Over the course of the last year, we’ve seen an intense, international lobbying effort on the part of the entertainment industry to craft policies that would boot alleged filesharers off of the Internet. The folks over at TechDirt have been keeping a close watch on this front and point to legislation and negotiations in the UK, France, Australia and Canada that would institute a “three strikes” rule. As proposed, this three strikes policy would require ISPs to filter their networks for copyrighted content and send out notices of infringement to users suspected of engaging in filesharing–effectively turning ISPs into “copyright cops”. As implied by the three strikes moniker, users would receive two written warnings before having their contract with the ISP terminated outright, upon receipt of the third.
Luckily, the EU Parliament saw fit to put an end to this nonsense last week, passing an amendment that prohibits member states from instituting three strikes policies, or “…measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access,” as the EU Parliament calls them. Thanks to this amendment, the threat of a three strikes policy in Europe seems to have passed. But here in the U.S. of A, three strikes isn’t just alive and well–it’s already being implemented, despite the notable absence of a policy mandate.
As you may already know, the RIAA and MPAA send out hundreds of thousands of DMCA takedown notices every year, to ISPs, online service providers and educational institutions. Reactions to these notices vary: some choose to remove the content in question from their servers, others pass on the notices to end users and others simply ignore them. Cable ISP Cox Communications, however, has decided to take a more active approach when presented with a DMCA takedown notice: it uses the notice as an excuse to kick the user in question off of its network.
If Cox receives a DMCA takedown notice for content that you allegedly shared while using its network, the company will temporarily disable your Internet connection. The next time you attempt to use the Internet, you’ll be greeted by a screen containing the following warning (screenshot):
Under the DMCA, we have the responsibility to temporarily disable your Internet access, until such time as you take the necessary steps to remove the infringing files and to prevent further distribution of copyrighted material.
If the user complies with this order by removing the files in question from his hard drive, he can then request that his service be reinstated (though, as one reader tells news site TorrentFreak, even this process isn’t necessarily as straightforward as it seems). However, if the user in question receives two more takedown notices, his contract with Cox will be terminated. “Cox does in fact have a 3 strikes policy with regards to violations of our acceptable use policy for Internet service,” a Cox customer service rep told TorrentFreak. “If a customer’s service gets suspended 3 times for the same type of violation the customer risks having their Internet service terminated.”
There are a number of problems with this policy, so let’s start at the top. First and foremost, in no way does the DMCA oblige ISPs to disconnect or disable the Internet connections of alleged copyright infringers. Rather, the DMCA states that a service provider must remove the infringing material from its servers if a takedown notice is received and must inform a user if it receives a takedown notice on his behalf. By way of clarification, here’s the relevant section from the DMCA’s safe harbor provisions [17 U.S.C. §512(i)(1)(A)], emphasis mine:
[The limitations on liability established by this section shall apply to a service provider only if the service provider-] has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, 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…
Note that the above language allows for “a policy that provides for the termination in appropriate circumstances” of “repeat infringers”. Does a DMCA takedown notice serve as proof that a copyright infringement took place? Absolutely not. DMCA notices simply allege that the user in question may have engaged in illegal activity (more on that below). For Cox to claim that it is somehow required by law to disconnect users from its network upon receipt of a DMCA notice is, quite simply, a boldfaced lie.
Second, takedown notices filed by entertainment industry groups like the MPAA and the RIAA have been shown to be less than reliable. Not only has the RIAA openly admitted that it cannot actually detect the transmission of a file over a filesharing network–only the presence of a file that could potentially be downloaded (see: the “making available” argument)–it has also been demonstrated that the mechanism used for generating the notices is both flawed and easily abused by hackers. That’s not too surprising when you consider that the RIAA has sent takedown notices to grandmas, the deceased and even laser printers.
While the entertainment industry’s misguided attempts to criminalize its own customers are often amusing, the idea of an ISP acquiescing to the demands of that industry is anything but. As we’ve seen, the DMCA takedown notices generated by big content players and industry groups are often suspect and on principle, should not be used as the basis for terminating a user’s Internet connection, as they simply allege rather than demonstrate an instance of copyright infringement. Furthermore, Cox should not be allowed to mislead its users by invoking imaginary provisions in the DMCA–a tactic that might be construed as scaremongering at best and at worst, fraud.
Ultimately, Cox’s three strikes policy boils down to the following question: should the entertainment industry be allowed to decide who is allowed access to the Internet? While you and I might agree that the answer to this question is a resounding “no,” your ISP might have a very different opinion on the matter.