Federal regulations have traditionally followed a relatively predictable process for development: Congress passes legislation which is codified into a statute, and a government agency creates a regulation based on the statute. The regulation itself is then introduced in a written agency order, which attempts to explain why the regulation exists, how it is to be followed and the penalties for non-compliance. But when a statute itself is unclear and has never been distilled by a regulatory agency, entities are left to interpret and follow the law as best they can. And without regulatory guidance, especially in the face of courts issuing differing opinions, compliance becomes a high-stakes game of “Pin the Tail on the Donkey.”
Unfortunately, this is the scenario that Internet Service Providers (ISPs) face right now under the Digital Millennium Copyright Act (DMCA). The DMCA – which was enacted in 1998 – was intended to provide online service providers with a “safe harbor” against liability if a subscriber used the provider’s internet service to engage in copyright infringement. In the years that followed, however, attempts to define precisely what ISPs must do to qualify for the DMCA’s liability protection have failed. As a result, ISPs are left to interpret the DMCA and decide on their own which conflicting judicial interpretation they will follow. This has led to ISPs being subjected not only to lawsuits for “failing” to comply with the DMCA, but also to hefty monetary damages for purported copyright infringement by their subscribers. Cox, for instance, was held liable by one court for $1 billion due to claims by Sony that Cox had not adequately prevented subscribers from using Cox’s service to download music. Both Sony and Cox have asked the U.S. Supreme Court to review lower courts’ holdings in the case.
Copyright owners deserve to have their work protected, and ISPs deserve clear and consistent laws. Ambiguity only hurts ISPs and the communities they serve. In a recent survey, 50% of NTCA member respondents cited regulatory uncertainty as a significant barrier to increased broadband deployment. Without clear and consistent laws governing online copyright infringement, ISPs’ only “safe harbor” is to disconnect a subscriber upon receiving notice that the subscriber’s IP address was used to engage in copyright infringement. And that would be the case even if someone other than the account holder reportedly engaged in the infringement!
At a time when there is so much focus – and rightly so – on ensuring broadband internet is available to every location in the country, placing broadband providers in the position of having to choose between disconnecting a subscriber and risking litigation (as well as significant financial penalties) cannot be what Congress intended when enacting the DMCA.
Disconnecting an account has far reaching consequences and affects more than just the person who might have downloaded music without permission – the individual working from home suddenly has their livelihood in jeopardy due to a lack of internet access; students must find another place to do homework; and telehealth appointments are no longer an option.
For all these reasons, we hope the Supreme Court will take up this case and inject some much-needed sanity into how the DMCA is interpreted and applied.