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.
When asked why YouTube cancels accounts belonging to those accused of multiple copyright violations, von Lohman said. "(YouTube is) taking the most conservative approach to avoid uncertainty."
He guessed YouTube's "conservative approach" may be connected to the several copyright lawsuits the company faces from Viacom and others. Another reason may be that YouTube accounts do not represent paying customers. AT&T's customers do pay.
Sheffner argues that requiring copyright owners to file a lawsuit every time someone on the Web pilfers their materials is unreasonable.
"Do you know how long it takes and how expensive it is to get a court to say someone is liable for copyright infringement?" asks Sheffner. "The whole point of the notice-and-takedown system is to provide copyright owners with a quick and easy and cheap way to combat widespread copyright infringement on the Internet."
With so many unanswered questions about DMCA requirements, why don't the interested parties lobby Congress to amend the law?
One of the problems is that technology moves too quickly for legislators, says Sheffner. Back in the mid 1990s, when Congress was trying to come up with copyright laws that would be applicable for the then still burgeoning Internet, lawmakers couldn't have foreseen all the technological advances and complex copyright questions that have surfaced in the years since.
Said Sheffner: "YouTube didn't even exist. Peer-to-peer sites didn't even exist."
And there might be one more reason the DMCA isn't being refined.
"The DMCA's dirty little secret is that both copyright owners and technology companies complain about different aspects but neither side...is asking for a rewrite," Sheffner said. "I think both sides are concerned that once you open it up things could get even worse."
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
Contact your elected representatives and tell them you want the law changed. If enough of did that then they may decide votes are more important than campaign donations from the music and movie industry. As Governor William J. Lepetomane once said "Gentlemen we need to save our phony baloney jobs!
Actually, it's not the "law" if it's direct violations of the Constitution. The so-called "law" can be declared null and void during trial or during a grand jury, and the charges dismissed, Furthermore, if the "law" isn't willing to be enforced or taken seriously at the enforcement level (i.e. call the police or FBI about a violation and give the person who answers a good laugh), then what is the purpose of this law?
It seems this "law" is enforced by the RIAA and MPAA, as they seem to be one's most concerned.
Here's a fun fact actually. I've started to see on that net that some pirates are actually taking advantage of the DMCA and other laws like it. I won't go over all their tricks just here, but one of the simpler examples is the provision of the DMCA that makes it illegal to circumvent any copy protections in order to gain access to another's copyrighted material.
So, what do the pirates do? They don't just transfer their stolen goods. They mash up their own copyrighted material along with it and wrap it up in an extremely weak form DRM that anyone can easily hack. This is a throw back to the DVD CSS and SunnComm debacles.
So, while it is easy to hack there's just one problem for the RIAA. They can't open the file anymore without running the risk of prosecution. Due to the DMCA cracking DRM on someone else's copyrights is a CRIME! lol.
Of course, they could just choose not to prosecute the RIAA, but that would just be one more PR nightmare for the RIAA. We would yet again see how we have a two class system where the RIAA's copyrights are of course, more important than anyone else's.
Then again hackers aren't lawyers so the plan is obviously flawed, but they are persistent. Who knows what we'll see next.
very true. if the RIAA get their way they'll be allowed mobile copyright death squads to kill everyone who doesn't pay their Recording Industry Tax.
It is the law until it fails a Constitutional challenge. If it was brought before the Supreme Court they may indeed rule it unconstitutional, until then it is '30s style union busting for RIAA
@Imalittleteapo
"Here's a fun fact actually. I've started to see on that net that some pirates are actually taking advantage of the DMCA and other laws like it. "
Yes, I have heard of that, and it there is nothing like legal judo.
"It is the law until it fails a Constitutional challenge. If it was brought before the Supreme Court they may indeed rule it unconstitutional, until then it is '30s style union busting for RIAA"
Thomas Jefferson once said, "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."
We should all remember that. Just because something is a law does not make it constitutional nor does it make it "right".
No, your POV is flawed by the Orwellian tyranny of corporate dictators.
