More Subscriber Terminations Could Result From 4th Circuit Cox Decision
ISPs are likely to get more stringent on policing copyright infringement by subscribers in light of the 4th U.S. Circuit Court of Appeals' decision on Cox Communications earlier this month (see 1802010026), with one possible result increased termination of subscribers, experts told us. People involved in Digital Millennium Copyright Act compliance at ISPs are likely to engage in more terminations to show the operator is assiduously following its own policies, said internet lawyer Lawrence Walters.
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ISPs' policies aren't likely to change much, since the 4th Circuit decision involved a failure of application by Cox, lawyers said. DMCA compliance lawyer John Seiver of Davis Wright said the ruling could have ISPs looking at how they handle infringement notices since the decision indicated that not forwarding notices to subscribers could constitute a safe harbor problem. Experts said it's hard to know if Cox's repeat infringement policies made it an outlier among ISPs, since they generally don't make those precise policies known.
ISPs undoubtedly will undertake extensive management and staff training to make clear their repeat infringer policies and how to apply them to real-world situations, said Richard Chapo, who specializes in DMCA compliance.
Large ISPs likely changed policies after the lower court's 2015 summary judgment stripping Cox of safe harbor protections, said IP lawyer Rick Sanders of Aaron Sanders. "The writing was on the wall." He said that decision, and the 4th Circuit's, leave ISPs largely in the dark about best practices (see 1802080001), though at least clarifying that adjudicated infringers aren't the sole definition of infringers. Sanders said it's likely "a smell test" eventually will emerge for takedown notices, with fast web providers receiving notices and doing at least a cursory read to make sure there aren't obvious fair use defenses, but not a deep analysis, and regarding that as enough to call a subscriber an infringer.
Comcast told us it amended its DMCA compliance policy last year in light of the lower court's Cox decision and that it now well reflects the guidance by the District and Circuit court rulings. The changes included more clarity to customers about the escalating series of notices customers receive in response to DMCA violation notices and a predictable process for educating and informing subscribers, it said. Asked if it expects more terminations, Comcast said the policy doesn't affect overwhelming majority of its customers since very few ever receive any DMCA notices and only a fraction of that group ignores repeated warnings.
Wireless ISP Association board member and Amplex Internet President Mark Radabaugh said the compliance issue likely would come up at WISPA's industry show in March. He said for a fair number of WISPA members, infringement notices are often problematic because multiple customers can be bundled onto one IP address due to the ISPs' use of network address translation.
It wouldn't have been appropriate for the 4th Circuit to look at the details of an ISP's repeat infringer policy and rule on its appropriateness, since the DMCA requires only having a policy for terminating repeat infringers and reasonable implementation of it, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. Courts have been consistent that service providers lose their safe harbor protections when the policy looks like a sham since it's not implemented in good faith, Stoltz said. He said broadband provider general counsels could be recommending internally that the companies execute their own policies in good faith.
Providers undoubtedly are looking closely at repeat infringer policies, making sure they're being implemented properly and responsible staff is fully trained, said Walters. While generally hesitant to terminate a subscriber's internet access -- "you're talking about somebody's connection to the world, essentially" -- providers are on notice they must enforce those policies. It could mean more terminations since service providers that considered only adjudicated infringers to be repeat infringers can't take that stance anymore, he said. The question of what evidence is needed to declare a subscriber a repeat infringer is left open, and ISPs potentially are stuck with crafting new ways of evaluating and quantifying infringement notices and coming up with new tests for apparent or repeat infringers, Walters said.
MPAA Vice President-Copyright and Legal Affairs Jennifer Pariser said the Cox decision makes clear that DMCA Section 512 applies equally to ISPs as to other online service providers, meaning at minimum ISPs can't ignore notices from copyright owners and must implement a termination policy for termination of repeat infringers. "We are hopeful that other ISPs will take to heart the hard lesson that Cox learned when it flouted the DMCA’s requirements," she said in a statement.
The 4th Circuit, using a heightened knowledge standard when it remanded the case for new trial, conflicts with other circuit court decisions and the common-law rules underlying copyright infringement, said plaintiff/appellee BMG in a docket 16-1972 petition for rehearing (in Pacer) filed last week with the 4th Circuit. It said even under the willful blindness standard, the panel should have affirmed the jury’s verdict since it was proven that Cox was told of a million-plus specific infringement acts by its subscribers and responded by configuring its computer systems to block BMG notifications. Cox didn't comment.