Imagine If ISPs Were Responsible for All That Copyright Infringement

 

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One of the most important cases in the history of music copyright and content protection is happening right now, with a decision expected in months.  Yet very few are even aware of its existence.

The case involves Cox Communications, the third-largest ISP in the United States, and, depending on who you talk to, one of the largest facilitators of piracy in the world.  That’s the accusation of litigating rights owners BMG Rights Management and Round Hill Music, who’ve finally rallied the courage (and resources) to haul the powerful broadband industry into court.

Because alongside all the legal Netflix streaming and iTunes downloading, there’s still a massive-and-increasing level of piracy happening online, largely through BitTorrent.  But talk to Cox — and Comcast, Time Warner, Verizon, and others — and you’ll find that this really isn’t their problem.  Indeed, ever since their initial, post-dial-up roots, ISPs have always argued that they’re merely ‘dumb pipes,’ and ‘transitory’ providers of a high-speed connection that they shouldn’t be forced to police.

It’s an elegant counter-argument, and one that’s been working for more than a decade, including in court.  After all, should FedEx be responsible for someone shipping cocaine in an overnight package?  Should the telephone company be responsible for calls between pimps?  Should the Bada Bing strip club be responsible for the deals Tony Soprano is making in back?

That logic has largely kept ISPs safe from liability since the days of Napster, when the music, film, TV, gaming, adult, and book industries realized that they had a very serious problem on their hands.  And a critical part of that defense involves the ‘safe harbor’ clauses of the Digital Millennium Copyright Act, or DMCA, which has very comfortably insulated carriers, user-generated sites, and search engines from massive amounts of copyright infringement liability.

 

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(AT&T U-verse broadband internet advertisement, 2014)

 

That is, ironically, even though piracy itself has stimulated a huge appetite for fatter pipes.  Which means ISPs like Cox have brilliantly concocted a strategy for not only profiting from massive content piracy, but legally insulating themselves from it as well.  And a key component of that shield throughout has been the DMCA, originally designed in the late-1990s to protect a nascent internet industry from being stunted by copyright infringement liability.

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Fast-forward into 2015, and the reason against clamping down on routine infringers is simple: pirates pay the bills, and often, as the heaviest users, they pay huge premiums for bandwidth.  And as long as the DMCA protects the mega-providers from curbing massive copyright infringement, ISPs won’t take any action.

“But what if ISPs aren’t actually complying with the DMCA?”

There are plenty of ethical issues involved here, though ISPs have very effectively argued that they’re simply obeying the law as written.  But what if ISPs aren’t actually complying with the DMCA?  According to BMG and Round Hill, Cox has actually lost its DMCA ‘safe harbor’ protection and is liable for billions, if not trillions, of dollars in copyright infringement.  Late last year, both publishers filed suit against Cox Communications in the US District Court for the Eastern District of Virginia, with potentially trillions (yes, with a ‘t’) of infringement liability alleged (the complete filing is here).  BMG and Round Hill oversee catalogs that include the Beatles, David Bowie, Johnny Cash, James Brown, Katy Perry, and Lenny Kravitz, among many others being actively torrented in massive quantities.

And what these right owners are saying is this: Cox has not only ignored copyright infringement happening on their lines, they’ve deliberately ignored notices covering 7 million repeat infringements from over 200,000 subscribers, some of which have illegally swapped tens of thousands of files.  These notices have been delivered to Cox by Rightscorp, a potent anti-piracy gun (and DMN partner company) that has not only discovered and documented all of these infractions, they’ve mailed them to Cox’s front door.  “Cox has had actual and ongoing specific knowledge of the repeat infringements by its subscribers,” the publishers’ complaint reads.  “Nonetheless, Cox has repeatedly refused to terminate the accounts of repeat infringers.

“The reason that Cox does not terminate these subscribers and account holders is obvious – it would cause Cox to lose revenue.”

Other ISPs, including Verizon and Comcast, have agreed to notify and warn infringing users.  That program, called the ‘Copyright Alert System’ or simply ‘Six Strikes,’ has largely been regarded as toothless because infringing accounts are rarely terminated.  Still, Cox has even declined to participate in Six Strikes, perhaps to avoid admitting infringement, a rationale that may partly explain its refusal to accept Rightscorp’s notices.

