ISPs In US Face New Copyright Challenge

Online firms don’t do enough to combat copyright infringement. That, at least, is what US copyright owners have been saying for years. They recently received some good news from the US Fourth Circuit Court of Appeals. The decision in BMG Rights Management v. Cox Communications puts new teeth in the legal requirements for internet service providers (ISPs) to act against infringing customers. The ruling, however, is worrying ISPs and many legal experts, because it empowers copyright trolls, increases costs for ISPs, and puts many of their customers in an untenable situation.

The case began with Rightscorp, Inc., a company whose business is to police others’ copyrights online. Rightscorp searches peer-to-peer networks (such as BitTorrent), locates internet protocol (IP) addresses that offer infringing copies of clients’ songs, and emails notices of infringement to ISPs, instructing them to forward the notices to their customers using the specified IP addresses.

Each notice of infringement does not merely warn the recipient that specific copyrights have been infringed. The notice also contains an offer to settle the matter for twenty or thirty dollars – far less than the cost of defending against the infringement suit in court. As a result, Rightscorp has often been called a “copyright troll.”

That low opinion of Rightscorp was apparently shared by Cox Communications. The ISP refused to forward Rightscorp’s notices of infringement to Cox customers so long as the notices contained settlement language. Rightscorp refused to modify its notices, and in Fall 2011, Cox began automatically deleting all notices from Rightscorp, without even bothering to read them.

Shortly thereafter, in December 2011, Rightscorp began working for BMG, a major music label. But Cox never read any of the millions of Rightscorp notices alleging infringement of BMG copyrights.

Seeking a Safe Harbor

In November 2014, BMG sued Cox for vicarious and contributory copyright infringement. Cox claimed it was protected against such liability by the Digital Millennium Copyright Act (DMCA).

The DMCA is a legislative compromise that provides some protection to copyright owners while also recognizing that online service providers such as YouTube, Facebook, and ISPs cannot control whether customers post infringing content. Thus, the DMCA provides a safe harbor for online service providers, provided they satisfy the DMCA’s requirements for fighting online infringement.

Section 512(i)(1)(A) of the DMCA states that an ISP has safe harbor protection so long as the ISP has “adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers.”

On 1 February, the 4th Circuit ruled [pdf] that Cox had failed to satisfy this condition for safe harbor protection. Although Cox had received millions of notices that its customers were engaging in repeated infringements, the company had never implemented its own policy to act against repeat infringers.

Cox argued it was under no duty to act against its customers based solely on the allegations of Rightscorp. Instead, the DMCA’s requirement to act against “repeat infringers” came into effect only after a court had found the customers repeatedly committed online copyright infringement.

The 4th Circuit rejected Cox’s contention that “infringer” must mean “adjudicated infringer.” The three-judge panel “said ‘infringer’ needs to be an actual infringer, but there need not be a full blown trial to determine proof of infringement,” noted Jennifer Pariser, the Motion Picture Association of America’s (MPAA) vice president for copyright and legal affairs.

What, short of a trial, would suffice to prove infringement? The court never answered this question. However, by holding that Cox failed to implement its policy on repeat infringers, the 4th Circuit implicitly accepted that the notices sent by Rightscorp were sufficient to prove infringements.

A Matter of Trust

This implicit ruling disturbed many copyright experts, who offer two reasons why mere notices of infringement should not be relied on as proof of infringements. First, the online investigations done by Rightscorp (and copyright owners) do not identify specific individuals as infringers; the investigations identify only specific IP addresses that allegedly offer infringing material.

“There are problems with treating IP addresses as synonymous with people,” said Prof. Annemarie Bridy, who teaches copyright and internet law at the University of Idaho. “An IP address will identify a particular customer’s account, but the courts have held that an IP address doesn’t map to the individual owning the account. Others may be using the connection without the account owner’s knowledge or consent, for instance.”

Second, when Rightscorp and copyright owners assert some online content is infringing, the accusations can be incorrect. “Rightscorp is sending a really high volume of notices, and there have been some false positives with such notices in the past,” said Bridy.

Such false positives are good for Rightscorp and its clients. “Rightscorp’s incentive is to get cash from as many people as possible [via settlements]. The company has no incentive to determine if there really is infringement,” said Joseph E. Walsh, Jr., a partner in the law firm of Harness, Dickey & Pierce. For instance, he noted, “Not all copying is infringement. A copy can be fair use.”

