Imagine that there is a house on your block where you’ve observed drug dealing and prostitution. You’ve taken pictures, and there’s even been some arrests. The cops say they’re too busy to arrest every person coming in and out of there. Finally you complain to the landlord, who says “I don’t endorse drug dealing and prostitution, but they pay their rent on time so I don’t really want to do anything about it.” Eventually the city decides to crack down and take away the property from the landlord, who then cries about how “it’s so unfair.”
That’s basically what happened in BMG v. Cox. In this case, a jury held an internet service provider liable for turning a willful eye towards its’ subscribers’ repeated copyright infringements. BMG had retained Rightscorp, who sent thousands of notices to the most notorious individuals illegally pirating content via their Cox internet accounts. Cox basically said “Oh. We’ll look into that. Maybe.”
Why is piracy Cox’s problem? Because the Digital Millennium Copyright Act offers ISPs a safe harbor for the actions of its subscribers, but the ISP must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent.
In other words, federal law shields ISPs from liability, provided they do things like shut off the internet for subscribers who engage in piracy. Just like a landlord can get busted for renting to tenants who deal drugs.
Notably, Cox’s Manager of Customer Abuse Operations, wrote in an email:
As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ‘counter’ restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy… We do not talk about it or give the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers… This only pertains to DMCA violations. It does not pertain to spammers, hackers, etc.
When the verdict came out, once again the internet and the EFF cried foul. This time the spin was that Cox got slammed by a jury “for not kicking people off the internet.”
In other words, if you don’t pay your Cox bill, they can shut down your internet. That’s okay. But if you pay your bill and use your internet for piracy repeatedly, and it gets shut off, that’s like so unfair.
Here is the reality. Just like landlords can lose their property when their tenants engage in criminal activity, an ISP should be held to the same standard. If an ISP knows that its subscribers are breaking the law by stealing stuff, and refuse to knock it off, then their internet should be shut off.
Oh, and it’s so unfair for a person to lose access to the internet? This penalty could be avoided by doing something very simple – not stealing. How hard is that?