“…Cox has made an affirmative decision to contribute to known copyright infringement…”

According to BMG and Round Hill, those notices follow the spirit and the letter of the DMCA, which requires rights owners to formally notify sites and ISPs of infringing activity.  Those notifications must be acted upon, with reasonable steps taken against repeat infringers, or the safe harbor simply doesn’t apply.  “Cox… has refused to engage with Plaintiffs’ agent in any substantive way and instead has taken the position that repeat infringement notices provided to Cox ‘do not relate to matters subject to the DMCA,'” the complaint continues.

“By ignoring the repeat infringement notifications and refusing to terminate internet access for repeat infringers, Cox has made an affirmative decision to contribute to known copyright infringement and to continue reaping the substantial financial benefits in the form of subscription fees and fees for higher bandwidth.  Cox’s conduct renders it ineligible for safe harbor immunity from copyright liability under the DMCA.”

Welcome to one of the biggest test cases yet for ISPs.  Online, sites like Google, SoundCloud, and even Grooveshark understand the rules of the game: under the DMCA, a takedown notice must be acknowledged and acted upon.  Google plays by the rules, Grooveshark didn’t, and the results are pretty obvious.

“Cox’s conduct renders it ineligible for safe harbor immunity from copyright liability under the DMCA.”

But in the case of ISPs, there isn’t actually a clear court precedent, even though aspects of the DMCA (specifically §512(a) and (i)) call for any ‘service provider’ (which includes ISPs like Cox that provide ‘Transitory Digital Network Communications’) to adopt a policy for addressing and terminating repeat infringers.  Indeed, Cox has been arguing that it’s impossible to clearly define what a ‘repeat infringer’ is, much less force Cox to play judge, jury, and executioner.

 

Which is another way of saying, ‘sue me, asshole’.  At that’s exactly what’s happening.

39 Responses

  1. Shlomo

    1. A day late and a trillion short. Where was this action 15 years ago? The only way to stop piracy is thru ISP’s.

    2. If the publishers win, I wonder if the writers will get one dime.

    Reply
  2. Anonymous

    “Imagine If ISPs Were Responsible for All […] Copyright Infringement”

    They’re not?

    Reply
    • Rickshaw

      No, they’re not…and they shouldn’t be. Consumers who choose to download/stream illegally are responsible.

      Reply
  3. Jose Fritz

    They’re not. The idea is just a tad bit insane. That’s like rendering book stores responsible for plagarism. I expect they will win and pushing the matter will cause copyright holders to lose legal ground.

    Reply
    • TedBalk

      “That’s like rendering book stores responsible for plagarism.”

      You can always count on pirates to come up with the dumbest, nonsensical analogies…

      Reply
    • The AHMM

      Correction for Jose: It would be like taking the landlord to court for leasing property to pirates giving away counterfeit copies of free books, while taking money from advertisers to not only pay for the lease, but also turn a profit by placing advertising all over the inside and outside of the property.

      now it makes sense. There, fixed it.

      Reply
    • Robert Jensen
      Robert Jensen

      This is a bad analogy, but Ill try anyway, with another bad but more accurate analogy. If bookstores were aware of the plagiarism, they ARE responsible. ISPs know when something illegal is happening. There are ways around this by using bittorrent, not going online, etc. For the average Joe, who steals the apple at the cash register in front of the clerk. He deserves to get busted and it just happens doing so (busting him) could also save the entire music industry, while shady people will still find ways to steal and get away with it. No one loses here.

      Stealing music is a crime. If we do not enforce it we might as well have anarchy. We cant just pick and choose what we allow people to steal. Is the security company that leaves the doors open at the bank at night responsible for the crime? Maybe not if they are unaware of whats happening. When they start advertising ‘free money’, they need to be hold some responsibility and hand over the cameras as well.

      Reply
  4. Vail, CO

    So surprising it took this long. Why wasn’t the RIAA all over this in 2005, or better yet1995? Just makes me think what a waste that group is with Cary Sherman now saying his entire takedown strategy isn’t working… huh? He gats paid $2 mm to think of that?

