InfoTech & Public Policy

During the in-class discussion of the future of television, Professor Felten briefly mentioned the lawsuit brought against ClearPlay by the Directors Guild of America. ClearPlay enables certain DVD players to be customized with specific rating criteria (like nudity or violence levels) by the users so the playback of a DVD will skip or mute certain segments to conform to the rules setup by the users. The Directors Guild charged ClearPlay with copyright infringement for creating an unauthorized derivative work. I was looking for more details about the case and found it to be pretty interesting.

As I stated before, ClearPlay allows for users to setup their DVD player to filter certain content during the playback of the DVD. Users must purchase a DVD player with filtering capabilities (such as this one from amazon.com) and subscribe to ClearPlay to receive new filters. The information about how to filter each particular DVD can be obtained from ClearPlay (via various subscription models). They do a pretty good job of offering filtering for new releases and have a list of over 1900 movies. Once the specific filtering information is obtained by the DVD player, users can configure a filtering menu to specify the type of content that can and cannot be seen. There are four main categories: violence, sex and nudity, language, and other (which, for example, include certain types of drug use). Each category can also be further configured:

Under language, for instance, viewers can filter for six levels, including “vain reference to the deity” or “strong profanity.” [1]

I have never watched a ClearPlay filtered DVD, but here is a nice excerpt from a PC Magazine review :

Spiderman has, I’d say, one truly worrisome or suggestive scene for kids under 13. Mary Jane Watson is walking home alone in the rain when she’s accosted by a bunch of hooligans who, as the scene progresses, appear to want to rob or rape her. Spiderman arrives in the nick of time to save the day in pretty violent fashion. There’s punching, kicking, and more, but no blood. With the bad guys vanquished, Spiderman steals away into an alley. Mary follows him. She’s dripping wet. So wet in fact, that her top is virtually see-through. She and Spiderman engage in a steamy, prolonged kiss, and then he takes off.

Here’s how the same scene played out with the filter on. The guys still chase Mary, but the intensity of the scene is muted because it’s been cut down a bit. Spiderman arrives and beats the guys up, but this scene is also somewhat shorter, with some of the most bone-crunching blows removed—oddly, both versions did include Mary delivering a kick to the crotch to one of the attackers. The scene in the alley receives some serious tightening, and any glimpse of Mary’s see-through blouse has been excised.

The nice thing about all this is that you could never tell when the cuts were happening. There was no delay, no hiccup in playback. I would imagine that trying to maintain some semblance of continuity in a profanity-laced scene could prove more challenging.

This technology seems like a natural replacement for manually pausing or fast-forwarding through certain scenes that parents do not wish their children to view. The Directors Guild of America, however, does not believe that and in 2002 brought a lawsuit against ClearPlay. They claimed that the ClearPlay technology was creating an unauthorized derivative work of the content and this was in violation of copyright law.

“ClearPlay software edits movies to conform to ClearPlay’s vision of a movie instead of letting audiences see, and judge for themselves, what writers wrote, what actors said and what directors envisioned,” The Directors Guild of America said in a statement.

“Ultimately, it is a violation of law and just wrong to profit from selling software that changes the intent of movies you didn’t create and don’t own,” the statement said. [1]

The lawsuit was filed against ClearPlay and other companies that offer similar filtering and is still pending in U.S. District Court for Colorado. Here are the EFF links to the case documentation.

Since the case has been filed, new legislation has been enacted to specifically address some of these issues. Now this is where things get interesting. In 2005, Congress passed S. 167: The Family Entertainment and Copyright Act of 2005. The relevant section of this bill specifically enables technology that allows :

the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture

This bill specifically allows filtering technology such as ClearPlay. It is currently unclear if the lawsuit will continue given this new legislation. S.167 answers the question about this specific type of filtering technology, but did not give a conclusion of the scope of the derivative work restrictions on copyright.

One of the reasons, I believe, the lawsuit may still continue is CleanFlicks. I mentioned before that the lawsuit was brought against ClearPlay and other filtering companies; CleanFlicks is one of the others. The CleanFlicks model is to make a one-time filtering of the DVD content from an authorized (rental) copy and create a new DVD. This filtered DVD is then rented or sold to subscribers. The filtered content is not removed during playback, but rather permanently removed from the media. I don’t believe that this scenario is specifically allowed from S.167, so we are now back to the question of derivative work. I think it will be very interesting if this case continues through the courts.

