The law introduced a safe harbor for Internet providers, meaning that they can’t be held liable for their pirating users as long as they ‘deal’ with repeat infringers.
Generally speaking, ISPs are not very eager to disconnect accounts of frequent copyright infringers. While the law allows for account terminations, it stipulates that this should happen under “appropriate” circumstances.
Some copyright holders have argued that three infringement notices are enough to warrant a disconnection, but most Internet providers don’t want to go this far.
In a recent recommendation to the Copyright Office the U.S. broadband association USTelecom points out that DMCA’s safe harbor provisions are generally working as intended, shielding Internet intermediaries from liability for copyright infringements carried out by their users.
However, the group stresses that in most cases ISPs act as mere conduits who pass on digital information. These type of services are not subject to takedown notices as they fall under section 512(a) of the DMCA, so all takedown notices are by definition invalid.
“It is inappropriate and contrary to the DMCA to suggest that ISPs should somehow be responsible for policing copyright rights when those service providers are acting as mere conduits for digital communications,” USTelecom writes.
Nonetheless, every month ISPs are bombarded with millions of takedown notices, triggered by allegedly pirating customers.
“Despite this well-established precedent, ISPs are receiving millions of invalid notices relating to conduit services. These notices frequently include improper ‘settlement’ demands that rights holders pressure ISPs to forward to unrepresented consumers.”
USTelecom stresses that ISPs have no obligation to process takedown notices under the DMCA, as they merely pass on traffic. While most forward this information as a courtesy, they are not required to do so.
Not all copyright holders agree with this stance. In fact, USTelecom points out that in recent years they have been pushing for tougher actions against Internet subscribers who receive multiple notices.
“In some cases, the senders of these notices even want the ISPs to terminate Internet access based on these allegations – which, again, the ISPs as mere conduits could not evaluate even if they were obligated to do so under the DMCA.”
“These actions constitute an abuse of the DMCA notice process, and should be acknowledged as such by the Copyright Office,” USTelecom adds.
Even if ISPs were required to forward DMCA notices, they believe that terminating Internet connections goes too far. The group points out that the notices are not always sent to the right person, for example, and add that the senders do not always represent the copyright holder.
It should be up to a court to decide if a person loses his or her Internet access, not the Internet provider acting solely on claims of alleged copyright infringements.
“Any allegations intended to justify the termination or long-term suspension of Internet access connections should be subject to some form of judicial review before depriving subscribers of all access to the Internet,” USTelecom writes.
“Internet access is essential to modern life, including economic life and exercise of other fundamental rights. It is simply unthinkable, that a consumer should be able to lose access to such a fundamental and crucial tool absent some form of formal adjudication.”
USTelecom’s response to the DMCA consultation of the Copyright Office comes at an interesting time. Just a few months ago, Cox Communication was ordered to pay $25 million because it failed to disconnect subscribers whose connections were repeatedly used to pirate content.
The telecom group clearly disagrees with this verdict, which is currently under appeal, and hopes to have the U.S. Government on its side.