Tag Archives: Copyright

Copyright Infringement – a New Worry for ISPs

In decisions that should trouble every ISP, multiple Courts have ruled that ISPs are liable if they don’t disconnect customers accused of copyright infringement.

The U.S. Court of Appeals for the 5th Circuit ruled against Grande Communications, a subsidiary of Astound Broadband. The courts sided with three record companies, Universal, Warner, and Sony that Grande had failed to disconnect customers from broadband who engaged in copyright infringement by downloading illegal copies of music. Grande might have been singled out because it had a firm policy since 2010 that it wouldn’t disconnect customers over the infringement issue. The appeals court upheld a lower court ruling that Grande is liable for copyright infringement. The appeals court said it would consider lowering the original award of $46.8 million.

This is the second major lawsuit on the issue. In 2018 the major record labels sued Cox Communications over its copyright policies. The labels accused Cox of refusing to disconnect customers who repeatedly broke copyright rules by downloading music without paying for it. In 2019, a court in Virginia found Cox liable for both contributory and vicarious copyright infringement and awarded the music labels an astounding $1 billion in damages. Cox appealed, and the Fourth Circuit U.S. Court of Appeals upheld the charge of contributory infringement but reversed the charges for vicarious infringement and vacated the $1 billion in damages.

Cox asked the Supreme Court in August to decide whether the 4th Circuit erred in deciding that an ISP can be held liable for copyright infringement without proof that the company fostered or promoted copyright infringement. The record labels are asking the Supreme Court to reinstate the original $1 billion award.

This has to concern all ISP, because if these two cases are resolved in favor of the record industry, then all ISPs are vulnerable. Altice USA, Frontier Communications, Lumen, and Verizon filed a brief with the Supreme Court saying that the 4th Circuit ruling imperils the future of the Internet by making ISPs liable for huge damages if they don’t carry out mass Internet evictions.

Folks might have a visceral reaction thinking that copyright offenders should be punished. There is some needed context to fully understand the issue. Complaints of copyright infringement are rarely made directly by record companies or others who hold copyrights, There is an entire industry of companies that makes a living by issuing takedown requests for infringements of copyrighted materials. These companies get paid by issuing huge numbers of takedown requests. Social media companies are inundated with these takedown requests every day to remove posts that link to copyrighted music, movies, and other materials.

The takedown process is completely one-sided and there is no appeal for a broadband customer who is unjustly accused of bad behavior. The music companies expect ISPs to cut off subscribers after only a few claimed violations of copyright.

This is also troubling to broadband customers. Any home with teenagers will have to worry if teens will download copies of games, movies, or music. People could hit a link on social media that downloads copyrighted material without even realizing they did something wrong. The bad behavior doesn’t even have to be done by a family member. Losing an essential broadband connection because teens, roommates, or visitors violated copyright laws seems like an extreme penalty. If ISPs start cutting customers dead for violating copyrights, I have to imagine that people are going to be a lot more cautious against giving visitors or even family members the WiFi password.

Copyright holders want ISPs to act as judge, jury, and executioner and unilaterally punish customers without a trial or hearing by taking away their Internet access. Like many other problems in the industry, the only real fix for this is to have Congress update or replace the Digital Millennium Copyright Act (DMCA), which was adopted in the 1990s when we were all still using dial-up access.

The recording industry has a legitimate gripe, but their complaint is against the folks who steal copyrighted materials. They should be required to pursue a law enforcement solution, like is done for folks who violate other laws. The solution is not to turn the intermediate ISP into a policemen on the issue. This goes down an ugly and slippery slope. What’s next, forcing ISPs to turn off broadband for customers who break myriad other laws?

Copyrights and ISPS

There is a long-running legal case that could have dire consequences on broadband households. The case started in 2018 when a group of major record labels sued Cox Communications over its policies related to copyrights. The labels accused Cox of refusing to disconnect customers who repeatedly broke copyright rules by downloading music without paying for it.

In 2019, a court in Virginia found Cox liable for both contributory and vicarious copyright infringement and awarded the music labels an astounding $1 billion in damages. Cox appealed, and the Fourth Circuit U.S. Court of Appeals reversed the charges for vicarious infringement and vacated the $1 billion of damages. There will be a new trial to reassess the size of the damage award.

