ISPs Seen Continuing to Struggle With DMCA Compliance Questions
The Digital Millennium Copyright Act system is broken for ISPs, and fixes aren't readily evident, said panelists at an FCBA CLE Wednesday. ISPs' safe harbor protections under DMCA are to balance their interests with those of copyright holders, but there are increasing strains on that cooperation since ISPs aren't thrilled about shutting off customers, and copyright holders often feel ISPs are using that argument to hide from their responsibilities, said cable ISP lawyer Seth Davidson of Mintz Levin. ISPs also aren't enthusiastic about demands they pass along to their subscribers copyright infringement settlement offers, he said.
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The 4th U.S. Circuit Court of Appeals' decision last week in BMG vs. Cox (see 1802010026) didn't give good guidance on general principles or what constitutes an acceptable repeat infringer policy, Davidson said. Meanwhile, when Windstream sued BMG seeing declaratory judgment on copyright noninfringement, that case was dismissed (here in Pacer), with U.S. District Judge Kimba Wood of Manhattan saying the ISP was seeking a "hypothetical and advisory opinion, isolated from concrete facts." It's "a Catch-22," with the unique facts of Cox not giving good guidance on principles, and Windstream too vague, Davidson said. With Congress seemingly uninterested in taking up DMCA changes, any clarity has to come from courts, said RIAA Vice President-Legal Affairs Victoria Sheckler.
Cox was "a bit frustrating," said MPAA Vice President-Legal Affairs Jennifer Pariser. It made clear repeat infringers don't need to be adjudicated to be repeat infringers and that a key issue is not the ability of a broadband service to have substantial noninfringing use but the service's actual actions and intent, she said. The 4th Circuit wrongly applied the inducement standard for contributory infringement, she said. The court didn't clarify how such a provider should determine who is an actual infringer, but that's immaterial since ISPs should take at face value notices that give the information DMCA Section 512 says should be in there, Pariser said.
R Street Institute Associate Director-Technology and Innovation Policy Charles Duan said the Cox judges seemingly wanted to make clear the decision was limited to the particular facts, indicating if an ISP is going to lose safe harbor protections, it will require Cox levels of not reacting to copyright infringement notices. That the operator never terminated subscribers for repeat infringement suggests to ISPs they have to terminate at least some to get safe harbor, "which is concerning," he said. Pariser said it's "harsh," but broadband service providers will be better insulated if they're able to show they terminated "some real number" of subscribers for repeat infringement.
Doing nothing with copyright infringement notices is "an easy extreme," but taking every notice as valid doesn't accomplish what copyright owners want, which is to stop infringement, said cable lawyer John Seiver of Davis Wright, making a pitch instead for a mix of contacting infringers directly and use of throttling. He added that would put substantial burden on ISPs.
Some identified DMCA gray areas for ISPs, such as how long a disconnected repeat infringer should be kicked off. Pariser said a court probably wouldn't require such a company re-terminate a subscriber for a single violation after being reconnected, but "you don't give them the same 10- or 12-notice rope" as before. Duan said key for ISPs is the appearance of acting in good faith, even if they don't permanently or long-term ban repeat infringers in favor of other practices.
ISP and content experts agreed making public the strike policy for repeat infringement is probably not advisable. Having that number publicly available could incentivize customers to go up to that line, Pariser said.
The 4th Circuit decision was "gratifying" for making clear what ISP liability is for subscriber infringements, Rightscorp said Wednesday. It said it possesses "a vast amount" of data documenting infringements over the past five years on most every ISP network nationwide -- data available to copyright holders who want to take action against those not tackling repeat infringer issues.
A variety of music labels suing Grande Communications in U.S. District Court in Austin this week filed a docket 17-cv-365 notice (in Pacer) of supplemental authority pointing to Cox. They said the 4th Circuit expressly rejects the arguments Grande is using in its motion to dismiss. They said since the telco acknowledges it didn't meaningfully investigate Rightscorp notices, the level of Grande's knowledge exceeds the level the 4th Circuit said is strong enough evidence to establish liability for contributory infringement. Grande counsel didn't comment Thursday.