But Copycense's response to my own post is really off-base. First, Copycense calls my post "reflexive and impetuous." I don't know about "reflexive"; I saw Felten's post, thought it interesting and newsworthy (as did many others), and did a very short post summarizing his findings and alluding to its relevance to public policy debates. But "impetuous"? "[M]arked by impulsive vehemence or passion"? Read my post; sorry to disappoint those who prefer their meat raw, but you'll search in vain for anything remotely "impulsive," "vehemen[t]", or "passion[ate]."
Copycense then writes:
In this quote and subsequent responses to reader comments, Sheffner suggested that Internet service providers have a duty [sic] restrict infringing traffic on their network, and that this duty should manifest itself in a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries.I'll address the latter part of the sentence first. Copycense's allegation that I have advocated "a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries" is simply false. I have said repeatedly that I am skeptical of a government-run program like Hadopi. If graduated response/three strikes for ISPs is to come to pass in the US, it will most likely be through voluntary agreements between ISPs and copyright owners (which I do support if appropriate safeguards are in place). As for my "suggest[ion] that Internet service providers have a duty [sic] restrict infringing traffic on their network," Copycense does not deign to state what, if anything, it finds incorrect in what I actually wrote. The "response to reader comments" I believe it's referring to merely quoted the DMCA verbatim. That statute unquestionably states that, in order for an ISP to benefit from the Section 512(a) safe harbor for "Transitory Digital Network Communications," it must "adopt and reasonably implement, and inform subscribers and account holders ... of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers." 17 U.S.C. § 512(i). There's room for debate about what those words mean, but, given the language of the DMCA, does Copycense (or anyone else) dispute that existing US law imposes some enforcement obligations on ISPs?
Lastly, I want to address Copycense's suggestion that there is something wrong with my statement that the Felten/Sahi conclusions about the level of infringement on BitTorrent is "[v]aluable information to keep in mind while debating net neutrality rules and ISPs’ right to manage their networks and fight piracy." I stand by that statement, which shouldn't be remotely controversial. Of course in evaluating any sort of copyright enforcement regime against an intermediary like an ISP or peer-to-peer network, the percentage of infringing works on that system is highly relevant. An overwhelming use for infringement will justify a harsher enforcement regime. But when use for infringement is lower, enforcement must be calibrated so as to avoid targeting innocent activity. Courts routinely cite the percentage of infringing works on a system in deciding whether to impose liability. See, e.g., Grokster ("nearly 90% of the files available for download on the FastTrack system were copyrighted works"); Napster ("as much as eighty-seven percent of the files available on Napster may be copyrighted and more than seventy percent may be owned or administered by plaintiffs."); IsoHunt ("According to Plaintiffs’ expert Richard Waterman, approximately 95% of downloads occurring through Defendants’ sites are downloads of copyright-infringing content"); Usenet.com ("Plaintiffs’ expert has testified that, based on a statistical analysis, over 94% of all content files offered in music-related binary newsgroups previously carried by Defendant UCI were found to be infringing or highly likely to be infringing."). And those numbers all come from copyright owners' paid experts; it's particularly noteworthy that even higher numbers come from Felten, a noted critic of the entertainment industry's enforcement tactics. (The law of course recognizes that "statements against interest" have inherent credibility. See Fed. R. Evid. 804(b)(3).)
By all means, let's have a look at the methodology and data underlying the Felten/Sahi "census." But pending that, surely there's nothing wrong with noting the findings and commenting on their relevance to the debate about the proper way to combat piracy.
Update: Please read Tom Sydnor's take on this kerfuffle. If only I had thought up the phrase "ineptly affected data-prudery" myself...