In a letter to US Senators, the Copyright Office comments in detail on the 'repeat infringer' issue, stressing that a one-size-fits-all approach is not ideal. It may not always be appropriate to terminate the Internet accounts of persistent pirates. Instead, ISPs could also limit their bandwidth, the Office suggests.
The US Senate’s Judiciary Subcommittee on Intellectual Property is looking for ways through which it can better address online piracy.
Specifically, it’s working with various stakeholders to see if the DMCA can be improved to better suit today’s online environment.
The effort, announced by Senator Thom Tillis last year, partly overlaps with the Copyright Office efforts to improve the DMCA. That process has been running for years and the findings and recommendations were recently summarized in an advisory report, which suggested several ‘tweaks’ to the current law.
The Senate Subcommittee is aware of the overlap and sent a letter to the Copyright Office, asking for clarification and guidance on some key issues. The answers, which came in last week, provide further detail on how the Copyright Office would deal with some of the main stumbling blocks.
Repeat Infringer Requirements
The DMCA currently requires ISPs that want ‘safe harbor’ protection to “adopt and reasonably implement” a repeat infringer policy that terminates accounts of repeat infringers “in appropriate circumstances”.
This repeat infringer issue is at the center of several high profile lawsuits against ISPs and recently resulted in a billion-dollar damages award against Cox. It is not without controversy, however, as the law leaves a lot of room for interpretation. What’s “reasonable” and “appropriate” isn’t clearly defined.
In answer to the Senate Subcommittee, the Office stresses that there should be some minimum requirements for all service providers. However, size matters. This means that larger services with more resources could be held to a higher standard. For example, by preventing infringing content from reappearing.
This ‘reappearing’ angle hints at a filtering requirement, something the Copyright Office advised against in its report. While that may sound worrying to some, the Office also has some reassuring suggestions for average Internet users.
Not All Infringements are Equal
The Copyright Office notes that not all copyright infringements are equal. This is something that could be taken into account when deciding whether a repeat infringer should be terminated. A YouTube user who uploads full-length films will cause more harm than someone who uses part of a song as background for a homemade video, for example.
“Therefore, the number of notices in any particular repeat infringer policy that should reasonably result in account termination or other adverse action will likely be lower in the former case than in the latter,” the Copyright office writes.
“Thus, while there should be certain minimum standards addressing repeated acts of infringement, an evaluation of the reasonableness of those standards may vary depending upon individual factors in the case, including the OSP’s size and resources, the nature of the service, and the nature of the infringement itself.”
Disconnections Are Not Always ‘Appropriate’
The Copyright Office is clearly mindful of individual user rights. This is also true for potential Internet disconnections of accounts that are repeatedly used to share pirated content. Following recent court rulings, ISPs have become more strict but the Office notes that disconnections are not always “appropriate.”
Terminating someone’s Internet access can have much more drastic consequences than terminating a social media account, the letter states.
“For example, the negative consequences that are likely to result from termination of a user’s internet service if there is only one local broadband provider is likely to be greater than the negative consequences that flow from having an account terminated on a social media site for which there are other ready substitutions.”
Throttling Pirates
These potential ramifications of account termination could play a role in what’s deemed appropriate. Congress may want to consider this if the DMCA is updated. Specifically, the Copyright Office suggests that other penalties such as bandwidth throttling could be preferred over hard disconnections in some circumstances.
“Congress may want to consider the adoption of penalties short of account termination, such as limiting bandwidth or slowing service speed, to address repeat infringers for certain users of section 512(a) services,”
This is an intriguing suggestion, especially in the light of ongoing lawsuits against ISPs over the “repeat infringer” issue.
The same letter also mentions other user rights, as Re:Create highlights. This includes protecting free speech from bogus takedown notices. Right now, it can take up to two weeks before content is restored after a false or inaccurate notification. That can be too long if it censors free speech.
Similar to the Copyright Office report, the letter is a mixed bag of notes and recommendations. Some are in favor of copyright holders and others are more beneficial to Internet services, or the public at large.
A copy of the Copyright Office’s letter to Senator Patrick Leahy and Senator Thom Tillis is available here (pdf).
