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...

Getty Images v. the Public Domain: Who Really Wins?

The public domain offers teachers, graphic designers, and anyone trying to design a website on a budget the opportunity to use millions upon millions of images without fear of infringing on the original author’s copyright. The images can be reused in their entirety or be remodeled into something new. They can be used for any sort of use whatsoever, whether that use is commercial or not. That is both the point and the beauty of the public domain. But what happens when pay-per-image stock photo sites take advantage of the public domain and start using the images in their own businesses? They get sued, of course. By people like photographer Carol Highsmith. Highsmith has spent the last 30 years taking and donating photos to the public domain. Her goal was to have her photographs, the majority of which are of places around the United States, available to use for free. Her intent to do so is clear on the Library of Congress website, where her photographs are officially listed as part of the public domain. So you can imagine Highsmith’s surprise when Getty Images sent her a take-down notice demanding a payment of $120 for the display of her own photograph on her own, personal website. Highsmith soon realized Getty had taken 18,755 of her public domain images and had licensed them through its website. Getty was essentially charging its consumers for something they could have easily gotten for free, if they had only reverse image searched their desired images. That search would have lead them to places like Wikimedia Commons, which hosts Highsmith’s photos for free and displays...