Pariser responds that notices of infringement, while not perfect, are still reliable as proof of infringements. Any incorrect notices of infringement, she said, “are very infrequent, particularly for notices sent on behalf of the large copyright owners. Those notices are almost entirely valid.”

In Accusers We Trust 

That assertion of reliability is undermined by an academic study [pdf], updated in 2017, which found there were “surprisingly high percentages of notices of questionable validity.” In one sample, where notices of infringement were almost all sent by or on behalf of large copyright businesses, the study found that 31 percent of the notices were questionable. In another sample, where notices were sent primarily by individuals and small businesses, at least 36 percent of the notices raised substantive concerns.

There is additional evidence that large copyright owners have repeatedly gone after large numbers of online files that were not, in fact, infringing. Over eight years ago, for example, Warner Brothers wrongfully took down hundreds of files including demos and open source software without holding the copyrights to these files. Then, in 2016, Warner Brothers hired a third-party copyright protection firm (similar to Rightscorp) to go after infringing files and websites hosting such files. The firm wound up asking Google to remove links to Warner Brothers’ own websites for movies like Batman, The Matrix, and The Dark Knight – as well as links to Amazon, Sky, and IMDB (all of which were legally hosting the copyrighted content).

Despite this, US courts have become increasingly willing to rely on the accuracy of copyright owners’ assertions of online infringement. “Some older court rulings say that mere notices of infringement are not enough for online service providers to act on, but the trend is away from this,” said Bridy. “The courts are imbuing notices with implicit legitimacy.”

That troubles many experts. “A copyright owner sending notices should have the burden of showing its notices of infringement are accurate. Customers [accused by these notices] are not getting due process, so there should at least be some evidence that the notices are correct,” said Bridy.

Cui Bono

The 4th Circuit’s ruling benefits copyright owners, making it much easier for them to pressure ISPs to clamp down on allegedly infringing customers. Unfortunately, the decision also is a boon for companies that use allegations of infringement as means to extort money from alleged infringers. “This ruling is the first stone in a paved walkway for copyright trolls,” said Walsh.

Conversely, the decision puts new burdens on ISPs and their customers. “ISPs need to be pretty scrupulous about implementing their policies [on repeat infringers],” said Bridy. “They must keep track of notices [of infringement], and then act on them.” This is likely to drive up costs for ISPs, resulting in higher costs for consumers.

Consumers falsely accused of infringement may have little choice but to pay up, if a settlement fee is requested. Because fighting the accusation in court is a long and costly process. “Who has $600,000 to $800,000 to fight BMG in court?” said Walsh.

Even if a customer pays up, he or she may still find themselves in trouble. Because if the customer is hit with repeated accusations of infringement, the ISP may be forced to cut off the customer’s internet access. In the modern world, that would be a devastating loss. “The internet is the most important forum for the exchange of public, social and political information,” notes Walsh.

“Given the importance of internet access, I think there are almost no circumstances under which accounts should be terminated for alleged copyright infringement,” said Bridy. “The EU doesn’t allow termination for copyright infringement, and I think that is the best policy.” 

A Market Solution

Pushing individuals off the internet isn’t needed to stop infringements in peer-to-peer networks, according to some experts. They note that such infringement is dying already, thanks to legitimate streaming services.

“File sharing is hugely decreased since its peak. It used to take a huge amount of bandwidth, but it is not so significant any more. Over time, it will become even less significant, as more and more people move toward legal streaming services,” said Bridy. “The real solution to this problem [of online infringement] is to make available lawful alternatives that provide content in a fast, convenient, and reasonably priced way.”

Legitimate streaming services have indeed produced big revenues for the music, movie and TV industries, but many in those industries still assert that peer-to-peer infringement needs to be squashed. “Peer-to-peer is shrinking as a proportion of overall online infringement, but in absolute terms, it is still a fairly significant problem. It looks small because other types of online infringement are ballooning,” said Pariser.

If the market can’t provide a solution, US law needs to be changed, some experts advocate. The current law requires either copyright owners to prove infringement in court – which is time-consuming and expensive – or forces ISPs to act on mere allegations of infringement – which is unreliable and unfair to those accused of infringement. There should be a middle ground, according to Walsh.

“Maybe we could have an expedited administrative proceeding for alleged copyright infringement on the internet, something similar to inter partes review for patent infringement,” he said. “All of the major stakeholders need to get involved and revise the law.”

Image Credits: https://openclipart.org/detail/130045/music-icongreen2