Last December a Virginia federal jury ruled that Internet provider Cox Communications was responsible for the copyright infringements of its subscribers.
The ISP lost its safe harbor protection because it failed to properly terminate the accounts of repeat infringers, and was found guilty of willful contributory copyright infringement.
Hoping to overturn the $25 million verdict in favor of music publisher BMG Rights Management, Cox filed an appeal. Thus far it has received support from several industry associations, academic institutions, and also the Electronic Frontier Foundation (EFF).
This week the EFF is again stressing the importance of the case. According to the digital rights group, copyright holders shouldn’t have the power to cut off people’s Internet based on “claims” of copyright infringement.
“No one should have to fear losing their internet connection because of unfounded accusations,” EFF’s Kerry Sheehan writes.
The EFF acknowledges that the DMCA law requires Internet providers to have a repeat infringer policy in place. However, the law doesn’t say that one-sided piracy allegations are sufficient.
That is, however, what Judge O’Grady concluded in his verdict late last year. This is a worrying development according to the EFF, who warn that the ruling can be abused by copyright holders.
“In giving rightsholders the ability to determine for themselves who counts as a ‘repeat infringer,’ Judge O’Grady created a powerful tool they can use to pressure ISPs to comply with their copyright enforcement schemes.
“And they get an extra boon as well — they can shake down Internet subscribers for settlement fees with threats that they’ll lose their internet access,” Sheehan adds.
The EFF points out that recent history has shown that allegations from copyright holders are not always accurate. And even if the right IP-address is tracked down, that doesn’t mean that the account holder is the one who shared infringing material.
Who is a repeat infringer and who isn’t shouldn’t be defined by piracy monitoring outfits that make their money by flagging people. It should be for the court to decide.
“The only way to reliably determine when a subscriber is a repeat infringer is when that person has been found by a court of law to have repeatedly committed copyright infringement,” Sheehan writes.
If the current verdict stands ISPs will be held liable for allegedly pirating subscribers, because copyright holders say so. This goes too far, the EFF argues, and may lead to broad monitoring and filtering practices.
The EFF hopes that the appeal court will recognize this threat and make Internet disconnections a measure of last resort, not standard practice.
“Like ‘cutting off someone’s water,’ terminating someone’s internet connection should be, at least, a measure of last resort. As Cox’s appeal continues, we hope this time the court gets it right,” Sheehan concludes.