DMCA Section 512 Doesn't Favor Music Publishers in Suit Against Cox, Say ISP Advocates
BMG Rights Management and Round Hill Music’s lawsuit against Cox Communications puts an unfair burden on ISPs, said copyright experts who support ISP flexibility under Section 512 of the Digital Millennium Copyright Act (DMCA). The music publishers allege that Cox has failed to uphold its end of the bargain under Section 512 by not terminating the Internet services of repeat copyright infringers. But copyright owners don’t have the authority to make such demands of ISPs, said Mitch Stoltz, Electronic Frontier Foundation staff attorney. The case was filed Wednesday in the U.S. District Court in Alexandria, Virginia. The docket number is 14-cv-01611.
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Stoltz and Morgan Pietz of the Pietz Law Firm said that the suit against Cox could be related to a Nov. 21 complaint seeking class-action certification against Rightscorp, a service that monitors copyright infringement on behalf of digital copyright holders. Rightscorp is listed as an “agent” of the music publishers in the Cox case. The suit against Rightscorp was filed in the U.S. District Court in Los Angeles and alleges that the company acted as a debt collector for consumers guilty of copyright infringement, but didn’t comply with the Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act. The complaint also alleges that Rightscorp issued “sham” DMCA subpoenas. Rightscorp didn't comment.
The timing of the BMG case in relation to the suit against Rightscorp is “certainly interesting,” said Pietz, who is co-counsel to the plaintiffs in the Rightscorp suit. “Maybe the case against Cox has been in the works for a while and this is coincidence,” he said. “Generally though, as a lawyer, I have never been a big believer in coincidences,” said Pietz. The case number is 14-cv-09032.
The Center for Copyright Information’s (CCI) “member ISPs are not involved in the recently-announced BMG/Round Hill litigation and therefore it does not directly implicate the Copyright Alert System,” said CCI Executive Director Jill Lesser in a statement Monday. CCI oversees CAS in partnership with multiple ISPs. Lesser didn’t comment on the case, but touted the CAS as a way of reducing “illegal downloading” and as a tool for consumer education.
Although the music publishers and Cox aren’t party to the Copyright Alert System, the BMG case has “everything to do with the harm that CAS was designed to remedy,” said industry attorney Chris Castle, who represents artists and musicians and has worked with digital music services. “The DMCA is not a ‘catch me if you can’ safe harbor that allows intermediaries to permit copyright infringement on their networks with a blind eye,” Castle emailed. “Given the tens of millions of Bit Torrent users, it’s hard to understand why an ISP would not be concerned about its networks being used for these purposes for its own self interest if nothing else,” he said. “I’m not seeing the conga line of Members of Congress forming to support the idea that an intermediary receiving hundreds of thousands (or tens of millions) of DMCA notices has no obligation to react in order to enjoy the safe harbor protection,” said Castle.
The language of the BMG complaint is “purposely vague” on the issue of an ISP's liability under Section 512, said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property. “Neither Congress nor the stakeholders in copyright debates wanted specifics on when and how ISPs should have to terminate customers who use networks to infringe,” he said. “I think a court will be reluctant to expose an ISP to potentially catastrophic damages and cost in all but the most egregious circumstances,” Bambauer emailed. The plaintiffs are likely hoping for “some evidence that comes out in discovery showing that Cox made a deliberate decision to ignore them,” he said. Cox didn't comment.
Even if Cox weren’t complying with Section 512, it’s still not “responsible for copyright infringement,” said Stoltz. Cox is “just an information conduit,” he said. Safe harbor protections don’t mandate that an ISP must terminate service to a customer just because a copyright holder or representative, like Rightscorp, makes that demand, said Stoltz. The “point” of the DMCA is to ensure that neither the ISP nor the ISP’s subscriber is forced to be the “copyright police,” he said. Stoltz said the timing of the BMG suit and the suit against Rightscorp in California probably wasn’t a “coincidence.”
“Content owners and network providers have achieved an uneasy, unhappy, but workable balance over how to deal with (ubiquitous) infringement over those networks,” said Bambauer. “This suit could upset that balance, in either direction, and so it’s likely the best outcome for it to be dismissed early on,” he said.