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Is AT&T violating DMCA by not booting 'repeat infringers'?
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.
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.
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. … Read more
