The entertainment industry spent years suing Internet users, file-sharing companies and websites over illegal music and movie downloading while the companies that make high-speed downloads possible —broadband providers such as Time Warner Cable and AT&T — watched from the sidelines. That changed last week, when music publishers BMG Rights Management and Round Hill Music sued one of the country's larger Internet service providers, cable TV operator Cox Communications, for not cutting off customers accused repeatedly of illegal file sharing. The publishers are right to expect Cox to help fight piracy, but the courts should resist their attempt to turn ISPs into bare-knuckled enforcers.
The publishers' lawsuit is based on the 1998 Digital Millennium Copyright Act, which absolves ISPs from liability for their users' copyright violations if they meet certain conditions. According to the publishers' complaint, Cox failed to comply with the law's requirement to implement a policy cutting off repeat infringers' accounts. The publishers say their anti-piracy contractor, Rightscorp, notified Cox of millions of infringements on roughly 200,000 Cox accounts, yet the accounts have remained open "without consequence."
Rightscorp monitors file-sharing networks, then threatens legal action against those whose broadband accounts were allegedly used for piracy unless they pay a small fine. In other words, it seeks a cheaper, easier way to enforce copyrights than rights holders can obtain through the courts and their pesky due-process rules. Its approach won't work, however, if ISPs don't identify the account holders, and they're under no legal obligation to do so unless the copyright owner has filed suit. Nor are ISPs compelled to forward Rightscorp's demands for money to their subscribers, who may be blissfully unaware that someone was using their account for piracy. Rightscorp shouldn't be able to use the 1998 law to compel ISPs to support its business model.
The larger question raised by the publishers' lawsuit is: At what point do ISPs have to disconnect subscribers whose accounts are used repeatedly to violate copyrights? Yet BMG, Round Hill Music and Cox don't need to answer that to make headway against piracy. The Copyright Alert System jointly developed by the major movie studios, record labels and largest ISPs doesn't threaten to cut off anyone's Internet access, but it does send out warnings and take increasingly intrusive steps to prod broadband subscribers to stop piracy. The system sent out more than 2 million warning letters to users in its first year, and the vast majority responded by stopping the infringements in short order. Cox has a similar "graduated response" system, but it lacks the clarity and standardization of the other ISPs' effort. Rather than trying to impose new rules through the courts, the publishers should join Cox in making the existing warning system work for all concerned.