How ISPs Could Lose the Safe Harbor Provided by the DMCA

While the effectiveness of the Digital Millennium Copyright Act (DMCA) in the US and other copyright laws worldwide has been debated for years, it has undoubtedly become a challenge for many Network Providers (ISPs and hosting providers).

On the one hand, Copyright law obligates Network Providers to prevent intellectual property theft; on the other, it also provides Safe Harbor to those same providers, protecting them from liability for their users’ copyright violations. Network Providers need only take steps to notify and ultimately ban repeat offenders. Until 2016, providers were required to inform users of flagged illegal activity. However, new rules and lawsuits have made the safe harbor murkier and more turbulent for ISPs.

In this article, we cover

  • Initially, all the Network Provider had to do, was notify the subscriber
  • Safe Harbor has disappeared for Network Providers that harbor repeat offenders
  • Where can you find help to maintain your Safe Harbor?
  • Abusix makes it easy for your organization to defend itself in a court of law

Initially, all the Network Provider had to do, was notify the subscriber.

Initially, the Digital Millennium Copyright Act (DMCA) required US Network Providers (ISPs and Hosting Providers) only to notify a subscriber when notified of a copyright violation. The Network Provider could warn users via email, text, letter, phone call, or any other method of communication. The “Safe Harbor” existed as long as the infringement notification was acted upon expeditiously and the user was notified.

Safe Harbor has disappeared for Network Providers that harbor repeat offenders.

The security of the “Safe Harbor” protection for Copyright began disappearing when BMG sued Cox Communications. According to court documents, BMG allegedly sent Cox “dozens” of takedown notices and requested compensation for every violation. The case was decided in favor of BMG, and Cox was ordered to pay $25 million. Cox appealed and lost again, but the ISP was ordered to pay $40 million this time.

The decision hinged mainly on whether Cox acted expeditiously to ban repeat offenders. While Cox had created an automated system to process notices received from copyright owners, it was minimal. The lawsuit claimed that 20,000 or more of the ISP’s users were blatant and repeat offenders and many of these subscribers had received over 100 warnings from Cox. In the eyes of the court, issuing warnings was not the same as actually doing something about users who repeatedly violated copyrights, something that ensures the Network Provider “Safe Harbor” by its very nature.

The lawsuit against Cox was followed by several more. The Recording Industry Association of America filed suits against both Grande Communications and Cox. Warner, Sony, and Universal subsequently also sued Cox.

Network Providers (ISPs and Hosting Providers) have rushed to take steps to defend themselves. For example, AT&T tells users they will cancel internet services if they repeatedly commit copyright infringement acts, and Comcast temporarily and permanently bans subscribers already.

Suppose you are in Europe and don’t think these cases will impact you. In that case, we have seen more and more countries modernize their copyright laws to align with the WIPO Copyright Treaty (WCT) and the EU 2016/593 – Digital Copyright Legislation, specifically dealing with copyright complaints. The latest country in which we have seen active copyright court action has been Italy, following actions in the UK, Ireland, France, and other countries over the last several years.

Where can you find help to maintain your Safe Harbor?

In the fast-paced world of the internet, automated processes can manage a more significant workload than manual processes.

According to a recent report, most Network Providers have manual processes, consuming the time of several people. We constantly speak with organizations without AbuseHQ that process less than 60% of all the events they receive reports on. Some even process less than 15% of the reports they receive in their abuse inboxes.

Within a week after implementing AbuseHQ, all the metadata in the inbound reports is extracted automatically. The provider can see the overall statistics about their incoming reports and have the metadata at their fingertips. It’s now easy for them to use the solution’s playbooks and then build manual or automatic 5-strike workflows for Copyright, a 1-strike playbook for phishing, a notification process for vulnerabilities, and other workflows for other incident types that each Network Provider might find helpful.

Abusix makes it easy for your organization to defend itself in court.

An ISP or Hosting Provider that implements AbuseHQ strengthens its Safe Harbor defense in a lawsuit by being able to easily, without much effort, demonstrate

  • automatic processes in place (the AbuseHQ architecture)
  • the specific Actions that are taken with each complaint (the AbuseHQ X-Strikes Playbook or Workflow)
  • the overall statistics associated with Copyright Complaints (AbuseHQ MTTR Statistics)
  • the Copyright Complainant activity (AbuseHQ Case reporting)
  • and extract, in less than 15 seconds, the entire lifecycle of any one single copyright complainant and user (AbuseHQ Subscriber History)

This allows any Network Provider (ISP or Hosting Provider) to use the solution to prove that they have a well-managed process quickly, have followed every reasonable step to deal with copyright violations, and ultimately took action on a near real-time basis.

Additionally, Network Providers can stay out of court by configuring AbuseHQ to notify the copyright complainant of every step they take with every report they send. Doing so makes it highly unlikely for a complainant threatening legal action to consider further steps.

In today’s environment, ISPs and Hosting Providers must do their part to enforce their Authorized Use Policies and retain their Safe Harbors. AbuseHQ is the most important tool they can have in helping them do so. If you want to simplify things for your organization, talk to us at [email protected].

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