Tag Archives: copyright infringement

Supreme Court Rules on ISPs and Copyrights

The Supreme Court ruled in favor of Cox Communications in the longstanding lawsuit by Sony that sought to hold Cox liable for customers who download copyrighted material. The Court’s ruling was unanimous, which is a big win for ISPs. The Supreme Court went further and said that ISPs would only be liable if they intended for their service to be used for copyright infringement.

The Supreme Court’s ruling goes back to a 2018 lawsuit where Sony sued Cox when the ISP refused to disconnect customers who were reported to be downloading music. The record labels insisted that Cox should permanently disconnect any customer who engages in repeated copyright infringement. Cox argued this would turn ISPs into Internet policemen who would have to monitor and punish customers who engage in copyright infringement. That doesn’t just mean people who download copies of music, but could also apply to movies, games, books, pirated sports events, and copyrighted written materials. A Virginia Court agreed with the music labels and found Cox liable for both contributory and vicarious copyright infringement and awarded the record companies an astonishing $1 billion in damages.

Cox appealed the ruling, and the Fourth Circuit U.S. Court of Appeals reversed the penalties for vicarious infringement and vacated the $1 billion of damages. This was still a troublesome ruling for Cox because the company was still considered to be liable for contributory damages for actions taken by its customers.

ISPs would be in an uncomfortable position if the Court had ruled in favor of the music labels. ISPs don’t monitor customer usage because that would mean looking closely at everything that customers do. The music labels wanted Cox and other ISPs to react to complaints made by copyright holders. That might make sense in a perfect world, but complaints to ISPs rarely come directly from copyright holders. Instead, there is an entire industry that makes a living by issuing takedown requests for infringements of copyrighted materials.

The music companies expected Cox to cut off subscribers after only a few violations of copyright. The permanent loss of a customer would be a severe financial penalty for Cox. It would be a severe penalty for the public, where a household would lose broadband in a world where a lot of markets have only one realistic choice of fast broadband. It’s not hard to imagine a scenario where a teenager or visitor to a home violates copyrights and gets the entire household disconnected from broadband. The music industry was trying to avoid the harder solution, which is to legally pursue and seek fines for people who violate copyright.

The ruling has wider implications than just for ISPs and record labels. Social media platforms are filled with news articles, video clips, and other copyrighted materials that users post. The Court’s ruling was an affirmation that companies are not liable for users who abuse online services by downloading or posting copyrighted material. Ultimately, the people who violate copyright should be held liable, regardless of how hard that is to implement.

This ruling doesn’t take online platforms off the hook for responding to takedown requests to block copyrighted materials. However, the ruling does lower the potential for copyright holders to seek huge dollar judgments against ISPs that refuse to act as copyright policemen.

Supreme Court to Hear ISP Copyright Case

The Supreme Court has agreed to hear a case that will determine if ISPs are required to terminate broadband service for customers who are accused of copyright violations. The suit is a result of a longstanding dispute between Cox Communications and music labels, including Sony Music Entertainment.

The Supreme Court case stems from a series of court cases that ended with the Fourth Circuit Court of Appeals ruling against Cox. The case was accepted by the Supreme Court since the ruling conflicts with some aspects of similar cases in the Second and Ninth Circuit Courts.

The case originated with a 2019 decision by a Virginia Court that found Cox liable for both contributory and vicarious copyright infringement and awarded the record companies 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.

This was still a troublesome ruling for ISPs because even after getting rid of the damage penalty, Cox still stands in violation of contributory damages over actions taken by its customers. The record labels insist that Cox should permanently disconnect any customer who engages in repeated copyright infringement. This ruling would turn 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, books, and pirated sports events.

