1. Internet Packet Switching and Its Impact on the Network Neutrality Debate and the Balance of Power Between IP Creators and Consumers Rob Frieden, Pioneers Chair and Professor of Telecommunications Penn State University email: rmf5@psu.edu; web site: http://www.personal.psu.edu/faculty/r/m/rmf5rmf5@psu.eduhttp://www.personal.psu.edu/faculty/r/m/rmf5 blog site: http://telefrieden.blogspot.com/http://telefrieden.blogspot.com/ A Presentation at the 2007 IP Scholars Conference DePaul University, School of Law Chicago, Illinois August 9-10, 2007

2. 2 Main Points of the Paper Improvements in traffic management technology make it efficient and economical for Internet Service Providers (“ISPs”) to operate non-neutral networks offering “better than best efforts” traffic routing and variable quality of service. Improvements in traffic management technology make it efficient and economical for Internet Service Providers (“ISPs”) to operate non-neutral networks offering “better than best efforts” traffic routing and variable quality of service. ISPs oppose any limitation on their options for tiering and diversifying services that can accrue financial, operational and consumer benefits, but also achieve anticompetitive goals. ISPs oppose any limitation on their options for tiering and diversifying services that can accrue financial, operational and consumer benefits, but also achieve anticompetitive goals. Net neutrality advocates believe that the Internet has contributed to national productivity, economic opportunity and innovation in light of “best efforts,” end-to-end connectivity. Net neutrality advocates believe that the Internet has contributed to national productivity, economic opportunity and innovation in light of “best efforts,” end-to-end connectivity.

3. 3 Main Points of the Paper Traffic management using “packet sniffing” also provides ISPs with the likely ability to respond to Digital Right Management instructions from content providers by blocking copyright infringing traffic rather than delivering it with copy protection intact. Traffic management using “packet sniffing” also provides ISPs with the likely ability to respond to Digital Right Management instructions from content providers by blocking copyright infringing traffic rather than delivering it with copy protection intact. The Network Neutrality debate should include consideration whether active traffic management eliminates the safe harbor exemption from secondary liability for copyright infringement provided by §512 of the Digital Millennium Copyright Act. The Network Neutrality debate should include consideration whether active traffic management eliminates the safe harbor exemption from secondary liability for copyright infringement provided by §512 of the Digital Millennium Copyright Act. When ISPs elect to operate non-neutral networks through cheap and effective traffic management technology, they challenge the presumption that ISPs can only operate as neutral conduits. When ISPs elect to operate non-neutral networks through cheap and effective traffic management technology, they challenge the presumption that ISPs can only operate as neutral conduits.

4. 4 Packet Sniffing Explained ISPs use packet switching to subdivide traffic for routing over any available network. ISPs use packet switching to subdivide traffic for routing over any available network. Each packet contains a header that provides routers with needed information about the source and destination of traffic using addressing and management protocols such as TCP/IP. Payloads in packets contain content. Each packet contains a header that provides routers with needed information about the source and destination of traffic using addressing and management protocols such as TCP/IP. Payloads in packets contain content. Improvements in router technology make it possible for ISPs to secure more information from headers for purposes of tiering and prioritizing traffic based on the nature of the content, e.g., streaming content needing instantaneous (“real time”) delivery and high quality of service versus store and forward content such as email not requiring immediate processing particularly during network congestion. Improvements in router technology make it possible for ISPs to secure more information from headers for purposes of tiering and prioritizing traffic based on the nature of the content, e.g., streaming content needing instantaneous (“real time”) delivery and high quality of service versus store and forward content such as email not requiring immediate processing particularly during network congestion. Routers also can interrogate (“sniff”) headers for instructions on Digital Rights Management, possibly including a go/no go determination whether the intended recipient has the requisite “rights” to receive a specific stream of packets. Routers also can interrogate (“sniff”) headers for instructions on Digital Rights Management, possibly including a go/no go determination whether the intended recipient has the requisite “rights” to receive a specific stream of packets.

