Category: Copyright

BMG v Cox Goes to 4th Circuit Appellate Court

Amicus briefs were filed recently in the 4th Circuit Court of Appeals in the case of BMG Rights Management v Cox Communications. In November of 2014, BMG sued Cox (an ISP) for contributory copyright infringement, and a US District Court found for the plaintiff in December of 2015, awarding $25 million in damages. The suit was based on evidence that Cox was willfully ignoring and/or failing to address the use of its service by repeat infringers.

“Digital rights” groups and (let’s be honest) people who support piracy decried the outcome, which Cox has now appealed. A decision may expected by early Spring, and if the court were to find Cox’s arguments persuasive, this would have a very damaging effect for rights holders—further aggravating the weakness in the DMCA as a mechanism of enforcement.

Having failed in the lower court to convince either judge or jury that Cox had sufficiently maintained its liability shield (safe harbor) under the DMCA, the company now seeks to argue on appeal that the DMCA says something other what it says.  And true to form, Public Knowledge and the Electronic Frontier Foundation have chimed in (via joint amicus brief) to propose that if the Cox ruling is upheld, it could lead to disenfranchisement of people from internet access and…y’know…destroy free speech. Again.

Anyway, let’s review.

Although one might get the idea from general discussion that DMCA is either a blanket liability shield for ISPs or a blanket takedown mechanism for rights holders, it is neither of these things. Instead, the DMCA statutes define the conditions and responsibilities of service providers with regard to users uploading or accessing unlicensed, copyrighted material onto their platforms. In simple terms, the law states how an ISP may conditionally retain its safe harbor liability shield, and it is these conditions which tend to get lost in the broader reporting on DMCA-related stories.

A service provider like Cox, which sells internet access to consumers, generally would not be concerned with hosting infringing material the way a platform like YouTube will be, but they can be liable for contributory infringement if the company is aware of subscribers using its service to repeatedly infringe copyright and takes no action to stop the infringing activity. The statute in DMCA §512(i) states that a service provider must have “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”  Note that the DMCA explicitly anticipates conditions by which the provider must eventually terminate the accounts of repeat infringers—logically, those who refuse to stop after some amount of warning.

So, for all of EFF’s and PK’s dramatics about the cruelty of account termination—their brief compares it to “cutting off a tenant’s water”—one might get the idea that in writing the DMCA, Congress never imagined such a remedy; but termination is precisely what the law says.  (A more reasonable comparison would be made to the prospect of losing a driver’s license, which can be quite damaging to an individual, but which is also a penalty imposed only after some degree of willful abuse.)  What the DMCA does not say is how much infringement makes a “repeat infringer,” or how an ISP must design its policy for addressing repeat infringers where account termination is a possible consequence.

This ambiguity can be exploited by service providers, and in this case, BMG presented substantial evidence to the court that Cox’s policies seemed purposely designed to avoid taking action against repeat infringers within a reasonable interpretation of the DMCA.  The district court opinion written by Judge Liam O’Grady states, “Unfortunately for Cox, the record was replete with evidence that foreclosed any assertion by Cox that it had reasonably implemented a repeat infringer policy.”

Who’s a repeat infringer?

In its appeal, Cox seeks to argue that “repeat infringers” in DMCA §512(i) can only mean “subscribers who have been found liable for infringement by a court or a jury on more than one occasion.” In other words, BMG’s evidence of users consistently accessing unlicensed material does not make those users “repeat infringers” unless they’ve already been found guilty of infringement in a court of law—more than once.

Cox is relying on a specific interpretation of the word “infringer” in the statute, hoping that the appellate court will agree that a “repeat infringer” can only be an individual who has lost at least two copyright infringement cases in court.  That population may be a number barely large enough to fill a small cafe, which is considerably smaller than the billions of users anticipated by the architects of the DMCA. And because it is obvious to any reasonable person that one can be guilty of a violation without being held liable—if you’re let go for speeding with a warning, it doesn’t mean you weren’t speeding—any reasonable person should conclude that Congress’ use of the word “infringer” in this case was meant to describe individuals engaged in unlicensed access to, or use of, copyrighted material, even if the rights holders do not intend to pursue litigation against them.

