One of the most important laws protecting online speech is also one of the worst. You've probably heard of it. In 1998, President Bill Clinton passed the Digital Millennium Copyright Act, or DMCA. It's the law that, for example, makes it all too easy for companies to have embarrassing content removed from sites like YouTube by issuing bogus takedown requests, claiming that the content violates their copyright—no presumption of innocence required. But the DMCA also contains one incredibly important section: the so-called safe harbor provision. Thanks to safe harbor, companies can't be held liable for copyright violations committed by their users, so long as the companies take reasonable steps to ensure that repeat offenders are banned from their services. Post a pirated copy of Ghostbusters to YouTube via your Comcast Internet connection? That's on you, the DMCA says, not on YouTube or Comcast.
But after a recent court decision, that safe harbor doesn't look so safe anymore.
Last week a federal judge ruled that cable Internet provider Cox Communications must pay $25 million in damages to BMG Rights Management, which controls the rights to the music of some of the world's most popular artists. The court found that Cox was liable for the alleged copyright infringement carried out by its customers, safe harbor or not. The decision might not rattle the giants of the Internet business, like Comcast, Verizon, Google and Facebook--at least not yet. But it could be bad news for smaller companies that can't afford such costly legal battles. And if companies start fearing they'll lose their safe harbor, they might have to start more carefully policing the content posted by their users.
It's hard to overstate the importance of the DMCA's safe harbor provision to the growth of the early Internet. Had providers and platforms faced liability for what users published, far fewer social networks and web hosts would have existed because of the legal risk. Those that did exist would have had to carefully screen what users posted to ensure no copyright violations were taking place. In short, the DMCA, for all its problems, enabled the explosion of online speech over the past two decades.
But that explosion has not been kind to some businesses, such as the music industry, which has seen its margins erode since the 1990s due to peer-to-peer file sharing. To fight back, BMG in 2011 hired a company called Rightscorp to monitor file sharing networks and catch people illegally sharing music that belonged to BMG. Whenever Rightscorp believed it had detected a copyright violation, it would forward notifications to the offending user's Internet provider. The twist was that Rightscorp added a bit of language to its letters offering to settle the copyright dispute if the user was willing to pay a fee of around $20 to $30 per infraction. Cox refused to forward these letters on to its users because it believed the settlement offers were misleading, arguing the notifications of infringement were not in and of themselves proof that a user had actually broken the law.
Rightscorp refused to alter the language of the letters, so Cox refused to process any further notifications from the company. In 2014, BMG sued Cox.
Last year, US District Court Judge Liam O'Grady judge found that by refusing to process Rightscorp's requests, Cox had failed to live up to its responsibilities under the safe harbor provision, and therefore was not eligible for its protections. A jury found Cox liable for $25 million in damages. Cox filed for a new trial but O'Grady denied the request last week, allowing the previous decision to stand.
While the decision does not set a binding precedent, some open Internet advocates worry the decision could embolden copyright holders to sue smaller companies. A company like Google can afford expensive lawyers. It can invest in multi-million-dollar digital rights management software to keep offending content off its sites. But smaller ISPs or web sites can't. "If safe harbor is for anyone, it's for Internet service providers that do nothing but carry information from sites to specific homes," says Charles Duan, staff attorney at Public Knowledge.
Safe harbor issues aside, BMG's argument also depends on the idea that users should be denied Internet access because of the mere accusation of copyright infringement, even if the accuser has never proven in court that those users had actually broken the law.
"It doesn't take into account all the things people use the Internet for," says Mitch Stolz, a staff attorney with the Electronic Frontier Foundation. "People use it for their jobs, to interact with government. The circumstances in which it's reasonable to cut someone off are narrower now than 20 years ago."
However flawed it is, the DMCA enables online speech to flourish. But if the BMG case does become a precedent, online service providers of all types will have to crack down on their users---even if no one has proven in court that those users committed a crime. If you don't like what someone has to say, you could accuse them of copyright violations and not only have a video banned from YouTube, but have that person kicked off the Internet entirely. That's not a future in which the Internet flourishes.
