The Shifting Balance Between Copyright Owner Rights and Digital Millennium Copyright Act Safe Harbor Provisions Rights

In BMG Rights Management (US) LLC, et al. v. Cox Communications, Inc., et al., the Court held that the Digital Millennium Copyright Act (“DMCA”) does not automatically grant ISP defendants protection under the DMCA safe harbor and that “soft terminations” are not a sufficient response from internet service provider (ISP) to repeat infringers.

When an online user violates copyright law by posting infringing material on an Internet Service Provider’s site, a third-party, the copyright owner who is infringed will frequently rely on the user’s ISP for relief.  The Digital Millennium Copyright Act (DMCA) includes a safe harbor provision that provides ISPs with protection from a potential flood of copyright infringement claims for customer actions, so long as the ISP complies with certain conditions, such as adopting and reasonably implementing “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…” 17 U.S.C. §512(i).

The court in the BMG case first separated the issue into two main questions: 1) whether the BMG defendant had a reasonable policy to deal with repeat infringers and 2) whether the BMG defendant had implemented that policy.

The court found that a policy is reasonable when a repeat infringer’s account is terminated in appropriate circumstances, and “appropriate circumstances clearly cover account holders who repeatedly or flagrantly infringe copyright, particularly infringement of a willful and commercial nature.”

Applying these rules to the facts of the case, the court found that the BMG defendant had actual knowledge that multiple individual customers were repeat infringers and, despite this knowledge, the BMG defendant refused to implement its termination policy.

This case reaffirms that courts will not automatically grant ISP defendants protection under the DMCA safe harbor and will thoroughly review ISP responses to takedown notices.