There is contextual data that can help point toward “possible” (cough, “probable”) infringing content distribution. http://ha.ckers.org/blog/20091008/css-history-hack-used-to-ban-torrent-users/ is an example. But I doubt if it is the “tip of the iceberg”. When non-infringing content distribution deals turn toward torrents to save on network distribution costs, they’ll need a way to tell the difference between them and the rest.
Legal processes might favor solutions like creating “distribution registries” with a goal to disambiguate non-infringing content distribution. It would have to work with other assisting technologies.
Licensed providers like Rhapsody already have this kind of registry, though the ISPs would have to do something much larger. The ISPs would need to know who is uploading, who is downloading, what contractual rights the uploader has, what the term of the contract is, whether the parties who granted those rights had the right to grant them.
Or am I complicating things? Is there really no way to cut through the mess and find a simple 80/20 solution?
Propose the creation of a second Internet that is designed from the ground up to be provably assured as being incapable of duplicating or transmitting anything except in accord with any licenses provided by the copyright holders thereof.
Promise that as soon as this new Internet is demonstrated to be at least 95% as efficient as the existing one (ceteris paribus), that there will be a legally enforced migration.