RIAA’s Copyright Suit Against Verizon Just The Latest Move By The RIAA To Kick People Off The Internet
The RIAA just won’t quit in attacking users on the internet and trying to get them banned from using the internet entirely. The latest news is that all the major record labels have sued Verizon for not kicking users the RIAA accuses (but has not litigated) of being infringers off the internet.
But, there’s a long history here that needs to be understood to see why this case is so stupid and so dangerous to the internet.
Twelve years ago, we wrote about a secret plan by the RIAA to pretend that copyright law already required that ISPs shutdown the internet accounts of users caught infringing. The relevant copyright law, DMCA 512, does have an awkwardly worded section on “termination.” Specifically, it says that to be eligible for the DMCA safe harbors, a site:
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; and
However, it provides no more guidance about many of the important definitions in there. What is “reasonably implemented?” What is “appropriate circumstances?” What constitutes “repeat infringers?”
While some people claim that the last question, in particular, is easy to determine, it’s not. False claims of copyright infringement are made all the time, as we’ve seen with DMCA claims (or even just YouTube’s ContentID). Sometimes, it’s for anti-competitive purposes. Sometimes it’s just to make life difficult for someone. Often, it’s because automated systems have gone haywire.
The only real way to know if someone is a “repeat infringer” is not based on a claimed copyright holder sending notices, but on a court ruling that an individual infringed on someone’s copyright. A service provider could have actual knowledge of infringement only after it has been adjudicated by a court.
However, some copyright holders disagree.
As is their wont, the RIAA has decided that all of these should be decided in the most extreme way possible, which is that if the RIAA sends a bunch of infringement notices to a service provider, that ISP should kick users off the internet entirely.
There are all sorts of problems with this. First, under the Supreme Court’s Packingham decision, it’s reasonable to argue any law that kicks people off the internet as a requirement is inherently unconstitutional. As Justice Kennedy wrote in that decision, citing Ashcroft v. Free Speech Coalition, “It is well established that, as a general rule, the Government ‘may not suppress lawful speech as the means to suppress unlawful speech.’”
Yet, as we’ve described for decades, when it comes to copyright, the courts show an uncanny willingness to ignore any First Amendment concerns and to give the industry all the power (rather than the public, who copyright law is supposed to benefit).
Given all that, the recording industry sued Cox Communications for failing to “reasonably implement” a policy to “terminate… repeat infringers.” That case was kind of a mess from the very start. It involved a firm, Rightscorp, that was famous for sending piles of questionable infringement notices based on flimsy evidence of infringement. The case ended up before a famously cranky judge, Liam O’Grady, who made it clear that he did not care about the public interest, or even the purpose of the DMCA.
It didn’t help that Cox’s own policies for handling copyright complaints were a bit of a mess, but O’Grady seemed wholly uninterested in the details and nuances and ruled against Cox. The case has bounced around for years, with the 4th Circuit Appeals court occasionally making a mess of things, occasionally fixing small parts of the lower court’s nonsense.
Earlier this year, the 4th Circuit threw out the massive $1 billion award that a jury had given the labels, saying the amount was not justified. But the case is still something of a mess, as Cox still believes (correctly, in my opinion) that it’s not violating the law at all. I believe that next month, both sides are planning to request the Supreme Court take a look. The labels will want the giant damages reinstated, while Cox will be arguing that the entire thing is ridiculous and it did nothing wrong.
Either way, the record labels apparently don’t want to wait for the Supreme Court to sort all this out. They have moved forward with a similar lawsuit against Verizon, one of the country’s largest ISPs, making the same basic arguments. The RIAA is always good about telling narratives:
The scope of repeat infringement on Verizon’s network is staggering. Thousands of Verizon subscribers were the subject of 20 or more notices from Plaintiffs, and more than 500 subscribers were the subject of 100 or more notices. One particularly egregious Verizon subscriber was single-handedly the subject of 4,450 infringement notices from Plaintiffs alone.
Verizon acknowledged that it received these notices of infringement sent by Plaintiffs’ representatives. Yet rather than taking any steps to address its customers’ illegal use of its network, Verizon deliberately chose to ignore Plaintiffs’ notices, willfully blinding itself to that information and prioritizing its own profits over its legal obligations.
It is well-established law that if a party materially assists someone it knows is engaging in copyright infringement, that party is fully liable for the infringement as if it had infringed directly. Further, when a party has a direct financial interest in the infringing activity, and the right and practical ability to stop or limit it, that party also faces liability. Flouting those basic responsibilities, Verizon deliberately turned a blind eye to its subscribers’ infringement. Verizon failed to terminate or otherwise take any meaningful action against the accounts of repeat infringers of which it was aware. Instead, Verizon routinely thumbed its nose at Plaintiffs by continuing to provide its service to subscribers it knew to be serially infringing Plaintiffs’ copyrighted sound recordings. In reality, Verizon operated its service as an attractive tool and safe haven for infringement.
And, so, of course, many of the headlines will be about that kind of narrative.
But, as always, it’s way more complicated than that. Just because someone sends notices does not mean that infringement has actually happened. I mean, this is the RIAA we’re talking about, and they have a bit of a history of sending trash, bogus DMCA notices. Or, a history of suing over songs it doesn’t hold the copyright on. Or on making totally baseless accusations about copyright infringement based on whims.
It’s only natural for a company like Verizon to choose to view RIAA notices with suspicion and not immediately assume they’re proof of infringement.
Anyway, given the status of the Cox fight and the decent chance the Supreme Court will take that issue up (not guaranteed, of course, but it wouldn’t be surprising), this case might end up sitting around while we wait for the Supreme Court to (hopefully, but unlikely) get these issues sorted out in that case first.
Either way, the RIAA is up to their usual anti-internet tricks. While they frame it as Verizon somehow ignoring notices, don’t believe that narrative. This is about the RIAA overclaiming copyright powers and trying to get people kicked off their entire internet connection (which is so necessary these days) for daring to download some songs.