It is a truly bizarre argument, which overtly pretends the DMCA is something other than what it is.  The background, intent, and language of the law is known, by the parties involved in its writing, to have been designed as a process by which ISPs and rights holders would collaborate to mitigate infringement—no matter where the users reside or who they are—without costly litigation.  For example, a “repeat infringer” under the DMCA can easily be—and often is—a user in a foreign country who has never seen a U.S. court, let alone been a named party in a U.S. copyright case.

The DMCA’s existence is based partly on an understanding that worldwide users would inevitably infringe—either willfully or unintentionally—but that the ISPs and rights holders would have a mechanism for removing infringing files or stopping infringing activity without anyone getting sued—as long as all parties met the conditions in the agreement.

Photo by SergeyF

Knowledge of Infringement

If you call someone on their cell 3-4 times and they don’t answer, there may be any number of reasonable explanations.  If you call them 50 times and they don’t answer, they’re ducking your calls—or in legal terms, they’re engaging in “willful blindness” by choosing not to hear what you have to say.  So, what about a few million calls?  At issue in the lower court decision was the fact that Cox simply ignored millions of notices sent by Righstcorp on behalf of BMG containing IP addresses and other corroborating information demonstrating repeat infringement by numerous subscribers.

Cox’s rejection of these notices was deemed “willful blindness,” which is the legal equivalent to taking affirmative action to infringe, hence the charge of contributory infringement.  On appeal, Cox contends that the notices, which they chose to ignore, would not constitute “knowledge of infringement” anyway, thus seeking a standard of “knowledge” so narrow that it would effectively excuse all ISPs from adopting any kind of anti-infringement policy as mandated by the DMCA. 

The Betamax Argument

Cox further argues that as a conduit provider, they can only be held liable if they “actively encourage or induce infringement through affirmative acts.”  In this regard, Cox relies on a very broad reading of Sony Corp v Universal Studios (1984), which held that Sony could not be liable for copyright infringements that may be committed by users of its VCRs.  There are several parts to the Sony ruling, including the Court’s holding that because the VCR could be used for “substantial non-infringing purposes,” Sony could not be liable for any infringing uses unless it actively induced or encouraged that infringement by its customers.

Cox now seeks to argue, by the same principle, that because internet access may be used for “substantial non-infringing” purposes, they should be held to the same standard as Sony because they also did not induce its users to infringe.  Once again, Cox’s argument seeks to bypass the terms of the DMCA with an argument that, if upheld, would unconditionally absolve all ISPs of liability unless they promoted infringement in their marketing.

The fact that the internet, writ large, is used for substantial non-infringing purposes is immaterial.  To stick with automotive analogies, just because cargo trucks are used for substantially legal purposes, this has no bearing on the liability of a trucking company, if it were to turn a blind eye to some of its drivers transporting contraband across state lines.

Nevertheless, Cox—with the hyperbolic assistance of EFF/PK—seeks to argue that if this hypothetical trucking company pays a penalty, loses it’s license, or fires the named truckers, that will lead to the end of trucking itself, and we all starve. If 100 Cox subscribers lose their access due to their infringing activity, it has no more bearing on the internet and its billions of users, than if a different 100 subscribers lost their access due to non-payment for the service.

As argued in the brief filed by the Copyright Alliance, “If Cox’s view was the law, then as long as it was not actively inducing or promoting infringement, Cox could throw each and every infringement notice it received straight into the trash, and the “Abuse Group” charged with addressing online piracy could knowingly permit active infringement without creating any risk of liability to Cox.”

To summarize, the Cox argument boils down to the following:  1) repeat infringers are not repeat infringers; 2) even if they were repeat infringers, we could not know they were repeat infringers from the evidence presented; 3) even if they were repeat infringers and we knew about them, we aren’t liable because we didn’t tell them to infringe.

Implications of this Case

This effort to treat the safe harbor as an unconditional liability shield is generally where large ISPs have tried to move the conversation, both in the courts and in the public dialogue. But the DMCA was never meant to provide a free ride for service providers, although it has inadvertently produced that result to a greater extent than anticipated by its authors.

As Copyright Alliance also observes in its brief, if a rights holder the size of BMG has no remedy in a case in which a service provider has been shown to have circumvented the provisions in the law, then independent rights holders truly have no hope of protection whatsoever in the evolving digital market.  Instead, independent rights holders need the DMCA to be made more effective than it is by revising some of the ambiguity in the statutes, which leads to the kind of bad-faith policies on the part of ISPs that are apparent in this case.

