February 16, 2016

Balancing Copyright Owners’ Rights With ISP Immunities

Ieuan G. Mahony

When an online user violates copyright law, the copyright owner will frequently turn to the user's internet service provider (ISP) for relief. The Digital Millennium Copyright Act (DMCA) includes a safe harbor provision that provides ISPs with protection from a potential flood of copyright infringement claims for customer actions, provided the ISP complies with certain conditions. These include a requirement that the ISPs adopt and reasonably implement "a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers..." 17 U.S.C. §512(i). The U.S. District Court for the Eastern District of Virginia recently held that an ISP could not seek protection under the DMCA safe harbor provision because of its failure to comply with this condition. See BMG Rights Management (US) LLC, et al. v. Cox Communications, Inc., et al., Civil No. 1:14-cv-1611 (12/1/2015). The BMG case is significant because it provides guidance on the type of actions an ISP needs to take (or not take) in order to satisfy the termination policy condition.

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