The Internet’s Safe Harbor Did Not Just Become A Little Less Safe

A response to Klint Finley’s article, The Internet’s Safe Harbor Just Got a Little Less Safe, published in WIRED on August 17, 2016.

The internet’s safe harbor did not just become a little less safe and I argue that it’s a far cry to conclude that Judge O’Grady’s recent decision will have an extreme impact on small internet service providers. Klint Finley’s article in WIRED focuses on an extreme scenario that simply doesn’t exist in the BMG Rights Management, LLC v. Cox Communications, Inc. (“Cox Decision”) case.

The Cox Decision

The focus of both the WIRED article and Cox Decision is on 17 USC § Section 512, Limitations on liability relating to material online, and specifically sub-section (c)(1)(A). Section 512, among other things, requires an internet service provider (“ISP”) to cooperate with intellectual property owners seeking to protect their assets. Otherwise, the ISP may be held liable for the actions of its subscribers under the theory of secondary liability. In this case, Cox Communications (“Cox”) received notices from a company called Rightscorp, on behalf of music company BMG, (“BMG”) that some of their subscribers were actively involved in the unauthorized distribution of copyrighted content via BitTorrent. The article focuses on the fact that the notice letters included a settlement option.

Was it wrong for Rightscorp to include a settlement option in the letters? That’s debatable and distracting from the focus of the case before the court. It’s evidentially clear that Cox had become more than aware of the infringing activity and knowingly made the decision to not act when its subscribers were violating the law. Cox’s internal abuse system allowing for up to thirteen strikes on a subscriber’s account before any real action was taken is absurdly in violation of the spirit of the DCMA. Furthermore, as the court points out, Cox and its employees held a very low viewpoint of the DMCA, with the former head of Cox’s internal Abuse Group writing in an e-mail, “f the dmca!!!

Instead of acting in compliance with the DMCA, Cox ignored the letters and failed to have a true repeat infringer policy in place. This was a tactical decision by an ISP to not follow clearly defined legal requirements when issued notices that their subscriber’s are infringing. From a corporate prospective, a business has two choices when faced with an arguably gray area of the law. First, they can comply to the best of their ability with statutory requirements as they stand and proceed with disputing the requirement. Alternatively, they can ignore then-current legal requirements, take the chance of being wrong, and suffer the consequences if found to be in violation at a later date. Simply because an ISP has decided to fight the system and lost doesn’t mean the entire system is broken.

The Article’s Problem

In the WIRED article, Finley examines how the flexibility within the DMCA provided early technology companies a chance to survive without suffering legal consequences for the potentially infringing activity of users. This is great and the internet certainly wouldn’t look the same as it does today without those protections. However, there are issues with the picture painted throughout the article of people losing access to the internet entirely and burdens placed on small internet companies.

The quote from Public Knowledge’s Charles Duan makes it seem as though Cox, in this case, did nothing more than provide internet access to a subscriber trying to access a simple website. However, we know that to be more than the case in this situation, as well as many others. I can find at no point is it ever argued that a user should lose their internet access as a result of “the mere accusation of copyright infringement.” Instead, there is a clearly defined process for handling infringement, including the option for a counterclaim.

Finley also argues that smaller companies might not be able to bear the financial burden of litigation when it comes to fighting. As the record industry was forced into adaptation when faced with a changing business landscape, why should ISPs expect any different treatment? If anything, Section 512(g) provides added protection to an ISP if content is removed after the take-down provisions are complied with, including the counter notification. It could even be argued that by reducing bandwidth traffic related to the unauthorized sharing of copyrighted content, ISPs could potentially save resources spent on continually trying to meet the need for handling high-traffic customers.

The DMCA Is Outdated

It’s clear that organizations on both sides of the DMCA are facing issues which become ever more challenging due to outdated laws. Companies that survive off their intellectual property assets are forced to invest financial resources in policing the activity of virtually everyone on the internet, often resulting in whack-a-mole situations. On the other side, internet companies are faced with investing in complex systems for the indentification of infringing activity, such as YouTube’s Content ID, and implementing departments to handle intellectual property abuse claims.

The DMCA is outdated. I think that’s a widely-acknowledged statement. However, I don’t believe the DMCA’s built-in safe harbor provision is any less safe than it was before. The internet cannot continue to flourish while crushing the legal rights granted to intellectual property owners.