The troubling part of the legal ruling is that, even after appeal, Cox still stands in violation of contributory damages over actions taken by its customers. That’s a ruling that should concern every ISP – and every Internet user.

The record labels are insisting Cox should have permanently disconnected any customer who engaged in repeated copyright infringement. This ruling turns ISPs into Internet policemen who must monitor and punish customers who engage in copyright infringement. That doesn’t just mean people who download copies of music but also movies, games, and books. It means that in order to avoid having to pay big damages, ISPs might cut off customers for watching a pirated sporting event.

This is an incredibly uncomfortable role for ISPs. ISPs are not going to monitor everything their customers do, but will instead react to complaints made by copyright holders. Complaints are rarely made directly by those holding copyrights, and there is an entire industry of companies that make a living by issuing take-down requests for infringements of copyrighted materials. Social media companies are inundated with these take-down requests every day to remove posts that link to copyrighted music, movies, and other materials. The music companies expect ISPs to cut off subscribers after only a few violations of copyright. ISPs are in the business of selling broadband connections, and the last thing they want to do is to disconnect paying customers.

This could be devastating for broadband customers. Most homes in the U.S. don’t feel that they have broadband choice and only have access to one fast ISP. If they lose that connection, they could find themselves cut off from functional broadband.

It’s easy to believe that customers who get cut off for such violations deserve it. But the process is completely one-sided and there is no appeal for a broadband customer that they were unjustly accused of bad behavior. They can be cut off without appeal or recourse. Any home with teenagers will have to worry that their teens don’t download copies of games, movies, or music. People could hit a link on social media that downloads copyrighted material without even realizing they did something wrong. Such downloads could be done on a cellphone that is using a home’s WiFi – and the bad behavior doesn’t even have to be done by a family member.

This is a case where the punishment does not fit the crime. Rather than directly pursuing people who download pirated copyrighted material through a legal process, copyright holders want ISPs to act as judge, jury, and executioner and unilaterally punish customers by taking away their Internet access.

There are numerous surveys since the pandemic that show that a large majority of people now consider a broadband connection to be essential. All of the surveys my consulting business has done in the last year show that half or more of homes now have somebody working from home using broadband at least part-time every week, and we routinely find 10% to 15% of homes with somebody working at home full time. We now use broadband for a wide variety of essential activities such as shopping, banking, hunting for a job, and connecting with a doctor.

While the courts vacated the billion-dollar penalty against Cox, ISPs are all going to notice if the Appeal Courts still imposes a sizable penalty during the rehearing of the damages. Losing an essential broadband connection because teens, roommates, or visitors violated copyright laws seems like an extreme penalty. If ISPs start cutting customers dead for violating copyrights, I have to imagine that people are going to be a lot more cautious against giving visitors or even family members the WiFi password.

Like many other problems in the industry, the only real fix for this is to have Congress update or replace the Digital Millennium Copyright Act (DMCA), which was adopted in the 1990s when we were all still using dial-up access.

Twenty Five Years of DMCA

One of the most disliked but necessary laws in the broadband world has been DMCA (Digital Millenium Copyright Act). This law was passed in 1999 to put the U.S. in compliance with the worldwide World Intellectual Property Treaty.

The DMCA law is one of the major reasons that companies felt safe in creating social media platforms. Section 512 of the law is the one that web policy folks know about. This part of the law creates a safe way for a website to host user-generated content. The law says that a website is safe from copyright infringement suits as long as it registers with the U.S. Patent Office as a DMCA agent and agrees to pull down any content that a copyright owner finds to be in violation of its copyright.

This one provision freed websites to start hosting user-generated content. The early fear was that copyright infringement complaints and lawsuits could paralyze and bankrupt anybody that openly allowed the public to post anything they wanted. The DMCA rules mean that a website owner doesn’t have to monitor content for copyright infringements (something nobody knows how to do) and instead puts the onus on the copyright holder to ask to have the offending content removed.

There are a lot of problems caused by DMCA. One of the biggest complaints about DMCA is that websites typically remove anything upon request, including a lot of content that is not infringing on copyright laws. This has allowed unscrupulous people to use the DMCA system as a way to censor content they don’t like.

