By Annemarie Bridy on June 20, 2017 at 6:34 pm
The US Supreme Court issued opinions in two important First Amendment cases this week, one of which obviously had to do with intellectual property law (Matal v. Tam) and one of which didn’t (Packingham v. North Carolina). There is, however, an implicit IP angle in Packingham that’s worth exploring, and it relates to online copyright enforcement. Specifically, the Court’s opinion in Packingham provides some potentially useful guidance concerning the circumstances under which broadband Internet access providers seeking safe harbor under the DMCA should be required to terminate whole-Internet access for repeat copyright infringers.
Section 512(i) of the DMCA conditions safe harbor on a provider’s terminating access for repeat infringers in “appropriate circumstances.” The meaning of that phrase continues to be litigated and is currently at issue in two pending cases—BMG v. Cox in the Fourth Circuit and UMG v. Grande Communications in the Western District of Texas. UMG was no doubt inspired to file in Texas by the whopping $25M jury verdict for BMG in its case against Cox. That verdict (back in 2015) was made possible by Cox’s disqualification from safe harbor at the summary judgment stage of the case. The trial court held as a matter of law that Cox failed to reasonably implement its 12-strike repeat infringer policy. (I blogged about the case here following the court’s grant of summary judgment to BMG on the safe harbor issue.)
The music industry’s strategy in bringing these cases is to secure judicial interpretations of section 512(i) that narrow the range of acceptable policies and practices for broadband providers. Right holders want courts to require ISPs to terminate more user accounts in a broader range of circumstances than they currently do. Historically, courts have resisted being highly prescriptive about acceptable repeat infringer policies. They’ve given ISPs discretion, in keeping with the flexible language of the statute, and have allowed them to adopt and implement policies that are specific to their own systems and services.
Going back to the DMCA’s enactment in 1998, digital civil liberties advocates have argued that termination of Internet access is a disproportionate punishment for alleged copyright infringements. The United Nations Human Rights Council agrees. It has condemned as a human rights violation official actions that terminate or deny citizens Internet access, including for violations of intellectual property rights that are alleged but not proven. This norm translates pretty easily into a guideline for interpreting the DMCA’s repeat infringer provision: Because broadband providers are gatekeepers to the entire Internet, and because loss of access to the whole Internet is a much more serious penalty than loss of access to an isolated site or service, courts should give broadband providers especially wide berth in fashioning their repeat infringer policies. That, of course, is the opposite of what plaintiffs like BMG and UMG want courts to do.
Packingham is relevant to this conversation because it stands quite clearly for the proposition that broadly defined state-mandated limits on access to the Internet raise serious First Amendment issues. Packingham challenged the constitutionality of a North Carolina criminal statute prohibiting registered sex offenders from accessing “commercial social networking sites” on the Internet. In striking down the statute on First Amendment grounds, the Court emphasized the critical importance of the Internet in general, and social media platforms in particular, to everyday life in the “Cyber Age.” While the Court recognized a significant governmental interest in preventing use of the Internet for criminal activity, it held that North Carolina’s ban on social media access swept too broadly. Interestingly, the Court elected not to decide with precision how much of the Internet the challenged statute put off limits. It declined to say—because it didn’t think it had to—whether the statute’s prohibition reached sites like Amazon.com, Washingtonpost.com, and WebMD.com in addition to “commonly understood” social networking sites like Facebook, LinkedIn, and Twitter. The Court concluded that the statute couldn’t survive First Amendment scrutiny even if it were narrowly construed to cover only the social media platforms that everyone can agree are social media platforms. To put it another way, the statute’s prohibition was broad enough to offend the First Amendment even when narrowly construed to cover only parts of the Web.
Section 512(i) isn’t a state-mandated limit on Internet access—certainly not a direct one. And account terminations undertaken by ISPs to qualify for safe harbor under the DMCA are not state action. But Packingham’s holding should serve as a reminder to lower courts interpreting section 512(i) that termination of access to the Internet implicates core First Amendment values: “While in the past there may have been difficulty in identifying the most important places (in the spatial sense) for the exchange of views, today the answer is clear. It is cyberspace.” Consequently, courts should consider it reasonable, and within the bounds of the DMCA safe harbor, for broadband providers to determine that “appropriate circumstances” for terminating a user’s access to the whole Internet for infringing copyright are very rare.
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