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Free Expression, Open Internet

An Unjust Repeat Infringer Case

For nearly two years the dispute between music publisher BMG and Cox Communications has proven to be a standout Digital Millennium Copyright Act (DMCA) case. Even the Washington Post dubbed it “the copyright case that should worry all internet providers.” What the case really comes down to is whether internet access providers are required to have a “repeat infringer” policy that removes customers that have engaged in copyright infringement. That case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. CDT has joined Public Knowledge and the Electronic Frontier Foundation in an amicus brief that asks the court to interpret the statute’s section on “repeat infringers” in a way that accounts for the current realities of internet access and the internet’s significance to economically and socially disadvantaged communities.

The brief emphasizes two crucial points: (1) When analyzing the construction of 512’s provision on termination of internet access, the societal importance of the internet must be considered; and (2) given the flexible nature Section 512, the statute needs to account for the common practice of shared internet access.

Terminating internet access will bar the subscriber from a bridge to every single internet service, going well beyond stopping infringing activity.

Section 512 of the DMCA contains the safe harbor provisions that protect service providers, like Cox, from liability for the infringing activities of their users and other third parties. A provision of Section 512 mandates that subscribers who are repeat infringers are to have their access terminated. Unlike defendants in prior 512-related cases (traditionally websites or hosting services), Cox Communications plays a more central role, providing connectivity between its subscribers and the internet. The difference between hosting providers (those that help users post and store content) and internet service providers makes BMG v. Cox distinct because terminating access to the internet has far greater consequences for the account holder than being blocked from an individual website. Terminating internet access will bar the subscriber from a bridge to every single internet service, going well beyond stopping infringing activity.

In this case, BMG sued Cox for allowing subscribers to Cox’s broadband internet service to illegally download music using peer-to-peer file sharing services via the BitTorrent protocol. BMG argued that Cox Communications had not done enough to deter its subscribers from using their internet connections to make unauthorized uses of copyrighted material through file-sharing. The music publishing company then filed a motion contending that Cox did not meet the necessary requirements to use the DMCA’s safe harbor defense, which shields ISPs from liability for their users’ actions. According to Judge O’Grady, Cox did not qualify for the safe harbor because it did not have a policy to terminate the service of repeat infringers. Last December, a jury ruled that Cox engaged in willful contributory infringement for turning a blind eye to music piracy by its subscribers.

Earlier in this case, Judge O’Grady responded to EFF and Public Knowledge’s explanation of the harmful effects of internet termination by stating, “Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.” CDT joined the brief in an effort to combat views that would suggest that kicking people off the internet is not big deal.

Trivialization of the real world harms stemming from termination of internet access demonstrates a lack of understanding of the internet’s role in day-to-day necessities

This trivialization of the real world harms stemming from termination of internet access demonstrates a lack of understanding of the internet’s role in day-to-day necessities, for example paying bills or applying for jobs, and the implicated free expression concerns when someone is barred from the right to listen and associate with other’s views online. The brief lays out why the internet is crucial for education, employment, and government services. We also point out that the language of 512 gives service providers flexibility in determining the “appropriate circumstances” that warrant termination of a repeat infringer. A failure to note this flexibility in 512’s construction will force termination and deepen the digital divide that primarily affects traditionally marginalized communities and those that don’t have other sources to access the internet.

Even though the Fourth Circuit is not required to consider global policy in its decision, it is worth noting that the US’s actions regarding internet termination policies will be significant and noticed. From an international perspective, the right to access the internet has been deemed a fundamental tool in the exercise of human rights. In a 2011 report, the UN Special Rapporteur on Freedom of Expression and Opinion argued that disconnecting people from the internet is a human rights violation. In the report, the Special Rapporteur called on all states to ensure that internet access is maintained at all times and to repeal, amend, or refrain from adopting existing copyright laws that would allow users to be disconnected from Internet access. Moreover, the UN Human Rights Council affirmed that “the same rights that people have offline must be protected online” in resolutions adopted in 2012 and 2014. In the resolution, the United Nations Human Rights Council, also condemned countries that purposely prevent or disrupt its citizens’ ability to internet access.

With increasing reports if internet shutdowns and more than 70 countries supporting the resolution, it is important for the US to be one of the countries that stresses the importance of internet as a necessity, not a luxury.

As we point out in the brief, the purpose of Section 512(i) is to deter people from repeatedly infringing copyright, not to strike them with a disproportionate penalty that could cripple their livelihood. This point is particularly germane because the flexibility of the DMCA allows internet service providers to take this into account. CDT, EFF, and Public Knowledge believe that the district court, in reading this flexibility out of the statute, misapplied the DMCA standards.