HOW MUCH CAN DUMB PIPES KNOW? BMG V. COX AND WHY A KNOWLEDGE BAR TO DMCA SAFE HARBOR FOR INTERNET SERVICE PROVIDERS IS INAPPROPRIATE
Erik Estrada, Caitlin Cronin, and Bill Gillespie
In November 2015, in BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., the United States District Court for the Eastern District of Virginia announced a legal standard that if widely adopted would undo the tiered safe harbor protections afforded online service providers (OSPs) under the Digital Millennium Copyright Act (DMCA). These services have different functions, capabilities, and needs. Recognizing that one size does not fit all for OSPs, Title II of the DMCA (codified at 17 U.S.C. § 512) sets out different safe harbor qualifications for four different types of services: (1) transitory digital network communications (ISPs); (2) system caching (transitory storage); (3) information residing on systems or networks at direction of users (content hosts—websites, etc.); and (4) information location tools (search engines). However § 512 does require that at a minimum all OSPs "adopt and reasonably implement, and inform subscribers and account holders of . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . . who are repeat infringers." Despite Congress"s intent to differentiate between the four services, the court in BMG v. Cox used the termination policy requirement to impute a standard from §§ 512(c) and (d)—a lack of actual knowledge—to §§ 512(a) and (b). Other courts should not adopt this standard for ISP termination policies but should apply a stricter standard when the service is just Internet access.