Music Companies Try to Stop Piracy by Suing Service Providers

Music companies, along with movie studios and other intellectual property owners, have been trying for years to stop online piracy.

Since 1998, one of the leading legal tools copyright owners can use against piracy has been the Digital Millennium Copyright Act (DMCA). The DMCA amended the US Copyright Act of 1976 to extend the reach of copyright law, while at the same time limiting the liability of Internet service providers for copyright infringement by their customers and users.

The DMCA exempts Internet service providers (ISPs, also called "online service providers" or OSPs) from direct and indirect liability for copyright infringement if they meet certain conditions:

  • The ISP must not have "actual or constructive knowledge" of infringing behavior. This means that an ISP that posts content of its own, or has editorial control over its posted content, such as by moderating forums, is not exempt from liability.
  • The ISP must not derive a financial benefit directly from the infringing activity. For example, a site that makes money from selling advertising targeted at people who come to the site to download pirate content, would not be exempt from liability.
  • When given proper notice of infringing material being posted on its system, an ISP must respond expeditiously to "remove, or disable access to, the material that is claimed to be infringing."

This last section is known as the "notice and takedown" procedure.

Copyright Alert System

Copyright and Music PiracyDespite years of using the DMCA, the enactment of new copyright protection laws around the world, and numerous lawsuits, piracy remains a major problem.

In 2013, five of the biggest ISPs in the US joined with the music and movie industries to launch the Copyright Alert System. This makes content owners responsible for monitoring peer-to-peer file-sharing sites and determining whether users are improperly sharing copies of pirated content.

If the content owner discovers that a user is engaging in piracy, then the content owner identifies that user's Internet address and ISP and informs the ISP. The ISP then notifies the customer.

"Six Strikes and You're Out"

In general, enforcement of anti-piracy measures by ISPs is based on a "six strikes and you're out" policy. When a customer gets a sixth notice, his or her Internet access is disabled – either partly or completely – until he or she calls the ISP.

The purpose of the policy is mainly to educate customers, rather than to punish them. The primary account holder – for example a parent – may not even be aware that piracy (for example by a teenage child) is happening in the household.

However, if customers continue to engage in piracy after six notices, ISPs generally don't do anything else. After a year, the clock resets, and customers can get the same six notices and wrist slap again.

10 Strikes Isn't Good Enough

Copyright owners, not surprisingly, don't think this is good enough. On November 26, two music companies sued Cox Communications. Cox has a more lenient policy than most ISPs, using a "10 strike" policy.

BMG Rights Management LLC and Round Hill Music LP control rights to songs by artists such as the Beatles, James Brown, David Bowie, Johnny Cash, and Lenny Kravitz, among many others.

In their lawsuit, the music companies allege that over 200,000 Cox customers have used BitTorrent to repeatedly download and upload pirate copies of the plaintiffs' music. Cox was repeatedly notified about the piracy but refused to terminate the accounts of the alleged infringers.

The music companies claim that Cox isn't eligible for the DMCA safe harbor because the DMCA only applies to an ISP that "has adopted and reasonably implemented … 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."

However, a "repeat infringer" isn't actually defined by law – but it probably will be if this case goes all the way to trial.

If you've been sued for copyright infringement…

If you've been sued for copyright infringement, you'll probably want to consult a copyright attorney to learn about your options and potential defenses.

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