Ever played the “whack-a-mole” game? Annoying as all get out. Well, copyright owners feel the same way about trying to track down people infringing on their copyrights online. As soon as the copyright holder uses the DMCA to get the material taken down from Facebook, it pops up on Twitter, and the process begins again.
In drafting the Digital Millennium Copyright Act, Congress sought to address this problem of “repeat infringers” by including the following DMCA compliance clause:
(1)Accommodation of technology. – The limitations on liability established by this section shall apply to a service provider only if the service provider –[17 U.S. Code § 512]
(A) 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
(B) accommodates and does not interfere with standard technical measures.
Given this clause, you must track the users on your site and identify those users who receive repeated copyright complaints. More than two or three complaints in a few years and you must ban the person in question for abusive copyright infringement. You should also block the individual from signing up for a new account. Fail to take these steps, and you waive the protections of the DMCA. A large cable provider just learned this painful lesson.
As we wrote about in early December 2015, cable provider Cox Communications was involved in a copyright infringement lawsuit with the BMG music licensing company. BMG argued Cox was liable for copyright infringement based on users uploading and downloading music illegally. Cox responded appropriately by claiming protection under the DMCA safe harbor provision. BMG responded by arguing Cox had waived the protection because it was not permanently terminating repeat infringers according to the code section mentioned above.
BMG obtained email messages sent from Cox employees to each other during the discovery phase of the trial. The emails clearly showed Cox was not complying with the repeat infringer requirements of the DMCA. Specifically, Cox’s Manager of Customer Abuse Operations wrote in one message:
“As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind, if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ‘counter’ restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy… We do not talk about it or give the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers… This only pertains to DMCA violations. It does not pertain to spammers, hackers, etc.”
The DMCA does not allow Internet service providers to “reactivate” or “re-start” users after termination. Doing so invites a whack-a-mole scenario, and courts have consistently ruled against such an approach. When considering DMCA complaints submitted to your site, make sure you track and terminate repeat infringers. Do any less, and you could face a massive judgment.
A jury awarded $25,000,000 against Cox Communications!