But a bigger complaint by First Amendment advocates is that the pressure created by DMCA has led many website owners to censor their own sites to cut down on the number of DMCA takedown requests. It’s expensive for a national website to have enough people on hand to react to huge volumes of takedown requests. Website owners often try to reduce DMCA notices by screening and blocking content that they think will be in violation. That’s a slippery slope from a First Amendment perspective because any censoring software is going to make mistakes and block legitimate content.

Another big problem is that the DMCA process is not instantaneous. People can post content that they know is in violation with the knowledge that the content will be available long enough to be useful. For example, there are people who routinely post a pirated version of live sporting events since they know that any DMCA takedown won’t happen until after the event is over.

Another outcome of DMCA rules is that an entire industry of companies has been created to monitor content on websites and issue DMCA takedown requests. Some of these companies also routinely sue website owners that they say are out of compliance – and they are accused of doing so to negotiate monetary settlements rather than to deal with content issues. These efforts are a major cost and annoyance for large web companies, but can be devastating for any startups or small web companies.

There have been attempts in recent years to pass laws that are harsher and more difficult to comply with than DMCA. For example, the Kids Online Safety Act (KOSA) that is currently being considered would require websites to take steps to always block harmful content from getting to children. This would not only be things like pornography, which many websites already block but would include other content that is identified as harmful by parents. It’s one thing to ask a website owner to comply with copyright laws, but it’s something entirely different to ask website owners to somehow identify and block an ever-changing list of content that is deemed to be offensive.

New European Copyright Laws

I’ve always kept an eye on European Union regulations because anything that affects big web companies or ISPs in Europe always ends up bleeding over into the US. Recently the EU has been contemplating new rules about online copyrights, and in September the European Parliament took the first step by approving two new sets of copyright rules.

Article 11 is being referred to as a link tax. This legislation would require that anybody that carries headlines or snippets of longer articles online must pay a fee to the creator of the original content. Proponents of Article 11 argue that big companies like Google, Facebook and Twitter are taking financial advantage of content publishers by listing headlines of news articles with no compensation for the content creators. They argue that these snippets are one of the primary reasons that people use social media and they browse articles suggested by their friends. Opponents of the new law argue that it will be extremely complicated for a web service to track the millions of headlines listed by users and that they will react to this rule by only allowing headline snippets from large publishers. This would effectively shut small or new content creators from gaining access to the big platforms – articles would be from only a handful of content sources rather than from tens of thousands of them.

Such a law would certainly squash small content originators like this blog. Many readers find my daily blog articles via short headlines that are posted on Twitter and Linked-In every time I release a blog or when one of my readers reposts a blog. It’s extremely unlikely that the big web platforms would create a relationship with somebody as small as me and I’d lose my primary way to distribute content on the web. I guess, perhaps, that the WordPress platform where I publish could make arrangements with the big web services – otherwise their value as a publishing platform would be greatly diminished.

This would also affect me as a user. I mostly follow other people in the telecom and the rural broadband space by browsing through my feed on Twitter and LinkedIn to see what those folks are finding to be of interest. I skip over the majority of headlines and snippets, but I stop and read news articles I find of interest. The beauty of these platforms is that I automatically select the type of content I get to browse by deciding who I want to follow on the platforms. If the people I follow on Twitter can’t post small and obscure articles, then I would have no further interest in being on Twitter.

The second law, Article 13 is being referred to as the upload filter law. Article 13 would make a web platform liable for any copyright infringements for content posted by users. This restriction would theoretically not apply to content posted by users as long as they are acting non-commercially.

No one is entirely sure how the big web platforms would react to this law. At one extreme a platform like Facebook or Reddit might block all postings of content, such as video or pictures, for which the user can’t show ownership. This would mean the end of memes and kitten videos and much of the content posted by most Facebook users.

At the other extreme, this might mean that the average person could post such links since they have no commercial benefit from posting a cute cat video. But the law could stop commercial users from posting content that is not their own – a movie reviewer might not be able to include pictures or snippets from a film in a review. I might not be able to post a link to a Washington Post article as CCG Consulting but perhaps I could post it as an individual. While I don’t make a penny from this blog, I might be stopped by web platforms from including links to news articles in my blog.

In January the approval process was halted when 11 countries including Germany, Italy, and the Netherlands said they wouldn’t support the final language in these articles. EU law has an interesting difference from US law in that for many EU ordinances each country gets to decide, within reason, how they will implement the law.

