Online Copyright Enforcement and ISPs

The DMCA provides the framework for ISPs liability for online copyright infringement. Section 512 creates limitations on that liability and clearly distinguishes between ISPs that store materials or content on their systems and ISPs that merely act as a data conduit, meaning only passively routing information from one place to another.

Although the DMCA does not require ISPs to engage in graduated response, it does require them to take specific actions in order to comply and enjoy the safe harbor provisions under section 512 of the DMCA. Both types of ISPs are subject to section 512(i) and thus are required to adopt and implement a policy of terminating users’ accounts in appropriate circumstances and inform their users about that policy. The requirements of section 512(i) are very loosely defined and courts have been left to fill the gap. The language of section 512 (i) provide no definition for repeat infringer and no guidelines as to when it will be appropriate to terminate users’ accounts.

The termination of users’ accounts by ISPs raises some major concerns. First, from the ISPs point of view, the graduated response, and especially the final step of termination users’ accounts, can be very expensive. By turning ISPs to an online police, the graduated response system forces ISPs to invest money in enforcement equipment, which normally one would not expect ISPs to practice. Besides the new “smart” technology that in most cases has already implemented in their systems, ISPs also need to invest in surveillance and data retention. Another aspect of the financial burden is the ability of ISPs to bear the great costs and at the same time to improve their services and to meet their users’ demands.

Second, the DMCA does not state which appropriate circumstances can lead to account termination by ISPs. From the internet users’ point of view this also raises majors concerns. Besides the fact that termination of users’ accounts could cause great damage to their everyday life, sending infringement notices to users, which in the case of large ISP can easily be more than million a year, ISPs, in the name of the graduated response system, deny due process to their users. Also, the process of sending the notices itself can be sometimes inaccurate and lead to unfortunate misunderstanding.

Whether ISPs should engage in graduated response is not an easy question. Enforcement online copyright infringement is definitely one of the “hot” topics in the past years, and thus should be addressed accordingly, but it is questionable whether ISPs are the ones to address it, let alone enforce it. I believe the enforcement role should be reserved for the government and the courts, as they are the only one who can do, or at least try to do, justice in this sensitive matter.