Deep Pockets, Packets, and Harbors

Abstract

Deep Packet Inspection 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 Deep Packet Inspection technologies it is possible to understand the content of Transmission Control Protocol/Internet Protocol communications. These communications can carry publicly available content, private users' information, legitimate copyrighted works, and even infringing copyrighted works. Legislation in many jurisdictions regarding Internet service providers' liability, or more generally the liability of communication intermediaries, usually contains 'safe harbor' 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 frequent application 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 these two main statutes, we will take a comparative look at similar interventions in Australia and Canada that can offer some interesting elements of reflection.