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The entertainment industry is waging a major legal campaign to turn ISPs into copyright cops authorized to kick broadband users offline—based on what’s often flimsy to nonexistent evidence of wrongdoing.
As it currently stands, if you download a copyrighted file via BitTorrent or another platform, you’re risking a copyright violation warning from your ISP. These warnings are generated by investigators hired by the entertainment industry to track and combat online piracy, often by monitoring BitTorrent swarms.
Unfortunately, the warnings are often based on flimsy evidence, and the presumption that if a downloaded file is traced to your IP address, you’re automatically guilty. Of course that’s not always the case, the most common example being if someone decided to download the latest episode of Game of Thrones while sitting in your driveway using your WiFi hotspot.
ISPs are required to pass these copyright infringement notices on to end users under the Digital Millennium Copyright Act (DMCA). But since users frequently ignore these warnings, and there’s no real penalty for repeat offenses, the entertainment industry has spent years trying to dramatically up the ante, often to a ridiculous degree.
For example, the music industry has attempted to turn copyright infringement into a revenue model by hiring companies tasked with scaring potential pirates into paying up to avoid a trial. Industry organizations like Rightscorp send “pre-settlement” letters to pirates informing them they can avoid any prolonged, nasty legal headaches simply by paying a fine.
But the practice is legally sketchy, and as this Reddit thread illustrates, paying up is often a bottomless rabbit hole of ever-steeper penalties. Rightscorp, routinely accused of being a “copyright troll,” has subsequently been forced to ease off the practice in recent years in the wake of terrible publicity.
But using Rightscorp as an intermediary, the entertainment industry has also taken to suing ISPs it claims aren’t doing enough to thwart piracy.
The entertainment industry has long misrepresented an integral part of the DMCA to mean that ISPs should be forced to kick pirates offline permanently. Supreme Court precedent ( Packingham v North Carolina ) has been interpreted by copyright experts to indicate that booting users offline for piracy is a violation of the First Amendment.
But the entertainment industry has taken sustained legal action against smaller ISPs that disagree.
One of the industry’s targets has been a small Texas ISP called Grande Communications. Grande was sued in 2017 by a collection of 18 different music and film labels for failing to stop subscribers from engaging "in more than one million infringements of copyrighted works over BitTorrent systems."
In its latest filing in the ongoing case, the ISP pulled no punches calling the entertainment industry’s lawsuit against it an “absurd” gambit to force ISPs into the role of “de facto copyright enforcement agents.” Often, the ISP warned, using nonexistent or incomplete evidence as the basis of “misleading” infringement warnings and threats.
"Having given up on actually pursuing direct infringers due to bad publicity, and having decided not to target the software and websites that make online file-sharing possible, the recording industry has shifted its focus to fashioning new forms of copyright liability that would require ISPs to act as the copyright police,” the ISP wrote in its lawsuit.
The lawsuit comes on the heels of a recent music industry legal victory against Cox Communications. It’s a victory that copyright experts say was based on a notable misrepresentation of the law by the courts, and could pave the way toward the erosion of ISP “safe harbor” protections under the DMCA protecting them from liability.
That could be a huge problem for ISPs and users alike, Meredith Rose, Policy Counsel at consumer group Public Knowledge told me in an email.
“If ISPs lost their safe harbor protections, the incentive would be for ISPs to boot customers proactively, before they ran into any liability,” Rose said. “Proactive enforcement would necessitate pervasive monitoring of user behavior online, which, again, would chill speech—to put it mildly.” Critics charge that kicking and keeping users offline for alleged copyright infringement isn’t just a draconian over reach and a potential First Amendment violation, it’s a technical nightmare. Tracking booted users and preventing them from simply signing up with other ISPs—under say a spouse's name—would be largely impossible. But the daunting technical logistics, the resulting legal mess, and the potential stifling of online speech doesn’t seem to worry the music industry, which has argued that a good faith accusation of piracy is enough to warrant kicking a user offline permanently.
“If they won that argument, it creates a perfect storm for consumer extortion, without a much in the way of legal safeguards,” Rose said.
Mitch Stoltz, Senior Staff Attorney at the Electronic Frontier Foundation, agreed. Stoltz told me in a email that the erosion of ISP safe harbor protections “would mean a huge expansion of surveillance over our online lives.” “It also means that people could be kicked off of their home Internet service because of the actions of roommates, houseguests, children, or strangers,” he said. “In today's world, that means losing access to schoolwork, medical services, political participation, and other vital information—especially because many Americans have only one option for home broadband service.” For its part, Grande Communications’ latest filing states that the music industry’s lawsuit places it in an “impossible position: either terminate subscribers based on unverified allegations of infringement, or face litigation for the secondary infringement of thousands of copyrighted works." So far, the music industry has yet to challenge bigger players with deeper pockets like AT&T, Comcast or Verizon, though these giants are likely watching the case with great interest for liability reasons. Consumers eager to avoid being kicked offline based on nebulous allegations of guilt should probably keep a close eye on the ongoing case.