The Looming Liability of ISPs

Internet service providers (ISPs) are traditionally protected under the Digital Millennium Copyright Act’s (DMCA) section 230 safe harbor for most copyright infringements committed by a user of their service. There are several stipulations that ISPs have to follow in order to get the safe harbor, one of which is to have a “repeat infringer” policy. This policy encourages ISPs to terminate services to users who use the services to repeatedly infringe another’s copyright. The statute lacks a definition of “repeat infringer,” and it is unclear exactly who decides when services should be terminated.

BMG v. Cox Communications, decided in November 2014, dealt with this issue. BMG, through their third party RightsCorp, sent millions of notifications to Cox informing it that users were using its service to illegally download BMG’s music. Cox ignored the notifications and did not terminate its users’ Internet services. The judge found this was enough to push Cox out of the safe harbor, and a federal jury found Cox liable for $25 million in damages.

Cox’s appeal is currently up in front of the 4th Circuit, and its decision could have a major impact on the way ISPs and rights holders interact. Cox (and supporters like the Electronic Frontier Foundation) are arguing that the decision is an unprecedented shift of power to rights holders like BMG. Not only can BMG charge a user individually for copyright infringement, but it can also force an ISP to terminate the user’s Internet connection. With the ever growing importance of the Internet, termination is a very serious consequence, one that should not be taking lightly. ISPs will have to work to make sure the information users are transporting over their services is actually infringing and not in the public domain or covered by fair use. If not, users could risk having their Internet services terminated to keep their ISP from facing major liability.

But reversing the holding is not without its downsides. The evidence does seem to show that Cox willfully ignored BMG’s notifications, and if Cox’s extremely lax repeat infringer policy is allowed to stand, the DMCA requirements for the safe harbor lose their bite. Rights holders are then left without a way to assert their rights in situations where the ISP may very well have known about the infringement, making them contributorily liable.

The best outcome of the appeal would be to uphold the verdict of the lower court but with stipulations. A requirement of showing willful blindness, as BMG did here with Cox, may need to be read into the statute to keep rights holders from having the ability to terminate user’s Internet connection. No matter how the case goes, it seems unlikely the DMCA will become any clearer. If anything, it is another reminder that the DMCA is growing more and more obsolete as the Internet continues to change society.

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