Deep Pockets, Packets & Harbours: Never the Three Shall Meet

20 Pages Posted: 20 Jul 2013 Last revised: 29 Mar 2014

See all articles by Thomas Margoni

Thomas Margoni

University of Glasgow - School of Law - CREATe; University of Glasgow - CREATe, RCUK Centre for Copyright and New Business Models in the Creative Economy

Mark Perry

University of New England - School of Law; University of Western Ontario - Faculty of Law; the University of Western ONtario ; The University of Auckland; University of New England

Date Written: July 19, 2013

Abstract

Deep Packet Inspection (DPI) is a set of methodologies used for the analysis of data flow over the Internet. It is the intention of this paper to describe technical details of this issue and to show that by using DPI technologies it is possible to understand the content of Transmission Control Protocol/Internet Protocol communications. This communications can carry public available content, private users information, legitimate copyrighted works, as well as infringing copyrighted works.

Legislation in many jurisdictions regarding Internet service providers’ liability, or more generally the liability of communication intermediaries, usually contains “safe harbour” provisions. The World Intellectual Property Organization Copyright Treaty of 1996 has a short but significant provision excluding liability for suppliers of physical facilities. The provision is aimed at communication to the public and the facilitation of physical means. Its extensive interpretation to cases of contributory or vicarious liability, in absence of specific national implementation, can prove problematic. Two of the most relevant legislative interventions in the field, the Digital Millennium Copyright Act and the European Directive on Electronic Commerce, regulate extensively the field of intermediary liability. This paper looks at the relationship between existing packet inspection technologies, especially the ‘deep version,’ and the international and national legal and regulatory interventions connected with intellectual property protection and with the correlated liabilities ‘exemptions. In analyzing the referred two main statutes, we will take a comparative look at similar interventions in Australia and Canada that can offer some interesting elements of reflection.

Keywords: Online liability, safe harbours, ISPs, Deep Packet Inspection, intellectual property, copyright, privacy

Suggested Citation

Margoni, Thomas and Perry, Mark, Deep Pockets, Packets & Harbours: Never the Three Shall Meet (July 19, 2013). Available at SSRN: https://ssrn.com/abstract=2296216 or http://dx.doi.org/10.2139/ssrn.2296216

Thomas Margoni

University of Glasgow - School of Law - CREATe ( email )

Scotland
United Kingdom

University of Glasgow - CREATe, RCUK Centre for Copyright and New Business Models in the Creative Economy

Glasgow
United Kingdom

Mark Perry (Contact Author)

University of New England - School of Law ( email )

Armidale, New South Wales 2351
Australia
=61 2 67732901 (Phone)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
1519661211 (Phone)

HOME PAGE: http://www.csd.uwo.ca/~markp

the University of Western ONtario ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
1519661211 (Phone)

HOME PAGE: http://www.csd.uwo.ca/~markp

The University of Auckland ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

University of New England ( email )

School of Law
Armidale, New South Wales 2351
Australia

HOME PAGE: http://une.edu.au/law

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