Thanks to Mozilla Firefox extensions Adblock Plus and Filterset.G Updater, I surf an internet free of pop-ups, banner ads, flash ads, and even text-based Google ads. In 2004-2005, this type of software was a popular thing to cry foul about. Advertising giant DoubleClick warned “publishers would have to start charging for content.” Companies like Falk eSolutions produced anti-ad-blocker technologies in what seemed the start of an internet ad arms race. This post in the Spring 2005 COS 491 blog has an interesting discussion of whether browser ad blockers are contributory copyright infringers.

No legal battles ensued. This is particularly interesting because it’s been the most pivotal year in the software’s confusing history. When I downloaded the predecessor, Adblock, in Summer 2005, it would block images through filters the user defined manually. You could right-click on an image and click “Adblock” to block the image and (optionally) all images from that source. The ads would load, and only be hidden when the page was fully loaded. From a policy perspective, the significant thing about earlier versions of Adblock is what they didn’t do. They did not automate the advertisement filtering and blocking process, nor provide the users many ways to block ads without hand-picking. To benefit, a user had to be highly motivated to avoid ads, so people who used the extension arguably woudn’t respond to advertising anyway.

In the past year, the tool has become more sophisticated, offering:

(1) Compatibility with the Filterset.G Updater
This tool automatically updates a well-maintained set of filters and regular expressions every 4-7 days. Once a user has this installed along with Adblock Plus, few ads make it through. This “block by default” possibility has the potential to become a hot issue, since the ease of installation may tempt even the users responsive to ads. Few users like ads on the internet, and if the feature becomes popular enough it may seriously disrupt advertising revenue.

(2) Ads are blocked, not hidden
In the last few versions of the software, pages load without ever displaying the ads. Advertisers argue that this reduces consumer choice, since they don’t know what is being blocked. Technically that isn’t true - clicking the “Adblock” button in the corner of the browser generates a list of blocked elements - but it requires an active decision to view the ads.

(3) Whitelisting
This feature enables users to mark sites and domains on which they don’t want blocking. It’s convenient when a site has a lot of graphics, animations, and other “false positives” the plugin may pick up, or when a user actively wants to view ads. I think this actually makes the software more threatening to advertising revenue. One of the top complaints about Adblock was its tendency to block relevant site content. Now that this issue is fixed, the software is much more useful. It also weakens advertisers’ main argument, that software might over-zealously block ads against a user’s will.

(4) The “Support Website” Option
I discovered this interesting addendum while searching through the preferences just now:

The purpose of Adblock Ad Hiding is to allow you to support your favorite web site. By adding to your favorite site on the list below the adverts will be downloaded and detected by the site as having been viewed. Since sites, except those who only earn per click, earn revenue for the number of times the ads are viewed this will help them financially.

Interesting. It’s a minor feature in Adblock yet it points to one of the major flaws of the Pay-Per-View advertising model - that what’s detected as a “view” isn’t necessarily one. The move to pay-per-click is wise, but until all advertisers do this, features like this weaken advertisers’ “pity the poor web developer” arguments.

Another noteworthy change is that the Firefox web browser has grown in leaps and bounds the past year. The release of Firefox 1.5 in November coincided with the product gaining 10% of the browser market share. From personal experience, 1.5.0.3 has eliminated most of the bugs that plagued the 1.0 versions, creating a product that’s professinal-quality and better than IE by any sane standard. As more people use Firefox, more people will use Adblock, more people will realize they can view an ad-free internet, and chaos will descend upon the internet revenue structure - right? This pleads the question, should policymakers act?

I think the answer is something that can be applied to many of the legally questionable technologies we’ve discussed in class, and it has to do with scaleability. At what point does a technology become significant enough that it makes economic sense to go after it? No more than 10% of Firefox users use Adblock or some variant. So the loss of advertising revenue is negligible.

It is also hard to draw a legal boundary here, as ad blocking can also be accomplished, through customizing the HOSTS file. So outlawing all “ad blocking” would have too wide a scope. What about “all ad-blocking browser tools”? That would take us back to the age before built-in popup blockers, an idea I think causes universal cringing. I suppose forbidding “all ad-blocking browser tools that allow dynamic updating of filters” could work, but it would probably just increase Adblock adoption by giving it what it really lacks - publicity.

