The Motion Picture Association has advised the Indian government to forge exceptions in any eventual net neutrality regulation so that the fight against infringing content is not hindered. ISPs should be permitted to block or throttle unlawful transmission of pirate material, the Hollywood group argues, without "judicial determinations" prior to every instance.

Net neutrality is the notion that ISPs should treat all data traveling via the Internet in the same manner. Providers shouldn’t discriminate based on user, content or platform type, nor devices attached to the network.

While there are plenty of entities who support these principles, the free-flow of information is sometimes perceived as a threat. The concept of so-called fast and slow lanes with variable pricing, for example, has the potential to cause many anti-competitive headaches.

But for the content industries, particularly those involved in movies, TV shows, and other video entertainment, the concept of net neutrality has the potential to complicate plans to block and otherwise restrict access to copyright-infringing material.

As a result, Hollywood is making its feelings known both locally and overseas, including in India where it’s just contributed to the country’s net neutrality debate.

Early 2017, the Telecom Regulatory Authority of India (TRAI) asked for input on its “Consultation Paper on Net Neutrality”, the fifth in the past two years aimed at introducing a legal framework for net neutrality.

Published by MediaNama in January, the 14-point questionnaire received responses from many stakeholders, including the Motion Picture Distribution Association, the local division of the MPA/MPAA representing Paramount, Sony, Twentieth Century Fox, Universal, Disney and Warner.

Exceptions to net neutrality principles for pirate content

In response to a question which asked whether there should be exceptions to net neutrality in order for ISPs to implement traffic management practices (TMP), Hollywood is clear. Net neutrality should only ever apply when Internet traffic is lawful, and ISPs should be able to take measures to deal with infringing content.

“For the Motion Picture Association’s members, as representatives of an industry that creates and distributes copyrighted content, it is critical that the Internet does not serve as a haven for illegal activity and that [service providers] should be permitted to take reasonable action to prevent the transfer of stolen copyrighted content,” the Hollywood group writes.

“It is commonly accepted that the requirements of [net neutrality] apply only in respect of access to lawful content. This implies that a [service provider] to, say, block content pursuant to a direction from authorities authorised by law to do so, and after following due process – will not be considered unreasonable.”

The studios say they’re in agreement that the Indian government should have the right to regulate content in “emergency situations” and also whenever content is deemed illegal, so in these instances, net neutrality rules would not apply.

Copyright-infringing content fits the latter category, but the MPA wants the government to include specific wording in any regulation that expressly denotes pirate material as exempt from the freedoms of net neutrality.

“We urge that a clear statement be included in any eventual net neutrality regulation that specifies that pirated and infringing content is unlawful and therefore not subject to the normal net neutrality policy of prohibiting content-based regulations,” the studios say.

Exemptions for blocking and throttling to counter piracy

The idea that infringing content should be blocked, throttled, or otherwise hindered is a cornerstone of Hollywood’s fight against infringing content worldwide, despite it being unable to achieve those things in its own backyard. In India, however, the studios see blocking as a fair response to the spread of infringing content and something that should be allowed under net neutrality rules.

“As a remedy to address the dissemination of, or unauthorized access to, unlawful content, blocking and throttling are necessary and appropriate measures,” the studios note.

“Blocking access to infringing sites is not inconsistent with net neutrality. In fact, blocking illegal sites, especially when they originate from outside the country, is often the only effective remedy to prevent access to illegal content in India.

“[Service providers] must be able to block sites that link, stream, make available, or otherwise communicate to the public unauthorized or illegal content.”

Rightsholders and ISPs should work together

In both the United States and Europe, Hollywood is an advocate of voluntary anti-piracy measures, with content owners and ISPs collaborating to hinder the spread of infringing content. According to its submission to the telecoms regulator, Hollywood would like to see something similar in India.

When forming its regulations, the studios would like to see service providers “encouraged” to work with rightsholders to “employ the best available tools and technologies” to fight piracy while affirming ISPs’ right to use traffic management practices (TMP) to deal with the spread of infringing content.

Furthermore, Hollywood would like a clear statement that the use of TMPs against infringing content “should not depend on an advance judicial or regulatory determination of ‘lawfulness’ prior to every use.” In other words, court oversight should not generally be required.

In conclusion, the MPA underlines that rightsholders and rightsholders alone should have the final say in respect of when, to whom, and under what circumstances they make content available. Should the Telecom Regulatory Authority of India interfere with that right, both domestic and international breaches of law could result.

The full submission can be found here (pdf)