Oh, and for your "lowlifes" comment ("low-lives" if the proper term, Mr. Un-Educated), are John C. Dvorak, Leo Laporte, Steve Jobs, Robert X. Cringley/Mark Stephens, Steve Case, Ted Turner (the copyright king), the Woz, Larry Ellison, Kevin Rose, and the Tiki Bar gang, to name a slim few "lowlifes"? Because they all share things by re-releasing it to the Nth degree (like Turner) or don't care nor believe in copyrights, and get the almost public domain copyright on all of their works (sans Turner). (In Mr. Case's case, it's his personal life I'm addressing, not his terrible legacy of AOL, which actually spawned this by giving Internet, or a version thereof, to everybody during the 1990s.)
it's not stealing, the copyright holders still have their stuff that they can sell. it's copyright infringement or unauthorized distribution. is it still illegal? of course, but calling it stealing is making it sound worse than it really is.
you pro-industry shills all say the same thing: "you are stealing and stealing is wrong and there is no way to justify what you do."
but the moral argument is irrelevant. it doesn't matter if it's right or wrong because piracy cannot be stopped. preventing copyright infringement is impossible.
so the shills counter with "murder happens all the time as well, but that doesn't mean we shouldn't try to stop it." and that argument is irrelevant too. you can't stop murder either. sure you can punish someone if you catch them and can prove they did it, but you can't prevent it from happening. and compared to piracy, catching and convicting a murderer is a breeze.
now imagine a whole generation that thinks it's fun, and cool, and does it hundreds of times a day and you have the future of copyright. this is why prohibition laws were repealed, because the whole country was breaking the law and it was giving criminal gangs like the mafia way too much power.
look at the piratebay as a political movement. with each failed attempt to shut them down, they grow in power and celebrity. if the RIAA keeps it up, the pirate bay will have the power to start a youth movement in an international scale.
so you can post all you want about how wrong it is, but it's not going to stop, in fact it's only going to get worse. bits are never going to be more difficult to copy than they are right now, and every second that goes by more of them get copied and distributed without authorization thereby making it easier and easier to obtain them.
piracy will happen and will not be stopped. you can waste your time, your breath and your ink on railing against it but to be honest, you might as well rail against the sunrise. you have a better chance of preventing that.
if softwares are made from C program? then its not bill gates but KNR and Ritchie must be the richest people alive on this planet. and why are they not and still holds humble office post in AT&T. could any body who supports the "TOO MUCH GREEDY INC." and syndication answer this question.
why didnt we pay these people, one 100000 BC, the first mamals (not sure if adam or eve or blah blah john/jane doe) for breast feeding, KNR & Ritchie, who gave away the greed factor for the betterment. why not bill gates pay 95% of his bank balance and other super sized software firms challanging piracy et al...... to KNR & ritchie and many more developers? uhh? yeah? answer this simple question. will you?
or probably i will tatoo my forehead with the word "RETARD"
RIAA see's my friend pull the tracks I'm sharing with my buddy so he can burn the CD, and sends AT&T a letter.claiming "Volation!" AT&T sends a "stop that" letter to me. The only folks who did anything wrong are the ones getting in the way of the fair use and enjoyment of my bought and paid for music.
Fair use exists because if it doesn't you can't enjoy your music at all. It's not decided by the copyright owner. It's decided by the purchaser (the folks who give copyrights value) of the copyrighted material for their enjoyment.
Steve Jobs is probably not a good person to cite as, if I understand you correctly, a proponent of illegal file sharing. I wrote a story recently about an interview Jobs' gave to Rolling Stone magazine five years ago. In the story, Jobs said this: "It's just wrong to steal. Or, let's put it another way: it is corrosive to one's character to steal. We want to provide a legal alternative."
You can read the whole interview here:
http://www.rollingstone.com/news/story/5939600/steve_jobs_the_rolling_stone_interview
A better possible explanation is that YouTube cancels repeat offenders without a court order because YouTube has a Terms of Service. In other words, they can do whatever they want and react to the situation anyway they want. As most TOS agreements are worded, they can do whatever they darn well please in other words. That doesn't mean they HAVE to do anything or that they HAVE to continue to do anything. It's their website, their service, and their rules. AT&T has it's own service agreements, but that doesn't mean either has anything to do with the DMCA. It may just be the way YouTube decides to handle it.
At least until, like AT&T said, a judge decides otherwise.
it is he equivalent of trying to accuse a state of aiding drug traffickers by building roads.
honestly, i dont know why this article is even here, because this case went to court years ago. and the decision was that ISP are not accountable for DMCA violations.
What is an "appropriate circumstance", legally, for terminating service? That's not defined in the DMCA that I've seen. Who decides what these appropriate circumstances are? Obviously, they would be different for the ISP than they would be for the RIAA. The ISP's position is that "appropriate circumstances" for terminating a person's service would be when they stop paying for it. The RIAA's position would probably be that appropriate circumstances would be after the first offense.
In fact, it seems like this clause was actually intended to be interpreted by the courts, as codified law often is. Laws are often written such that they can be supported later by case law that relies on other laws and legal basis'. Sometimes this practice is criticized as a copout, but those who write laws this way argue that it gives some flexibility to laws and makes it easier for them to stand up to scrutiny over the years (the more specific a law is, the more likely it is to conflict with other laws).