While this software may harm advertising revenue in theory, I think it represents a good opportunity for advertisers to re-evaluate their tactics, as they did successfully after blocking pop-up advertising became standard.

Very recently, despite the overall difficulty of the task, the RIAA has once again clamped down on file sharing, this time on the local area networks of colleges and universities.

It seems that since the RIAA began a wave of lawsuits against illegally file-sharing students just a few years ago, the thing to do was to change the technical implementation of how music was downloaded. Many campuses have encountered the use of Direct Connect, DC++, Bit Torrents, and other file swapping technologies. Each one tried to circumvent the wording of piracy laws and allow users to continue to share files, particularly music and movies. Of course colleges and universities, where students share and download all kinds of media, typically operate one (ore more) local area networks (LANs). Many students seem to think that because LAN traffic only travels locally and not on the public, that they are less prone to being subpoenaed by the RIAA. In some sense, this is true. It is more difficult for the RIAA to monitor the local traffic of external networks, but not impossible. In light of recent work by the RIAA, they have contacted 40 university presidents across the United States with a letter urging them to seek and employ the technological means to curb on-campus file sharing via local networks.

It was initially thought that repeated lawsuits against college students would begin to instill fear in most students and deter them from illegal file sharing. However, this has not been the case, and file sharing is still an issue. In addition to taxes that are in place against many universities, the RIAA has urged many of these schools to use network filters to stop illegal file sharing. In light of the continuation of illegal file sharing, I wonder if it is possible (or feasible) for the RIAA to seek government assistance in forcing schools to employ counter file-sharing techniques. I looked into some other issues, and saw that Congress was ready to approve a bill that called for the mandatory retention of important ISP information for some extended period of time to aid in investigations, or matters of national security. Also, network non-neutrality has been suggested in Congress as a means to curbing P2P traffic. So, is it long until the government intervenes? If so, then they may be imposing large costs on many schools across the country. Some technology experts even argue that the technology is not very sound and is easy to get around.

I am not convinced that there is a simple, elegant solution to this problem, and being a music fan, I am not even sure if I want one. However, if the government can cut funding to schools that refuse to allow military recruiters on their campus, then it may not be long until mandatory file-sharing filters are on networks near you.

Yesterday, Avi wrote a column in the Prince arguing that Princeton’s expansion of wireless internet into classrooms is probably a bad thing. I hate to say it, but on the whole, I agree with him. When I bring a computer with wireless into class, there’s a constant temptation to check my email or get my news fix. At the same time, having a computer with an internet connection is occasionally (in a few of my engineering classes or on this class) instructive and valuable. Moreover, when classrooms are empty, I often enjoy working in them and taking advantage of wireless internet. Ideally, professors would be able to flip a switch to turn wireless internet on or off, letting students use the technology when it suits them and turning it off when it will just be a distraction.

I wonder about extending Avi’s remarks to the large-scale wireless networks encompassing whole cities that are starting to be built. The thought of being able to check my email on the subway is a tempting one and I can only imagine the proliferation of technologies that will take advantage of widespread wireless internet. At the same time, I’m not thrilled about the possibility of drivers checking their email as they cruise down the highway or hearing “you’ve got mail” in addition to the incessant cell phone ringing at the movies. With the ongoing expansion of internet and interconnectivity into every facet of life, when is it appropriate to shut it all out and who should have that power?

As far as I know, jamming frequency, be it the sort used for cell phones, internet, radio or what-have-you, is generally frowned upon. Yet the idea of being able create internet and cellular dead zones in theaters, restaurants or classrooms sounds great. I guess what I’d like to see – and this is how this post ties into the topic of the week – is some sort of non-neutral solution. I think property-owners should be able, to some degree, to control the information that flows into their property. At the same time, I think users should be able to communicate sufficiently important information as easily as possible.

The solution is to create a network with two tiers. Property owners should be able to filter out phone calls and email and all the rest that is identified as frivolous, but business people, physicians or firefighters (for instance) could pay extra to receive urgent or important messages in all locations. I think, when we talk about and think about how to evaluate network neutrality, that we don’t limit our analysis to ISPs and web content providers, but rather think more broadly about what opportunities exist to discriminate across networks.

I thought that I’d start off my first blog post by discussing technical issues of blocking at the network level, and some thoughts on why I don’t think it will work.

