By Mitch Stolz and Lara Ellenberg | 3 June 2021
ELECTRONIC FRONTIER FOUNDATION — In going after internet service providers (ISPs) for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement. When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business’s account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages.
EFF, together with the Center for Democracy & Technology, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and Public Knowledge filed an amicus brief this week urging the U.S. Court of Appeals for the Fourth Circuit to protect internet subscribers’ access to essential internet services by overturning the district court’s decision.
The district court agreed with Sony that Cox is responsible when its subscribers—home and business internet users—infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn’t terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn’t protected by the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA’s requirements. One of those requirements is implementing a policy of terminating “subscribers and account holders … who are repeat infringers” in “appropriate circumstances.” The court ruled in that earlier case that Cox didn’t terminate enough customers who had been accused of infringement by the music companies. […]