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Who Qualifies as a Repeat Infringer of Copyrights Under the DMCA?

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By Casey C. Sullivan, Esq. on May 13, 2016 1:52 PM

Thanks to the Digital Millennium Copyright Act, online services like Facebook, Reddit, and Youtube aren't liable for the copyright violations of their users. Those companies are protected by the DMCA's safe harbor provisions, but under the terms of the DMCA, those limitations on liability shall apply only when a service provider as adopted and implemented a policy for terminating "repeat infringers."

But who counts as a repeat infringer? No one knows, exactly. Courts have offered little guidance and service providers have taken various stances. And though the DMCA is nearly 18 years old now, the debate over repeat infringers rages on, as evidenced at a roundtable hosted by the U.S. Copyright Office yesterday.

Life, Without the Possibility of Internet

Earlier this year, the Copyright Office solicited public comments on the impact and effectiveness of section 512 of the DMCA, the act's safe harbor provision. At day-long public meeting in the Ninth Circuit courthouse in San Francisco yesterday, there "wasn't much consensus on the topic," according to Maria Dinzeo of the Courthouse News Service.

Though much of the debate focused on the act's red flag requirements, "passions were inflamed when the discussion turned to how service providers deal with repeat infringers," Dinzeo reports.

In certain cases, an Internet service provider may ban copyright infringers permanently from their service. In areas with only one ISP, that's effectively a sentence to a life spent offline. And while bans on Internet access are not uncommon in criminal law -- courts occasionally bar those caught with child porn from using the Internet, for example -- most view a ban as particularly harsh.

After all, is a kid who uploaded a few unflattering Beyonce photos really the same as a serial child pornographer?

What Process Is Due?

The DMCA's repeat infringers requirement puts service providers in a difficult place. The director of Brigham Young University's copyright office, Peter Midgley, compared kicking a student off the Internet to expelling them from school. "We would sure like some clarity on what counts as repeat infringers. We want to avail ourselves of the safe harbor, but administering a repeat infringer policy in these areas can be tricky for us," he said.

Participants also questioned the appropriate process for determining if a user is a repeat offender. Do two violations count? Fifteen? Must copyright violations be proven, or are accusations enough? "Any repeat infringer policy, particularly based on an allegation alone, has a huge affect in this context," according to Cathy Gellis, an Internet and IP attorney. "'J'accuse, I think you infringe.' Now all of a sudden you're not on YouTube. You're not on your ISP, you can't tweet," she said.

As Gellis points out, if accusations are all it takes, almost everyone could be considered a serial infringer, from Google to Warner Brothers:

If accusation makes an infringer, than most of the major copyright holders are infringers by that standard. Being cut from a university network as a student is pretty bad; I get it. Being cut off from being able to apply for a job, to pay your bills, to pay taxes in California, where you have to file electronically, is a big deal. Adjudication is the only way to go.

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