Consequences of BMG Rights Management v. Cox Communications

Imagine this: Your family is at your place for Thanksgiving and, all of a sudden, your mother has a heart attack. You rush to the phone and dial 9-1-1. You’re told by an automated message that your internet has been disconnected for alleged copyright infringement, so your emergency call cannot be completed. Unbeknownst to you, HBO noticed that your roommate had been illegally downloading Game of Thrones, and called upon your Internet Service Provider to disconnect your account.

You may be wondering how this could possibly happen. The above situation may become reality given the ruling in BMG Rights Management v. Cox Communications, a ruling that increases the likelihood that an ISP will terminate a subscriber’s connection for suspected copyright infringement.

In that case, a federal court in Virginia held Cox Communications liable for the illegal downloads of its subscribers. Ordinarily an ISP like Cox has a “safe harbor” from copyright lawsuits based on acts of its subscribers under a law called the Digital Millennium Copyright Act. But the court used an exception to that law known as section 512(i), which says that an ISP loses its safe harbor if it does not have a policy for terminating the accounts of “repeat infringers.” The court saw that Cox hadn’t terminated enough subscribers under that provision, and so Cox lost its safe harbor.

The court apparently thought that ISPs should be required to terminate repeat infringers in some cases, but that idea is problemmatic, because the punishment of terminating someone’s internet goes far beyond stopping the infringing activity. Termination is not the appropriate response to suspected copyright infringement due to its far-reaching effects, and the Court’s decision must be reversed.

As we explained in a brief we filed recently in the BMG case, internet access is integral in today’s society, and its termination could prevent people from accessing important, essential, and even lifesaving services. Innocent, non-infringing individuals may be affected by an infringer’s actions, and similarly deprived of access, just because they shared a connection. Services like 9-1-1 are slated to run purely over internet connections in the coming years, instead of over phone lines as they have historically. Additionally, telecommunications companies are already retiring copper phone lines, as well as phasing them out in favor of internet-based phone systems that run over fiber-optic cable. So, it may be entirely possible that a person whose internet access is terminated will not be able to use their phone during an emergency. That’s why you weren’t able to reach 9-1-1 when your mother had a heart attack.

All sorts of other important activities have become internet-based as well. Since the internet is a very common platform for finding employment, unemployed and unconnected people find themselves at a disadvantage. They cannot view new job postings, apply to positions online, or reply to interview offers and other opportunities as quickly as their connected counterparts. Eric Hill, a low-income Detroit resident who cannot afford a home broadband connection, uses a computer at the public library in one hour-length sessions to look for work. He has no internet connection when he leaves the library, and will not know the outcome of his application until he returns. Putting someone into a similar situation is an inappropriate remedy for copyright infringement

Internet access has also become integral in education. Students who don’t have internet at home struggle to work on online assignments, and often fall behind their connected classmates. FCC Commissioner Jessica Rosenworcel coined the term “homework gap” to describe this disparity in education. Unconnected students are forced to find ineffective workarounds to compete with their connected peers. April Willis, a 17-year-old high school student, does her homework at the local public library, the community college, and even fast food restaurants. Isabella and Tony Ruiz, 11 and 12, work from the sidewalk by their school to access its open WiFi and download their assignments.

These stories show how important internet access is, and how harmful it can be when that access is cut off. The purpose of section 512(i), by contrast, is to deter repeat infringement, not disproportionally penalize suspected individuals. An attempt to prevent repeat copyright infringement should not reach so far as to undercut a student’s ability to learn, or an unemployed person’s job searching, or your mother’s ability to reach 9-1-1 services.

BMG and other copyright industry members will be filing briefs on the other side, probably in the next month or two. A decision in the case will likely come in mid-2017.

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