Network Traffic Shaping a Threat to DMCA Safe Harbor for Network Providers

My reading of the article from University of Georgia student newspaper RedAndBlack.com, cited in the entry below discussing "Ruckus", left me with the uneasy thought that universities and employers, in trying to subtly dissuade downloading on their networks are choosing methods that may strip them of the protections from secondary liability under the Digital Millennium Copyright Act (17 USC § 512) for copyright infringement by network users.

The above cited article quotes University of Georgia communications director Bert DeSimone as saying that his network is largely unaffected by peer-to-peer file sharing because "[t]he system rates activities like peer-to-peer file sharing and limits it in favor of other activities...More bandwidth is given to the research mission of the University."

The practice described by Mr. DeSimone is known as network traffic shaping. Traffic Shaping is a practice by which network administrators attempt to give priority to digital transmissions of one type of information over another. This method, while effective in assigning greater bandwidth to desired network traffic and less bandwidth to undesirable traffic, is arguably an abrogation of the DMCA online service provider safe harbor when read in light of the Supreme Court's holding in MGM v. Grokster 125 S.Ct. 2764, 2767 (2005).

In order to shape network traffic, the network is configured to read the identifiers of data packets traveling over that network and read basic information from those identifiers that specifies what type of data is being sent. Because this gives the network provider (in this case the University) knowledge of the transmission of potentially infringing material over the network, yet allows that traffic to proceed and funnels the traffic into what is essentially the "slow lane" of the network highway, the provider may be charged with participating in the selection of content and/or ceasing to act as a conduit delivering content through automatic processes.

Either of the conclusions above places the university-provider squarely into the shoes of Grokster and Streamcast, the liable defendants in the MGM case. The Supreme Court wrote that there was "no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files" on the Grokster and Streamcast systems and was persuaded by the fact that "[the defendants did not] attempt to develop filtering tools or other mechanisms to diminish the infringing activity using their [software]."

When combined with the Ninth Circuit's language in Napster that "[i]f a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement," the network provider who shapes traffic and knowingly allows downloading to continue may be secondarily liable for copyright infringement accomplished over the network.