The Digital Millennium Copyright Act has been a matter of constant annoyance for Internet Service Providers as well as a constant source of joy for the RIAA and
MPAA, recording and film industry anti-piracy extraordinaires who had a lot to do with the bill’s passage in the first place.
The DMCA has specific rules under which ISPs can be held responsible for the digital piracy of their clientèle, but for the most part, ISPs have never been in a position to be held liable. Until now, with the case of Cox Communications versus BMG Rights Management and Round Hill Music.
Represented by Rightscorp, a legal conglomerate with intimate ties to the entertainment industry, the plaintiffs are arguing that Cox’s policies directly contribute to piracy. This is in part because Cox has not been as compliant as other ISPs in terms of how it will comply with the law, requests from rights holders, and so on. Cox must generally see where its responsibilities begin and end – they are an ISP. Their job is to deliver Internet service. They are not police, and this is a free country. So goes the rhetoric, but it seems for once the courts are going to put Cox on the spot.
Judge Liam O’Grady, known for being tough on piracy, recently decided that Cox is not immune to prosecution under the DMCA’s “Safe Harbor” provisions, which were a concession to the communications industry during the drafting of the bill. The Copyright Office’s summary of the DMCA says of Title II, in part:
The failure of a service provider to qualify for any of the limitations in section 512 does not necessarily make it liable for copyright infringement. The copyright owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright defendants generally.
In addition to limiting the liability of service providers, Title II establishes a procedure by which a copyright owner can obtain a subpoena from a federal court ordering a service provider to disclose the identity of a subscriber who is allegedly engaging in infringing activities.
The text of the bill itself is much denser, but you can read it here.
Now, the second part is wherein lies a real problem for Cox, who’ve contended that they are a “conduit” service provider. Cox took real issue with Rightscorp’s methodology, in that Rightscorp uses the information disclosed under the Act and then essentially tells the end-user that they have to pay exorbitant fees in order to keep their Internet service on.
Also read: EFF Wants a Fair Use-style DMCA Provision
Cox is unwilling to suspend the service of users simply because Rightscorp says it should, and has repeatedly maintained that its internal system for handling copyright complaints complies with the DMCA and other laws. This system, of “graduated response,” is common among ISPs. In the case of this writer’s own ISP, you get four warnings before a temporary disconnect. Seven copyright infringements leads to service being suspended for six months. But Rightscorp would have it that re-establishment of service be dependent on paying their settlement fees.
Lawyers for Cox told the court:
Rightscorp and Plaintiffs tried to abuse Cox’s system. Rightscorp sells shady services to copyright holders. It shakes down ISP customers for money without regard to actual liability, and it tries to enlist ISPs in its scheme. Cox explained it would not accept Rightscorp’s wrongful notices and asked Rightscorp to fix its notices. Rightscorp refused, instead dumping thousands of notices per day on Cox. As a result, Cox blocked Rightscorp’s notices. This suit is Rightscorp’s retribution, with Plaintiffs’ complicity, for Cox’s refusal to participate in Rightscorp’s scheme.
Rightscorp lawyers representing BMG were not satisfied with this representation, and said that Cox has in fact been tacitly allowing copyright infringers to continue, even after a service suspension.
For several years, Cox had an ‘under the table’ policy of purporting to terminate repeat infringers while actually retaining them as high speed internet customers. The ‘terminations’ were in name only […] As a matter of law, allowing known, repeat, flagrant infringers to continue to use the network does not satisfy the DMCA’s requirement of an appropriate repeat infringer termination policy.
Judge O’Grady, who has overseen the US government’s case against Kim Dotcom in some instances, said the because of the BMG argument, Cox has not demonstrated that it is complying with the DMCA, and therefore cannot expect to use “safe harbor” clauses as a defense.
The EFF and Public Knowledge, consumer awareness and rights groups, were seeking to support Cox, an unlikely alliance. O’Grady said this was unnecessary, and that the EFF’s amicus brief on the matter was laughable.
As regards why the EFF should not be able to back Cox in a legal way, the Judge said:
This is not a situation where defendants lack competent representation. […] Nor have Public Knowledge and EFF persuaded the court that they have a sufficiently special interest in the outcome of this litigation to warrant consideration of their viewpoint.
In regards to the actual filings by the EFF and Public Knowledge, the judge was dismissive and somewhat offensive:
It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.
Cox’s case will begin December 2nd, and could result in significant damages. Cox could even be judged as responsible for the copyright infringement of its clients, a precedent that will surely concern their industry, especially with the looming menace of international legislation which creates some of the same conditions for ISPs.
Featured image from Shutterstock.