Late Wednesday evening before Thanksgiving, two music publishers, BMG and Round Hill Music, who are partners of struggling copyright trolling operation Rightscorp
, sued the ISP Cox
, testing out the theory that (1) the DMCA requires ISPs to kick "repeat infringers" offline entirely and (2) that notices from Rightscorp suffice to prove that one is a repeat infringer. You can read the complaint here
[pdf or embedded below].
There's a lot of background here to unpack -- very little of which made it into the WSJ's initial coverage of this story. First off, it's true that the DMCA safe harbors include a requirement of a "repeat infringer" termination policy in 512(i)
. Furthermore, for years, the RIAA
and its friends
have insisted that 512(i) means that ISPs need to boot people off the internet entirely. After the RIAA, MPAA and five top ISPs agreed to the "voluntary" six strikes program, in which the ISPs insisted that it wouldn't kick anyone off the internet for file sharing, the RIAA started telling people that even when ISPs said that, 512(i) would require
ISPs to kick users offline anyway.
However, that hadn't been tested in court. There had been some thinking that the RIAA and associated labels would likely wait until they had enough examples of individuals hitting all "six strikes" and still having an account before testing out this legal theory -- but it looks like Rightscorp's friends are jumping the gun. If it succeeds, then the legacy copyright players will have a massive new weapon in their arsenal: a digital guillotine that would allow them to pressure ISPs to kick people entirely off the internet for a few simple infringements.
It's interesting that the target of the lawsuit is Cox for a couple of reasons. First, years back, Cox was actually one of the first ISPs to kick people offline
for file sharing, publicly stating that the DMCA required it. This argument was, and remains, incorrect, but it's unclear if Cox still follows the same practices today. The filing says that Cox says this is its policy, but it doesn't actually follow through. Second, Cox is not
a partner in the "six strikes" program -- and it makes you wonder if the plaintiffs will try to use that against the company (which could pressure ISPs into joining the program to avoid liability). In other words, it's possible that part of this strategy will be to force all ISPs to join the "voluntary" six strikes program.
Either way, the legal theory is fairly questionable. As AT&T argued years ago
when such a theory was floated, an ISP can't just assume that someone is a "repeat infringer" based on questionable notices -- especially when the evidence for such notices (generally IP addresses) is notoriously unreliable. Furthermore, it's worth reading the details of probably the key case on implementing a "reasonable" policy, the Perfect 10 v. CCBill
case. While the situations are not analogous, that case certainly seems to suggest that service providers have pretty wide latitude in setting up a policy, so long as they're not purposely trying to interfere with efforts to respond to infringement. The fact that, at least in the past, Cox did
kick users off its service, suggests that it's not ignoring these issues and has a policy, even if it's not to Rightscorp's liking. Now, that CCBill case is in the 9th Circuit, and this lawsuit was filed in Virginia (the 4th Circuit), so perhaps the plaintiffs are hoping for a friendlier view towards these theories.
In the specifics in this case, BMG and Round Hill seem to be upset that Cox won't forward Rightscorp's notices -- and, in fact, appear to treat them as spam:
Plaintiffs, through their agent, have attempted to work closely with Cox to find a
workable and common sense solution to Cox's system-wide repeat infringer problem. Cox,
however, 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." Incredibly, Cox's Privacy Counsel advised Plaintiffs' agent that it has
implemented a "policy not to accept or to forward notices such as those sent to us by your firm."
Moreover, Cox chose "to limit the number of notices that [it] can accept from many senders
because of the total volume that [it] receive[s]."
By its actions. Cox has intentionally ignored and continues to ignore the
overwhelming evidence that provides it with actual knowledge ofrepeat copyright infringers on
its network and Cox actually has taken measures to avoid and stop receiving those notifications
in direct violation of the spirit and legal requirements of the DMCA. Cox cannot have any
credible, effective repeat infringer policy, let alone one that is reasonably implemented as
required by 512(i), if it purposefully ignores notifications, sufficient under the DMCA, of repeat
infnngers sent by copyright owners who are tracking the repeat infnngers on the Cox network
and providing Cox with actual knowledge of those repeat infringers on a daily basis.
Once again, though, the publishers are exaggerating the actual law and what's happening. They seem to assume that Cox has some sort of legal obligation to pass along Rightscorp's notices, which just isn't the case. Furthermore, the lawsuit states, incorrectly, that "Cox directly profits" from repeat infringements. But that's wrong. Cox may profit from people who have used its service to infringe, but the law (and court rulings) have been fairly clear that Cox would need to profit specifically from the infringements itself, not merely because some users infringe. Users who infringe and users who don't all pay Cox the same amount, so Cox receives no special profits from infringement, blowing a big hole in the legal theory presented.
No matter what, courts sometimes come out with wacky decisions, and this one could quickly shape up to be a key case in testing this theory that's floated around for years, but has never really been tested. That makes this a clear case to follow, as it could have tremendous impact. If the publishers' theory is vindicated by the courts, it would mean that -- contrary to all the previous promises that ISPs wouldn't kick people accused of infringing offline -- the US technically might require the loss of internet service for repeat infringers. Such a policy would clearly go against stated aims of the government in encouraging internet access, but it's not impossible. I would imagine that if such a result came about, the resulting protests from internet users would be even more vocal than what happened to prevent SOPA. Kicking people entirely off their internet connection for copyright infringement has always been a non-starter in the US. Kicking that hornet's nest seems like a risky move for these publishers.