Misguided Efforts Against Music Pirates May Break the Internet

By Grant Spellmeyer, ACA Connects President & CEO

From rural communities to large cities, for elementary students to the elderly, for Americans of all income levels, internet access is central to virtually every aspect of our lives. We rely on our broadband connections to work from home or on the road, seek medical care, buy groceries, keep in touch with loved ones, and run our businesses, factories, and farms. Broadband providers are investing in technological upgrades, improving speeds, and building out networks to reach even the most remote locations, putting us on track to provide consistent and reliable connectivity for all.

Yet, this progress is in jeopardy thanks to misguided lawsuits seeking to combat music piracy.

In the past few years, record labels have brought several lawsuits asking courts to hold internet service providers liable for copyright infringement based on the actions of a handful of their subscribers. While some providers have settled these cases to avoid a prolonged legal struggle, one such case resulted in an internet provider being ordered to pay $1 billion in damages for “vicarious and contributory infringement.” While an appeals court struck down this excessive award, it upheld the theory that a provider may be found liable for unlawful uses of its broadband service even when it does not aid, abet, assist, or foster that activity. If it merely knows that an account has been used infringingly and does not terminate service, it could get hit with thousands or even millions of dollars in damages.

This decision, if allowed to stand, will have a chilling effect on innocent broadband subscribers’ right to easily, freely and privately use the internet. Out of fear of similar lawsuits, internet service providers will be more likely to swiftly terminate service to subscribers who receive a claim of copyright infringement, even if their customers’ actions were accidental or the copyright claims were sent in error. They may find themselves in the uncomfortable and unwanted role of “cop on the beat,” having to monitor their subscribers’ online activity or block access to lawful websites that some bad actors are exploiting to share copyrighted music. Small and rural providers with limited resources and budgets would feel the strongest pressure to take the most drastic steps to avoid ruinous litigation.

These actions could have consequences even for internet users not engaged in copyright infringement. For instance, a provider might discontinue service to a coffee shop – or even entire households, hospitals, or universities – merely because one person used its broadband connection to download songs illegally. Beyond these devastating consequences for innocent users, the prices for service plans would also likely need to be raised or new fees imposed on customers in order to pay hefty legal awards for a lost copyright infringement lawsuit.

The questions surrounding this legal quagmire come at a critical time for the future of broadband in this country. Tens of billions of dollars have been invested by internet providers into constructing, expanding and upgrading their networks to connect more Americans with reliable broadband. In addition, federal initiatives such as the $42.5 billion Broadband Equity, Access, and Deployment (BEAD) Program are providing grants to internet providers to bring broadband to historically underserved and unserved communities with the goal of universal connectivity. If internet providers must devote significant amounts of time and resources to addressing copyright infringement claims, how willing or able are they to continue investing in efforts to close the digital divide?

The music industry’s actions could also open a proverbial Pandora’s box of lawsuits from other copyright holders. Movie studios, television networks, book publishers, and others may feel emboldened to file claims against internet providers when their copyrighted works are illicitly shared or downloaded by users online. Internet providers would then need to constantly and intrusively monitor their subscribers’ digital activity, terminate service at the first hint of potentially troubling behavior, and engage in a never-ending game of whack-a-mole with platforms facilitating copyright infringement.

This future of the internet is, quite simply, unworkable. Thankfully, the United States Supreme Court has the opportunity create a commonsense legal framework going forward. The Court has been petitioned to hear arguments surrounding one of these cases and weigh in about whether internet providers can be found liable for their users’ actions. With so much at stake, it is imperative the Court take the case and provide clarity – and sanity – to this issue.

Internet providers are committed to delivering open, reliable and high-quality service to tens of millions of customers every day. They want all Americans to have the chance to participate in the digital economy, access telehealth and telelearning services, connect with friends and family, and enjoy exciting entertainment options – without intrusive and dangerous surveillance. If we want to preserve these principles, the Supreme Court must act and save the internet as we know it.

---