The genesis of these laws comes from the observation that the big web companies are making huge money from the content created by others and not fairly compensating content creators. We are seeing a huge crisis for content creators – they used to be compensated through web advertising ‘hits’, but these revenues are disappearing quickly. The EU is trying to rebalance the financial equation and make sure that content creators are fairly compensated – which is the entire purpose of copyright laws.

The legislators are finding out how hard it will be to make this work in the online world. Web platforms will always try to work around laws to minimize payments. The lawyers of the web platforms are going to be cautious and advise the platforms to minimize massive class action suits.

But there has to be a balance. Content creators deserve to be paid for creating content. Platforms like Facebook, Twitter, Reddit, Instagram, Tumblr, etc. are popular to a large degree because users of the platforms upload content that they didn’t create – the value of the platform is that users get to share things of interest with their friends.

We haven’t heard the end of these efforts and the parties are still looking for language that the various EU members can accept. If these laws eventually pass they will raise the same questions here because the policies adopted by the big web platforms will probably change to match the European laws.

Data Mining – It’s Not What Customers Think

I know that when the public hears that their ISP is engaging in data mining that they assume this means that the ISP is reading their emails and monitoring their website viewing. And ISPs do have the ability to do those things although I don’t know any who spy on their customers in that way.

I can certainly understand why data mining scares the average consumer. Supermarkets get you to sign up for their loyalty programs so that they know everything you buy from them. And I know I get a spooky feeling when I express an interest about some product in one place on the Internet and then see ads for that product pop up on Facebook or my Google search.

But data mining is a valuable tool and every ISP should be using it – just not in the same way that the supermarkets and Facebook do it. In fact, we probably need to come up with a better terminology for doing the things I am suggesting below.

There are a number of tools around that let you look at data about customer usage and these tools allow an ISP to do the following:

  • Spambots. There is a wide array of spambots and other malware on the web that can infect customers’ computers. The worst of these, from a network perspective are spambots, which take over your customer’s computers and use it to send out spam. Most ISPs monitor email usage from their own domain and can spot when one of their users has been taken over by a spambot. But most customers these days do not use the email names and domains assigned by their ISP. Instead they web email addresses such as gmail or even the older AOL. And some spambots create new email addresses that the customer doesn’t even know about. And so data mining can be used to look for customers with unusual upload traffic. No customer is going to be offended if you ask them if they are uploading traffic 24 hours per day if in the process you help eliminate Trojan horses and spambots from their computer.
118 - Another File Sharing Session

118 – Another File Sharing Session (Photo credit: erickespinosa)

  • Web servers. Most ISPs do not want a customer to be using a residential ISP account to run a commercial web server. A web server is a device that is being used to run a website or service that drives a large amount of download traffic. Such a website might be used for e-commerce for example. But far too often web servers are used to run porn sites. ISPs are not against web servers, but they do expect people who operate them to buy the proper business level service. A web server can be full 24-hours per day, and that is generally not the level of service that is intended for a shared residential product. Data mining can be used to identify web servers and the customer can be directed to a more appropriate (and appropriately priced) service.
  • Data Caps. Most ISPs have set some cap on the amount of usage that a customer can download in a month. And these caps do not have to be small. I have one client that has a 2 terabyte cap each month for residential downloads. But there is no sense in having a data cap if you can’t actually measure how much bandwidth each customer is using. Data mining tools are the way to measure customers’ usage.
  • File sharing. Most ISPs have terms of service that prohibit customers from sharing copyrighted materials with others. But realistically an ISP is not going to know what customers are sharing with each other unless you get a complaint from a copyright holder. But many ISPs still like to get a handle on file-sharing because such traffic can eat up a lot of system bandwidth. Data mining can help you identify customers who are probably involved in one of the common file sharing programs.  An awful lot of file sharing is done by teenagers. I have clients who send out friendly reminders to customers who they think are file sharing that say something like: “We notice by your internet usage that you are probably running a file sharing program. We would just like to remind you that it is illegal to share copyrighted material and that there have been cases where copyright owners have gotten significant settlements by suing people who were sharing their property.” Such notices cut down on a lot of file sharing traffic as parent pressure kids into doing the right thing.

So you should be data mining. But perhaps the things I have described could all better be classified as network management, a term that would not dismay your customers.