Posted by: Macaulay Christian
April 20, 2015
Imagine that, for some time and on a fairly consistent basis, you download and listen to all of your favorite music through one or more torrent sites. Whatever your personal beliefs are, you do know that, legally speaking, what you are doing is wrong. Your Internet service provider has even sent you periodic letters informing you that your conduct is infringing on various copyrights and that you should cease your activities immediately. You’ve allowed these notices to pile up, not even bothering to open the latest ones. Then, something happens, something that hasn’t happened before—your Internet is shut off. After playing around with your router, you phone your provider, wanting to have your service reestablished. You are informed that you have been permanently disconnected from the Internet because of your repeated copyright infringement, at the request of the major record labels.
The thought is almost scary, if not only that your ISP could be compelled to permanently disconnect your service, going on in today’s highly interconnected world without regular access to the Internet is borderline unthinkable. It’s difficult enough for Millennials to try and conjure up conceptualizations of what life was like before the Internet, before computers. To have to navigate modern expectations of productivity, entertainment, and communication one must have access to the Internet.
The crux of the matter is what responsibility does or should ISPs have in policing copyright infringement committed by its subscribers on its network? In the United States, the answer to that question may rest in a lawsuit initiated against Cox, while in the case in Ireland may given big content a reason to hope.
BMG Rights Management LLC & Round Hill Music LP v. Cox Communications
Traditionally, ISPs haven’t been liable for what their subscribers do on their network. In CoStar Group, Inc. v. LoopNet, Inc. the issue before the court was whether LoopNet should be held directly liable for CoStar’s copyrighted photographs posted on LoopNet’s website by a LoopNet subscriber. The court found LoopNet to be an OSP, which automatically and passively stores the content its users upload. LoopNet was not liable for direct infringement. Online service providers (OSP) have suffered more from lawsuits filed by the music and film industries. In 2012, Viacom sued YouTube fore $1 billion alleging that the site had engaged in “brazen” copyright infringement in allowing its users to upload more than 150,000 clips from copyrighted material. Viacom’s argument focused heavily on internal emails between YouTube employees demonstrating that they had knowledge of the infringement. A 2013 suit involving Veoh found that the burden for identifying infringing materials is on the copyright holder and not the OSP.
This background should hopefully make clear that there are powerful interests at play, with incredibly large sums of money at stake of all parties involved. What may seem like a trivial matter to the average illegal downloader, who thinks that their downloading of a few songs doesn’t harm anyone, is seen as detrimental to the business models of various powerful entities aggregated together with all the thousands of infringers.
Those powerful interests were set on a collision course when Cox elected to pursue its own scheme of punishing copyright infringers instead of falling in line with competitors such as Comcast and Verizon who send “Copyright Alerts” to their users who pirate content. BMG and Round Hill filed suit against Cox, stating that the policy Cox has in place is not only insufficient, but one which Cox does not pursue in good faith. Special attention is drawn in the complaint that Cox has knowledge of actual infringers on its network, infringers Cox has refused to disconnect.
There is a question that arises out of the Digital Millennium Copyright Act that requires ISPs to disconnect “repeat infringers” though the term is undefined. BMG and Round Hill hope a judge will determine that notification from the copyright holder to the ISP will suffice. Cox and ISPs more generally are likely to take the position that in order for one of their subscribers to be labeled a “repeat infringer” a judge must determine, presumably on a case-by-case basis, thus making the process more difficult for rights holders.
Curiously, in the week before the complaint was filed, the cable companies announced that customers accused of pirating content, leaving it to the copyright holders to pursue infringers.
It is a precarious situation for both parties in the suit, as a ruling will place one (and their respective industry) at a disadvantage, in addition to the financial repercussions. If the record labels are successful, ISPs will now be liable for damages if they fail to disconnect Internet access to “repeated infringers”. Should Cox be successful, not only would it make it more difficult for record labels to choke infringers, but harm the business model of Rightscorp, which relies on the issuance of threats of disconnection. For the sake of hyperbole, the approach undertaken by BMG and Round Hill is akin to demanding that your electric company sever all electricity to your house because you have pirated music.
The Ireland approach to copyright infringement taking place on the networks of ISPs has been to do effectively what BMG and Round Hill are seeking against Cox—disconnection of the infringer’s Internet.
The outright disconnecting of infringers by ISPs was not the first step pursued by big content in Ireland. In 2011, Ireland High Court issued an order that required the country’s ISPs to block user access to The Pirate Bay torrent site. This would seem to be a more targeted solution to the problem of copyright infringement. By blocking the site(s) which facilitate infringement, the ISPs, in theory, fulfill a responsibility to big content in taking efforts to limit the avenues for infringement that can be done on their networks while not assuming the responsibility of the copyright holders to police their copyrights for potential infringement. Additionally, no one, even those who are bona fide infringers of copyright lose their access to the Internet. This arrangement, however, is no longer the case.
A March 28th ruling of this year resulted in a second Ireland ISP, UPC, being ordered to adopt a three-strike policy for its subscribers, the ultimate consequence being disconnection. The policy is similar to one another ISP, Eircom (which acquiesced in the face of legal challenges presented by the Irish Recorded Music Association), was forced to implement: Big content monitors the ISP’s users and the ISP issues infringement notices. In addition to having implement this new policy, UPC must also shoulder not only the bulk of set-up costs, but also the operational costs. Big content will contribute 20% of the total cost.
Ireland may only have been adopting what had occurred a few years earlier in Finland. The approach in Finland was even more heavy-handed with a Finnish court ordering the disconnection of Internet services to three subscribers mere months after the music industry initiated a suit against the ISP Elisa, and without a first strike notice. Similar to the case in Ireland, the music industry sought to have access to The Pirate Bay blocked.
What do these developments in Ireland and Finland mean for copyright infringement issues concerning ISPs here in the United States? Probably the most evident is that there seems to be an emerging legal consensus—at least in Europe—that ISPs have a substantial responsibility to the copyright holder in the protection of their copyrights. Though it appears that there may be some degree of balance in the policing and enforcing efforts, at least in the snapshot provided in the Ireland cases, the consequence of having one’s Internet terminated is being viewed as an appropriate remedy, other actions pursued separately (such as damages) notwithstanding. Furthermore, having these victories elsewhere is likely to embolden the efforts of big content in the United States to pursue comparable levels of enforcement by ISPs.
If we take a moment to return to the hyperbolic hypothetical, where big content sues to have an infringer’s electricity turned off, one might hope that the Federal Communication Commission’s vote to classify the Internet as a utility could spur some to argue whether that is an appropriate remedy to copyright infringement. Should a person, even one who is an infringer, lose access to a utility because of their infringement? And, while neither government entities nor acting under express government authority, what constitutional issues could at least be of concern if copyright law can be leveraged to deny access to a forum of Free Speech?