If that's the case, then the ISP's are right to wait for a court order.
Really, it's past time to realize that our society is going back towards books, music, etc. - entertainment, are free, like it was in the old days.
AT&T is sending out letters to protect themselves from litigation, which is there right
The copyright owners then have the responsibility to prove abuse at which time there services can be terminated.
Lets just clarify a couple of points - Yes it is illegal to download music and not pay for it, but the issue is more how much should you pay.
The world has moved on from the music companies putting two good tracks on an album and charging customers $20.
Users want to try what they are purchasing and then pay what its worth.
Music companies are stuck in the days where they could make massive profits at the stars expense.
iTunes has shown that if you charge a resonable amount for what customers want then they are prepared to pay for it.
They need to adjust their business models, give more money to artists and then they can complain how unfairly they are treated.
Other companies have evolved to new business models, the music business thinks they can stay in the same place by funding politicians.
It doesn't matter whether you think downloading pirated copies of copyrighted works is right, wrong or inevitable. What does matter is that RIAA, MPAA, AT&T and Comcast are all somewhat in collusion to deteriorate our rights as citizens and undermine the entire justice system.
You're wrong. The Constitution ONLY applies to the government. For example, homeowners associations are able to fine a person $500 a day for having a flag pole on the property they own. Another example is the right of a publisher to not publish a book they feel violates their beliefs or the Boy Scouts of America not allowing gays to be leaders. Again, The Constitution ONLY restricts the government.
This is a prime example of why our government indoctrination centers (a.k.a., public schools) are a miserable failure. They do not teach the citizens the fundamentals of the Constitution. The Constitution is like a contract between the people, States and Federal government. The only powers the federal government have are the ones specifically granted to it by the Constitution (10th amendment). It's primary purpose is to restrict the imperial federal government from doing whatever it wants without approval of the people. It also has specific restrictions on the states themselves, but they are the ones who are supposed to have more power than the federal government (9th and 10th amendment).
The constitution applies to us all. Simple example. You have a constitutional right to a trial by your peers. In turn "we the people" have a constituational obligation to serve on juries.
Each segment of the constitution plays out differently. For example I have the right to free speech. You can do ZERO to prevent it. However you do have the right to ask me to leave your property and while you may do so because I'm practicing my free speech on it, you don't have the right to stop the free speech.
Did you go to those public schools you dislike? I did and I got a lot out of it.
The Constitution applies to government and protects the individual. Your example of a trial is by your peers is after you're arrested by the government. I cannot arrest you and try you.
Your example of property and free speech does not make much sense. If I invite you to come give a speech on my property, but then you start saying things I don't like, I have the right to stop you and kick you off my property. The government is not involved at all, therefore the Constitution does not apply. Let's say you work for me. You start writing pamphlets advocating something I don't agree with during work hours. I can tell you to stop doing it or I'll fire you. The government is not involved there, therefore your free speech rights are not being violated.
No one wants to pay 25$ bux with or plus the tax per album anymore
nor do we think 15 bux for a used dvd from block buster is kool either.
This is just to show how people got ******* sick of it now they the company.s are crying because no one is buying the product
stop being so ******* greedy and lower the price make it affordable people wont take it if its for free logic is the cause of this trend
Also, they have to start making movies, music, games that are actually GOOD..... no more of these 20/100 reviewed games and movies, that no one in their right mind would want to see.
bunch of greedy people.
"OMG! YOU B*******, YOU KILLED KENNY." - southpark
They have more then enough on there plate providing the services they offer. (As I sit here waiting for my connectivity to break. Any minute now, maybe now, or now, could be the next now. It will happen just be patient.:D )
- by Renegade Knight April 1, 2009 12:37 PM PDT
- "Is AT&T violating DMCA by not booting 'repeat infringers'?"
- Like this Reply to this comment
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(35 Comments)Alleged infringers are identified by alleged copyright holders who likely infringe on the alleged infringers copyrights due to their unauthorized use of copyrighted materials actually owned by the alleged infringers.
The first half is speculation in that AT&T likely gets no proof from the RIAA regarding their representing the actual copyright owner, nor does AT&T have proof (it's an allegation and may be fair use until the court says "guilty") of guilt. However for the RIAA to monitor copyrighted material (meaning they duplicate it since that's how it works) they can be easily be proven to be infringing (ok alledgedly since fair use and the court also applies) on the copyrighted materials owned by the one they are trying to monitor.
Seems like a zero sum game but for one side having more lawyers than the other.