In a series of recent lawsuits, the entertainment industry claims that by continuing to provide broadband to pirates, internet service providers are liable for the piracy of their customers. The lawsuits are also part of a controversial gambit to force ISPs to kick pirates off the internet—permanently.
Labels including Sony, Universal, and Warner collectively filed suit against Charter Communications (whose cable and broadband service is branded Spectrum) in the US District Court in Colorado last Friday, claiming Charter is liable for piracy because it didn’t kick accused pirates offline.
But while the recording industry hopes to raise the stakes for online piracy by kicking infringers off of the internet, copyright experts say the legally dubious plan poses a huge risk to everyday internet users, free speech, and the openness of the internet at large. The lawsuit alleges that while Charter has policies stating it will kick repeat copyright infringers off of the company’s network, the ISP routinely refused to follow through on the threat. “Charter knowingly permitted specifically identified repeat infringers to continue to use its network to infringe,” the music labels claim in the lawsuit. “Rather than disconnect the Internet access of blatant repeat infringers to curtail their infringement, Charter knowingly continued to provide these subscribers with the Internet access that enabled them to continue to illegally download or distribute Plaintiffs' copyrighted works unabated,” the labels said. “Charter's provision of high-speed Internet service to known infringers materially contributed to these direct infringements.” Under the Digital Millennium Copyright Act (DMCA), ISPs must forward copyright infringement warnings provided by the entertainment industry to users, and have policies in place for “repeat offenders.” The DMCA does not require that ISPs kick these users off of the internet, but the entertainment industry has repeatedly tried to claim that section 512(i) says otherwise. That section outlines that service providers aren’t liable for monetary relief in cases of copyright infringement.
“When the risk is a crippling lawsuit, many companies are going to cut people off first and ask questions later.”
Copyright expert Mike Masnick told me that since around 2012 or so the recording industry has been trying to force ISPs into the role of content nanny “in the false belief that if everyone else is liable for not successfully policing copyright infringement, it will magically clear the internet of piracy.”
But the problem with the industry’s approach is multi-pronged. Section 512(i) of the DMCA has been routinely abused by rights holders and those attempting to censor legitimate speech. Putting a broadband industry that has repeatedly proven to have shaky ethics in charge of policing speech isn’t the best idea, Masnick warns.
“It will almost certainly lead to legitimate uses and legitimate speech being blocked,” he said. “When the risk is a crippling lawsuit, many companies are going to cut people off first and ask questions later.”
Internet freedom advocacy groups like the Electronic Freedom Foundation have also argued that eliminating user access to an essential utility like broadband is a draconian overreaction to copyright infringement, and some experts have even argued that such a move may violate users’ First Amendment rights. Others have been quick to point out the evidence the industry uses to prove guilt of piracy is often flimsy at best.
“Determining whether or not something is actually infringing is a complex process that involves weighing a variety of factors, and that's historically always required a court adjudication,” Masnick told me. “Here, the [recording industry’s] argument is based on the claim that mere accusations of infringement should trigger such a policy, which should concern anyone. If that's an accurate state of the law, it means that a series of false accusations could literally remove people from the internet.” Despite these pitfalls and a lot of shaky legal logic, the music industry has had some notable success in bullying ISPs in court. Cable TV and broadband ISP Cox Communications was recently forced to settle with BMG Rights Management, which administers the rights to works by artists including David Bowie and Frank Ocean, for an undisclosed sum after the internet service providers failed to kick repeat-offender pirates offline at the recording industry’s behest. While this new case against Charter in many ways mirrors the arguments made in the Cox case, Meredith Rose, a copyright expert and lawyer at the consumer rights group Public Knowledge, told me in an email that this new effort has a few unique wrinkles. Specifically, the labels try to argue that the simple act of advertising high-speed internet means Charter was somehow encouraging piracy. “The unlimited ability to download and distribute Plaintiffs’ works through Charter’s service has served as a draw for Charter to attract, retain, and charge higher fees to subscribers,” the lawsuit claims.
Rose said this claim was a particular stretch.
“Under their argument, any service that advertises having high speeds is courting pirates and therefore a contributory/vicarious infringer, and thus immediately liable if it doesn't accept rightsholder allegations of infringement at face value and terminate subscribers when asked,” Rose said. “That's pretty intensely dystopian,” she added.
The recording industry’s attempt to up the ante with this new lawsuit comes on the heels of more than two decades of failed efforts to thwart online piracy. In 2013, the entertainment industry struck an arrangement with the telecom sector dubbed the Copyright Alert System. Under this program, ISPs targeted repeat infringers with an ever-escalating series of warnings that included throttling or temporarily suspending pirates’ broadband connections until they confirmed the receipt of “educational” copyright materials.
But the effort was scrapped in 2017 after it didn’t meaningfully impact piracy rates. This was in part because users who receive these infringement notices simply hid their BitTorrent or other infringing activity behind proxies and virtual private networks (VPNs). Now the entertainment industry wants to up the ante by threatening ISPs’ safe harbor protections under the DMCA unless they kick these users offline. Some ISPs, like AT&T, have already agreed. The company told Motherboard last November that it had begun kicking a “small number” of users offline if they ignored more than nine previous warnings. But there’s little evidence that these efforts will solve copyright infringement either. There’s nothing stopping accused pirates booted from one ISP from signing up with another (assuming they have a competitive choice). And experts continue to warn that the potential pitfalls of such a system wouldn’t be worth the costs imposed on ISPs and the public. “In an age when even the Supreme Court has said that kicking people off the internet goes too far, changing the DMCA to undermine its safe harbors would be a disaster for those engaged in civic discourse on the internet,” Masnick said. Both history and scientific data shows that offering quality, cheap streaming music and video alternatives to piracy is the best way to thwart copyright infringement, but it’s a lesson the industry has historically refused to learn. Instead, internet users and providers are routinely subjected to a rotating crop of heavy-handed “solutions,” many of which experts say cause far more problems than they solve.