Nate Anderson at Ars considers the copyright loophole that EFF has been battling to close. This is the same loophole that EFF put the call out for comments over a week ago urging the FCC to close it. The wording, as Anderson points out, is vague, allowing ISPs to not permit any unlawful transfer or unlawful content. The implication is that this lets them filter for infringing material at the behest of copyright holders.
EFF is ramping up their rhetoric, asking whether this loophole completely undermines the point of the rules in the first place. Nate deflates this rhetoric, even citing a conversation with the FCC that the rules do not allow the nightmare scenario predicted.
However, I think EFF’s concern is warranted in terms of how a set of rules nominally having nothing to do with IP enforcement are being skewed in that direction by special interests. I am less confident that attempts to box discriminatory behavior by ISPs to just copyright infringement will both achieve that end and not be abused. We have plenty of good examples of how the DMCA takedown system has been abused to chill speech, not for legitimate claims of infringement. How would this be any different?