This is an incredibly uncomfortable role for ISPs. ISPs don’t monitor customer usage because that would mean looking closely at everything that customers do. Instead, the music companies want Cox and other ISPs to react to complaints made by copyright holders. That might make sense in a perfect world, but the real world isn’t perfect. Complaints are rarely made to ISPs by copyright holders, and there is an entire industry of companies that make a living by issuing takedown requests for infringements of copyrighted 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 permanently disconnect paying customers. This would also be devastating for broadband customers. Most homes in the U.S. don’t feel that they have broadband choice, and most have access to only one fast ISP. If they lose that connection, they could find themselves cut off from functional broadband. It’s not hard to imagine a scenario where a teenager or visitors to a home violate copyrights and get the household disconnected from broadband. Losing broadband is a severe penalty for an infraction that would incur only a small fine if taken to court. The right penalty is to force people who infringe copyrights to pay a fine. Copyright holders are asking to bypass the law enforcement and court system, and want to turn ISPs into the judge, jury, and executioner for copyright violations.

ISPs need to keep an eye on this case and should have associations file comments in the court proceeding. A ruling against Cox is a ruling against every ISP. I assume consumer advocates will also weigh in with briefs since the penalty of permanently losing broadband doesn’t fit the crime.

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.

 

ISP Liability for Customer Behavior

Scales-Of-Justice-12987500-300x300A few weeks ago a judge ordered Cox Communications to pay a $25 million settlement to BMG, the music rights company. This come from a trial last year where a jury decided that Cox was guilty of allowing their customers to pirate BMG music over the web. This ruling is a dangerous precedent in that it holds an ISP liable for behavior of its subscribers – something that should scare all ISPs.

The case has some unusual facts. BMG hired Rightscorp to monitor the Internet for illegal file downloads of BMG music. Rightscorps sent numeous infringement notices to Cox that it wanted forwarded on to customers. These notices told customers that they had done an illegal download of BMG copyrighted material and gave customers the ability to immediately resolve the issue by sending $30 to Rightscorp.

Cox thought these notices smacked of extortion and refused to forward the notices directly to customers. Instead Cox decided to use the same policy as most large ISPs called a three strikes test, meaning that they will disconnect a customer that has been given several notices about illegal downloads. But the suspicion has always been that the big ISPs are somewhat spotty about enforcing copyright violations and don’t want to turn off paying customers.

Cox ended up blocking 1.8 million notices that Rightscorp was trying to directly send to Cox customers, and Cox largely did nothing with those notices. Cox was found guilty by a jury, and the judge set the high penalty because Cox had not done enough to enforce the copyrights of BMG.

Cox was relying on a legal strategy called ‘safe harbor’ where they would have no liability as long as they were using a reasonable set of procedures to stop music piracy. But the judge quickly pierced the safe harbor protection by saying that Cox did not do as much as they should have done to protect BMG.

This case was certainly complicated by the unsavory tactics of Rightcorps. What’s to say that all of those customers actually had violated copyright? But the bottom line is that Cox was held responsible for the supposed music piracy of their customers. That ruling that has to concern every ISP, because this is bound to open up the floodgates of similar suits and similar tactics. And who knows where this stops? Customers can engage in all sorts of illegal activities other than copyright violations.

It’s really hard for an ISP to know what to do following this decision. One strategy would be to just pass on every notice of copyright infringement. The problem with that idea is there is likely to a bunch of scammers that will copy the tactics of Rightscorps but with no real claims against customers. ISPs don’t want to get into the middle of potential scams.

ISPs could also develop and enforce tighter policies against customers that repeatedly download pirated material. The danger of that approach is that the ISP could end up ‘convicting’ a customer with no real proof that they violated copyright. This has been one of the factors that have made ISPs uneasy about getting tough on this.

Finally, I guess ISPs could do deep packet inspection to see what their customers are doing. But most ISPs don’t want to do that. And even if ISPs try this, the FCC is contemplating customer privacy rules where customers can opt out of being tracked or followed by the ISP.

So Cox and other ISPs face a dilemma. We know that the biggest ISPs have all been involved in this issue. I would love to hear from any smaller ISPs who have been involved in copyright issues and that might want to share their experience.