Librarian Wants to Crowdsource Search for Register?

Photo by Arsgera.
Photo by Arsgera.

I know I just wrote about the Copyright Office. But right after publishing Friday’s post, I saw that Librarian Hayden did a rather inscrutable thing. She had the LOC publish a three-question survey, using Survey Monkey, seeking public comment on the ideal qualities for the next Register of Copyrights.  Writing as a member of the public, and one who knows way more about copyright than most laymen and way less than all copyright experts, I’ll be the first to admit that I am not qualified to offer an opinion about who the next Register should be.  And neither are most of you.

David Lowery at The Trichordist summed up this point beautifully when, upon learning Hayden’s intentions, he declared that “the internet” would be appointing Boaty McBoatface as the next Register (and you really need to respond to his poll). For those who missed the reference, Lowery is citing an ill-advised decision last Spring, by someone in the British government, to crowdsource the name of a $238 million polar research vessel. Now appropriately named in honor of the documentarian and historian Sir David Attenborough, “the internet” had managed to produce the top choice Boaty McBoatface, which officials unsurprisingly declined to use.  This may seem like a laughable side-show story—and it is—until crowdsourcing goes beyond the prospect of naming a research vessel the RRS Boaty McBoatface all the way to nominating Dopey O’Looney to lead the scientific expeditions.

As a political decision, I can’t imagine this was the smartest move on Hayden’s part.  When she dismissed Register Pallante in October—suddenly and without consulting the Judiciary Committee—this could not have gone over terribly well with those Members of Congress.  And as mentioned in my last post, the House Judiciary Committee has now proposed that the Copyright Office function independent of the Library and that, henceforward, Registers should be appointed by Congress for a term of 10 years with an option to renew. So, I have to assume that Dr. Hayden’s use of Survey Monkey to crowdsource comments as part of her search for a new Register is only going to further rustle the jimmies of the Committee.

Beltway Baseball aside, though, these types of surveys have a way of creating an illusion of democratic engagement while yielding either uninformed input or just plain automated mischief. Readers might remember Fight for the Future’s brag in April about their alleged “crashing” of the Copyright Office server with over 100,000 comments on Section 512 of the DMCA.  This kind of self-congratulatory powning of issues only serves to overshadow the importance of legitimate, informed debate. Not only would one be hard-pressed to find 100,000 Americans who could adequately explain the DMCA; but in that particular case, it looks as though FFTF was not diligent in confirming that respondents to its survey were even American citizens.

Substantively, it’s worth noting that we have about 100 years worth of history on Registers of Copyrights—history that a librarian of Dr. Hayden’s caliber ought to be able to access.  Add to this the current perspectives of recent Registers as well as a manageable number of legal experts, including people like Google’s Fred von Lohman or William Patry, who once worked for the USCO.  Then, of course, there’s the Judiciary Committee itself, which comprises some Members who have been working on copyright  for 20 years or more.

Among these well-informed professionals, it’s hard to imagine how a general poll of the average citizen is going to provide much valuable insight on the best qualities the next Register should possess.  More likely, this is just another feint at democratization—one that provides opportunity for organizations like FFTF, EFF, or PublicKnowledge to once again Spam the Monkey and declare victory based on the number of people they could get to click a button. As I say, I know more about copyright than most laymen and don’t deserve a seat at this table. I did answer the poll on The Trichordist, though, and selected as the most important quality in the next Register that he/she “Has a crane capable of launching deep-sea submersibles.”

Librarian Critics Prove Need for Independent Copyright Office

Library of Congress Interior (1900)
Library of Congress Interior (1900)

On December 8th, the House Judiciary Committee announced its first policy proposal since beginning its review of the copyright law in the Summer of 2013. Among these early recommendations is that the Copyright Office should operate independent of the Library of Congress while remaining part of the Legislative Branch.

Not surprisingly, copyright critics have already complained about this proposal, including a number of university librarians who took umbrage at a November 28 letter to the Committee written by former Registers of Copyright Ralph Oman and Marybeth Peters.  The former Registers voiced their immediate displeasure at the tone and timing of the dismissal of Register Pallante on October 21 by the new Librarian of Congress Dr. Hayden; but they further expressed the view that this sudden and unprecedented firing signaled that it is finally time for the Copyright Office to operate independent of the Library.

