Universities Catching on to Traffic Shaping for Peer to Peer Prevention

Last year I gave a presentation on the potential liability of universities and employers for copyright infringement stemming from peer to peer file sharing by students and employees. In my comments I advocated that universities and employers protect themselves by instituting policies of blocking such network traffic by closing ports known to be used for this type of activity. In the time since, many universities appear to have elected to slow the tide of peer to peer file sharing by using network traffic shaping instead (see, for example: link). While this practice is in the spirit of stopping illegal downloading by students, it is treading on dangerous ground in the face of a largely failing RIAA legal attack against students, which may soon realize it can turn its focus toward the universities' deeper pockets as contributory infringers.

I commented several months ago that I see at least one argument that could be used to show that universities forfeit DMCA safe harbor protection by engaging in traffic shaping. The traffic shaping practices that have become seemingly commonplace over the last several years give the universities undeniable knowledge of the type of activity occurring on their networks. Network administrators in charge of traffic shaping implementation must periodically review the efficacy of their policies and procedures. In doing so, they review the statistics related to the shaped traffic. Because the network using traffic shaping often segments particular activity - such as file sharing - for special handling, the network statistics now present to the administrator, and the university by respondeat superior, clear data regarding the improper activity occurring over its network.

17 USC § 512(a)(2) provides:

(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
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(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider

Universities using traffic shaping to slow file sharing without stopping it are now inserting human oversight into their technical processes. Content deemed to be infringing is "selected" for slower transmission. The practice of network traffic shaping may be bringing universities dangerously close to the line of contributory infringement for illegal downloading by students.