The Newest Battle of Copyright Infringement

For years the big ISPs have paid lip service to complaints about customers who violate copyrights by sharing content on the web for music and video. Every big ISP has had a process in place that was intended to police violation of the Digital Millennium Copyright Act (DMCA).

The owners of copyrighted materials have long complained that the ISP response to violators has been weak and ineffective. And they are right in that most ISPs notify customers that they are accused of violating copyrights, but there has been little or no consequences for violators.

However, that might now be changing due to a lawsuit that’s been in the courts for a few years. Music label BMG sued Cox Communications for not providing adequate protection of it’s copyrighted music. Recently the 4th Circuit Court, on appeal, reversed the original verdict against Cox. However, in doing so the court threw out Cox’s primary defense, which was that they were protected by the ‘safe harbor’ laws that are part of DMCA.

The safe harbor rules protect ISPs like Cox against damages from customer theft of copyrighted materials. Removing the safe harbor means that the owners of copyrighted materials can seek and win damages against ISPs if they don’t take adequate steps to protect copyrights. In the specific case against Cox, the BMG issue was that Cox didn’t do anything to deter repeat offenders.

There are apparently a lot of repeat offenders – customers who share a lot of copyrighted material – so this ruling instantly got the attention of other big ISPs. Comcast responded last week by notifying customers of a new policy for repeat offenders of copyright theft. The new policy has several progressive stages of severity:

  • Customers notified of DMCA violations might be forced to log in fresh to their broadband account, and in doing so will probably have to agree to abide by the company’s DMCA policy before getting access. Customers might also have to talk to Comcast customer service before they can log into their broadband account.
  • Customer that continue to violate DMCA policies after this first stage face termination of their broadband and all other Comcast services.

This is going to have a chilling effect on those that share copyrighted materials. A majority of people live in markets where the cable company offers the best broadband, and losing the home broadband connection is drastic. I have to assume that telcos will come up with similar policies, meaning that DSL also won’t be a refuge for anybody who continues to violate copyrights.

There has always been people who share content. The old public bulletin boards were full of copyrighted songs and pictures that could be shared. Over time this morphed into Napster and other file-sharing services. Today there are still a number of sharing sites on Tor and other places on the web. And people have figured out how to use Kodi and other technologies to capture and share copyrighted video files.

Although they don’t want to play the role of policeman, I suspect the big ISPs will be forced to at least somewhat enforce policies like the one Comcast just initiated. There has always been a big tug of war between ISPs and content owners. This new response from Comcast shows that content owners now have the upper hand. It certainly means that those who continue to share copyrighted materials will face eventually losing their broadband. In today’s world that’s a severe penalty.

Smaller ISPs need to pay attention to this and watch what the big companies are doing. I wouldn’t be surprised to see BMG or some other content owner sue a smaller ISPs to make a point that this applies to everybody – and nobody wants to be that ISP. If the big ISPs really enforce this, then small ISPs need to follow suit and figure out an effective way to police and deter repeat copyright violators.


4 thoughts on “The Newest Battle of Copyright Infringement

  1. Are you familiar with any ways that, when it takes effect, Pai’s Order reversing net neutrality will impact this? My understanding is that in some ways it says that ISPs are publishers, not carriers and that could have implications also for safe harbor.

    • I am sure the ISPs will use that argument in court. And court is the only place we’ll see what it means for broadband to be an information service. My guess is that judges are still going to say that ISPs must not allow copyright infringement regardless of the kind of company they are – because they are still the one that controls the connection to customers. But your question highlights how up in the air everything will be for 4 – 5 years as things we thought we understood all have to get reexamined by courts again until a new consensus emerges.

  2. An interesting dilemma this creates for the smaller broadband ISPs. Like you said no one wants to be the first victim of a lawsuit against the bigger guns of a BMG or a Sony or Fox. A lot of this has been driven underground on the deep (not dark) web already and on Tor but the real dilemma will still exist in people that use VPN connections that terminate outside the US borders. Unless the person’s broadband connection is wiretapped and somehow decrypted it will be nearly impossible to deter this type of behavior.

    • I believe there are two sets of players in the copyright infringement space. The first is players like Sony or Fox who seek a quick response to new releases being shared. Their focus is minimize the financial impact at launch of a new movie or show. The second player is BMG or RightsCorp who typically aggregate complaints for long-tail content. They seem to represent music artists with older catalogs rather than holders of current content.

      The ISP’s duty is to use its best efforts to minimize infringement but the multi-step processes in place won’t help stop time-sensitive material from getting out. Likewise chasing down a repeat offender who is sharing Snoop Dogg’s 1993 Doggystyle album isn’t cost effective for ISP’s. It’s probably cheaper for an ISP to buy a copy of the album at a second hand store and send it to the customer than deal with the headache of cutting off service.

      I agree that a simple VPN removes the ISP’s ability to police any of this. The content providers are just chasing the deeper pockets. Sony or Fox can’t do much with a well-placed VPN. Their old-school methods of staggering content releases to draw out more revenue enables sharing. I suspect that Netflix’s method of simultaneous release of a full season produces far less theft than HBO’s staggered releases of Game of Thrones.

      The long term solution seems to be in the hands of content holders — finding ways to deliver their content at a price that relative to its long-tail value. Spotify, and other streaming services seem to be the best choice for music.

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