Blog , 16 Apr 2019

How ISPs Could Lose the Safe Harbor Provided by the DMCA

Tobias Knecht,

Founder and CEO, Abusix

The merits of the Digital Millennium Copyright Act have been debated since it was passed in 1998. On the one hand, the DMCA makes it possible for companies to issue bogus claims of a copyright violation to have embarrassing content taken down from YouTube and similar sites without requiring the offender to be presumed innocent until proven guilty. On the other hand, the DMCA offered a safe harbor that prevented ISPs from being held liable if their users committed copyright violations. All the ISP needed to do was take certain steps to ban repeat offenders. Until 2016, the ISP basically just needed to notify users that they had been flagged for illegal activity. New rules and lawsuits that have not gone in the favor of ISPs, however, have made the waters of the safe harbor a bit murkier and choppier.

What Changed?

Originally, the DMCA only required ISPs to take action if they were notified of a copyright violation. There was no requirement to monitor content. If the ISP happened to notice that a user had committed a violation or the copyright holder reported the violation, the ISP could warn the user via email, text, letter, phone call, or any other acceptable method of communication. As long as the ISP was not aware of the infringement and acted expeditiously once the infraction was revealed, the safe harbor existed.

The security of the safe harbor began to show signs of disappearing when BMG sued Cox Communications. According to court documents, BMG allegedly sent the ISP “dozens” of takedown notices and also 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 this time, the ISP was ordered to pay $40 million.

In large part, the decision hinged on whether Cox acted expeditiously to ban repeat offenders. Cox had created an automated system to process notices received from copyright owners, but it was very limited. The lawsuit claimed that 20,000 or more of the ISP’s users could be categorized as 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.

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 also sued Cox. ISPs that have not yet been sued are rushing to take steps to defend themselves. For example, in November 2018, AT&T announced that it would cancel internet services if users repeatedly commit acts of copyright infringement, and Comcast has started issuing temporary or permanent bans.

One important change to the DMCA is also one that is frequently overlooked. To maintain a safe harbor, ISPs must designate registered agents. Paper registrations will no longer be accepted, and ISPs must re-register online and renew registrations every three years.

Finding Help

In the fast-paced world of the internet, automated processes can manage a greater workload than manual processes. A recent report found that most ISPs without AbuseHQ have as many as 10 people in their abuse departments, but they can only process less than about 15 percent of the total reports received. Within weeks of implementing AbuseHQ, 100 percent of the reports could be processed, and in less than a year, staffing in the department could be reduced to just one or two, freeing up the remaining resources to do other important work rather than getting bogged down with mundane tasks.

AbuseHQ can quickly and easily automate the processing of notices of copyright infringement. Furthermore, an ISP that implements AbuseHQ can bolster their defense if it finds itself embroiled in a lawsuit by providing proof that the ISP took the initiative and followed every reasonable step to deal with copyright violations. In today’s environment, ISPs must do their part to retain their safe harbors, and AbuseHQ can help.

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