Internet Service Providers Considering New Graduated Response To Copyright Infringement

The Online Copyright Infringement Liability Limitation Act (OCILLA), also known as DMCA 512 was passed in 1998 as part of the Digital Millennium Copyright Act (DMCA). OCILLA is also known as the “Safe Harbor” provision in the DMCA, which shields internet service providers (ISPs) from being forced to pay any monetary damages as a result of copyright infringement by users of their services.

In order for an ISP to qualify for the safe harbor protection, it must follow through on its policy of terminating the accounts of users who are known to be repeat copyright infringers and comply with standard technical measures.  Typically, ISPs shielded from liability if:

  1. The transmission of the copyrighted material was initiated by or at the direction a person other than the ISP;
  2. The transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the ISP;
  3. The ISP does not select the recipient of the material except as an automatic response to the request of another person;
  4. No copy of the material made by the ISP in the course of such intermediate or transient storage is maintained on the ISP’s system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
  5. The material is transmitted through the ISP system or network without modification of its content.

A key to avoiding potential liability is to stay as far away from the controversy as possible.  The safe harbor provision, in effect, sometimes encourages ISPs to turn a blind eye to copyright infringement, which is not what lawmakers intended.

Recently, there has been a push to give ISPs a more important role in the fight against widespread online copyright infringement.  A group of ISPs that includes AT&T, Comcast, and Verizon are said to be in serious talks with with media and entertainment companies regarding the adoption of a “graduated response” to repeat copyright infringers.  This new response would begin with the ISPs sending out “Copyright Alerts,” which is a fancy way of stating that the ISPs will be sending out written warnings to those accused of infringing activities.  Eventually, the ISPs could decrease the alleged infringers’ bandwidth speed and/or limit access to the web.  All based on an accusation made by the copyright holder.

Punishment based on an accusation, and not a conviction, is troubling for consumers.  But ISPs also have to worry that with increased information from copyright holders, even if the information is not substantiated by any solid proof, ISPs will have to follow through on its new policies or run the risk of not being protected by the DMCA’s safe harbor.

If ISPs institute the anticipated graduated response to repeat copyright infringers, many innocent internet subscribers will likely see their use of the web wrongfully restricted based on accusations by copyright holders.  In that case, the accused infringer should seek the help of an attorney.  Please contact us for any more information regarding this topic.

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