Another Lawsuit Tries To Force An ISP Into Being A Copyright Cop

Major record labels are once again trying to force an Internet service provider into enforcing their copyrights by cutting off customers from the Internet over copyright accusations. The lawsuit they filed against Texas broadband provider Grande Communications suffers from many of the same due process problems as the BMG Music Publishing v. Cox Communications case, which is on appeal.

The issue in both cases is whether and when a home broadband provider should cut off a customer’s Internet service when someone using that service is accused of copyright infringement. The legal hook for this controversy is the Digital Millennium Copyright Act, Section 512, which protects ISPs and other Internet intermediaries against the risk of massive copyright penalties stemming from a customer’s copyright infringement. But to get the protection of Section 512, an ISP has to terminate “subscribers and account holders … who are repeat infringers” in “appropriate circumstances.”

The courts haven’t yet said much about when and how it’s “appropriate” to terminate ISP subscribers. Most of the cases decided so far involved subscription-based websites, not ISPs that provide a person’s main (or only) link to the entire Internet. As EFF and Public Knowledge told the Court of Appeals for the Fourth Circuit in the BMG v. Cox case, the circumstances where it’s appropriate to cut off a home Internet subscription entirely are few and far between.

In the Cox case, the lower court’s decision to strip Cox of its Section 512 safe harbor seemed to be driven by a series of unfortunate emails uncovered in litigation. The emails suggested that Cox employees did not, in fact, terminate any customers for repeated copyright infringement, and that this policy was driven by a desire to preserve revenues. But that court—the Eastern District of Virginia—went too far when it implied that ISPs risk losing their legal protection unless they terminate some significant number of customers per month as a punishment for infringement. That’s a recipe for over-enforcement that we’re hoping the Fourth Circuit will correct.

In the case filed on Friday, record labels seem to be looking to repeat the Virginia court’s wrong turns. Here’s how the labels’ complaint describes home broadband service:

[F]or those subscribers who want to pirate more and larger files at faster speeds, Grande obliges them in return for higher fees.

…

[T]he availability of music – and particularly Plaintiffs’ music – acts as a powerful draw for subscribers to Grande’s service.

It’s preposterous to suggest that in 2017, the reason why people get high-speed Internet at home is to get free music, illegally. But that’s the worldview of the major record labels (and their trade association, the Recording Industry Association of America). And it’s the worldview they’re presenting to the judge in this complaint. Never mind that a good Internet connection is now a virtual necessity for doing homework, obtaining government services, participating in politics, and communicating with nearly everyone. Portraying broadband as being primarily about entertainment contributes to bad decisions like the district court’s ruling in Cox.

The labels’ complaint against Grande also raises an argument that major media and entertainment companies have been making since the earliest days of the Internet—an argument that hasn’t improved with age. They claim that because Grande runs a service that transmits information, and because some people transmit infringing copies of music recordings, Grande should have a legal responsibility “to minimize the infringing capabilities of its service.” This is like saying that an electric utility needs to prevent people from using electricity when they commit crimes.

One of the main purposes of DMCA Section 512 is to make clear that Internet service providers aren’t required to be copyright police. And that legal protection is the reason we have the multitude of Internet services we have as we know it today. The courts have generally rejected this perennial argument of the music and film industries, but the suit against Grande shows that they haven’t abandoned it yet.

There are many ways this new lawsuit could go. But whatever deals are struck along the way, and whatever facts come to light, the court should keep the importance of Internet access in mind, and reject the tired and dangerous argument that Internet services should act as copyright police.