Data on the Internet travels around over many networks operated by different companies. They each route packets of data through central points where their networks meet, called peering points. The peering point is one place where one network might try to filter content coming in from another. Similarly, through local consensus between the companies, they can set whatever arbitrary rules they want. Peers can agree to only carry each other’s traffic if they follow those rules. So to go further, let’s throw in a specific example of something the government might want to regulate and filter. I suggest Voice-Over-IP (VOIP) which is basically a telephone conversation over the internet. There have been proposals that calls placed online be taxed or regulated to help the phone companies who are losing business and maintain monopoly control (or close to it) over phone connections to people’s homes. The result might be a policy that your Internet provider can block all VOIP data on their network, except when you follow certain protocols or use their paid services to do it where they make the agreed-upon payments to the FCC. If you know a little about Internet traffic you might even think that is easy. If there is a standard for how VOIP works, you simply look for traffic that conforms to it… either it uses the right format or is sent on a specific TCP port.

This might block those services at first, but it will only start an arms-race (as was mentioned in class yesterday). These standards and protocols at the TCP and application layers have no natural regulators. Standards are made by various bodies (i.e. RFCs) but only carry weight when a large proportion of software and end users choose to follow them. No one can really say that if you’re going to make a voice call over the Internet that you have to do it that way. As much as the government might want to insist that the protocol change to suit their needs, they can’t force me to use their new version that tracks my usage and bills me for it.

In the end, if I don’t like their new protocol, I can make up my own. What’s to stop me from converting my conversation bits into an image and pretending to send it like a picture off a website? If I do that, my network provider won’t be able to tell the difference. Even if the government wanted to mandate that I do it a certain way, this cannot really be enforced.

That’s not to say that protocols can’t be changed. Popular upgrades to these protocols can be made by consensus. But regulation isn’t about popularity or general consensus. Look at e-mail and the recent announcements that AOL and Yahoo want to charge to send e-mail that won’t be filtered as spam. Can they really make people pay to send e-mail and avoid spam? What happens if the best solution for spam restricts servers’ behavior in a way that network administrators don’t like? It could be as simple as imposing a monetary cost for e-mails or a computational cost (which translates into more expenses for servers, bandwidth, etc). Would networks comply? AOL an Yahoo think that as big-players, they can excise some tax on e-mail from big corporate senders, but will this succeed? I’m sure corporations sending ads to previous customers will pay to have their messages highlighted, but most e-mail will still be sent via normal channels. If your e-mail is expected and appreciated by your recipient (hopefully applies to most of my friends that I e-mail, if not yours too), then why should I pay extra to make sure they read it? AOL is just selling e-mail ads, not really changing the protocol of e-mail or eliminating spam.

In the end, no change will be made that does not have a clear benefit for the general Internet population. (at least in this context). If the government decides that we have to pay for “e-mail” as the protocols are designed now, I’ll just come up with “E-mail version 2″ that works entirely differently to avoid their rules. If they start to filter or add rules for E-mail 2, we can always turn to cryptography. If I encrypt the data I send to your computer, everyone in the middle on the Internet only see random bits. They won’t have a clue whether I’m sending you e-mail, a phone conversation, a poker bet, or what.

In a sense, the structure of the Internet, its history and architecture, don’t really allow for any one individual or group of individuals to impose rules on anyone else. Beyond peering points for routing, traffic is currently passed along blindly, and even if tiered service comes to pass and some traffic is prioritized, or if some specific ports or methods are blocked, traffic can always be encrypted and tunneled over existing protocols to by-pass whatever content restrictions our network providers decide to pass. As long as something is allowed through, the Internet will find a way.

This is where the government will hit a brick wall in the arms-race while trying to regulate. In order to be sure they can effectively block, they will have to start making very strict rules about such secrecy as encryption. And they simply can’t do that because of constitutional arguments. We don’t allow government censorship, and I can’t be punished for hiding my behavior from the authorities. (If they catch me doing something wrong, that’s another thing, but they’ll never know.) So as long as we know that the arms race will end in such a disaster, there’s little hope to starting it in the first place. So while a country like China can be effective at stopping certain content fron entering their country, they can only do so because they are willing to take steps that we aren’t. It only works because such restrictions on freedom are supported by and imposed by their government and imposed on network providers throughout the country. In the U.S. at least, the kind of regulation necessary to enforce something like that would never pass constitutional scrutiny.