloading like it was for Napster, Grogster, or KaZaA. So, what are the lawyers over there on Broadway so concerned about? Intentional inducement, a legal theory borrowed from patent law, extends liability from the individual initiating the illegal activity to the company providing the technology that assists it. The Court in their 2005 Grogster decision ruled that a content-distribution company can be held liable for copyright infringement if they purposefully encourage — even by ignoring — downloads of copyrighted materials.
Since the turn of the new century, intentional inducement has won out over a previously accepted legal norm — safe harbor — for content distributors. Section 512 of the Digital Millennium Copyright Act specifically protected distributors from copyrighted materials posted to their websites if, once notified, the distributor promptly removed the offending material. To be protected by safe harbor, the copyrighted material must reside on the distributor’s server, the material must be posted by the user on the site, the distributor must not be aware of the infringing material, and the distributor cannot receive payment for the infringement.
Safe harbor has in many ways gone the way of Napster (which, ironically, lost with this defense). Today, intentional inducement poses a real liability threat to content distributors. I often refer to this as the YouTube User Fear. On YouTube, some users create transformative works, while many others simply illegally copy materials they post to the site. Just go ask the lawyers over at Google, who now own YouTube, about the reality of that fear.
Clearly, it is in the best interests of AT&T to prevent potentially illegal downloading, but should AT&T go into the content-policing business? Emphatically, no. And not just because I would like to choose for myself what ends up on my hard drive. The technology to restrict the downloading of illegal material but protect legal uses of that same material does not exist. And it will be a difficult challenge, even for the best programmers, to develop such a tool. It is context and nuance that creates the line between legal and illegal downloading. And while Artificial Intelligence is creeping closer, it is not advanced to the stages of implementation quite yet. So, deploying an inferior technological solution now will be a legal nightmare for AT&T, one that involves a lot of bad publicity and possible violations of the First Amendment.
Instead of creating a new system to scan downloads for potentially copyrighted material, big content distributors like AT&T should be working with government officials to create new copyright law that takes into account the realities of the digital age.