5. TCP Packet Header 4500XXXX XXXX XXXX 4b Ver4b H dL n ToSToS Length in Bytes IP ID 0D FM F M F 13- bit Fra g. Off set TTLTTL ProtocolHeader Checksum Source IP Address XXXX XX Destination IP Address So urc e Por t Destination PortSequence NumberAck Number XXXX XX source: Michael McDonnell and Winterstorm Solutions, Inc. available at: http://winterstorm.ca/download/packets.pdf.http://winterstorm.ca/download/packets.pdf

6. 6 An Easier Analogy

9. 9 How Might ISPs Lose the §512 Safe Harbor Exemption? §512 of the DMCA balances ISPs’ obligations not to induce or contribute to copyright infringement with the national interest in promoting Internet commerce. §512 of the DMCA balances ISPs’ obligations not to induce or contribute to copyright infringement with the national interest in promoting Internet commerce. The DMCA establishes 4 safe harbor exemptions when “online service providers” operate as a neutral, transitory conduit for content, temporarily cache content, store content at the direction of a user and provide search tools for linking to content created by others. The DMCA establishes 4 safe harbor exemptions when “online service providers” operate as a neutral, transitory conduit for content, temporarily cache content, store content at the direction of a user and provide search tools for linking to content created by others. ISPs lose an exemption by not responding to requests to take down infringing content and arguably when they know about infringement and have the right and ability to control such conduct. ISPs lose an exemption by not responding to requests to take down infringing content and arguably when they know about infringement and have the right and ability to control such conduct.

10. 10 Recalculating the Cost of Deep Packet Inspection ISPs characterize network neutrality as creating disincentives to invest in next generation infrastructure and the (re)imposition of “confiscatory” common carrier regulation. ISPs characterize network neutrality as creating disincentives to invest in next generation infrastructure and the (re)imposition of “confiscatory” common carrier regulation. Ironically ISPs have financially benefited from the presumption that they operate as neutral conduits. Ironically ISPs have financially benefited from the presumption that they operate as neutral conduits. When an ISP decides to use packet sniffing to differentiate service it cannot readily ignore the DRM instructions also contained in the header. When an ISP decides to use packet sniffing to differentiate service it cannot readily ignore the DRM instructions also contained in the header. Arguably ISPs can act on DRM flags using ISP routers as opposed to sending the traffic onward to its final destination where end user equipment might process the flag if lawfully required to do so (see ALA v. FCC, 406 F.3d 689 (D.C. Cir. 2005). Arguably ISPs can act on DRM flags using ISP routers as opposed to sending the traffic onward to its final destination where end user equipment might process the flag if lawfully required to do so (see ALA v. FCC, 406 F.3d 689 (D.C. Cir. 2005). The potential loss of the DMCA Sec. 512 safe harbor may change the cost/benefit analysis in non-neutral network operation. The potential loss of the DMCA Sec. 512 safe harbor may change the cost/benefit analysis in non-neutral network operation.

11. 11 Conclusions ISPs do not have an affirmative duty to monitor their traffic streams to detect IP infringement. ISPs do not have an affirmative duty to monitor their traffic streams to detect IP infringement. However technological innovations in routers and packet inspection create opportunities for ISPs to generate more revenue by operating non-neutral networks. However technological innovations in routers and packet inspection create opportunities for ISPs to generate more revenue by operating non-neutral networks. When making the affirmative decision to use packet sniffing for service tiering, ISPs no longer remain passive conduits. When making the affirmative decision to use packet sniffing for service tiering, ISPs no longer remain passive conduits.

12. 12 Conclusions (cont.) Having decided not operate as non-neutral conduits, ISPs cannot readily ignore DRM formatting standards that could insert header information about whether ISPs should continue to route traffic in light of possible piracy. Having decided not operate as non-neutral conduits, ISPs cannot readily ignore DRM formatting standards that could insert header information about whether ISPs should continue to route traffic in light of possible piracy. Deep packet inspection may provide some degree of contemporaneous DRM that ISPs may not ignore if they want to retain safe harbor exemption from secondary liability. Deep packet inspection may provide some degree of contemporaneous DRM that ISPs may not ignore if they want to retain safe harbor exemption from secondary liability. If ISPs comply with DRM instructions creating a go/no go decision regarding traffic routing, software and hardware will have preempted end users from accessing content on fair use grounds. If ISPs comply with DRM instructions creating a go/no go decision regarding traffic routing, software and hardware will have preempted end users from accessing content on fair use grounds.