Aggressive Practices By Some Copyright Owners, Combined With Ambiguous Legal Standard, Undermine Effectiveness Of Digital Millennium Copyright Act’s “Conduit” Safe Harbor
PITTSBURGH, April 5, 2016 – In comments filed with the United States Copyright Office, the American Cable Association explained how an ambiguous legal standard, combined with aggressive practices by some copyright owners, is undermining the effectiveness of the Digital Millennium Copyright Act’s so-called “conduit” safe harbor, particularly as applied to small and medium-sized Internet Service Providers (ISPs).
“ACA members, who have played a significant role in the expansion of Internet access to areas of the country that might otherwise have been left behind, face a dual burden: a veritable flood of automatically generated notices from copyright owners and their agents alleging that infringement is occurring on their networks and the lack of guidance as to how to respond to those notices in a manner that preserves their immunity from what might otherwise be crushing copyright liability,” ACA President and CEO Matthew M. Polka said.
ACA’s comments, which included recommendations for steps that the Copyright Office or Congress could take to clarify the law, were offered in support of a study of the DMCA’s “safe harbor” provisions that were enacted in 1998 in an effort to balance the interests of ISPs, Internet users, and copyright owners. ACA focused on the “conduit” safe harbor, which offers ISPs protection from liability when their customers use peer-to-peer (P2P) services to share copyrighted content with each other.
ACA pointed out that eligibility for the conduit safe harbor primarily turns on an ISP’s compliance with the “repeat infringer termination condition” – a requirement that ISPs adopt and reasonably implement a policy terminating Internet access of customers who are “repeat infringers” in “appropriate circumstances.” The purpose of this condition is to ensure that Internet users face a realistic threat that they could have their Internet accounts suspended if they flagrantly abuse the rights of content owners, but the lack of clear guidelines as to how the condition will be interpreted and applied has left ISPs struggling to figure out how to apply the condition.
ACA pointed out that no one could have foreseen either the widespread deployment of P2P services that allow Internet users to share movies and music without regard for the rights of the content owners or the deployment of automated “sniffers,” “crawlers,” and “bots” that scour the Internet for alleged instances of infringing activity. ACA members who a few years ago received only occasional notices about alleged instances of infringement now report receiving dozens, even hundreds, of such notices every day.
For ACA’s members, dealing with these notices – which may not always represent actual instances of intentional infringement — represents a significant burden. Most small and mid-sized ISPs do not have the resources to respond to and track these notices automatically and must either outsource such efforts to third parties or devote scarce employee resources to the task. Other factors that complicate matters are that a user’s IP addresses typically changes from one log-in to the next and the content of the notices and the way they are transmitted to ISPs are not standardized.
While acknowledging that there is no one-size fits all solution, ACA suggested the following ways to improve conduit safe harbor as it applies to small and medium sized online service providers:
- Require copyright owners use a standard format for any notices that allege infringement that do not demand cash settlements from Internet users;
- Require copyright owners to send notices to a specific email addresses;
- Adopt guidelines that distinguish between actions that are innocent from willful and circumstances and that specify when service can be restored to a previously terminated user; and
- Resist suggestions that subpoena provisions be expanded to apply to conduit service providers.
About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing nearly 750 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America. Through active participation in the regulatory and legislative process in Washington, D.C., ACA’s members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business. For more information, visit https://acaconnects.org/