    Reply
  5. Brett Glass

    Google does NOT play by the rules. You can find a copy of virtually any song there, regardless of the wishes of the copyright holder or author. And it doesn’t take down obviously infringing postings.

    Reply
  6. Dry Roasted

    AT&T is of course referring to legal terrabytes of unsigned, Creative Commons music torrents.

    Reply
  7. Anonymous

    The reason you don’t hear much about it is because everyone expects Cox to win. And Cox is not the third largest ISP. Not even the third largest cable ISP. If you want to make the real news you need to sue Verizon, Comcast, or Time Warner.

    Reply
  8. ExpatBrit

    The major problem for the plaintiff in this case is that their so called experts are actually not a copyright protection service. Rightscorp are by their own admission a copyright monetization company who would go out of business if piracy actually was stopped!

    So how will it look to a judge and jury when Rightscorp are forced to the stand and forced to admit that they don’t try to stop piracy but actually make money by encouraging it in order to extort people into paying them ?

    Reply
    • Anonymous

      That’s some convoluted logic you’re rockin there, duder. Rightcorp is just a group of lawyers. If copyright infringement went away tomorrow, I’m sure they’d find a million other things to help litigate.

      Reply
  9. Versus

    Good start, but DMCA law is not strong enough.

    The failures of DMCA include:
    – all burden of effort is on the infringed party
    – take-down notices too time-consuming
    – take-down notices often ignored
    – even if acted upon, take-downs are not immediate; meanwhile piracy goes on
    – no prevention of re-posting
    – no penalty to the uploaders
    – no financial compensation for losses
    etc.

    We need far stronger protection of creators’ rights.

    Reply
  10. Anon

    I’ve been saying this for years. ISPs (and Google) are benefiting from it, and they know what their traffic is doing downloading or searching.

    Reply
  11. iamthegif

    Here’s what I don’t like. Only major companies have the privileged of having content that violates their copyright taken down. It’s not something that extends to any copyright owner. The other issue is the lack of due process, a company like Universal claims you’re content is theirs and you get shut down, doesn’t matter if it’s true or not. This can easily become an effective tool for censorship and a way to suppress competition.

    Statistically people that pirate music buy more music than music buyers so I don’t get what the uproar about pirating is about. I mean, somebody that buys music will pirate an album to hear if it’s worth buying. Somebody that pirates without any intention of buying most likely isn’t going to buy regardless of if they have access to it for free or not. There’s a lot of evidence that implies that piracy isn’t killing profits.

    The type of people that still download are a really small group that isn’t worth this much attention. I don’t think this is about piracy at all but suppression. Now there’s all of this competition where there’s more money but it’s spread across way more artists. Now we have a system where big companies aren’t making as much money as they used to but artists that weren’t making anything are earning enough of a living from their art to do it full time. The indies and the unsigned artists are pulling money away from the big companies and then they’re declining to sign with them because they feel they don’t need them to reach their audience.

    This is about creating a system where nobody can be heard unless they’re under one of the major companies in Entertainment. It’s about making it like it used to be where artists had to go to labels with their demo in their hat begging for a deal and the label could take advantage of their desperation and rob them blind.

    Reply
  12. Chris H

    Two thoughts.

    1. In an NSA world, where the entirety of the world’s communications are sucked into a mountain in Colorado for analysis and detection, I have a very hard time believing that we can’t or have ever been unable to, detect what is legal, purchased, etc. Or that we couldn’t develop a system.

    2. Should the transporters be the police? While yes it benefits them and they have unjustly benefitted from all this, should it be there job to be the police of their data? I say yes (as it is with physical goods), but find a way to incentivize them to do so besides threats to take content away.

    Reply
  13. Herb

    I have bones to pick with Sound cloud, You-tube, and a few dozen other websites that feature barely remixed old tracks for down load to display the D J’s expertise on a song already written and not by him the musicians the writes the original people who made the song not the remixer own the copyright.

    Reply
  14. Anonymous

    Don’t give the public what it wants, instead limit choice so as to facilitate maximum profit for those organizations who are already wealthy enough to afford teams of lawyers. Must we watch and hear only what wealthy corporations present to us? Must we then continue down this slope where we pay out more for less and less? If the corporations and their lawyers could manage it, there will be only commercials left to watch and hear.

    Reply

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