Language In The DMCA Limits How ISPs Can Cache Content On Their Network

While most ISPs have been slow to build and deploy their own CDNs, we all know that it's only a matter of time before many of them bring content delivery in-house, especially for video. While third party CDNs still get most of the press, there are quite a few vendors with solutions in the market that are enabling telcos and ISPs to become their own content delivery network. To date, we've seen very few ISPs and telcos in North America spend the time and money to build out their own CDN, yet in Europe and Asia, many ISPs are well on their way to having completed their initial build out.

Talking to many of the vendors who supply hardware and software solutions to the ISPs, the vast majority of their revenue comes from Europe and Asia, not North America which validates the trend that so far, ISPs in the U.S. have been slow to adopt an in-house model. While discussing these trends with a supplier yesterday, it was pointed out to me that the Digital Millennium Copyright Act (DMCA) includes language that tells service providers exactly how they can and can't cache third party content on their network, without the need to have any kind of deal with the content owner.

I had not looked at the DMCA in many years, but sure, enough, section 512b entitled "Limitation for System Caching" outlines the rules ISPs must follow. The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the following conditions:

  • The content of the retained material must not be modified.
  • The provider must comply with rules about “refreshing” material—
    replacing retained copies of material with material from the original
    location— when specified in accordance with a generally accepted
    industry standard data communication protocol.
  • The provider must not interfere with technology that returns “hit”
    information to the person who posted the material, where such
    technology meets certain requirements.
  • The provider must limit users’ access to the material in accordance
    with conditions on access (e.g., password protection) imposed by the
    person who posted the material.
  • Any material that was posted without the copyright owner’s
    authorization must be removed or blocked promptly once the service
    provider has been notified that it has been removed, blocked, or
    ordered to be removed or blocked, at the originating site.

In a conversation I had with two ISPs this morning, both of them stated that the language in the DMCA does not deter them from building their own CDN, but does create an additional headache for them when they do decide the market is big enough for them to bring video delivery in-house. While every company has their own interpretation of what is considered a "big" market and the right time to enter it, one has to think most ISPs won't be able to wait too much longer.

Outside of the U.S., European based ISPs also have to follow a set of rules as set forth in the EU European E-Commerce Directive which also lists specific rules pertaining to caching systems.

While I don't think the DMCA is stopping ISPs from building and deploying their own CDNs, some of them clearly see it as another headache to bringing content delivery in-house and putting the systems in place that are necessary to comply with the DCMA. As more ISPs build and deploy CDN systems, it's going to be interesting to watch what impact the DMCA could have since the ISPs will be taking content from third parties, without their permission, and caching it on their network.

  • osm

    Dan,
    What do you think the revenue model will be for ISPs?
    If ISPs start caching content in house it will benefit their customers. But would they be able to charge consumers for it? It seems like ISPs will have to be paid by the content owner for cashing. It will be messy for the content owners to make deals with multiple ISPs.

  • Kevin

    What is the benefit to ISP’s for caching content themselves anyway? For most ISP’s the bottleneck and expensive aspect of the network is the last mile not their peering or transit connects to other networks.

  • max

    Mobile networks will most likely be serving up rich multimedia in the near future. There needs to be something in place so the telcos can flourish as co-distributors of others’ content. http://datarevenue.org is a leading advocate of such a process. Also, here’s a recent article on the subject;
    http://www.free-press-release.com/news-does-the-dmca-provide-safe-harbor-to-mobile-network-operators-the-way-it-does-for-internet-service-providers-the-answer-is-1269154556.html

  • Rob Green

    Worth mentioning- there is also a DMCA acceptance process for P2P vendors. Currently Abacast is the only approved vendor for this although we haven’t focused on ISP’s per se, it is good to be deemed ISP “friendly”.

  • Outside of the DMCA is the issue of ‘performance’ rights of media- and keeping a physical copy of the file on a server in a network, and them playing (downloading/streaming) that file repeatedly, will probably generate issues with regards to rights/publishers/royalties… etc…
    Many of my clients tell me they can’t host media on any servers but their own due to publishing rights…

  • Would it be OK for a Mobile ISP to engage in “transparent caching”, aka without any contract with the content owners, while also transcoding the video content to lower bitrates, more suitable (from the ISP PoV) for Mobile delivery?

  • Courtney

    Do ISPs regularly do this? I’ve never heard of this practice…