Is AT&T violating DMCA by not booting 'repeat infringers'?

DMCA doesn't require ISPs to forward warning letters, but they do. DMCA may require ISPs to terminate chronic copyright violators, but some don't.

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Greg Sandoval
4 min read

One of revelations that surfaced following last week's report that AT&T was helping the recording industry fight illegal file sharing was how differently Internet service providers interpret U.S. copyright law.

CNET News reported that AT&T has begun sending warning letters to customers accused of illegal file sharing by the Recording Industry Association of America (RIAA) as part of a "trial program." The letters began going out two weeks ago.

"People shouldn't lose their Internet access without due process."
--Fred von Lohmann, EFF senior attorney

What was obvious after the story received wide attention was how much confusion there is about the Digital Millennium Copyright Act, the law that is supposed to help ISPs, Web services, and copyright owners navigate online copyright issues.

AT&T and Comcast, which also acknowledged last week it has sent warning letters to customers accused of copyright infringement, appear to be issuing these letters even though the DMCA doesn't require such action, according to copyright attorneys. At the same time, some ISPs may not be protecting copyright owners to the degree called for by the DMCA, specifically when dealing with "repeat infringers."

What it boils down to is some ISPs appear to be picking and choosing which parts of the law to adhere to in order to serve two separate groups. Those broadband providers trying to walk the line between not completely angering customers and doing just enough to appease copyright owners may be pleasing no one.

Nowhere in the DMCA does the law call on ISPs to send warning notices to customers on behalf of copyright owners, said Fred von Lohmann, senior attorney for the Electronic Frontier Foundation, a group that advocates for the rights of Web users. Ben Sheffner agrees. He's a former copyright attorney for Fox and NBC Universal who acknowledges being "very sympathetic" to copyright owners.

The two lawyers typically oppose each other on copyright issues but they agree on that point. They say the DMCA provides different "safe harbors" for specific kinds of Web services. Video sites such as YouTube and Veoh are required to notify users who are accused of infringing by a copyright owner. ISPs, on the other hand, aren't obliged under the law to send notices, say Sheffner and von Lohmann.

AT&T didn't respond to questions about why it chose to send letters. The nation's largest ISP, however, has commented on the issue of service interruptions. To anyone who would listen last week, the company pledged never to shut off a customer's Internet access unless ordered by a judge.

This isn't exactly what the big recording companies want to hear. They said in December that they had planned to recruit ISPs into joining their antipiracy fight. The RIAA said no longer would it file lawsuits against individuals in an effort to discourage people from sharing songs illegally.

The music industry has instead lobbied broadband providers to adopt a "graduated response" to file sharing. This calls for ISPs to gradually increase pressure on repeat offenders. The RIAA would like it if ISPs eventually terminated service for chronic copyright violators but the group never said termination was an absolute requirement.

"The whole point of the notice-and-takedown system is to provide copyright owners with a quick and easy and cheap way to combat widespread copyright infringement on the Internet."
--Ben Sheffner, copyright attorney

But here is what's interesting about that. The DMCA section 512(i) says a service provider must "implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers."

AT&T's read on this part of the DMCA, according to one of the company's executives, is that only the courts can determine whether someone is a "repeat infringer."

The "repeat infringer" provision applies to all service providers, YouTube as well as AT&T, said von Lohmann. But he also said that AT&T is correct to leave the determination of who violates the law up to judges and not entertainment executives.

He said if accusations made by music and film companies were the only proof needed to shut off someone's Internet access, then lawmakers would have specified that in the DMCA.

"People shouldn't lose their Internet access without due process," von Lohmann said.

When asked why YouTube cancels accounts belonging to those accused of multiple copyright violations, von Lohman said. "(YouTube is) taking the most conservative approach to avoid uncertainty."

He guessed YouTube's "conservative approach" may be connected to the several copyright lawsuits the company faces from Viacom and others. Another reason may be that YouTube accounts do not represent paying customers. AT&T's customers do pay.

Sheffner argues that requiring copyright owners to file a lawsuit every time someone on the Web pilfers their materials is unreasonable.

"Do you know how long it takes and how expensive it is to get a court to say someone is liable for copyright infringement?" asks Sheffner. "The whole point of the notice-and-takedown system is to provide copyright owners with a quick and easy and cheap way to combat widespread copyright infringement on the Internet."

With so many unanswered questions about DMCA requirements, why don't the interested parties lobby Congress to amend the law?

One of the problems is that technology moves too quickly for legislators, says Sheffner. Back in the mid 1990s, when Congress was trying to come up with copyright laws that would be applicable for the then still burgeoning Internet, lawmakers couldn't have foreseen all the technological advances and complex copyright questions that have surfaced in the years since.

Said Sheffner: "YouTube didn't even exist. Peer-to-peer sites didn't even exist."

And there might be one more reason the DMCA isn't being refined.

"The DMCA's dirty little secret is that both copyright owners and technology companies complain about different aspects but neither side...is asking for a rewrite," Sheffner said. "I think both sides are concerned that once you open it up things could get even worse."