Brandon Butler, J.D., Director of Information Policy at University of Virginia Library is the author of a letter signed by 41 other college and university librarians, which rebuts Oman and Peters and the proposal to move the Copyright Office out from under the auspices of the LOC. The letter itself stresses what may be described as a semantic and cultural kinship between copyright and librarians. For instance, in citing the goal “to promote progress” from the IP clause, Butler writes, “Libraries share this core purpose and promote cultural progress in numerous ways, from massive financial investments in the acquisition and licensing of copyrighted works to the curation and preservation of our cultural heritage.”

This is certainly true, and nobody should doubt the vital role of libraries in general or the treasure that is the Library of Congress in particular.  But many institutions, both public and private, promote cultural progress without anything to recommend them as the nation’s copyright authority.  Although Butler correctly notes that he and many other librarians have considerable expertise and, thus, provide many authors and users of works with guidance in copyright, this is hardly germane to the larger point.  Simply because universities have fine medical schools and hospitals, that doesn’t mean the Surgeon General’s office should operate within the Department of Education.

Yes, librarians perform a wide range of incredibly valuable tasks, including assisting their users with copyright law, as Butler describes. But the mere fact that he and others fail to acknowledge a distinction between these functions and those of the Copyright Office is proof in itself of the need for separation. Moreover, the Butler letter—albeit in lighter tones than other critics—does not scruple to jump on the bandwagon in accusing the Copyright Office of serving a narrow group of beneficiaries (i.e. corporate rights holders) of the copyright law.  This is an accusation without merit, and librarians should be more rigorous than to cite the undisciplined PR of activist groups.

That PublicKnowledge has made this assertion, based on its own cobbled-together “report” composed of innuendo and opinion, is no surprise; but the librarians of these institutions should be more forthright in their presentation of both the historic and contemporary functions of the Copyright Office.  Again, this lack of rigor is evidence that librarians can be as culturally biased as any other group and, therefore, ought to be represented at the table rather than preside over it.  Additionally, Butler’s letter does not acknowledge that indeed his colleagues have advocated that the Librarian of Congress take a more active policy-shaping role, which would effectively overturn the historic role of the Register under the current organizational structure.

As described in a previous post, the Librarian of Congress has never truly shaped copyright policy in the United States.  Oman and Peters call the organizational relationship between the LOC and the USCO an “accident of history,” and although Mr. Butler rejects this statement, he is simply incorrect.   The initial relationship was very much circumstantial, with precedents set during the Lincoln administration—a time when American courts were just figuring out what our copyright law actually means, while the Librarian was trying to find a place for all the manuscripts literally piling up on the Library floors.  This was a period marked more by extemporaneous troubleshooting rather than any kind of fleshed-out policy role for either the Library or the soon-to-be-established Copyright Office.

When the Copyright Office was created in 1897, it was predicated on a clerical relationship between registration and the growing collection; and copyright law itself had barely begun to deal, for instance, with the influence of machines on creative works.  As the law evolved in complexity through the 20th century, the Copyright Office likewise evolved as a multi-faceted agency that advises the courts, Congress, and the public on a dynamic range of issues specific to copyright law. Although the USCO has operated within the Library, the Librarian has historically deferred to the Register as the nation’s copyright authority. Hence the current proposal to make the Office independent is consistent with the role played by the Copyright Office for more than a century.

It is only fairly recently—with the introduction of digital technology—that more pronounced policy differences have become manifest between the Librarian and the Register—culminating with the surprise firing of Maria Pallante without so much as a heads-up to Congress.  Digital technology poses new challenges and opportunities for authors, rights holders, and libraries. Butler’s overemphasis of his and his colleagues’ expertise in copyright implies that the Librarian’s views on future copyright policy should become dominant for the first time in history, purely by virtue of a  traditional hierarchy that has no foundation in serving the Legislature, the courts, or the public.

In Butler’s letter, he writes, “Cultural institutions and the Copyright Office are natural allies.” He is absolutely right.  Allies meet on equal terms to discuss matters of cooperation and conflict. The librarians’ suggestion that there are no conflicts, or that such conflicts are best solved by one ally remaining subservient to other, is once again proof that the Judiciary Committee’s proposal for separation is as timely as it is soundly reasoned.